Lue, Mayor v. Eady , 297 Ga. 321 ( 2015 )

In the Supreme Court of Georgia
Decided: June 15, 2015
S15A0117. LUE, MAYOR v. EADY et al.
BENHAM, Justice.
This case involves a highly contentious dispute over certain official
actions of Mary Ann Whipple Lue, Mayor of the City of Gordon, who is
appellant in this case. Mayor Lue was the first African-American to be elected
mayor of this city, and she was sworn into office on January 6, 2014. Barely
two months later, two members of the city council and five other citizens filed
a complaint against Mayor Lue in her official capacity, which was later
amended, seeking removal of Mayor Lue for various actions alleged to be
examples of conduct demonstrating incompetence, misfeasance, and
malfeasance in office, which, according to the complaint, provide grounds for
removal from office pursuant to the City of Gordon Charter. According to the
complaint, these actions fell into three categories: alleged violations of the
Georgia Open Meetings Act, OCGA § 50-14-1, et seq. (“Act”); alleged
violations of the city charter (“Charter”)1, city code, and city personnel policy;
and alleged financial malfeasance. One of the methods for removing an elected
official, as set forth in the Charter, is by order of the Superior Court of
Wilkinson County after a hearing on a complaint filed by any resident of the
city. In addition to removal from office, the complaint sought the award of
attorney fees and fines, pursuant to OCGA § 50-14-5 (b) and OCGA § 50-14-6.
The trial court denied Mayor Lue’s motions to dismiss the complaint.
Shortly thereafter, the trial court granted the motion for a temporary restraining
order filed by plaintiffs (who are appellees in this appeal), pursuant to which the
mayor was temporarily suspended from office until such time as a hearing could
be held on plaintiffs’ motion for interlocutory injunction. Mayor Lue filed a
motion to recuse the trial court judge, alleging improper ex parte
communications between the judge and plaintiffs’ counsel with respect to the
temporary restraining order hearing, and that motion was denied. After a
hearing on plaintiffs’ motion for interlocutory injunction, the trial court granted
the motion and entered an order, which was later amended, by which Mayor Lue
was reinstated to office, subject to certain conditions imposed on her, including
1
The City Charter of the City of Gordon is codified at Ga. L. 1988, p. 4375.
2
a prohibition from her meeting privately with three or more council members to
discuss city business and a requirement that any such meetings must be open to
the public with notice provided to the public as required by law. Mayor Lue
appeals the denial of her motions to dismiss, the denial of her motion to recuse
the trial court judge, and certain terms of the interlocutory injunction order and
amended order. For the reasons set forth herein we affirm in part and reverse
in part.
1. We first address Mayor Lue’s assertion that the trial court judge erred
in denying her motion to recuse himself as the sitting judge in the case. The
motion was based upon two occurrences: First, Mayor Lue asserts the judge
engaged in improper ex parte communications with opposing counsel with
respect to scheduling the hearing on plaintiffs’ motion for a temporary
restraining order; second, Mayor Lue asserts the judge improperly failed to
respond to her counsel’s letter requesting either that the judge recuse or that he
provide counsel with information relating to how the request for a hearing was
made and scheduled. Mayor Lue alleged in the motion to recuse that the trial
judge’s conduct required disqualification pursuant to Canon 3 (E) (1) of the
3
Georgia Code of Judicial Conduct2, which provides: “Judges shall disqualify
themselves in any proceeding in which their impartiality might reasonably be
questioned . . . .” The record reflects that plaintiffs’ counsel telephoned the
judge’s secretary to request a date for the TRO hearing and, given the judge’s
availability, it was scheduled for 3:00 p.m. on the date the request was made.
