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Kanitra v. City of Greensboro

Supreme Court of Georgia

March 2, 2015

KANITRA
v.
CITY OF GREENSBORO et al

City ordinance. Greene Superior Court. Before Judge Brown.

Judgment affirmed.

David G. Kopp, for appellant.

Fleming & Nelson, Barry A, Fleming, Frank A. Nelson, Kurt A. Worthington, for appellees.

THOMPSON, Chief Justice. All the Justices concur.

OPINION

Page 912

Thompson, Chief Justice.

We granted appellant Paul Kanitra's application to appeal to consider whether, as a holdover member of the City of Greensboro Planning and Zoning Board (the " Board" ), he could only be removed for cause or whether the City Council of the City of Greensboro had the authority to replace him with a successor without regard to cause. We conclude, as did the trial court, that the City Council had [296 Ga. 675] authority to appoint someone to replace appellant without regard to cause, and we thus affirm.

1. The Charter of the City of Greensboro authorizes the city council to create boards and enact ordinances, and Section 3.11 (f) of the City of Greensboro Charter says that " [a]ny member of a board, commission or authority may be removed from office for cause by a vote of three members of the City council." In 2005, the City Council enacted an ordinance creating the Board. That ordinance provides that members of the Board will serve four-year terms. In 2007, appellant was appointed to the Board for a four-year term. At the end of appellant's first term, he was not reappointed to the Board, but he continued to serve on it as a holdover member. At the April 7, 2014, meeting of the City Council, the council appointed a successor to replace appellant.

Appellant subsequently filed this action, contending, among other things, that he could only be removed for cause and that he was entitled to notice and a hearing before he could be removed. The trial court, however, ruled that, once appellant became a holdover member of the Board, the City Council " could have appointed a new member to [appellant's] seat at any time ... without specific cause against [appellant]."

2. Appellant contends that the removal-for-cause provision of the City Charter applied to him as a holdover member of the Board and that the City Council therefore had no authority to simply appoint a successor to replace him. We disagree.

Page 913

To begin, appellant assumes that he had the right to hold over once his term expired, but neither the Charter of the City of Greensboro nor the ordinance creating the Board contain a provision saying whether a person appointed to the Board has the right to hold over once his term has expired. OCGA § 45-2-4, however, provides that " [a]ll officers of this state ... shall discharge the duties of their offices until the successors are commissioned and qualified, except that public officers appointed by the Governor and subject to confirmation by the Senate shall not hold over until their successors have been appointed and confirmed." Moreover, " [w]hile there is some authority to the contrary, as a general rule, apart from any constitutional or statutory regulation on the subject, an incumbent of an office may hold over after the conclusion of his or her term until the election and qualification of a successor. ..." 63C AmJur2d, Public Officers and Employees § 148. Here, without deciding whether appellant was an " officer[ ] of this state" and thus entitled to hold over under OCGA § 45-2-4, we will assume that appellant was entitled to hold over as a member of the Board once his term expired. We do so because, even [296 Ga. 676] if appellant was entitled to hold over, the trial court correctly ruled that the City Council properly replaced appellant with a successor.

Appellant relies on cases addressing predecessor statutes to OCGA § 45-2-4. For example, in Shackelford v. West, 138 Ga. 159, 161 (74 S.E. 1079) (1912), the Court discussed Section 261 of the Civil Code of 1910, which said that " [a]ll officers of this State must discharge the duties of their office until their successors are commissioned and qualified." The Shackelford Court held that, as a result of this Code section, a holdover extension " is just as much a part of the term as the antecedent fixed term," Shackelford, 138 Ga. at 162, and that " the mere expiration of the term of the incumbent does not create a vacancy," id. at 163. Appellant contends that, because the end of his four-year term did not create a vacancy ...


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