WILLIAMS v. DEKALB COUNTY et al.
S19A1163
Supreme Court of Georgia
308 Ga. 265
Edwаrd Williams appeals from an order of the Superior Court of DeKalb County, which dismissed his second amended complaint with prejudice. Acting pro se, Williams sued DeKalb County and members of its governing authority, the Chief Executive Officer and the DeKalb County Board of Commissioners, in their official and individual capacities (collectively, “Appellees“).1 In his complaint, Williams challenged in a variety of ways the legality of a DeKalb County ordinance, which increased the salaries of the members of the county governing authority, setting forth claims for mandamus, declaratory and injunctive relief, criminal and civil penalties for violating the Open Meetings Act, and attorney fees and costs of litigation. Following a hearing, the trial court denied Williams’ petition for mandamus and granted Appellees’ motion to dismiss Williams’ remaining claims, ruling that his claims for declaratory and injunctive relief against the County were barred by the doctrine of sovereign immunity, that he had failed to state a claim for а declaratory judgment or for injunctive relief against the Chief Executive Officer and the commissioners in their individual capacities, and that he failed to state a claim under the Open Meetings Act against the commissioners in their individual capacities and that those claims were barred by the doctrines of official and legislative immunity.
On appeal,2 Williams contends that the trial court erred in dismissing his claims for declaratory and injunctive relief against the members of the governing authority in their individual capacities for acting unlawfully in increasing their own pay. He argues that the trial court erred in dismissing his claim that the County
Williams also contends that the trial court erred in dismissing his claims against the commissioners for violating the Open Meetings Act, see
Thus, we affirm those portions of the court‘s order dismissing Williams’ claim for declaratory judgment against the members of the governing authority and for injunctive relief against the commissioners; we vacate that portion of the trial court‘s order dismissing Williams’ claim for injunctive relief against Thurmond; we reverse that portion of the court‘s order dismissing Williams’ claim against the commissioners for civil penalties
1. Facts and Procedural History.
Williams alleged the following facts in his second amended complaint.3 At about 2:00 p.m. on January 18, 2018, the DeKalb County Board of Commissioners announced that it would hold a “special call” meeting at 9:00 the following morning. The printed meeting agenda did not include a proposed pay increase for the commissioners or the Chief Executive Officer, but the commissioners discussed the desire for a pay increase at the meeting. The meeting minutes did not record the discussion, nor did they record any vote to take official action based on the discussion. The minutes also did not reflect the reason for calling the meeting on less than 24 hours’ notice. About a week later, in an e-mail exchange with the subject line “Salary Meeting Follow-Up,” the Board‘s presiding officer asked the Board‘s attorney to contact the Chаmpion Newspaper, the legal organ of the county, and place an advertisement giving statutorily required notice of the intent to increase the salaries of the governing authority.4 The Board‘s attorney arranged for the notice to be published on three consecutive Mondays, February 8, 15, and 22, 2018, giving notice of the County‘s intent to increase the salary and other compensation of the governing authority at the regular meeting of the Board to be held on February 27, 2018, with the fiscal impact of the change estimated to be approximately $229,660.22 per year. The agenda published for the February 27 meeting, however, did not list the proposed salary ordinance or otherwise mention increasing the Chief Executive Officer‘s or commissioners’ pay.
Well into the February 27 meeting, a commissioner moved to add the proposed salary increase to the agenda as a “walk-on” resolution, and the commissioners voted unanimously to add the salary ordinance to the agenda. The fiscal impact statement for the ordinance reflected that the Chief Executive Officer‘s pay would be set at 90 percent of a DeKalb County superior court judge‘s total compensation, and that the commissioners’ base salary would increase from $40,530.55 to $65,000, effective January 2, 2019. Six commissioners voted in favor of the resolution, and one voted against it.
Williams, who is a citizen and taxpayer of DeKalb County, filed his complaint in August 2018. He claimed that the commissioners violated the Open Meetings Act by not giving proper notice of their intent to pass the pay increase, thus invalidating the increase and subjecting the commissioners to civil and criminal penalties. He also claimed that, even though the General Assembly had given county governing authorities the power to increase their members’ pay through
In January 2019, the trial court held a hearing to address both Williams’ request for mandamus relief and Appellees’ motion to dismiss.5 After the hearing, the trial court denied Williams’ petition for mandamus
With respect to Williams’ claims under the Open Meetings Act, the court held that the commissioners are not subject to liability for civil penalties under the Act.7 First, the court held that official immunity protected the commissioners from liability under the Open Meetings Act, because official immunity precludes liability for the negligent performance of a discretionary act. Specifically, the trial court held that deciding at a meeting to consider an item not on the pre-published agenda, based on a determination that it is “necessary” to do so, requires the exercise of judgment and is therefore a discretionary act. The court also found that legislative immunity precluded liability because the commissioners were exercising their legislative authority when they passed the ordinance. In
2. Standard of Review.
A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the 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.
