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The PTC Council majority vs. the rule of law

Cal Beverly's picture

This opinion column begins with some assumptions: We are a nation of laws, not men; we are a state of laws, not men; we are a city of laws, not men. (Ladies, you are included in these variations of John Adams’ famous declaration that he wrote into the 1780 Massachusetts constitution.)

Here in Peachtree City, we have gone off the legal track, and our City Council majority is acting as a government of men, not as a government of laws.

In this column I will show you why I believe the council majority has committed the following violations in taking the recent legislative action that reduced the pay of Mayor Don Haddix from $750 a month down to $75 a month:

1. Violation of the U.S. Constitution’s prohibition against a bill of attainder.

2. Violation of the Georgia Constitution’s prohibition against a bill of attainder.

3. Violation of the plain-language prohibition against altering the salary of a mayor or council member contained within the City Charter, the founding legal document of Peachtree City — our local “constitution.”

Here are the relevant passages:

“No Bill of Attainder or ex post facto Law will be passed” — Article I, Section 9, paragraph 3, The Constitution of the United States.

“Paragraph X. Bill of attainder; ex post facto laws; and retroactive laws. No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.” — Article I Bill of Rights, Section I Rights of Persons, Paragraph X, Georgia Constitution.

“Sec. 2.10. - Compensation of mayor and council members as fixed; expenses of office allowable. (a) The mayor shall receive an annual salary and each council member shall receive such annual salary as shall be established by ordinance during the proceeding term for which such official shall have been appointed or elected. Said salaries shall be paid in twelve (12) equal monthly installments on or before the last day of each month.” — City Charter of Peachtree City, Section 2.10. (http://library.municode.com/index.aspx?clientId=11414)

In addition, the charter specifies the oath of office to be taken by each member of council: “I do solemnly swear or affirm that I will well and truly perform the duties of (mayor) (mayor pro tem) (council member) of Peachtree City by adopting such measures as in my judgment shall be best calculated to promote the general welfare of the inhabitants of Peachtree City and that I will support and defend the Charter and ordinances thereof as well as the constitution and laws of the State of Georgia and of the United States of America. So help me God.”

So, Councilman Eric Imker and his three council supporters — Kim Learnard, Vanessa Fleisch and George Dienhart — have sworn an oath to support and defend the charter, its ordinances, and both the Georgia and U.S. constitutions.

Did Mr. Imker and his cohorts “support and uphold” those basic governing documents, or did they violate all three of those documents?

For review, what’s a bill of attainder? Let’s see what the U.S. Supreme Court said in a couple of cases:

In a 1965 case before the U.S. Supreme Court, the court ruled, “The prohibition embodied in this [bill of attainder] clause ... is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, a violation of the separation of powers concept.”

“The clause thus prohibits all legislative acts, ‘no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. ...’” the high court said in a 1946 case. Notice the phrase, “no matter what their form.”

So, how is what Mr. Imker and supporters did a bill of attainder?

They specified one individual out of the entire city and cut that person’s pay by 90 percent.

Their idea was to take back about $10,000 in legal fees the city treasury paid for the mayor’s legal fees in a libel case.

Was it a legislative act? Yes. Was it aimed at one individual? Yes.

Was it a penalty or punishment? It was an involuntary taking of a lawfully designated salary that, when fully implemented by the council majority, will amount to a taking of $10,000. The answer is yes, it was a penalty, a punishment.

Was there a judicial trial with appropriate due process? No. The council majority in legislative session initiated the action and passed it 4-to-1.

Mr. Imker, though he had cross-examined the city attorney like a hostile witness the previous meeting about the disbursement, framed the legislative action as a “budget” matter.

Though Mr. Imker in his letter to the editor asserts that he and the majority allowed Mr. Haddix due process, the assertion is laughable in its ignorance of what true due process means.

“Due process,“ Encyclopedia Britannica says is, “a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights.”

In the taking of money by Imker and cohorts, where were “the rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights”?

One of the essential elements of due process is an impartial tribunal. Justia.com says, “Just as in criminal and quasi-criminal cases, an impartial decision maker is an essential right in civil proceedings as well. ‘The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. ... At the same time, it preserves both the appearance and reality of fairness ... by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.’”

Does any resident of Peachtree City truly believe that Mr. Imker and his three supporters represented “an impartial tribunal” that was “not predisposed to find against” the mayor?

Indeed, in his letter to the editor, Mr. Imker said this about Mayor Haddix: “I did, however, see a deceitful mayor try to steal $10,000 from the taxpayers. ... I’m not the one having their salary reduced because I tried to steal $10,000 from the citizens.”

Mr. Imker is explicitly stating that he and the council believed the mayor was guilty of theft and that the council took its pay reduction step to recover stolen funds. But they swore out no warrants, filed no legal action before a legally constituted court, indeed never specified what law, ordinance, rule or policy the mayor allegedly violated.

