PTC Council action revealed as illegal

Cal Beverly's picture

With the publication of the GIRMA letter online and in this week’s print edition, the last quasi-legal pretense of the Peachtree City Council majority has been thoroughly discredited.

According to City Councilman Eric Imker, Mayor Don Haddix “stole” nearly $10,000 from the city to pay for defending against former Mayor Harold Logsdon’s libel suit. Mr. Imker and three other members voted to strip the mayor of 90 percent of his pay, ostensibly to recover what Mr. Imker in his letter to the editor characterized as “stolen” public funds.

The liability self-insurance fund for the city says both the city and the fund had a legal, contractual duty to mount a legal defense for Haddix, with or without the blessing of the council majority.

The Georgia Interlocal Risk Management Agency told the city attorney (who really should not have needed telling), “GIRMA enters into a Member Coverage Agreement (‘MCA’) with each of its member cities that delineates the relationship between GIRMA, the Named Member, and additional Members who are afforded coverage, to include elected officials, employees, and others.

“Under the GIRMA MCA, Members are owed a duty of defense and indemnity. ... A liability insurer has a duty to defend its insured against all claims covered under a policy, even those that are groundless, false, or fraudulent. If there is even potential, or arguable, coverage, the insurer has a duty to defend.”

And that’s the legal end of the council majority’s argument that Haddix had no right to ask GIRMA to pay for his defense.

The city attorney and the council majority should have known that the contract between the city and GIRMA (which may have predated all of them) obligated a defense of the mayor and any member of council — even Imker — from ALL lawsuits, regardless of a plaintiff’s attempt to circumvent that contracted legal coverage for the mayor.

But was that offending hyphenated word contained in one sentence of an email really “official business” being conducted by the mayor?

GIRMA answers, per the existing contract, “Given the fact that the Mayor was communicating with a City employee regarding a matter of official business (i.e., changing a city ordinance), it was at least arguable that the Mayor was acting ‘for and on behalf of’ the City at the time he sent the offending email communication.”

GIRMA’s contractual obligation to the city and the mayor extended to a much more prolonged and greatly more expensive legal fight than actually happened, GIRMA said.

“The cost of a declaratory judgment action to have this question decided would have exceeded the amount reimbursed for defense and settlement of the claim. This claim was actually handled in the manner least costly to the City,” GIRMA said.

That bears repeating for an obsessed Mr. Imker and three other council cohorts: “This claim was actually handled in the manner least costly to the City.”

GIRMA further said, “political considerations play no role in coverage determinations.”

But political considerations are all Mr. Imker and his majority have left to cover their naked power play to serve their vindictiveness.

I have stated my opinion that Mr. Imker, and council members Kim Learnard, Vanessa Fleisch and George Dienhart acted in violation of the U.S. Constitution and the Georgia Constitution by passing a bill of attainder. That’s a legislative trial and punishment aimed at one person. And I assert the four violated their own city charter that specifies when and under what circumstances an elected official’s pay may be changed.

Mr. Imker and cohorts seem unrepentant, though they have cited no law, ordinance, rule or policy that allows them to take money from one of the members of the council without a judicial finding of wrong-doing.

This entire episode, whether popular or unpopular with segments of Peachtree City taxpayers, stinks of illegality. Mr. Imker and his three cohorts seem bent on punishing the mayor until some court steps in to whack them across the cheeks and forces them to start acting like law-abiding adults instead of like a clique of eighth-grade “mean girls” bullying an unpopular classmate.

By continuing to violate both the U.S. and Georgia constitutions and the city charter under which they serve and which they have taken an oath to uphold, Mr. Imker and his three cohorts have rendered themselves illegitimate holders of the public trust.

With their further ignorance of their and the city’s contractual obligations, they have impaired their own defenses should someone bring a lawsuit against one of them. Could Mr. Imker in good conscience seek a legal defense from GIRMA and the city should Mr. Haddix — for example — sue Mr. Imker for libel?