(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). See also
3. Salary Ordinance Claims.
Williams averred in his second amended complaint that the members of the DeKalb County governing authority acted unlаwfully in passing the salary ordinance,8 asserting that
(a) Declaratory relief. Williams’ mere status as a citizen or taxpayer11 is insufficient to confer standing to seek relief under
(b) Injunctive relief. As this Court has explained,
a citizen-taxpayer has standing in equity to restrain public officers from performing acts which the law does not authorize. However, absent expenditures of public revenue or performance of a duty owed to thе public[,] a citizen-taxpayer has no standing in equity unless [he or] she has special damages not shared by the general public.
Juhan v. City of Lawrenceville, 251 Ga. 369, 370 (306 SE2d 251) (1983). Williams did not allege in his complaint that he suffered any special damages not shared by the general public. Therefore, to survive a motion to dismiss, he must demonstrate that his status as a citizen or as a taxpayer confers standing to seek an injunction against the members of the governing authority in their individual capacities.
(i) Citizen standing. Williams, as a citizen of DeKalb County, generally has standing pursuant to
(ii) Taxpayer standing. Under Georgia law, Williams’ status as a taxpayer generally affords him standing to seek to enjoin the unlawful expenditure of public funds.13
Williams’ second amended complaint shows that he seeks to enjoin members of the governing authority from performing a specific action, one he describes as the “unlawful exaction of taxpayer money from the county treasury in regards to the compensation ordinance.” However, Williams has not alleged that any of the commissioners are responsible for “exacting” or expending those funds. He alleges that the commissioners exercised their legislative authority in passing the ordinance increasing their salaries; he has not alleged that, after the passage of the ordinance, the commissioners performed or could forbear any official acts pertaining to the execution of the ordinance or the appropriation or disbursement of public funds they receive as salaries. Consequently, the trial court did not err in dismissing Williams’ claim for injunctive relief against the commissioners.
Whether the allegations of Williams’ complaint against Chief Executive Officer Thurmond, in his individual capacity, show that he performs any official acts pertaining to the execution of the salary ordinance or the appropriation or disbursement of public funds paid as salaries, however, is not clear. Williams broadly asserted in his complaint that Thurmond “has a clear legal duty to supervise, direct and control the administration of the county government” as well as to “execute and enforce all ordinances.” All of Williams’ specific allegations, however, relate to Thurmond‘s role in the ordinance‘s passage, primarily his alleged failure to sign or to veto the ordinance passed by the commissioners. In his complaint, Williams did not focus on Thurmond‘s executive and administrative duties, and he made no specific allegations that those duties include the power to control the disbursemеnt of funds paid as
Consequently, we vacate the court‘s order as it pertains to Williams’ claim for injunctive relief against Thurmond and remand the case to the trial court for reconsideration of that issue. The resolution of any claim that Williams seeks to have decided against Thurmond should not be addressed by the trial court until it is clear that Williams has standing to bring it and is, therefore, a proper plaintiff.
4. Open Meetings Act Claims. Williams contends that the trial court erred in granting Appellees’ motion to dismiss his claim under the Open Meetings Act for civil penalties against the commissioners in their individual capacities.14 Williams contends that, despite acting collectively, the commissioners as individuals are subject to civil penalties under the Act for participating in a meeting in violation of the Act. He argues that neither official immunity nor legislative immunity applies to an official who violates the Act.
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.
One of the ways the General Assembly has provided to encourage compliance with the Act by agencies is by creating a mechanism for holding accountable the individuals who make decisions for the agency.
Any person knowingly and willfully conducting or participating in a meeting in violation оf 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 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. . . . 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.
As we have explained, “in general, the Open Meetings Act addresses the obligations of agencies, as defined by the Act, and not specific individuals or governmental officers[,]” but it is significant that
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 recognizеd 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.
Id. at 332 (3) (b) (footnote omitted). For this reason,
(b) The next question is whether Williams’ complaint alleged a violation of the Open Meetings Act.
The trial court‘s theory that the board acted “as a whole,” not as individual persons, in this conduct and that the commissioners are therefore shielded from individual accountability for the alleged agenda violation contravenes the plain text of the Open Meetings Act. Specifically, the agenda requirement applies to any meeting, as that term is defined in the Act.
(c) The next question is whether the commissioners are protected by official immunity. The doctrine of official immunity,
originally a creature of case law in Georgia, now arises out of Article I, Section II, Paragraph IX (d) of the Georgia Constitution, which establishes that public employees . . . may be held personally liable for negligence relating to their official duties only when performing “ministerial” acts; “discretionary” acts are only subject to suit when performed with actual malice or intent to cause injury.
