Coweta Solicitor: witness per diem, mileage rates unconstitutional

Coweta County commissioners at an informal Feb. 10 work session heard proposals from a number of county departments, including one from Solicitor Robert Stokely suggesting that current per diem and mileage rates paid to court witnesses are too low and unconstitutional. Pictured (from left) are county manager Theron Gay and commissioners Bob Blackburn, Al Smith, Rodney Brooks, Tim Lassetter and Paul Poole.

A request by Coweta County Solicitor Robert Stokely to members of the Coweta County Commission to increase the per diem and mileage rates paid to court witnesses went nowhere fast at the commission’s Feb. 10 work session. With little discussion by the commission, the request to increase the per diem rate paid to witnesses was not addressed, but a motion was made to raise the mileage rate to conform with current IRS rates. That motion failed on a 2-3 vote.

Making his case for the increases, Stokely said current state law calls for a $25 per diem rate for witnesses. That sum, instituted a few years ago, represented an increase from the $20 rate established around 1980, Stokely said. As for the mileage rate of 20 cents per mile that, too, was established 30 years ago, Stokely added.

The current minimum wage in Georgia is $7.25 per hour and the 2011 IRS mileage rate is 51 cents per mile.

“When this statute was enacted it had a sound constitutionality because at the time the amount set by law was probably equal to or higher than what minimum wage and IRS allowable per mile expenses were. In 1980, the minimum wage was around $3 per hour and (the per mile rate) was 20-22 cents based on the type vehicle,” Stokely said in a prepared letter to the commission. “However, if a person has to wait to be called as a witness, or in some cases has testified but not been released by a party, then they may be at court more realistically four to eight hours. At some point they are giving their time without just compensation, and thus my concern (that) unconstitutional taking is occurring.”

Stokely suggested that the per diem rate be increased up to the limit of the current minimum wage provided certain factors be considered. Among those would be whether the person’s employer provides compensation as a benefit of employment when the individual appears as a witness. Such a policy exists for Coweta County employees, Stokely added.

And concerning the mileage rate, Stokely said the 20 cents per mile has remained unchanged since the 1980s.

“Today, that (mileage rate) hardly purchases gasoline much less provides reasonable reimbursement for the witness’ use of their personal vehicle to travel to and from court. Thus, a taking without just and fair compensation that I contend is unconstitutional,” said Stokely. “At the very least, a witness compelled (to appear in court) should be reimbursed at the same rate as a county employee which is 50 cents per mile.”

Stokely said some witnesses have to travel substantial distances to appear in court. On several occasions Stokely noted that witnesses in court proceedings are performing a needed service for the county and should not be monetarily penalized for doing so. And witnesses are essentially compelled to appear in court, risking up to a $300 fine and possible jail time if they fail to appear, Stokely added.

“The fact that the legislature has failed to take proper redress is no reason to continue an unconstitutional taking,” Stokely said.

Commissioners after Stokely’s comments had a brief discussion on the topic. Though the issue of increasing the per diem rate for witnesses was not included in the motion, Commissioner Al Smith did move that the county begin paying the IRS mileage rate. The motion received a second from Chairman Rodney Brooks.

The motion was defeated on a 2-3 vote, with commissioners Bob Blackburn, Tim Lassetter and Paul Poole opposed.

Stokely during his presentation noted the rates paid by several Georgia counties. Fayette, Henry and Douglas counties each pay a $25 per diem while Forsyth County pays $25 if requested and Columbia County pays $25 if required.

As for mileage rates, Henry and Fayette pay 20 cents per mile for out of county witnesses, Douglas pays its witnesses 51 cents per mile, Columbia uses the IRS rate when required and Forsyth uses the IRS rate only if a witness has to travel from more than two counties away.