After all, Mr. Imker, acting in his unofficial capacity and writing a letter to the editor — not to some city employee — at rambling length accused Mr. Haddix of committing “theft” in “stealing” public money.

There’s a legal concept known as “libel per se” in which the very utterance of the words is itself factual evidence that a libel has been committed. The one uttering or writing such “libel per se” then must prove that the libel is true to escape judgment.

What would Mr. Imker offer in proof of theft? Probably not the GIRMA letter. Perhaps Mr. Logsdon’s attorney could advise Mr. Imker of his options.

Would it be delicious irony that Mr. Imker was thus hoist with his own petard in having to mount a legal defense (with his own personal funds, of course) of the same offense he so unrelentingly alleges Mr. Haddix committed?

But if he availed himself of the same contractual defense as Mr. Haddix did, would a council majority then “adjust the budget” a second time to recover those legal defense funds from Mr. Imker’s official city paycheck?

Who among you would say, “Well, that’s different”?

And I say, let’s return to the clearly defined rule of law, and put an end to this lawless, arbitrary and ego-driven rule of two men and two women.

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

madmike
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Cal... have to call you on this again.

I have yet to hear anything on these blogs or elsewhere in your paper that represents the valid legal opinion of an attorney, educated and licensed by the state of Georgia to practice law. This includes your editorials Cal. I have asked you twice to tell your readers what your background is that promotes the legal relevance of your arguments, and you have yet to answer. You are not listed as a licensed attorney according to the Georgia Bar Directory (http://www.gabar.org/membership/membersearch.cfm) so absent of any proof to the contrary, you are giving us your thoughts on the legality of the council action purely from a layman's perspective which carries no more legal weight than if your Sports Editor had written it. It's your opinion and, you know what they say about opinions... like our backside, we all have one.
Meanwhile, according to Dienhart, in his comments here and Imker, in his editorials, the legality of this action was vetted not only with the City Attorney but with other attorneys, educated, skilled, and licensed to make such decisions. Apparently this matter has been tried in courts before in Georgia and case law supports the legality of the action. At least that is what the attorneys have said.
I don't know if docking the Mayor's pay was legal or not... you see, I am not an attorney. But between licensed attorneys who get paid to rule on matters such as these, who have spent years in college to know things like this, and have had to pass a rigorous testing process to prove they know about... well between them and the editor of the local newspaper, my money has to go on those that have the proven credentials. Your representation, beginning with the Headline that the action was illegal, lends the reader to believe you have the authority to make such a determination.. and for reasons as stated above, you certainly do not.

Robert W. Morgan
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You may be using too tall a pedestal for attorneys, Mike

Having a law license and a couple of years of law school does not make these people all-knowing and brimming with wisdom. The way most laws are made (or at least refined) is through case law and precedent-setting decisions by a judge or a jury after wading through the nonsensical garbage most lawyers offer up as solutions. Often the decisions most relevant are those that have been challenged and appealed to a higher court.

I'm sure you'll agree there has been absolutely no precedent for our little mayor. Clearly one of a kind. Stealing or diverting money for one's personal use by a public official has happened before and I believe Cal's point to be that when those crooks got punished it was after the trial - not before. As much as I believe Haddix is guilty of the crime and as much as I rejoice in city council docking his pay, I do see how an objective observer (meaning someone who has never lived in Peachtree City or met the mayor) could say he has not been given due process. Furthermore, I can see how the GIRMA letter can be interpreted to put Haddix in the clear.

But the way it is now, is that council has acted and it is up to Haddix (or possibly GIRMA if they can) to sue the city for reinstatement of his pay. Then there will be a trial, an appeal, a decision and voila - case law will have been created. Cal can't pardon Haddix or overturn the decision. Only Obama has that power (just kidding). Cal's opinion is no doubt shared by some in the legal community and if Haddix can hookup with that person and afford to pay him or her, then he should proceed.

