A proposed ordinance scheduled to come before the Clayton County Board of Commissioners on Tuesday, December 20 may exceed home rule powers and be unconstitutional, according to a legal opinion issued Monday night by the Georgia Capitol’s Deputy Legal Counsel D. Stuart Morelli.

The ordinance would allow commissioners who had been criminally indicted to remain in office, as well as let the BOC appoint people to commission seats for an undetermined period of time, instead of allowing the voters to decide who would represent them. It also would allow people who did not reside in a particular district to hold that seat.

State Rep. Yasmin Neal (D-74)

The opinion was issued at the request of State Rep. Yasmin Neal, who forwarded The Clayton Crescent a copy of Morelli’s opinion along with her own letter on the matter Monday night.

The state-level letters came after several local citizens held a meeting Sunday via Zoom, then began e-mailing Georgia Attorney General Carr’s office, county officials, and The Clayton Crescent.

Earlier Monday, a spokesperson for Carr’s office told The Clayton Crescent that it had also received several e-mails from Clayton County residents complaining about the proposed ordinance, but that it was a local matter.

“While we have received emails from constituents, we are not directly involved in this matter,” Communications Director Kara Richardson wrote. “You will need to contact the local county attorney for any questions about the proposed ordinance from a legal perspective.”

The Clayton Crescent e-mailed County Attorney Chuck Reed Monday morning for more information about the proposed ordinance and why it was necessary, but had gotten no response by press time Monday night. We also sent a follow-up e-mail seeking comment on the State Capitol legal opinion and Neal’s letter.

Morelli’s letter reads in part:

“I have reviewed the article in the Clayton Crescent regarding proposed changes to county ordinances relative to filling vacancies in elected office. It appears that the proposed ordinance likely exceeds the power and authority of the board of commissioners and infringes upon legislative powers reserved to the General Assembly.”

Morelli wrote that the Georgia Constitution “authorizes counties to amend their local enabling acts by resolution or ordinance; this, however, is a very limited power granted to counties.”

He pointed to Article IX, Section 2, Paragraph 1, Subsection (a) of the Georgia Constitution, which reads, “The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto….As such, a county has no power to adopt local ordinances that are inconsistent with the provisions of general or local laws made by the General Assembly.”

Specifically, according to Morelli, the county cannot use home rule “to effect either ‘[a]ction affecting any elective county office’ or ‘[a]ction affecting the composition, form, procedure for election or appointment…of the county governing authority.'”

In plain language, that means commissioners do not have any power to change the rules for electing or appointing members to the BOC.

He also wrote that “Section 1 of the proposed ordinance would appear to be in direct contravention of provisions of both general and local law adopted by the General Assembly when it comes to attempting to revise district residency requirements.” Under state law, if an elected official no longer meets residency requirements, that post is considered vacant: “Since there are applicable general and local laws adopted by the General Assembly directly addressing residency requirements for commissioners, the board of commissioners apparently has no power to adopt local ordinances on the topic.”

That means a commissioner cannot appoint a friend to take their place if they are removed from office, and that they can’t appoint someone who lives in one district to represent a district where that person does not live.

In addition, Morelli wrote, state law already covers methods for filling various constitutional offices like sheriff, clerk of Superior Court, probate judge, or tax commissioner. A constitutional office is one established by the Georgia Constitution, and it is an elected, not an appointed, position.

For example:

  • Clerk of Superior Court: the chief deputy clerk fills the seat until a special election to finish out the clerk’s remaining term (O.C.G.A. § 15-6-53)
  • Probate Court Judge: The “most senior associate judge” of Probate Court fills in until the special election. If there’s no associate judge, that duty falls to the chief clerk of Probate Court (O.C.G.A. §§ 15-9-10 and 15-9-11).
  • Tax Commissioner: In counties under 550,000 people (Clayton County has just under 300,000, according to the last U.S. Census), the chief deputy tax commissioner fills in until the next general election, when a special election is held to finish out any remaining term (O.C.G.A. § 48-5-212).
  • Sheriff: If the remaining term is more than six months, the chief deputy sheriff “will be appointed sheriff and shall serve” until the special election. However, the General Assembly has the power, “by local law,” to “provide alternative provisions for filling vacancies in the office of sheriff in a particular county. However, this is a power only the General Assembly has, and no authority is granted to local boards of commissioners” (O.C.G.A. § 15-16-8). This only applies to the office of sheriff.

Under O.C.G.A. § 15-16-8, “the chief deputy sheriff will be appointed sheriff and shall serve until a special election can be called if more than six months remaining in the unexpired term. Unlike the other vacancy provisions, O.C.G.A. § 15-16-8 does provide that the General
Assembly can, by local law, provide alternative provisions for filling vacancies in the
office of sheriff in a particular county. However, this is a power only the General
Assembly has, and no authority is granted to local boards of commissioners.”

Based on existing state law, Morelli wrote, “Since there are clear provisions of general law addressing how vacancies in the offices of county elected officers are filled, the board of commissioners very likely has no authority to further address such matters in local ordinances. Furthermore, even if there were no general laws on these matters, such an ordinance would still be unconstitutional as a violation of the prohibition on local ordinances regarding other local elected offices.”

Read the Capitol Legal Opinion on the proposed ordinance

Neal sent a copy of the opinion, along with her own letter, to The Clayton Crescent, which reads:

As State Representative it is my duty to inform the commission and the citizens of the following information. There are rules specific to changes to voting and county elections at the county level; which includes actions that only members of the Georgia House of Representatives and Senate can act on.

It has come to my attention that the forthcoming actions of the Clayton County Board of Commissioners may possibly be unconstitutional. The ordinance in question (Ordinance 2022-271) is up for consideration at the Board of Commissioners meeting on Tuesday December 20, 2022.

After reviewing the Georgia Constitution with the Office of Legislative Council at the State Capitol, I have been advised that this ordinance exceeds what the board is allowed to do and interferes with the constitutional right of the citizens of Clayton County. Please review the legal analysis from Legislative Counsel attached.

On this date, I, State Representative Yasmin Neal of district 74 Clayton County strongly urge the Board of Commissioners to abandon this effort and future efforts.

As a county, the citizens look forward to having their elected officials operate in their best interests and on their behalf. They deserve it.

Be kind to one another.

The BOC’s agenda for Tuesday, Dec. 20 includes the proposed ordinance. In July, public comment was moved from the top of the BOC agenda to just before executive session at the end of the meeting. This prevents many citizens from offering their opinions to the board and to those who are either present or watching the livestream in advance of the commissioners’ discussion or actions on this and other agenda items.

Robin Kemp is executive editor and CEO of The Clayton Crescent, which she founded in 2020. She has worked for Gambit, CNN, The Weather Channel, Clayton News, Henry Herald, and numerous freelance outlets....

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