Mayor Lue’s counsel acknowledged in his motion that he received notice of the
scheduled hearing from a lawyer in plaintiffs’ counsel’s office by telephone call
received at 1:38 p.m. on the day of the hearing. In the order denying the motion
to recuse, the court noted that the affidavit supporting the motion was silent as
to any effort made by Mayor Lue’s counsel to seek a delay in the hearing, either
by request to plaintiffs’ counsel or to the court. The order further shows it was
entered after taking into consideration the standards for disqualification set forth
in Canon 3 (E) and Uniform Superior Court Rule 25.3.3
2
The version of the Georgia Code of Judicial Conduct applicable to the motion for
disqualification in this case was revised by order of the Supreme Court dated May 14, 2015, to take
effect January 1, 2016. The relevant portion of Canon 3 (E) (1) has not changed and can be found
at Canon 2, Rule 2.11 (A) of the new Code.
3
Rule 25. 3 states:
When a judge is presented with a motion to recuse, or disqualify, accompanied by an
affidavit, the judge shall temporarily cease to act upon the merits of the matter and
shall immediately determine the timeliness of the motion and the legal sufficiency
of the affidavit, and make a determination, assuming any of the facts alleged in the
4
Having reviewed the record, we find no error in the trial court’s denial of
the motion to recuse. The practice of communicating ex parte to a judge or the
judge’s staff for administrative and scheduling purposes is authorized as an
exception to the rule prohibiting ex parte communications with a judge, as noted
in the trial court order. Canon 3 (B) (7) (a) expressly authorizes such
communications so long as:
(i) the judge reasonably believes that no party will gain a procedural
or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of
the substance of the ex parte communication and allows an
opportunity to respond.4
With respect to the scheduling of hearings, we do not construe this Canon to
require the judge to notify the opposing party personally so long as, as here, the
party requesting the hearing provided adequate reasonable notice. The manner
affidavit to be true, whether recusal would be warranted. If it is found that the motion
is timely, the affidavit sufficient and that recusal would be authorized if some or all
of the facts set forth in the affidavit are true, another judge shall be assigned to hear
the motion to recuse. The allegations of the motion shall stand denied automatically.
The trial judge shall not otherwise oppose the motion. In reviewing a motion to
recuse, the judge shall be guided by Canon 3 (E) of the Georgia Code of Judicial
Conduct.
4
In the amended version of the Code of Judicial Conduct, this authorization is discussed in
Rule 2.9 (A) (1) (a) and (b).
5
in which the hearing in question in this case was scheduled does not require the
disqualification of the trial judge because it does not present a situation in which
the judge’s “impartiality might reasonably be questioned.” Nor does the trial
judge’s alleged refusal to respond to counsel’s letter demanding either voluntary
recusal or an explanation of the manner in which the request for hearing was
handled. The motion to recuse was duly considered and ruled upon based upon
the motion and affidavit in support of the motion.
2. Next, we address those terms of the interlocutory injunction order
challenged by Mayor Lue. She argues that the objectionable portions of the
order are based upon a misinterpretation of the Charter provisions relating to
what constitutes a quorum of the city council for purposes of transacting city
business, the circumstances pursuant to which the mayor may vote on issues of
city business, as well as other portions of the Charter. As set forth herein, we
agree that the trial court misinterpreted the Charter and reverse the noted
portions of the interlocutory injunction order.
The Open Meetings Act requires all meetings, as that term is defined in
the Act, of certain public agencies to be open to the public. OCGA § 50-14-1
(b) (1). The parties to this case do not dispute that the City of Gordon is an
6
“agency” as that term is defined in the Act (see OCGA § 50-14-1 (a) (1) (D))
and that the city council is its governing body. “Meeting” is defined at OCGA
§ 50-14-1 (a) (3) (A) as:
(i) The gathering of a quorum of the members of the governing
body of an agency at which any official business, policy, or public
matter of the agency is formulated, presented, discussed, or voted
upon; or
(ii) The gathering of a quorum of any committee of the members of
the governing body of an agency or a quorum of any committee
created by the governing body at which any official business,
policy, or public matter of the committee is formulated, presented,
discussed, or voted upon.
To evaluate the trial court’s rulings on what constitutes a quorum of the city
council for voting and conducting official business, it is first necessary to
examine the relevant sections of the Charter.
