A federal judge has set a hearing for March 17 in a lawsuit brought by former Clayton County Chief Financial Officer Ramona Bivins against three commissioners and the county.
The hearing before Judge William M. Ray II will address a motion by attorneys representing District 2 Commissioner Gail Hambrick and the county to dismiss the case and a motion for judgment on the pleadings.
Ray has set the hearing for 1:30 p.m. in Courtroom 1705 of the Richard B. Russell Federal Building in downtown Atlanta.
However, the judge may consider holding the hearing by Zoom if an attorney arguing the motion is outside of the Northern District of Georgia or “if there is an extenuating circumstance that warrants a Zoom hearing.”
Bivins alleges that Commissioners Alieka Anderson, Felicia Franklin, and Gail Hambrick retaliated against her First Amendment right of association because they voted to terminate her contract early and not renew it.
The vote came soon after Bivins’ husband and District 4 Commissioner DeMont Davis confronted campaign workers for a candidate that Anderson and Franklin had backed against Davis.
The motion to dismiss argues that Bivins “fails to allege that Commissioner Hambrick engaged in any suspect conduct that would support even an inference that her votes were motivated by an unconstitutional reason. Instead, on its face, the Complaint establishes that Commissioner Hambrick was merely concerned (rightly so) about the terms of Plaintiff’s Agreement, which she believed to be ultra vires [unauthorized].”
The motion also argues that Bivins “has not sufficiently pled a First Amendment retaliation case against Commissioner Hambrick. Critically, at most, Plaintiff can only establish that Commissioner Hambrick joined the votes–not that she was motivated to do so by an unconstitutional reason. Commissioner Hambrick, then, cannot be part of the majority allegedly voting for an alleged unconstitutional reason, leaving only two votes allegedly cast for unconstitutional reasons. Plaintiff, therefore, cannot show that a majority of the Board voted against her in retaliation for her husband’s campaign activities.” Similarly, her lawyers argue, the county would not be liable if Bivins does not show an “alleged constitutional violation by a majority of the Board.”
Anderson’s attorney argues that “Anderson’s nonretaliatory reason for non-renewal was that the contract was an ultra vires contract” that had nothing to do with the District 4 election. They also argue that Bivins has to allege “that at least three (3) of the Defendant Board members voted with retaliatory intent based on First Amendment protected activity.”
Both Hambrick and Anderson also have asserted qualified immunity, which means a public official cannot be sued for carrying out their duties unless those actions are illegal or unconstitutional.
At the time of the vote, the commissioners had refused to state their reasons for refusing to renew Bivins’ contract, then terminating her existing contract and giving her two days to clear out her office. Anderson had read prepared statements about Bivins’ contract allegedly being “ultra vires.”
On July 21, 2022, Terminus Municipal Advisors issued a memo stating that county-authorized payments for Bivins’ graduate school tuition did not appear to have been “properly authorized” and that “the employee that signed the letter may not have been properly authorized to approve the billing/invoicing and subsequent payments.”
The BOC had cancelled its meeting this Tuesday, citing a lack of a quorum. The National Association of Counties held its Legislative Conference in Washington from Saturday, Feb. 11 through Wednesday, Feb. 15.