This case involves a highly contentious dispute over certain official actions of Mary Ann Whipple Lue, Mayor of the City of Gordon, who is appellant in this case. Mayor Lue was the first African-American to be elected mayor of this city, and she was sworn into office on January 6, 2014. Barely two months later, two members of the city council and five other citizens filed a complaint against Mayor Lue in her official capacity, which was later amended, seeking removal of Mayor Lue for various actions alleged to be examples of conduct demonstrating incompetence, misfeasance, and malfeasance in office, which, according to the complaint, provide grounds for removal from office pursuant to the City of Gordon Charter. According to the complaint, these actions fell into three categories: alleged violations of the Georgia Open Meetings Act, OCGA § 50-14-1, et seq. ("Act"); alleged violations of the city charter ("Charter"), city code, and city personnel policy; and alleged financial malfeasance. One of the methods for removing an elected official, as set forth in the Charter, is by order of the Superior Court of Wilkinson County after a hearing on a complaint filed by any resident of the city. In addition to removal from office, the complaint sought the award of attorney fees and fines, pursuant to OCGA § 50-14-5 (b) and OCGA § 50-14-6.
The trial court denied Mayor Lue's motions to dismiss the complaint. Shortly thereafter, the trial court granted the motion for a temporary restraining order filed by plaintiffs (who are appellees in this appeal), pursuant to which the mayor was temporarily suspended from office until such time as a hearing could be held on plaintiffs' motion for interlocutory injunction. Mayor Lue filed a motion to recuse the trial court judge, alleging improper ex parte communications between the judge and plaintiffs' counsel with respect to the temporary restraining order hearing, and that motion was denied. After a hearing on plaintiffs' motion for interlocutory injunction, the trial court granted the motion and entered an order, which was later amended, by which Mayor Lue was reinstated to office, subject to certain conditions imposed on her, including a prohibition from her meeting privately with three or more council members to discuss city business and a requirement that any such meetings must be open to the public with notice provided to the public as required by law. Mayor Lue appeals the denial of her motions to dismiss, the denial of her motion to recuse the trial court judge, and certain terms of the interlocutory injunction order and amended order. For the reasons set forth herein we affirm in part and reverse in part.
1. We first address Mayor Lue's assertion that the trial court judge erred in denying her motion to recuse himself as the sitting judge in the case. The motion was based upon two occurrences: First, Mayor Lue asserts the judge engaged in improper ex parte communications with opposing counsel with respect to scheduling the hearing on plaintiffs' motion for a temporary restraining order; second, Mayor Lue asserts the judge improperly failed to respond to her counsel's letter requesting either that the judge recuse or that he provide counsel with information relating to how the request for a hearing was made and scheduled. Mayor Lue alleged in the motion to recuse that the trial judge's conduct required disqualification pursuant to Canon 3 (E) (1) of the Georgia Code of Judicial Conduct, which provides: "Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned . . . ." The record reflects that plaintiffs' counsel telephoned the judge's secretary to request a date for the TRO hearing and, given the judge's availability, it was scheduled for 3:00 p.m. on the date the request was made. Mayor Lue's counsel acknowledged in his motion that he received notice of the scheduled hearing from a lawyer in plaintiffs' counsel's office by telephone call received at 1:38 p.m. on the day of the hearing. In the order denying the motion to recuse, the court noted that the affidavit supporting the motion was silent as to any effort made by Mayor Lue's counsel to seek a delay in the hearing, either by request to plaintiffs' counsel or to the court. The order further shows it was entered after taking into consideration the standards for disqualification set forth in Canon 3 (E) and Uniform Superior Court Rule 25.3.
Having reviewed the record, we find no error in the trial court's denial of the motion to recuse. The practice of communicating ex parte to a judge or the judge's staff for administrative and scheduling purposes is authorized as an exception to the rule prohibiting ex parte communications with a judge, as noted in the trial court order. Canon 3 (B) (7) (a) expressly authorizes such communications so long as:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
With respect to the scheduling of hearings, we do not construe this Canon to require the judge to notify the opposing party personally so long as, as here, the party requesting the hearing provided adequate reasonable notice. The manner in which the hearing in question in this case was scheduled does not require the disqualification of the trial judge because it does not present a situation in which the judge's "impartiality might reasonably be questioned." Nor does the trial judge's alleged refusal to respond to counsel's letter demanding either voluntary recusal or an explanation of the manner in which the request for hearing was handled. The motion to recuse was duly considered and ruled upon based upon the motion and affidavit in support of the motion.
2. Next, we address those terms of the interlocutory injunction order challenged by Mayor Lue. She argues that the objectionable portions of the order are based upon a misinterpretation of the Charter provisions relating to what constitutes a quorum of the city council for purposes of transacting city business, the circumstances pursuant to which the mayor may vote on issues of city business, as well as other portions of the Charter. As set forth herein, we agree that the trial court misinterpreted the Charter and reverse the noted portions of the interlocutory injunction order.
The Open Meetings Act requires all meetings, as that term is defined in the Act, of certain public agencies to be open to the public. OCGA § 50-14-1 (b) (1). The parties to this case do not dispute that the City of Gordon is an "agency" as that term is defined in the Act (see OCGA § 50-14-1 (a) (1) (D)) and that the city council is its governing body. "Meeting" is defined at OCGA § 50-14-1 (a) (3) (A) as:
(i) The gathering of a quorum of the members of the governing body of an agency at which any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon; or
(ii) The gathering of a quorum of any committee of the members of the governing body of an agency or a quorum of any committee created by the governing body at which any official business, policy, or public matter of the committee is formulated, presented, discussed, or voted upon.
To evaluate the trial court's rulings on what constitutes a quorum of the city council for voting and conducting official business, it is first necessary to examine the relevant sections of the Charter.
The Charter as a whole provides that three distinct entities are involved in city governance–the mayor, the council (as a whole), and "councilmembers, " as that term is used in the Charter. The Charter, in Section 2.10 labeled "City council creation; composition; number; election, " provides that the legislative authority of city government is vested in a city council to be composed of six councilmembers and a mayor. Throughout the Charter, the term "mayor" and the term "councilmember[s]" are referred to as distinct officers with distinct powers and duties. Pursuant to Section 3.15, labeled "Voting, " the Charter stipulates that "four councilmembers" shall constitute a quorum authorized to transact city council business and, "[e]xcept as otherwise provided in this charter, " requires the affirmative vote of "four councilmembers" for adoption of any ordinance, resolution, or motion. The powers and duties of the mayor are set forth in Section 3.22, one enumeration of which is to preside over all city council meetings. Subsection (8) of Section 3.22 authorizes the mayor to participate in the council's discussions of all matters brought before the city council, but limits the mayor's authority to vote on such matters to only two instances: (1) when there is a tie vote, and (2) in all elections of officers who are elected by the city council, as well as impeachment or removal proceedings, whether or not there is a tie vote. With respect to ...