The Charter as a whole provides that three distinct entities are involved
in city governance–the mayor, the council (as a whole), and “councilmembers,”
as that term is used in the Charter. The Charter, in Section 2.10 labeled “City
council creation; composition; number; election,” provides that the legislative
authority of city government is vested in a city council to be composed of six
councilmembers and a mayor. Throughout the Charter, the term “mayor” and
7
the term “councilmember[s]” are referred to as distinct officers with distinct
powers and duties. Pursuant to Section 3.15, labeled “Voting,” the Charter
stipulates that “four councilmembers” shall constitute a quorum authorized to
transact city council business and, “[e]xcept as otherwise provided in this
charter,” requires the affirmative vote of “four councilmembers” for adoption
of any ordinance, resolution, or motion. The powers and duties of the mayor are
set forth in Section 3.22, one enumeration of which is to preside over all city
council meetings. Subsection (8) of Section 3.22 authorizes the mayor to
participate in the council’s discussions of all matters brought before the city
council, but limits the mayor’s authority to vote on such matters to only two
instances: (1) when there is a tie vote, and (2) in all elections of officers who are
elected by the city council, as well as impeachment or removal proceedings,
whether or not there is a tie vote. With respect to officers elected by the city
council, the Charter provides in Section 3.11 (b) that the city council shall elect,
by majority vote, a councilmember to serve as mayor pro tempore and a
councilmember to serve as presiding officer. Section 4.12 of the Charter
provides that a city attorney shall be appointed by the city council and shall
serve at the pleasure of the city council.
8
(a) The first provision of the interlocutory injunction order challenged by
Mayor Lue is the prohibition against her meeting privately with three or more
councilmembers to discuss city business. The order states:
Four or more members of the city council shall not meet
privately to discuss city business. This includes occasions where
at least 3 councilmembers and the mayor are present. This applies
at all times and to all places, it does not matter whether the meeting
is in city hall, a private home, a vehicle, a restaurant, or any other
location.
(Emphasis in original.) The order reinstates Mayor Lue to her position as mayor
subject to certain conditions. These conditions include the following:
The Mayor is enjoined from privately meeting with three or more
councilmembers to discuss city business. All such meetings must
be open to the public, and notice of such meetings should be
provided as required by state law.
(Emphasis in original.)
It is obvious from these sections of the order that they are based upon the
trial court’s assumption that a quorum is created by three councilmembers plus
the mayor. But the language of the Charter, as noted above, specifically defines
a quorum as consisting of “four councilmembers,” and it makes a distinction
between councilmembers and the mayor. Appellees argue that such a reading
of the Charter renders meaningless that section of the Charter permitting the
9
mayor to vote in the case of a tie, given that the Charter also requires the
affirmative vote of four councilmembers to pass any ordinance, resolution, or
motion. According to the appellees, if the mayor is considered a
“councilmember” for purposes of providing the necessary fourth vote to break
a tie, then the mayor must also be considered a “councilmember” for purposes
of creating a quorum for a meeting to transact city council business.
