Williams v. Dekalb Cnty.

• Decision Date: 01 July 2022
• Docket Number: A22A0508
• Citation: 364 Ga.App. 710,875 S.E.2d 865
• Parties: WILLIAMS v. DEKALB COUNTY et al.
• Court: Georgia Court of Appeals

364 Ga.App. 710

875 S.E.2d 865

WILLIAMS

v.DEKALB COUNTY et al.

A22A0508

Court of Appeals of Georgia.

July 1, 2022

Thomas Vernon Burch, for Appellant.

Bennett Davis Bryan, Ken Jarrard, Laura Karen Johnson, Terry Gerard Phillips, Brent William Herrin, Gus H. Small, Benjamin S. Klehr, Atlanta, Shaheem Malik Williams, Forest Park, For Appellee.

Hodges, Judge.

In this latest chapter of an ongoing dispute between a taxpayer and DeKalb County government, Edward Williams challenges the manner in which the DeKalb County Board of Commissioners introduced and passed a 2018 salary increase in alleged violation of the Open Meetings Act. See OCGA § 50-14-1 et seq. Following a prior appearance in, and remand to the trial court from, the Supreme Court of Georgia, see Williams v. DeKalb County , 308 Ga. 265, 840 S.E.2d 423 (2020) (" Williams I "), Williams filed a third amended complaint and now appeals an order from the Superior Court of DeKalb County granting DeKalb County CEO Michael Thurmond's motion to dismiss that amended complaint and granting a motion for judgment on the pleadings filed by present and former DeKalb County commissioners ("the commissioners").¹ Williams argues that the trial court erred in: (1) concluding that he lacked taxpayer standing to pursue claims against Thurmond; (2) finding that official and legislative immunity barred his claims under the Open Meetings Act against the commissioners in their individual capacities; and (3) failing to conduct an in camera review of certain e-mails between the commissioners and the DeKalb County attorney. For the following reasons, we affirm the trial court's judgment in part, vacate the judgment in part, and remand this case for further proceedings consistent with this opinion.

Factual Background. In Williams I , the Supreme Court recited the following facts:

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 a.m. 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 Champion 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. 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.

(Footnote omitted.) 308 Ga. at 267-268 (1), 840 S.E.2d 423.

Williams’ Claims and the Prior Appeal. In general,² Williams argued that the commissioners violated the Open Meetings Act by failing to provide proper notice of their intent to pass a salary ordinance increasing their pay. Williams I , 308 Ga. at 268 (1), 840 S.E.2d 423. As a result, Williams filed a complaint against Thurmond and the commissioners seeking mandamus relief, declaratory judgment concerning the alleged illegality of the commissioners’ actions, injunctive relief to prevent payment of the increased salaries, civil and criminal penalties under the Open Meetings Act, and litigation expenses and attorney fees. Id. The trial court denied Williams’ mandamus petition, dismissed Williams’ claims for declaratory judgment and injunctive relief against Thurmond and the commissioners because he lacked standing as a citizen or taxpayer, and dismissed his cause of action for civil penalties against the defendants in their individual capacities for violations of the Open Meetings Act for failure to state a claim. Id. at 266, 840 S.E.2d 423.

On appeal, our Supreme Court affirmed the dismissal of Williams’ causes of action for declaratory relief against Thurmond and the commissioners and injunctive relief against the commissioners because, as to the declaratory judgment claim, Williams alleged no uncertainty with regard to his future conduct, and because he lacked citizen or taxpayer standing to support his request for injunctive relief. Williams I , 308 Ga. at 270-274 (3), 840 S.E.2d 423. The Supreme Court also vacated the dismissal of the claim for injunctive relief against Thurmond and remanded the case to the trial court to properly analyze whether Williams had standing to raise such a claim. Id. at 274 (3) (b) (ii), 840 S.E.2d 423. Finally, the Supreme Court reversed the dismissal of Williams’ claim for civil penalties against the commissioners in their individual capacity for violations of the Open Meetings Act upon finding that Williams, as a private person, had standing to enforce the civil penalty provisions of that act; that the allegations of Williams’ complaint raised a claim for violation of the Open Meetings Act for which official immunity would not require dismissal; and that the commissioners were not entitled to legislative immunity. Id. at 274-279 (4), 840 S.E.2d 423.

Current Claims and the Present Appeal. On remand, Thurmond and the commissioners filed a joint motion to dismiss Williams’ claims for lack of subject matter jurisdiction due to lack of standing. The defendants included with their motion three affidavits that primarily outlined the circumstances requiring addition of the salary legislation as a "walk-on" agenda item on short notice: generally, the affiants averred that the commissioners did not expect to add the ordinance to the February 20 agenda because a bill to raise the commissioners’ salaries was progressing in the General Assembly. The legislation stalled, however, and when the commissioners learned that the bill would not receive a vote, they were forced to add the item to the February 27 agenda out of necessity in order to comply with guidelines requiring that salary ordinances must be passed before the beginning of the qualifying period for the next primary election — in this case, March 5, 2018. The affiants included: (1) Dan Baskerville, a senior policy director with Dentons, LLP, who provided "the DeKalb County Board of Commissioners with Weekly Legislative Updates, which include updates on meetings of interest including the meetings of the DeKalb County House and Senate Delegations, and updates and analysis on bills of potential impact and interest to DeKalb County[;]" (2) Dionne McKenzie, an administrative support manager for the DeKalb County Board of Commissioners, who testified that the commissioners approved an agenda for the February 27, 2018 regular meeting on February 20, 2018, but added the salary ordinance as a "walk on" item during the February 27 meeting; and (3) Erica Hamilton, the director of the DeKalb County Department of Voter Registration and Elections, who testified that the earliest qualifying date for candidates in the May 22, 2018 primary election was March 5, 2018.

In response, Williams filed a 90-page third amended complaint with over 2,000 pages of attachments in an attempt to bolster his causes of action. The commissioners filed responsive pleadings, to which they also attached the three supporting affidavits, and a motion for judgment on the pleadings. Relevant to this appeal, the trial court granted Thurmond's motion to dismiss, finding that Williams did not have taxpayer standing to pursue injunctive relief against Thurmond because he did not: (1) demonstrate that he suffered any particularized harm (alleging only that he "lost trust and faith that they would be able to follow the law"); (2) show an unlawful expenditure of public funds; and (3) demonstrate an illegal act by Thurmond, as the salary ordinance passed and has not been declared unconstitutional.

The trial court also granted the commissioners’ motion for judgment on the pleadings, finding that: (1) the Open Meetings Act had not been violated; and (2) official and legislative immunity shielded the commissioners from Williams’ suit. Finally, the trial court rejected Williams’ request for an in camera inspection of certain e-mails between the county attorney and various commissioners that had been redacted for attorney-client privilege, concluding that Williams had not alleged that the e-mails had not been validly redacted pursuant to privilege. The trial court denied Williams’ motion for reconsideration, and this appeal follows.

At the outset, we note that the only claims remaining for adjudication³ are Williams’ claims for injunctive relief against Thurmond, for civil penalties against the commissioners in their individual capacities for violations of the Open Meetings Act, and for an in camera inspection of certain e-mails between the county attorney and...