BARNES, P. J., MCMILLIAN and MERCIER, JJ.
appeal arises from two lawsuits filed by Irvin J. Johnson,
the then-Chief Deputy Tax Commissioner of DeKalb County,
against DeKalb County and DeKalb County election officials,
seeking to be appointed DeKalb County Tax Commissioner, and
challenging a special election for that office. The trial
court consolidated the two cases. Following a bench trial,
the trial court issued an order finding a local law, Ga. L.
2008, p. 3856, § 1, unconstitutional, declaring that
Johnson succeeded to the office of DeKalb Tax Commissioner
without the need for a special election, and denying
Johnson's request for attorney fees. The only issue on
appeal is whether Johnson should have been awarded attorney
fees pursuant to either OCGA § 45-9-21 (e)
or the judicially-created method under Gwinnett County v.
Yates, 265 Ga. 504 (458 S.E.2d 791)
(1995). As discussed below, the trial court erred
in failing to grant reasonable attorney fees under
Yates, and as such, we reverse and remand.
reviewing a bench trial, we view the evidence in the light
most favorable to the trial court's rulings, defer to the
trial court's credibility judgments, and will not set
aside the trial court's factual findings unless they are
clearly erroneous . . .. But a trial court's conclusions
of law are subject to de novo review." Smith v.
Northsi de Hosp., Inc., ___ Ga. ___ (807 S.E.2d 909,
914) (2017) (citations and punctuation omitted).
§ 48-5-128.1 (a) provides that "[i]n all counties
of this state having a population of 550, 000 or more
according to the United States . . . census . . . and in
which there exists the office of tax commissioner, the tax
commissioner shall be required to appoint from among the
assistants or deputies in his office a chief
deputy." In the instance of a vacancy in the office
of tax commissioner in any county specified in OCGA §
48-5-128.1 (a), "the person appointed as chief deputy by
the tax commissioner . . . shall succeed to the office of tax
commissioner and fill the unexpired term of the tax
commissioner of the county." OCGA § 48-5-128.1 (c).
However, on May 13, 2008, a local law, Ga. L. 2008, p. 3856,
became effective and provided that in the event of a vacancy
in the office of the DeKalb County Tax Commissioner, the
vacancy should be filled by a special election. See Ga. L.
2008, p. 3856, § 2.
October 9, 2007, the Tax Commissioner of DeKalb County,
Claudia G. Lawson, appointed Johnson as Chief Deputy Tax
Commissioner. Thereafter, on November 30, 2015, Lawson
tendered her letter of retirement to the Governor, effective
December 31, 2015. In order to determine how the tax
commissioner vacancy would be filled, and in an attempt to
square the seemingly conflicting provisions in OCGA §
48-5-128.1 and Ga. L. 2008 p. 3856, DeKalb County Attorney O.
V. Brantley issued a memorandum, dated February 8, 2016, to
the DeKalb County Election Director, Maxine Daniels,
regarding Brantley's interpretation of the pertinent
laws. Brantley's memorandum stated inter alia that
"[t]hough reasonable minds may differ, the General
Assembly likely intended for the Local Law to apply over the
State Tax Commissioner Statute" and recommended that a
special election be held to fill the tax commissioner
vacancy. Johnson was one of several county officials to whom
copies of the memorandum were sent.
February 18, 2016, a special election to fill the unexpired
term of the DeKalb County Tax Commissioner was announced for
May 24, 2016. Johnson qualified to run for the unexpired term
of the tax commissioner. On May 18, 2016, Johnson filed a
declaratory judgment action against DeKalb County, seeking a
judgment holding Ga. L. 2008, p. 3856 unconstitutional,
declaring the May 24, 2016 special election unconstitutional,
and seeking specified interlocutory and permanent injunctive
24, 2016 special election took place as scheduled between
Johnson and two other candidates. None of the candidates
received more than 50 percent of the votes. As a result, a
run-off election was scheduled for July 26, 2016. On June 1,
2016, Johnson filed his second lawsuit. The second action was
filed pursuant to the Election Code (OCGA § 21-2-524),
named Daniels and the DeKalb County Board of Registration and
Election as defendants, and contested the results of the
special election in which he had been a candidate.
a bench trial, but prior to the trial court's issuance of
its final order, Johnson sent two written requests for
attorney fees under both OCGA § 45-9-21 (e) (2) and
Yates, dated August 10, 2016 and August 11, 2016 to
counsel for the defendants. Johnson also filed, in the
consolidated case, a petition for attorney fees and costs
under OCGA § 45-9-21 (e) (2) and Yates. On
September 9, 2016, the trial court issued its final order in
the case, pertinently denying Johnson's request for
attorney fees, stating that Johnson had failed to follow the
procedure required by OCGA § 45-9-21 (e) (2). The trial
court did not make a finding as to whether Johnson was
entitled to attorney fees under Yates.
Yates provides that where
an official, acting in his official capacity, is required to
hire outside counsel to assert a legal position the local
government attorney cannot (because of a conflict in
representing the local government) or will not assert, and
the official is successful in asserting his or her position,
the local government must pay the official's attorney
Yates, supra at 508 (2). "The
judicially-created method [under Yates] requires
only that the governing authority's attorney have a
conflict of interest in representing the government official
and that the official successfully assert his or her position
in order to have reasonable attorney fees paid by the local
government." Bd. of Commrs. v. Saba, 278 Ga.
176, 179 (2) (598 S.E.2d 437) (2004). "This is not
because of any bad faith or improper conduct on the part of
the local government. Rather, attorney fees in this instance
are simply an expense of government operation."
Boswell v. Bramlett, 274 Ga. 50, 53 (3) (549 S.E.2d
100) (2001) (citation and punctuation omitted).
instant case, the trial court stated that "clearly
it's a circumstance where the County Attorney had a
conflict. . ." and "[i]t is palpably a circumstance
in which the County Attorney had a conflict of
interest." Moreover, Johnson prevailed in his
declaratory judgment action (though not on the election
petition.) Because Johnson was acting in his official
capacity in filing the declaratory judgment action,
because the trial court ruled in favor of Johnson on the
declaratory judgment claim he asserted in this action, and
because the DeKalb County attorney could not assert
Johnson's position because of a conflict of interest, we
conclude that Johnson is entitled to an award of reasonable
attorney fees for the independent counsel he retained to
represent him in the declaratory judgment action. See
Boswell, supra. at 52-53 (3). Accordingly, we remand
the case to the trial court for it to assess reasonable
attorney fees in favor of Johnson. See Yates, supra
at 509 (2).
light of our holding concerning the applicability of
Yates to the case at bar, we need not address
Johnson's contention that he was entitled, in the
alternative, to attorney fees under OCGA ...