The interpretation of statutes, ordinances, and charters presents a question
of law for the court. Merry v. Williams, 281 Ga. 571, 573 (2) (642 SE2d 46)
(2007); Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383 (1) (499
SE2d 157) (1998). It is true, as appellees argue, that under the rules governing
statutory construction, “statutes ‘in pari materia,’ i.e., statutes relating to the
same subject matter, must be construed together.” Willis v. City of Atlanta, 285
Ga. 775, 776 (2) (684 SE2d 271) (2009) (quoting Butterworth v. Butterworth,
227 Ga. 301, 303-304 (180 SE2d 549) (1971)). We do not agree, however, that
the Charter section granting the mayor the authority to vote in the case of a tie
vote of councilmembers means the Charter must be construed as granting the
mayor the status of a councilmember for purposes of creating a quorum. The
Charter specifically states that “four councilmembers” constitutes a quorum for
10
transacting city council business and it also specifically provides the limited
circumstances under which the mayor can vote. That being the case, a meeting
of three councilmembers plus the mayor does not constitute a quorum of the city
council and is not a meeting that is subject to the Open Meetings Act. The only
reasonable construction of the Charter provisions on voting is that the mayor
does not become a councilmember for purposes of voting when called upon to
break a tie vote; the mayor votes as mayor, a non-councilmember, who is
authorized by the Charter to cast a tie-breaking vote of the councilmembers. See
Palmer v. Claxton, 206 Ga. 860, 863 (2) (59 SE2d 379) (1950). Indeed, the
sentence requiring the affirmative vote of “four councilmembers” to adopt any
ordinance, resolution, or motion opens with the proviso, “[e]xcept as otherwise
provided in this chapter,” and the Charter specifically provides otherwise in
Section 3.22 (8) which authorizes the mayor to vote in the case of a “tie vote.”
In deciding whether to grant an interlocutory injunction, trial courts are
to consider whether:
(1) there is a substantial threat that the moving party will suffer
irreparable injury if the injunction is not granted; (2) the threatened
injury to the moving party outweighs the threatened harm that the
injunction may do to the party being enjoined; (3) there is a
substantial likelihood that the moving party will prevail on the
11
merits of [the] claims at trial, and (4) granting the interlocutory
injunction will not disserve the public interest.
(Citation omitted.) SRB Investment Services, LLLP v. Branch Banking and
Trust Co., 289 Ga. 1, 5 (3) (709 SE2d 267) (2011). In SRB Investment Services,
this Court noted that the moving party need not prove all four factors. Id. The
trial court’s broad discretion to grant or deny an interlocutory injunction,
however, will not be reversed “unless the trial court made an error of law that
contributed to the decision, there was no evidence on an element essential to
relief, or the court manifestly abused its discretion.” (Citation and punctuation
omitted.) Id.To the extent that the trial court order enjoins the mayor from meeting
privately with three city council members, it appears that the trial court’s grant
of the injunction with respect to the mayor’s participation in such meetings is
based upon an erroneous interpretation of the Charter.5 That being the case, the
first of the four factors a trial judge is to consider when deciding upon a motion
for interlocutory injunction is not met in this case–the moving parties will not
5
The injunction prohibits the mayor from meeting privately with three or more city council
members. As discussed above, it is permissible for the mayor to meet privately with three city
council members. However, a meeting with four would consitute a quorum and violate the Open
Meetings Act law if done in private.
12
suffer irreparable harm by denial of the motion because the applicable law does
not grant them the right to demand or expect that such meetings will be noticed
and open to the public. A trial court’s discretion to decide whether to grant an
interlocutory injunction is abused, and may be reversed, when it is based on a
misunderstanding or misapplication of the governing law, or in this case, city
charter. See Owens v. Hill, 295 Ga. 302, 309 (4) (758 SE2d 794) (2014).
Accordingly, we reverse that section of the interlocutory injunction order
requiring compliance with the Open Meetings Act for meetings including Mayor
Lue that do not involve a quorum of four councilmembers.
(b) As set forth in Section 3.22 (8), the Charter authorizes the mayor to
vote on city council business only in the event of a tie vote and also in elections
of officers who are elected by the city council and impeachment or removal
proceedings, whether or not the vote is tied. Another section of the
interlocutory injunction order challenged by Mayor Lue states that the mayor’s
authority to vote with respect to decisions on elected officers does not include
the city attorney or city employees. Specifically, the order states:
The Mayor can only vote when there is a three to three tie. The
only exception is with regard to elected officers, which does not
include the city attorney or city employees. If the Mayor believes
13
there is a matter on which she could otherwise vote, she may
petition this Court for guidance.
(Emphasis in original.)
Strictly speaking, this section of the interlocutory order correctly applies
the terms of the city charter with respect to the mayor’s authority to vote on
matters before the city council, and the trial court did not err in entering it.
