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Ivey v. McCorkle

Court of Appeals of Georgia, Third Division

October 13, 2017

IVEY
v.
MCCORKLE et al.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Ellington, Presiding Judge.

         George Ivey, in his official capacity as mayor of the City of Warrenton, filed a complaint seeking declaratory and injunctive relief against the Appellees in their official capacity as City councilmembers.[1] Ivey contended that the City's council (the "Council") had enacted or amended certain City ordinances in an attempt to usurp the powers of the City's mayor (the "Mayor") as set forth in the City's charter (the "Charter"), and that those ordinances are inconsistent with the Charter and therefore void. Following a hearing, the trial court found portions of two of the City's General Ordinances to be inconsistent with the Charter and enjoined the Appellees from enforcing them. The trial court found that the other challenged ordinances did not conflict with the Charter, although it ordered that the Appellees rescind two of them. The trial court also awarded Ivey attorney fees. On appeal, Ivey contends that trial court erred in concluding that certain of the City's General Ordinances did not conflict with the Charter. He also claims that the trial court failed to award reasonable attorney fees. For the reasons set forth below, we affirm in part, reverse in part, vacate in part, and remand the case with direction.

         The relevant facts are not in dispute. Section 2.10 of the Charter provides that the governing authority of the City is "vested in a city council composed of a mayor and five councilmembers, one of whom shall be the mayor pro tempore." Ga. L. 1990, p. 4631.[2] Further, under Section 2.16 (b) of the Charter, "the council shall have the authority to adopt and provide for the execution of such ordinances, resolutions, rules and regulations not inconsistent with [the] charter, the Constitution and laws of the State of Georgia[.]" Ga. Laws 1975, pp. 3970, 3981. The Mayor, under Section 3.10 of the Charter, is the City's chief executive officer, and possesses "all the executive and administrative powers contained in [the] charter." Ga. L. 1975, pp. 3870, 3986.

         At issue is whether certain of the City's General Ordinances and attendant policies, as amended or enacted by the Council, conflict with the Charter. Under OCGA § 36-35-3 (a), "[t]he governing authority of each municipal corporation shall have legislative power to adopt clearly reasonable ordinances, resolutions or regulations . . . which are not inconsistent with . . . any charter provision applicable thereto." An ordinance enacted in violation of OCGA § 36-35-3 (a) is void. See Georgia Branch, Associated General Contractors, Inc. v. Atlanta, 253 Ga. 397, 399 (2) (321 S.E.2d 325) (1984); City of Buchanan v. Pope, 222 Ga.App. 716, 718-719 (1) (b) (476 S.E.2d 53) (1996).

         "The interpretation of statutes, ordinances, and charters presents a question of law for the court, " and is subject to de novo review on appeal. Lue v. Eady, 297 Ga. 321, 326 (2) (a) (773 S.E.2d 679) (2015). See Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 S.E.2d 122) (2009).

In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry. Further, statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat their legislative purpose, and statutory construction must square with common sense and sound reasoning.

(Citations and punctuation omitted.) City of Atlanta v. Miller, 256 Ga.App. 819, 820 (1) (569 S.E.2d 907) (2002). The rules of construction apply to the interpretation of ordinances as well as statutes. City of Buchanan v. Pope, 222 Ga.App. at 717 (1).

         1. Ivey contends that the trial court committed reversible error in finding that Section 2-104 of the General Ordinances did not conflict with Section 3.12 (a) (12) of the Charter.[3] Although the trial court found that there was no conflict with the Charter, it also held that the parties had agreed that the ordinance was no longer necessary and ordered that it be rescinded. The Appellees represent, and Ivey does not dispute, that the Council has complied with the trial court's order and rescinded the portion of Section 2-104 of the General Ordinances with which Ivey took exception. A reversal of the trial court's finding that the now repealed ordinance did not conflict with the Charter would have no practical benefit to the parties with respect to Ivey's claims for injunctive and declaratory relief, nor, in light of our findings in Division 7, infra, as to Ivey's claim for attorney fees, and the issue is moot. See, e. g., Babies Right Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 555 (2) (a) (748 S.E.2d 404) (2013) (claims for declaratory and injunctive relief had become moot on appeal because the requested relief would have no effect); Forbes v. Lovett, 227 Ga. 772, 775 (183 S.E.2d 371) (1971) (appellants had no legal right to claimed appointment to civil service board where the ordinance on which they relied had been repealed, and argument on appeal that the defendants were under a legal duty to appoint appellants at the time the ordinance was in effect was moot where the repealing legislation had become effective).

