Leaders Charged to Understand Their City Charter

February 22, 2018

Susan Moore, General Counsel, GMA

This article appeared in the February 2018 issue of the Georgia's Cities newspaper.
Congratulations to the newly elected mayors and councilmembers! You are embarking on an exciting period of public service and probably have lots of great, new ideas. But before you start passing ordinances and policies, READ YOUR CITY’S CHARTER.
A city’s charter is an important and guiding document for the city. It is a law that cannot be ignored. When your city council adopts ordinanc­es, they must be consistent with the city’s charter and applicable state law. Sometimes the mayor and city council disagree on who has certain powers under the charter. The city council may pass ordinances to clarify this or simply to shift power, but when do their actions come into conflict with the charter?
Ivey v. McCorkle
The Court of Appeals of Georgia re­cently provided some guidance in the case of Ivey v. McCorkle. In that case, the city’s charter stated that the mayor was the city’s chief executive officer and possessed all executive and ad­ministrative powers in the charter. Specifically, the charter stated that the mayor had the power to appoint and remove all officers, department heads and employees except as otherwise provided in the charter. The charter “otherwise provided” by vesting in the city council the authority to ap­point the city clerk, city attorney, city accountant and tax collector, and in giving the council the power to adopt personnel policies.
The city council adopted an ordi­nance providing a procedure for ter­mination of an employee by the mayor including notice and a disciplinary hearing “over which the Mayor shall preside and serve as the decision maker.” Additional ordinances ad­opted by the council required termi­nation of any employee to occur only at a regularly scheduled council meet­ing, allowed the employee to appeal termination to the city council and authorized the city council to uphold or reverse the termination decision. While the Court of Appeals found the ordinance requiring notice and a hearing before the mayor to be con­sistent with the city’s charter, it found the additional personnel ordinances in conflict with the charter and there­fore void.
The Position of the City Administrator
Another ordinance passed by the city council created the position of city ad­ministrator and delegated numerous management and administrative tasks to the administrator including finan­cial management and the ability to hire and fire city employees. The city council also amended the city’s per­sonnel policies to require any applica­tions for vacant positions be submit­ted to the council and provided that the council would forward the appli­cations of the most qualified candi­dates to the mayor. The mayor would then select and appoint an employee from among the applicants forwarded to him.
The Court of Appeals found that the city’s charter specifically authorized the city council to create, abolish and consolidate offices, thus the council had the power to create the position of city administrator and delegate du­ties, including administrative duties, to that position. However, because of the charter language the mayor was charged with supervising any admin­istrative work performed by the city administrator. Moreover, the council itself could not place someone in the position of city administrator and was without the power to delegate to the city administrator the authority to hire and fire city employees. The charter re­served these powers to the mayor, and those ordinances were in conflict with the charter. The Court of Appeals also rejected the personnel policy enacted by the council regarding its role in se­lecting job applicants to forward to the mayor. The Court held that this policy infringed upon the power given to the mayor under the charter.
Controls to the City’s Mail
The final ordinance in contention con­cerned control of the city’s mail. The council enacted an ordinance direct­ing that all mail addressed to the may­or, the city council or the city itself be opened by the city clerk, logged and distributed to the appropriate recipi­ent. The mayor claimed that this con­flicted with his role as chief executive officer of the city with all administra­tive powers as provided by the char­ter. The Court of Appeals rejected the mayor’s claim of sole authority over the city’s mail and found that the du­ties prescribed in the charter for the clerk of council were consistent with the mail ordinance.
Although the mayor was not suc­cessful on all of his claims, the Court of Appeals held that he was successful on his principle claims concerning his power under the city’s charter to ap­point and remove employees. The tri­al court had awarded the mayor only $5,000 in attorney fees. The Court of Appeals awarded him the full amount of $21,930. Because the mayor had sued the city council members in their official capacity, the city ended up paying for both sides of this lawsuit.
I advise that instead of passing or­dinances or policies that conflict with the charter, try to work things out amicably. If you need to change the city’s charter, follow the procedure in Section 36-35-3 of the Official Code of Georgia Annotated (O.C.G.A.). BUT, you can’t change the form of city gov­ernment. See O.C.G.A. §36-35-6. For that, you must go to the Georgia Gen­eral Assembly. And remember, charter changes aren’t effective until a copy has been filed with the Georgia Sec­retary of State. See O.C.G.A. §36-35-5.

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