According to the terms of the Charter, neither the city attorney nor city
employees are elected officers. Pursuant to Section 4.12, the city attorney is to
be appointed by the city council and serve at the pleasure of the city council, and
it is the city council which decides upon the city attorney’s compensation6,7
Pursuant to Section 3.22 (2), the mayor has authority to “[a]ppoint and remove
for cause, with confirmation of appointment or removal by the council, all . . .
employees of the city . . . .” City employees are appointed by the mayor and are
6
As with any matter set forth in the Charter on which the city council makes the
determination, in the event of a tie vote, and assuming a quorum of four councilmembers, the mayor
may cast the tie-breaking vote for appointment of the city attorney. The record reflects a dispute
exists with respect to employment of the city attorney. If any decisions have been made to date
regarding the city attorney that do not comply with the terms of the Charter, the proper remedy is to
seek a trial court ruling that the specific action in question is ultra vires and beyond the scope of
authority of the person or entity that took the challenged action as defined by the municipal code or
charter. See, e.g., City of Ludowici v. Brown, 249 Ga. 857 (295 SE2d 857) (1982).
14
not elected officers, and therefore the challenged provision of the interlocutory
injunction order does not violate the terms of the Charter.8
(c) The final section of the interlocutory injunction order to which
appellant objects states as follows:
The Mayor is enjoined from terminating any city employee
without full due process as is provided by the city charter, state and
federal law, and the approval of this court after the opportunity for
a hearing.
(Emphasis in original.) “Injunction ought not to be granted, unless the injury is
pressing and the delay dangerous, and there is no adequate remedy at law.”
(Citation and punctuation omitted.) Cathcart Van & Storage Co. v. City of
Atlanta, 169 Ga. 791 (151 SE 489) (1930). Where there is an adequate remedy
at law, a temporary injunction sought by the petitioner is properly refused. East
v. Henry Darling, Inc., 163 Ga. 760 (136 SE 895) (1927). No allegation is made
that Mayor Lue has improperly terminated or threatened to terminate any city
employee, although the record reflects appellees are concerned that she may
have plans to do so. “Courts of equity will not exercise [the power of injunctive
8
To the extent that this provision of the interlocutory order may be interpreted as placing
a restriction on the mayor’s authority to appoint city employees in the manner set forth in the
Charter, however, that interpretation would be contrary to the express provisions of the Charter.
15
relief] to allay mere apprehensions of injury, but only where the injury is
imminent and irreparable and there is no adequate remedy at law.” (Citation and
punctuation omitted.) Morton v. Gardner, 242 Ga. 852, 856 (252 SE2d 413)
(1979). This section of the interlocutory injunction order is, therefore, reversed.
3. Mayor Lue filed two motions to dismiss the complaint on the ground
that it failed to state a claim upon which relief can be granted. In the earlier-
filed motion, Mayor Lue asserted she is immune from plaintiffs’ claims for
damages for alleged non-compliance with the Open Meetings Act by virtue of
the doctrine of sovereign immunity and by the doctrine of official or qualified
immunity. She also asserted that plaintiffs failed to state a claim against her
because she, as an individual elected official, is not an “agency” pursuant to the
Open Meetings Act and thus is not a proper party to a complaint for damages
under the Act. Finally, Mayor Lue asserted that even if the plaintiffs were to
prove a violation of the Open Meetings Act, they are not entitled to enforce civil
penalties against her pursuant to OCGA § 50-14-6. In the second-filed motion,
Mayor Lue asserted she, in her capacity as mayor, is not a party capable of being
sued. After these motions were filed, plaintiffs amended their complaint to
make additional claims of violations of the Open Meetings Act, as well as other
16
acts which, according to plaintiffs, create grounds for removal from office. The
trial court denied both motions to dismiss, and Mayor Lue appeals. On appeal,
Mayor Lue argues that the trial court’s decision on her motions to dismiss
should be reversed because: (a) in her capacity as mayor, as she is named in the
complaint, she is not an entity or person capable of being sued; (b) she is not
an agency that may be sued under the Open Meetings Act; and (c) in her
capacity as mayor, she is not a proper party to the claim for award of attorney
fees. We also address whether the trial court properly denied the motion to
dismiss with respect to the plaintiffs’ petition to nullify certain city council
decisions and with respect to the petition to remove the mayor.