         2. Ivey contends that the trial court committed reversible error in finding that Sections 2-204 and 3-106 (6) of the General Ordinances did not conflict with Section 3.12 of the Charter.[4] The trial court, although it did not find a conflict between these General Ordinances and the Charter, directed that the provision at issue, which was present in both of the challenged ordinances, be rescinded as unnecessary. The Appellees represent, and Ivey does not deny, that the Council has now complied with the trial court's order. Accordingly, and for the reasons also set forth in Division 1, supra, the issue is moot.

         3. Ivey contends that the trial court erred in concluding that Sections 3-214, 3-215, and 3-216 of the General Ordinances do not conflict with the Charter. Relevant to this claim, Section 3.12 (a) (2) of Charter provides, in pertinent part, that "the mayor shall . . . [a]ppoint and remove all officers, department heads, and employees of the city except as otherwise provided in this charter." Ga. L. 1975, pp. 3970, 3986-3987. As to those exceptions, the Charter provides that the Council is authorized to appoint the city attorney, a clerk of council, a tax collector, and a city accountant, who serve at the Council's pleasure as the appointing authority. Ga. L. 1975, pp. 3970, 3989 (Section 3.20 (c)), 3991 (Section 3.22); Ga. L. 1990, pp. 4361-4362 (Section 2.20). Further, Section 3.30 of the Charter provides: "The council shall adopt rules and regulations consistent with the charter concerning personnel policies as may be necessary to provide for adequate and systematic handling of the personnel affairs of the City[.]" Ga. L. 1975, pp. 3970, 3991.

         (a) Section 3-214 of the General Ordinances sets forth a procedure for termination of an employee or official which includes, following notice, a disciplinary hearing "over which the Mayor shall preside and serve as the decision maker." Although the disciplinary hearing process may be instituted by recommendation of a department supervisor and the city administrator, as well as the Mayor, the ordinance does not infringe on the power of the Mayor to appoint and remove, as contemplated by the Charter. Rather, the ordinance introduces a personnel policy which provides for notice and a hearing to the employee, while the Mayor, as the decision maker, retains the power to remove the employee or official. The trial court properly concluded that Section 3-214 of the General Ordinances did not conflict with the Charter.

         (b) We now turn to Sections 3-215 and 3-216 of the General Ordinances. Section 3-215 provides that "[t]ermination and dismissal of city personnel, instituted at the direction of the Mayor, shall only be exercised at a regularly scheduled Council meeting, " and provides for an appeal of the termination by "[a]ny employee or official . . . to the City Council, immediately at the Council meeting during which the employee was terminated." Section 3-216 contemplates that any personnel subjected to termination may appeal the dismissal at any regularly scheduled council meeting. As to an appeal of termination, Section 3-216 provides that "[t]he Council may uphold, reverse, or modify the termination of the employee by majority vote of the Council, requiring three votes in favor of the Council's decision."

         Unlike the disciplinary procedure set forth in Section 3-214, the appeal procedure contemplated by Sections 3-215 and 3-216 of the General Ordinances affords the Council with the discretion to nullify the termination decisions of the Mayor. The trial court found no conflict with the Charter because the Mayor, notwithstanding the employee's right to appeal, retains the right to appoint and remove, "and makes the final decision." But the Mayor can hardly be said to be the final arbiter when his or her removal decisions are subject to Council approval.[5]Section 3.30 of the Charter, when read in conjunction with 3.12 (a) (2) of the Charter, does not contemplate that the Council, in exercising its authority to implement a personnel policy, may reserve for itself the power to overturn the ...


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