Appellant Mayor Jeffrey Northway was elected mayor of the City of Springfield, Georgia in November 2009 and took office in January 2010. In October 2010, an ethics complaint and investigation was initiated against him before the City’s ethics committee. On November 22, 2010, before the ethics investigation was completed, appellees, who are members of the Springfield City Council, voted in a private executive session to ask for appellant’s resignation pursuant to Section 45 of the City of Springfield’s Charter. Appellant refused to resign.
Section 45 of the City of Springfield’s Charter states in pertinent part:
. . . should the mayоr or any member of the city council be guilty of malpractice in office, willful neglect of duty, gross and willful abuse of the powers entrusted to them or for аny reason become incompetent or unfit to fill such office, in the judgment of any four members of council then and in that event, they are authorized to ask for his resignation, and upon his failure to resign at once, or within five days, it shall be the duty of the four members of council jointly, to bring a rule against such offending оfficer setting up the charges against him before the judge of the Superior Court of Effingham County... and the said judge of the Superior Court is hereby granted power and authority to pass upon said rule, and may in his judgment, remove the officer there in charge and declare the office vacant, and this judgment shall bе final.
After appellant refused to resign, appellees petitioned the superior court for appellant’s removal pursuant to Section 45. The petition for removal set forth seven enumerations as the basis for the action. Paragraph one claimed proper jurisdiction аnd venue, paragraph four quoted Section 45, and paragraph seven prayed for relief from the trial court — specifically, that apрellant be removed from office “[d]ue to [his] failure to resign within the specified time----” The four other paragraphs made the following factual allеgations: that appellant was elected mayor of Springfield in 2009, that appellees were city council members, that appellees asked for appellant’s resignation as mayor, and that appellant failed to resign.
Appellant moved to dismiss the petition for removal pursuаnt to OCGA § 9-11-12 (b) (6), arguing that the petition did not state a claim for which relief could be granted and arguing a number of theories challenging the constitutionality of Section 45. The trial court held a hearing on the motion to dismiss. During the hearing, counsel for appellees admitted that appellees did not include in the petition any allegations of “malpractice in office, willful neglect of duty, gross and willful abuse of the powers... or [incompetence]... or [unfitness]” on the part of appellant.
(1) the allegations of thе complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. . . .
Stendahl v. Cobb County,
In its order denying dismissal, the trial court stated the following as to the suffiсiency of the petition: “as this case is governed by the Civil Practice Act, all that was required of the Petitioners was a petition which contains a short and plain statement of the claims showing why they are entitled to relief.” While this is a correct statement of the law (see OCGA § 9-11-8 (a) (2) (A)), in this case, appellees did not include any allegations in their petition “showing why they are entitled to relief.” The allegations in the petition state that appellees requested appellant to resign and that appellant failed to do so. These allegations, taken as true, cannot explicitly or impliсitly be interpreted to support the relief appellees were seeking — namely, appellant’s removal from elected office. Elеcted officials in Georgia have a property right in their office that cannot be taken away without due process of law. City of Ludowici v. Stapleton,
Judgment reversed and case remanded with direction.
Notes
At the hearing, counsel for appellees offеred to file an amended petition with more allegations contingent upon appellant agreeing to forego discovery.
This Court’s jurisdiction is based on the trial court’s ruling that Section 45 of the City of Springfield’s Charter is constitutional.
Appellees’ contention that the then-pending ethics committee proceeding provided proper notice to appellant of the charges against him does not cure the fundamental insufficiency of thе petition for removal. In fact, had the trial court considered the ethics complaint and any other accompanying materials of the еthics proceeding in its deliberation of the motion to dismiss, it would have been considering matters outside of the pleadings and would have been required tо convert appellant’s motion to dismiss into a motion for summary judgment. OCGA § 9-11-12 (b); Cox Enterprises v. Nix,
Because we have reversed the judgment of the trial court, we need not address appellant’s remaining enumerations of error.