(a) We reject Mayor Lue’s assertion that the complaint should be
dismissed in its entirety because the named defendant, “Mary Ann Whipple
Lue, as Mayor of the City of Gordon,” is neither a natural person nor an entity
capable of being sued. Being named as a defendant in a lawsuit in an official
capacity, rather than an individual capacity, does not mean the person so named
is an entity incapable of being sued.9 In fact, the Civil Practice Act recognizes
9
It is not uncommon for the mayor of a city to be sued in his or her official capacity. See,
e.g., Owens v. City of Greenville, 290 Ga. 557 (772 SE2d 755) (2012); City of Atlanta v. Southern
States Police Benevolent Assn. of Georgia, 276 Ga. App. 446, 447, n. 1 (623 SE2d 557) (2005); City
17
that a public officer may sue or be sued in his or her official capacity. See
OCGA § 9-11-25 (d) (2) (permitting a public officer named in an action in his
or her official capacity to be described as a party by official title rather than by
name, unless the trial court requires his or her name to be added). This Court
has stated that a suit filed against a county employee in his official capacity is,
in essence, a claim against the county. See Gilbert v. Richardson, 264 Ga. 744,
746, n. 4 (2) (454 SE2d 476) (1994); see also City of Atlanta v. Harbor Grove
Apartments, LLC, 308 Ga. App. 57, 58 (706 SE2d 722) (1) (2011). Likewise,
we conclude here that plaintiffs’ claim against Lue, in her official capacity as
mayor is, in essence, a claim against the City of Gordon, which is legal entity
incorporated by the General Assembly10 and capable of being sued.
(b) Mayor Lue argues that the Open Meetings Act, by its terms, applies
only to an “agency,” as defined by the Act. Pursuant to OCGA § 50-14-1 (a)
(1), a municipal corporation, every department or similar body of the municipal
corporation, and every city is an agency subject to the terms of the Act.11
of Roswell v. Bolton, 271 Ga. App. 1 (608 SE2d 659 (2004).
10
See Section 1.10 of the City Charter of the City of Gordon, supra.
11
In pertinent part, OCGA § 50-14-1 (a) states that, as used in the Open Meetings Act:
(1) “Agency” means:
18
Accordingly, Mayor Lue argues she is not an agency subject to the Open
Meetings Act. As is obvious from the caption of the complaint, as well as the
party named in the summons, Lue was sued in her official capacity as mayor,
and she is the sole party named as defendant. Mayor Lue asserts she, alone, is
not the proper defendant to this action alleging violations of the Open Meetings
Act and seeking to enforce damages for violation of the Act.
It is true that, in general, the Open Meetings Act addresses the obligations
of agencies, as defined by the Act, and not specific individuals or governmental
officers. That section of the Act that imposes penalties, however, refers to “any
person” who violates the requirements of the Act. OCGA § 50-14-6 states as
follows:
Any person knowingly and willfully conducting or participating in
a meeting in violation of this chapter shall be guilty of a
misdemeanor and upon conviction shall be punished by a fine not
to exceed $1,000.00. Alternatively, a civil penalty may be imposed
...
(B) Every county, municipal corporation, school district, or other political
subdivision of this state;
(C) Every department, agency, board, bureau, office, commission, authority, or
similar body of each such county, municipal corporation, or other political
subdivision of this state; [and]
(D) Every city, county, regional, or other authority established pursuant to the laws
of this state; . . . .
19
by the court in any civil action brought pursuant to this chapter
against any person who negligently violates the terms of this
chapter in an amount not to exceed $1,000.00 for the first violation.