Instead, Imker, Learnard, Fleisch and Dienhart acted as complainant, magistrate, prosecutor, judge, jury and executioner in the case they dubbed “Taxpayers vs. Haddix.” Under Imker and cohorts, a legislative body morphed into another branch of government, the judiciary.

And that’s Mr. Imker’s idea of “due process.”

I contend that by passing a “budget adjustment” aimed to penalize one person, Mr. Imker and his band of three have violated both the U.S. and Georgia constitutions’ prohibitions against a bill of attainder and, further, have trampled on Mr. Haddix’s rights to due process concerning his city salary, previously set by ordinance.

The council’s action also seems to “impair the obligation of contract” that existed between the city via its charter and a duly elected official who has an expectation that he/she will be paid per the charter’s specifications.

The council majority court also may have violated this provision of Georgia law. OCGA 36-35-6 (a)(2)(C), “Limitations on home rule powers” of cities says a city legislature cannot pass an ordinance “providing for fines and forfeitures in excess of $1,000 ...”

I would argue that a $10,000 taking of an elected official’s salary could be seen as an illegal forfeiture under this state law, all the more so since the council was acting in an impermissible judicial capacity. It would have been a forfeiture made up on the spot, applicable to only one individual. Never mind that the council majority court of four made no finding of the mayor’s violation of any specific state law, city ordinance or city policy.

Now let’s deal with Mr. Imker’s assertions of having done his homework. He must have skipped reading this part of the city charter: “such annual salary as shall be established by ordinance during the proceeding term for which such official shall have been appointed or elected. Said salaries shall be paid in twelve (12) equal monthly installments on or before the last day of each month.” Thus Mr. Imker and followers violated the charter in two regards.

They can’t alter the salary because it was established by ordinance “during the preceding term” (meaning before Haddix was elected mayor) and that set salary, per the charter, must be paid in “12 equal installments” (going from $750 one month to $75 the next month does not meet the “equal” requirement set by the charter).

The underlying principle is that salary changes can only be implemented in the term following the change by ordinance. In this case, “term” would mean the full four years for which Haddix was elected.

(The council does have the power by ordinance to change the salary of the next mayor — just not this one, and only if they do it before the next mayor is elected or appointed.)

And the council, even if it were unanimous, does not have the unilateral power to change the city charter by “budget adjustments,” whatever the members’ intentions.

Mr. Imker and cohorts could amend the city charter first to allow for the change in the salary of a public officer, but they would have to follow the state law requiring that such a charter amendment be advertised over a period of weeks and the measure itself would have to come up for a council vote in two consecutive council meetings.

And even then, if they were successful, they would run afoul of the constitutional prohibition against bills of attainder. They would just have enshrined the official bill of attainder in the city charter ... until any court got hold of it.

Thus, Mr. Imker, Ms. Learnard, Ms. Fleisch and Mr. Dienhart have — in my opinion, as demonstrated above — violated the city charter.

Now to their oaths of office: Mr. Imker, Ms. Learnard, Ms. Fleisch and Mr. Dienhart swore an oath to “support and defend” the city charter and the constitutions of Georgia and the United States.

According to the Official Code of Georgia, “16-10-1, Violation of oath by public officer — Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.” That’s obviously a serious matter.

In passing what seems on its face to be an unconstitutional bill of attainder and in what seems to be an open-and-shut case of violations of the city charter provisions concerning pay of elected officials, have the four elected officials violated their oaths of office?

In his letter, Mr. Imker explicitly takes credit for introducing the measure: “I took no pleasure in being the one to make the motion to reduce the mayor’s salary. But somebody on council had to do it, so I did. If you know anything about me by now, you know that I refuse to be politically correct. ... Did you not see a motion made and voted 4-1? ... There clearly is no hearing required. Substantive notice was given at the proper time by adding it to the agenda packet the week before. We did not try to hide what was happening.”

Mr. Imker, by his own words, certainly meets the “willfully and intentionally” part.

Imker further says, “Again, I did my homework, but remember, I am not a lawyer. I asked about case law regarding the city’s responsibility for the mayor’s personal slander against the former mayor.”

My question is this: Did Mr. Imker bother to consult the city charter, which should have been his first stop, and which should have stopped him and his trio of supporters from further mischief? If he did consult the charter, he seems to have ignored what he found.

Much of the chatter about this case of an unpopular mayor and a pandering council majority has dealt almost entirely with the ends and has ignored the legality of the means.

Some seem to say, “I don’t care how they get that $10,000 back from Haddix, what’s important is that they get it back.” Pragmatism and public unpopularity thus overrule governing principles and the rule of law.

Dear citizen, to go down that path is to leave the rule of law behind. Down that path lies tyranny.

[Cal Beverly is editor and publisher of The Citizen.]

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