I don't know if council or Meeker thought this through, but Haddix only has 2 choices now- stay on as an unpaid mayor who will certainly be shunned by the 4 amigos and everybody in the city who believes he is a thief OR he can resign and sue and pay a lawyer for a couple years and maybe win, maybe lose and maybe even be able to run for office again. Of course the most important word in that last thought is RESIGN, That may be what council had in mind all along - even if they ultimately lose. Better to be rid of the fool for the next 18 months and worry about the future in the future. I mean what's going to happen - get someone worse in a special election?

madmike
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You are right Dead DJ...

Like all professions, there are good lawyers and bad ones. I have seen my share of both. Point being, until Haddix finds an attorney who will fight this in court, the best legal opinion we have to go on is what has been purported at least to be the well-reviewed thoughts of lawyers who have many years of experience in exactly this type of administrative law. I believe it is more prudent to defer to their unbiased expertise as to the legality of the council's actions rather than the ramblings of a local editor... his motives are rightfully suspect. Those lawyers believe that the precedent has already been established in the case law you discuss. Obama would simply say if Haddix was born in the U.S. or brought here while a child, he should not only get his salary back but food stamps, housing, and the government-paid education he so sorely needs.

PTC Observer
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Mr. Beverly

Where was Mr. Meeker?
Why do we need a city attorney?

IMHO

The city council should reverse itself.

Mr. Haddix should be shunned until he resigns. It's far cheaper to have a special election than to have this man as a Mayor of our city. There is absolutely no way of knowing what he could do next to cost us more money. He does not serve the best interests of the city or it's citizens and has proven himself unworthy of our support and trust.

It is time for him to go.

Now!

madmike
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PTC Observer... Meeker

To answer your questions...

1. Where was Mr. Meeker? He was there. According to Dienhart (below) and Imker in his editorials, this action passed legal muster by Meeker and various other attorneys whose opinion was called upon.
2. Why do we need a city attorney? For matters exactly such as these. To vet out what may appear to be practical solutions but may not be legal. Meeker gave his legal opinion and council acted based on that opinion.

GeorgeDienhart
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Ted Meeker

Mike-

You are absolutely correct. We did run this by Mr. Meeker, and he has case law to support our action.

I'd also like to add that Mr. Meeker's service to the city has been invaluable. He is a "stand-up guy" who offered to fall on his sword for this. I don't believe any of this is his fault. He simply did as he was instructed by the mayor. Those looking to place blame on Mr. Meeker need to look elsewhere.

Insayn
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What a useless council. ALL

What a useless council. ALL OF THEM. Do us all a favor and quit, all of you. Let someone who isn't a crybaby take up the post and actually make good decisions regarding the City. Obviously NONE of you can.

Spyglass
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Was Haddix giving you a cut of his pay?

You really are going to great lengths to make him look innocent in all of this. He caused the problem, he can fix it.

I have yet to talk with any Citizen of Peachtree City in person who wants hims as Mayor at this point.

As to your commentary, opinions vary. I'll say that.

GeorgeDienhart
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The key to the letter

was the comment “The cost of a declaratory judgment action to have this question decided would have exceeded the amount reimbursed for defense and settlement of the claim. This claim was actually handled in the manner least costly to the City,”

This letter did not state that the council acted illegally- only that it would have been more expensive to get a declaratory judgment from a judge than to pay out immediately. The letter was not a victory for the mayor or for the citizens of this city. It was merely a statement from GIRMA stating that they took the least expensive route available to them.

We acted not as bullies attacking an unpopular peer, but to put a stop to this before it costs the city even more money. One thing that the Mayor has consistently demonstrated is a lack of understanding when it would be prudent to change tactics. We need the mayor to understand that the city coffers are not his personal legal fund. I sought him out twice, at two different events to try and convince him that his behavior may have been deemed by our local citizens as being out of line. Twice he turned away without saying a word. Since he didn’t want to address this budget imbalance, council acted to stem the shortfall.

I have not had one single citizen approach me and state that what we did was wrong. Not one. Our legal counsel has found case law to back us up in the event that the mayor files a lawsuit. We did not go into this blind.