A civil penalty or criminal fine not to exceed $2,500.00 per
violation may be imposed for each additional violation that the
violator commits within a 12 month period from the date that the
first penalty or fine was imposed. It shall be a defense to any
criminal action under this Code section that a person has acted in
good faith in his or her actions.
Prior to its amendment in 2012, this code section provided only for
misdemeanor criminal penalties for violation of the Act.12 This precluded
private citizens from seeking to impose a penalty for noncompliance with the
Act since they lack standing to initiate a criminal prosecution. See Cardinale
v. City of Atlanta, 290 Ga. 521, 526 (722 SE2d 732) (2012) (affirming dismissal
of that portion of a complaint against a municipality and individual members of
the city council seeking to impose misdemeanor penalties for alleged violations
of the Open Meetings Act, but reversing dismissal of that portion of the
complaint seeking declaratory and injunctive relief for alleged violations).
Shortly after this Court issued its opinion in the Cardinale case, the General
Assembly amended OCGA § 50-14-6 to provide, in addition to a criminal
12
See Ga. L. 1988, p. 235, § 1.
20
penalty for knowing and willful violation of the Act, for the imposition of a civil
penalty “in any civil action . . . against any person who negligently violates the
terms of this chapter . . . .”13
In construing a statute, this court applies
fundamental rules of statutory construction [that] require us to
construe a statute according to its terms, to give words their plain
and ordinary meaning, and to look diligently for the intention of the
General Assembly. OCGA § 1-3-1 (a); [Cit.]. Where the plain
language of a statute is clear and susceptible of only one reasonable
construction, we must construe the statute according to its terms.
Atlanta Independent School System v. Atlanta Neighborhood Charter School,
Inc., 293 Ga. 629, 631 (748 SE2d 884) (2013). Although the open meetings
requirements of the Act apply to agencies, the natural and reasonable reading of
OCGA § 50-14-6 is that the General Assembly recognized that decisions to
comply, or not, with the Act are made by individuals, or “persons,” who are held
accountable by the provisions of that Code section.14 The complaint in this case,
13
Ga. L. 2012, p. 218, § 1/HB 397. In the same House Bill, a similar provision was
enacted providing for recovery of civil penalties against “any person or entity” who negligently
violates the terms of the Open Records Act, OCGA § 50-18-70 et seq. Ga. L. 2012, p. 218, § 2/HB
397.
14
See also OCGA § 50-14-1 (e) (2) (B) (requiring minutes to include the identity of
“persons” making motions and voting); OCGA § 50-14-4 (b) (stating that if a meeting is closed to
the public, the “person” presiding must execute an affidavit, and if one or more “persons” in an
21
however, does not name Mayor Lue in her individual, personal capacity;
instead, she was sued in her official capacity as mayor. Accordingly, that
portion of the complaint seeking to enforce a civil penalty “against any person
who negligently violates the terms of this chapter,” pursuant to OCGA § 50-14-
6 fails to name a proper party defendant and should be dismissed.15
(c) The complaint also seeks an award of attorney fees, pursuant to
OCGA § 50-14-5 (b), for alleged violations of the Open Meetings Act. Unlike
OCGA § 50-14-6, which provides for the imposition of civil and criminal
penalties against a person who violates the Open Meetings Act, OCGA § 50-14-
5 (b) does not refer to a person who has violated the Act. Instead, it refers only
to an action brought to enforce the Act in which the trial court determines that
“an agency” has acted without substantial justification in violation of the Act.
Those cases in which an award of attorney fees pursuant to this Code section has
been affirmed involve complaints filed against the governmental agency that
executive session speaks out of turn, the presiding officer must take certain steps); OCGA § 50-14-5
(c) (providing immunity for any “agency or person” who provides access to information in good
faith).
15
We therefore need not decide in this case whether private citizens may enforce the new
civil penalty provision and/or collect any civil penalty paid, or if, as in the case of the criminal
penalty provision, only the Attorney General has standing to enforce and collect the criminal penalty
on behalf of the State, which receives any fine paid.
