JONES v. BOONE
S15A0521
774 SE2d 668
Decided June 29, 2015
HUNSTEIN, Justice.
Brinson Askew Berry Seigler Richardson & Dаvis, Ansel F. Beacham II, Norman S. Fletcher, Lee B. Carter; Jenkins & Bowen, Brandon L. Bowen, Robert L. Walker; Billy I. Daughtry, Jr., for appellants.
George E. Butler II; Smith, Welch, Webb & White, Andrew J. Welch III, Lajuana C. Ransaw, for appellees.
This is an appeal from a trial court’s order granting a writ of quo warranto based on that court’s conclusion that appellant Ronny Jones was not appointed as attorney for the City of Gordon, Georgia (the “City”), in accordance with the City’s charter. The quo warranto action was initiated by appellee Joseph Boone, who prior to May 21, 2014, had held the position of city attorney in Gordon for 35 years. For the reasons that follow, we affirm the order granting the writ of quo warranto.
The relevant facts in this case are undisputed. Under the City’s charter, legislative authority is vested in a city council, whiсh is comprised of a mayor and six council members. Charter of City of Gordon, § 2.10 (a). Except as otherwise provided in the charter, the affirmative vote of at least four council members is required for the adoption of any motion or resolution. Id. at § 3.15 (a). The mаyor, who as a general rule presides over city council meetings, is authorized to vote on matters brought before the city council only in those cases where there is a tie vote, “except that [she] may vote in all elections for officers who are elected by the city council and impeachment or removal proceedings whether there is a tie or not.” Id. at § 3.22 (8). With regard to the appointment of a city attorney, the charter expressly provides that the “city council shall appoint а city attorney” who “shall serve at the pleasure of the city council.” Id. at § 4.12.
At a May 21, 2014 Gordon City Council meeting presided over by Mayor Mary Ann Whipple Lue, a motion was made to terminate Boone’s services for the City as city
Boone subsequently sought leave to file a petition for writ of quo warranto challenging the validity of Jones’ appointment. Boone specifically contended Jones’ appointment by Mayor Lue was an ultra vires act because the mayor was not authorized to votе on the May 21, 2014 motions pertaining to the office of city attorney in the absence of a tie vote by city council members. See Charter of the City of Gordon, § 3.22 (8). The trial court agreed, concluding that (1) the “city attorney serves at the pleasure of the council pursuant to section 4.12 of the City Charter”; (2) “the power exercised by the mayor to appoint [Jones] as city attorney was not within the mayor’s powers”; and (3) Jones “is not the duly appointed attorney for the City of Gordon, Georgia.” Because it determined Mаyor Lue did not possess the power to appoint Jones as city attorney, the trial court granted Boone’s petition for quo warranto.
1. Jones challenges the procedural posture of Boone’s petition for writ of quo warranto, arguing both that Boone did not have standing to seek the writ and that the trial court did not grant Boone the necessary leave to file his petition. We find no merit in these contentions.
Under
[t]he writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging. It may be granted only after the application by some person either claiming the office or interested therein.
See Milton v. Mitchell, 139 Ga. 614, 617 (77 SE 821) (1913). See also White v. Miller, 235 Ga. 192, 192-193 (219 SE2d 123) (1975) (interested citizen and taxpayer may institute quo warranto proceedings to inquire into right of person to hold public оffice the duties of which he is discharging); Walker v. Hamilton, 209 Ga. 735, 736-737 (76 SE2d 12) (1953) (“[T]o maintain such proceedings to test the title to public office, one must have some interest in the office. While a claimant to the office has such an interest, it is not essential that one be a claimant, but is sufficient if he bе a resident or a taxpayer of the municipality where the office in question is that of mayor of such municipality”). Boone had standing to seek the writ because he claimed the office of city attorney based on the absence of an affirmative vоte by four council members to terminate his services as city attorney.2
See Milton, supra, 139 Ga. at 617.
Not only did Boone have standing to seek a writ of quo warranto, but in filing his petition he followed a procedure specifically approved by this Court. Both parties concede that a petition for quo warranto may be filed only by leave of court. See
2. Jones contends the trial court erred by holding that the mayor was without authority to appoint Jones as city attorney. His argument, made in multiple parts, is that although the City’s charter specifically provides that the city council shall appoint a city attorney, the council voted at its May 21, 2014 meeting to delegate this power of appointment to the mayor. The vote on the motion to delegate was three to two in the affirmative, just short of the fоur votes required for adoption. One council member abstained from voting, however, leaving it, Jones argues, within the discretion of the mayor to count the abstention vote as a negative vote, thereby creating a tie and authorizing the mayor to cast her vote to give herself the power to appoint a city attorney. See Charter of the City of Gordon, § 3.22 (8). This argument raises several concerns, including whether under the City’s charter the council could delegate to the mayor a power specifically сonferred upon it by the charter, and whether in doing so, the mayor was authorized to cast the deciding vote to transfer such power to herself. We need not consider these issues, however, because we find no authority permitting the mayor to count the cоuncil member’s abstention from voting as a negative vote, thereby creating a tie.
As stated, the City’s charter provides that “[e]xcept as otherwise provided in this charter, the affirmative vote of four (4) council members shall be required for the adoption of any ordinance, resolution, or motion.” Charter of the City of Gordon, § 3.15 (a). We previously have considered, in a case involving very similar language, the issue of how a commission or council, whose charter unambiguously requires an affirmative vote of a specifiеd majority of its members, can treat an abstention from voting. See Merry v. Williams, 281 Ga. 571 (4) (642 SE2d 46) (2007). We recognized in Merry that the requirement of a specific number of affirmative votes exhibits a legislative intent that abstentions not be counted with the majority of votes cast and concluded that the inclusion of such a rеquirement within the act consolidating the governments of the City of Augusta and Richmond County prohibited the commission from counting an abstention as an affirmative vote. See id. at 576-577. We further determined, under the rules of procedure applicable to the commission in thаt case, that abstentions could not be counted as negative votes. Id. at 576.
Here, Jones argues that Mayor Lue had the authority to treat an abstention as a negative vote. He, however, cites no act, law, charter provision, or rule of procedure granting either the mayor or the city council such authority. A mayor, like the municipality which he or she serves, has no inherent power but can only exercise that power delegated by the legislature. See generally H.G. Brown Family, L.P. v. City of Villa Rica, 278 Ga. 819 (1) (607 SE2d 883) (2005) (“A municipality has no inherent powеr; it may only exercise power to the extent it has been
Accordingly, in the absence of any clear statutory, charter provision, or rule of procedure authorizing the mayor to treat an abstention as an actual vote by a council member, eithеr in the affirmative or negative, we hold that the council member’s abstention from voting on the May 21, 2014 motion to delegate to the mayor the power to appoint a city attorney was, in fact, no vote at all. Therefore, there was no tie vote on the motion, and Mayor Lue was not authorized to cast a vote in its favor. The sole authority to appoint a city attorney thus remained in the city council, see Charter of the City of Gordon, § 4.12,3 and Jones’ appointment as city attorney by the mayor was invalid.4
3. Finally, wе find no error in the trial court’s failure to hold a jury trial. Although a jury trial is required in a quo warranto proceeding where there are factual questions at issue, see
Judgment affirmed. All the Justices concur.