This council will continue to act in the best interest of the people. That goes without saying as all four of us are doing our best to live up to our oath of office. I have no doubt that even on occasions when the other 3 council members disagree with me- they are voting for what they believe is right. This dedication by the City Council to do what’s right leaves us at a turning point.

The mayor can accept the budget adjustments as the fair and equitable solution that they are, or he can seek a resolution through the courts. He has stated to numerous people that resigning is "off the table". So the ball is in his court. He has a choice to pay back money that he shouldn’t have accepted, or file a lawsuit. I would like to remind the mayor, and Peachtree City voters, that a mayoral election is coming up in a year and a half. This is the type of issue that has a long memory. Will the mayor be known as the man who did the right thing, or the man who sued the city council for acting to protect the taxpayer? In my opinion, those are the only two ways to frame this issue.

pumpkin
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a mayoral election is coming up in a year and a half

You show just what a fool you are with those words. It will be the same song a diffrent verse. All of you blow hard good ole boys bitch and raise hell about every council and mayor for the past, i've lost count of the number of years. You will not run nor will any of the other buzers in this forum. Who would blame anyone approached to toss in for the race for mayor when they say screw you, there is no fighting this peyton place.

I really, now, really, I pray for all of you nasty nasty people.

Mayor I dont agree with everything you've done and I feel sure after all of this you may not run again. I sincerely hope you sue these blowhards if you can find the case.

madmike
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Pumpkin...

What's a buzer?

Your attitude is so refreshingly positive, so rich in intellectual reasoning and argumentative prose, who dares to argue?
Curious why you wouldn't want to put a name behind such writing prowess and show you have no ax to grind and are simply voicing the opinion of a concerned taxpayer.

Mike LaTella
mlatella@bellsouth.net

GeorgeDienhart
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Interesting comment

All of you blow hard good ole boys bitch and raise hell about every council and mayor for the past, i've lost count of the number of years. You will not run nor will any of the other buzers in this forum.

Seems that you are implying that I am unwilling to run for mayor or council. In fact you say I will not run. I am currently a city councilman.

rgspain
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Mr. Dienhart what you did was wrong.

Think about this for a moment. You and the other three members decided underhanded actions were needed to offset other underhanded actions.

Richard Spain

madmike
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rgspain... What was underhanded?

You stated the council's actions to dock the mayor's pay was underhanded... on what do you base that characterization? Curious.

Spyglass
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opinions vary..

as I stated above.

You like how the Mayor handled this?

rgspain
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I believe you missed my point.

One bad turn does not deserve another.

Robert W. Morgan
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WTF the headline, Cal. "Council action revealed as illegal"

Boyo, the headline is way over the top.
The headline made me think the Supreme Court had released yet another opinion. Reading with bated breath, 2, 3, then 4 times searching for the legal entity that made this grand proclamation, I sadly concluded that it was nothing more than the GIRMA letter - and maybe just a little bit of personal opinion from our editor in chief.

Sure, you are entitled to that opinion and you are certainly entitled to write your own headlines, but you wobble a little on the rails of objectivity when examine the delicious irony and start discussing Mr. Imker's petard. No doubt journalism wins should all that occur, although for the sake of the city I'd rather it didn't.

I can see how one could draw the conclusion that the 4 vigilantes acted quickly and without due process, but with the way that this thing started (with Haddix's libel of Logsdon) and how it was handled and mishandled for almost a year, I think that if I were on city council, I would have done the same thing they did. Legal? Maybe, maybe not. Appropriate? Yes indeed.

But I have 2 questions:
1. Should GIRMA be covering the settlement amount/penalty for libel - meaning the $3,000 paid to Logsdon? From your headline and the statement "And that’s the legal end of the council majority’s argument that Haddix had no right to ask GIRMA to pay for his defense." you seem convinced that the answer is yes.
2. If this whole thing is nice and legal, wouldn't a logical thing to do (for mayor Haddix) is to inform council that he was taking this entirely legal and appropriate step? Instead he did very much the opposite. Why?