22
was subject to the Open Meetings Act, along with individual office holders.
See, e.g., City of Statesboro v. Dabbs, 289 Ga. 669 (2) (715 SE2d 73) (2011);
Slaughter v. Brown, 269 Ga. App. 211 (603 SE2d 706) (2004); Evans County
Bd. of Commrs. v. Claxton Enterprise, 255 Ga. App. 656 (566 SE2d 399)
(2002). This is appropriate because the clear and unambiguous language of
OCGA § 50-14-5 (b) refers to an agency and not a person. For the reasons set
forth above, we conclude that plaintiffs’ claim against Lue, in her capacity as
mayor, for an award of attorney fees pursuant to OCGA § 15-14-5 (b) is, in
essence, a claim against the City of Gordon, which is an agency pursuant to the
Open MeetingsAct. Consequently, this claim was not subject to dismissal on the
ground that Lue, in her capacity as mayor, is not a proper party to the claim, and
the trial court did not err in denying Mayor Lue’s motion to dismiss this portion
of the claim.
(d) The complaint seeks injunctive relief to nullify certain city council
decisions because they were allegedly made at meetings that were not noticed
or otherwise not conducted in compliance with the requirements of the Open
Meetings Act. Injunctive relief, however, does not provide a remedy for acts
23
already completed. See, e.g., Moorhead v. Luther, 219 Ga. 242 (2) (a) (132
SE2d 669) (1963); Wiggins v. Bd. of Commrs. of Tift County, 258 Ga. App. 666,
668 (574 SE2d 874) (2002) (in a case alleging violations of the Open Meetings
Act, where it appears that the acts complained of were fully consummated, an
injunction does not lie). Additionally, an injunctive remedy does not lie where
one has a complete remedy at law. Lawrence v. Lawrence, 196 Ga. 204 (1) (a)
(26 SE2d 283) (1943); see also Tobin v. Cobb County Bd. of Educ., 278 Ga. 663(2) (604 SE2d 161) (2004) (where the Open Records Act provides an adequate
remedy at law, neither mandamus nor equitable relief can be granted). The
Open Meetings Act provides a legal remedy for invalidating any official action
of an agency made in violation of the Act. OCGA § 50-14-1 (b) (2).
Consequently, the trial court erred in denying Mayor Lue’s motion to dismiss
that portion of the complaint seeking to nullify certain city council decisions on
the ground they were made in violation of the Open Meetings Act.
(e) The only other equitable relief sought in plaintiffs’ complaint is
Mayor Lue’s removal from office. The Charter provides the manner in which
a mayor may be removed from office, including an order of the Wilkinson
24
County Superior court following a hearing on a complaint for removal. It also
sets forth the grounds by which a mayor may be removed, including
incompetence, misfeasance, or malfeasance in office. Plaintiffs in this action
allege that grounds for removal, if proven, are established by Mayor Lue’s
alleged violations of the Open Meetings Act, along with other alleged
wrongdoing. Nevertheless, a complaint for removal from office is one that must
be asserted against the office holder, in her individual capacity, not against the
office.16 But as noted above, plaintiffs did not name the Mayor in her individual
or personal capacity, but only in her capacity as mayor. Consequently, the trial
court erred in denying Mayor Lue’s motion to dismiss that portion of the
complaint seeking removal from office.
Judgment affirmed in part and reversed in part. All the Justices concur.
16
By analogy, the writ of quo warranto to challenge the right of a person to hold a specific
public office, pursuant to OCGA § 9-6-60, is a proceeding against a named individual. See Malone
v. Minchew, 170 Ga. 687 (153 SE 773) (1930); see also Lopez v. Bd. of Educ., etc., 310 Conn. 576,
591 (81 A3d 184) (2013) (“[A] writ of quo warranto must be directed toward the objectionable
person holding an office and exercising its functions in his or her individual capacity.” [Citations and
punctuation omitted.])
25