16 October 2007

College Park City Councilman facing ethics charges

Yesterday, I received the following from the tip line:

[College Park City]Councilman Charles E. Phillips will be before the Ethics Commission on the 23 of October for a hearing before an administrative law Judge to answer to the confessed use of city funds during his 2005 campaign.

I asked the super-bad readers of this site to shine a little light on this tip for me, and once again, y'all didn't disappoint. Here's what a reader e-mailed to me this morning concerning Charles E. Phillips:

The expenditure for trinkets such as refrigerator magnets and other stuff in early 2005 had been noted from an open records request. When the election came along we noted several things that raised our interest. We were informed by 4th ward residents that plastic baggies with campaign materials and the trinkets had been left at doors in the ward. This became part of an ethics complaint filed against Councilman Phillips. The investigator for the state added others. The Councilman defended in part based on the racial makeup of the commission but stated in a council meeting that he had done it and it probably was not smart. The Councilman has been heard to say when told by the Attorneys that something was not legal "let's just keep doing it until someone calls us on it."

Now that's very interesting. It looks like using one's office to influence an election isn't just limited to the South Fulton County Commissioner. It's good to see that South Fulton residents are keeping a watchful eye on their elected officials.

Also, from the same reader, apparently a "Request for Summary Judgment" will be filed in the next few days concerning the decision of the College Park City Council to appoint the Mayor Pro Tempore or his/her designee to the College Park Business and Industrial Development Authority (CPBIDA). According to the draft request for summary judgment, which is posted below, the city's actions is "expressly forbidden in GA Code section 36-30-2."

1. The Mayor Pro Tempore of the City of College Park is a position held by a Councilman of the City of College Park for a period of one year with said position rotating among the councilmen for the four wards.

2. The Mayor Pro Tempore of the City of College Park serves for a period of one year and then is replaced by the next councilman in a ward wise rotation.

3. The College Park Business and Industrial Development Authority, hereafter BIDA was created by an amendment to the Constitution of the State of Georgia # 168(Senate Resolution 348) during the 1980 session of the Georgia Legislature. Article IX, Section IV, Paragraph II of the Constitution of the State of Georgia was amended to include the resolution

4. Section 1.3b of the amendment creating BIDA states that "the members of the authority shall serve four(4) year staggered terms"

5. The City Council of the City of College Park has voted to appoint the Mayor Pro Tempore or his designee to a position as a member of BIDA.

6. For the year 2006, the Mayor Pro Tempore was Councilman Tracey Wyatt who served as a member of BIDA.

7. The current Mayor Pro Tempore, Councilman Charles E. Phillips Sr. Esq. has designated Councilman Joseph Carn as a member of BIDA.

8. The appointment of the Mayor Pro Tempore or his designee for a one year term is a violation of Section 1.3b. of Article IX, Section IV, Paragraph II of the Constitution of the State of Georgia.

9. Section 1.3b of the amendment creating BIDA names one official who is to be a member of BIDA, the Mayor or his designated representative from among the Council Members.

10. Section 1.3b of the amendment creating BIDA also states that "the remaining six positions for membership in the Authority shall be comprised as follows: The six positions shall be filled by resolution of the Mayor and Council of College Park."

11. In the Ordinances of the City of College Park, Article II (Mayor and Council) section 2-26 (Appointees to Boards and Committees) ; Rules and Regulations states Paragraph c states "No Person who has served on the Governing body of the city shall be appointed as a citizen member of any committee until four(4) years after such persons term of office is expired."

12. In the Ordinances of the City of College Park, Article II (Mayor and Council) section 2-26 (Appointees to Boards and Committees) ; Rules and Regulations states Paragraph e states "any Board or Committee shall mean any public body to which the mayor or the mayor and council either nominates, appoints or elects a citizen of the city to such board or committee."

13. Appointing the Mayor Pro Tempore or his designee who is a sitting Councilman violates the Ordinances of the City of College Park, Article II (Mayor and Council) section 2-26 (Appointees to Boards and Committees) ; Rules and Regulations Paragraph c.

14. College Park Georgia is a Municipal Corporation.

15. The O.C.G.A. 36-30-4 states:

"A councilman or alderman of a municipal corporation shall be ineligible to hold any other municipal office during the term of office for which the councilman or alderman was chosen unless he first resigns as councilman or alderman before entering such other office. This Code section shall apply to all elected officials of a municipal corporation."

16. This code section, O.C.G.A. 36-30-4, has been in existence in some form as a statute in Georgia since 1889 and this statute appears to be a codification of the case of Hawkins v Intendant of Jonesboro 63 Ga 527(1879) which holds that "when a statute confers the appointing power, and does not expressly authorize self appointment, the appointment of someone other than self is always contemplated. The creator is not to be his own creature. It cannot be sold that an officer having or sharing the power of appointment to another office, can, on general principles be the incumbent of the latter either de jure or defacto"

This very issue was addressed by the Supreme Court of Georgia. In Columbus v Board of Water Commissioners, 261 Ga 219,403 SE2nd 791 (191), the city council appointed one of its members to serve on a subordinate board and the board applied for a writ of Quo warranto seeking to have the appointment invalidate. The Supreme Court of Georgia, relying on O.C.G.A. 36-30-4 and Hawkins, invalidated the purported appointment reasoning that "consistently with the common law rule against conflicts of interest in local government, our courts have held that it is contrary to public policy to permit an official board having the authority to appoint to an office to exercise that power by appointing one or more of their own body, unless the statute conferring the appointing power expressly authorizes self appointment" Columbus v Board of Water Commissioners suprs p22 ; accord regarding county elected officials, Gravitt v. Board of Commissioners of Forsyth County, 261 Ga 426 407 S.E. 2nd 760 (1991) Furthermore, the court observed that the council clearly served a supervisory and or appellate function in relation to the board that would be inconsistent to board membership and that would result in a conflict of interest if the appointment were to stand.