Barnett v. Caldwell, 302 Ga. 845, 847-848 (II) (809 SE2d 813) (2018) (citations omitted).20 “In the context of Georgia‘s official immunity doctrine, ‘actual malice’ requires a deliberate intention to do wrong.” Wyno v. Lowndes County, 305 Ga. 523, 531 (3) (824 SE2d 297) (2019) (citation and punctuation omitted). “A ‘deliberate intention to do wrong’ such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs.” Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007). Assuming without deciding that determining whether to take up an item not on the pre-published agenda for a meeting is necessarily a discretionary act, we conclude that Williams’ complaint sufficiently alleges that the commissioners acted with actual malice in intentionally violating the agenda requirements of the Act — a criminal act. Consequently, taking the allegations of Williams’ complaint as true for the purpose of reviewing the dismissal of the complaint, the commissioners are not entitled at this stage to official immunity from the penalty provisions of the Open Meetings Act.
For the foregoing reasons, the trial court erred in dismissing Williams’ claim for civil penalties against the commissioners individually for violating the Open Meetings Act.
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded. Melton, C. J., Nahmias, P. J., and Blackwell, Boggs, Peterson, and Warren, JJ., concur. Bethel, J., concurs in part and dissents in part.
BETHEL, Justice, concurring in part and dissenting in part.
As the plain language of the Open Meetings Act makes clear, although a posted agenda for a public meeting is required and must include items which are “expected” to come before the body in the meeting, the failure to list an item of business in the agenda “shall not preclude considering and acting upon” that item if it “becomes necessary” to do so during the course of the meeting.
Prior to any meeting, the agency or committee holding such meeting shall make available an agenda of all matters expected to come before the agency or committee at such meeting. . . . Failure to include on the agenda an itеm which becomes
necessary to address during the course of a meeting shall not preclude considering and acting upon such item.
(Emphasis supplied.) This Code section requires an agency or committee subject to the Act to post an agenda prior to any meeting at which it takes official action. The failure to do so may negate any official actions taken at the meeting. See
We have rightly recognized that the setting of items on a meeting‘s agenda is a discretionary act that will not subject a board or its members to mandamus when they refuse to include an item that is requested by a member of the public. James v. Montgomery County Bd. of Ed., 283 Ga. 517, 517 (661 SE2d 535) (2008) (construing a statute that provided, “Every . . . board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary.” (citation and punctuation omitted; emphasis supplied)). We should likewise hold that the language of the Open Meetings Act gives courts no authority to second-guess a legislative body‘s determination concerning what it “expected” to consider at a meeting and whether it became “necessary” to add to the agenda of an otherwise lawful meeting.
Although we have long noted that “[t]he fact that a controversy has political overtones does not place it beyond judicial review[,]” (citation and punctuation omitted) Owens v. City of Greenville, 290 Ga. 557, 558 (1) (722 SE2d 755) (2012), courts should be especially reluctant to look behind the veil of the legislative process and the motivations of legislators at any level of government. Where lеgislative bodies are alleged to have violated clear technical requirements susceptible to traditional judicial evaluation, such as whether the legislative body posted an agenda prior to a public meeting, it is proper for us to determine whether they have complied with the Open Meetings Act. But where a plaintiff asks the courts to consider whether a legislative body has violated a provision of law which, as in this case, clearly vests discretion in that body — such as the determination as to whether some action is “expected” or “necessary” — our courts should decline to substitute their judgment for the determination made by the legislative body. Cf. Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 484 (1) (57 SE2d 578) (1950) (holding that with regard to the General Assembly‘s compliance with constitutional requirements for enactment of laws, including the requirement that the title of the bill be read three times, “A duly enrolled act, properly authenticated by regular presiding officers of both houses of the General Assembly, approvеd by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with constitutional requirements.” (citation and punctuation omitted)). See also
This approach is in keeping with our courts’ history of deference to legislative bodies’ efforts to comply with the requirements of the Open Meetings Act. That approach derives both from the separation of legislative and judicial power and the caution courts should heed before intruding upon the operations of legislative bodies.
With respect to the agenda requirement, particularly, rather than shackling the hands of a legislative body subject to the Act to a highly technical rule, this provision appears instead to afford great flexibility regarding the content of the agendas legislative bodies
Here, it appears from Williams’ allegations that notice of the meeting was posted in compliance with
DECIDED MARCH 13, 2020.
Open Meetings Act. DeKalb Superior Court. Before Judge Adams.
Thomas V. Burch, John L. Kennerly, Addison Smith, for appellant.
Viviane H. Ernstes, Bennett D. Bryan, Laura K. Johnson, Terry G. Phillips, Shaheem M. Williams; Jarrard & Davis, Kenneth E. Jarrard; Small Herrin, Gus H. Small, Brent W. Herrin, Benjamin S. Klehr, for appellees.
Larry W. Ramsey, Jr., Kelly L. Pridgen, amici curiae.
Notes
(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.