The old saying, "Be careful what you wish for, you might get
it," hit Pickens County government square in the face Monday in
Superior Court.
Lawyers for Commissioner Robert Jones successfully had two
appointments to the Tax Board of Assessors made by the previous
administration declared null and void, but may have inadvertently
lost the ability to use the 2005 digest to collect property taxes
this year.
Arguing in the Superior Court case which has been brewing
since Robert Jones' first meeting as commissioner, Jane Range, an
outside lawyer representing the county, prevailed in having the terms
of Board of Assessor (BOA) members Dan Cochran and Shane Neighbors
declared invalid. Pendley along with Phyllis Fountain were appointed
to seats on the five member BOA during the final days of Bill
Newton's term as commissioner. Fountain's position is also in
question, but couldn't be resolved due to the absence of the person
she replaced whose testimony was needed. Herbert Roland did not
attend court due to medical reasons, but is expected to be deposed in
that case.
Cochran had been appointed at an earlier time to the BOA by
Newton and that action was also challenged by Jones during his first
meeting this year.
While ruling that their appointments were not valid, Special
Judge Bobby Milam did not remove Cochran and Neighbors from office.
He only issued an injunction to prevent the BOA from taking further
action until an appellate court could hear the case as well --
assuming that an appeal would be filed.
Milam said several times prior to issuing a decision, that he
felt an appeal would be forthcoming. Among his first remarks were,
"It's not the type of case that can pend for too long due to the
urgency of the people of Pickens County. Any way I go, I'm subject to
an appeal."
When Milam announced his decision, Range said that by
allowing the two members to remain on the board and halting the board
from doing any work until an appeal is completed, there is the
possibility that the tax digest for 2005 can not be approved or used.
Milam said he would ask that the appeal be expedited by the
appeals court, but that rarely did any good. In any event there are
provisions in place for counties that can not approve a tax digest
for whatever reasons.
One former member of the Board of Assessors said the county
could use the previous digest if the new one is not approved, but it
would be a financial blow as they would have to use previous year's
property values as well - a major blow to the budgets / millage rates
of both the school system and county.
Following the morning in court, both Neighbors and Cochran
said they are aware of the financial implications to the county and
may not appeal for that reason.
"Robert Jones started this by suing us," Neighbors said. "Now
this decision makes us look like the bad guy for appealing because of
the tremendous financial impact."
Neighbors said he would take the ten days allowed before
filing the appeal and confer with Cochran about going forward with an
appeal, but he didn't want to hurt the citizens nor the school
children with the schools depending on the property taxes to operate.
"I don't know that we want to take the county down that nasty path,"
he said.
Cochran said much the same thing, that the county has already
been without a working tax board for three months while this has gone
on and an appeal could take from six to nine months - possibly
keeping tax bills from going out at all this year.
Both Cochran and Neighbors said they thought the fact the
judge was discussing the avenues for an appeal before giving a
verdict was an indication that judge himself had doubts about the
decisions.
The court action which lasted three and half hours Monday in
the main courtroom involved many of the basic functions of operating
a county government and was not simple, as all parties agreed.
Milam said in addition to researching previous case law, he
had spent four hours studying the briefs presented by both sides
Saturday night in preparation.
Following the courtroom work, County Attorney Phil Landrum,
III said Milam appeared well informed on the issues.
Several times Milam reminded both sides that the issues being
discussed "are important to the people of Pickens County."
Cochran and Pendley's appointment were stricken down for
different reasons.
The first portion of the morning dealt with Shane Neighbors'
appointment and whether members of the numerous boards which are
given small stipends, such as the $20 per meeting paid to the BOA
members, are county "personnel."
The county's case said they are personnel and under Georgia
code, sole commissioner who has been defeated can't make appointments
following his defeat of any position which has been vacant for more
than 30 days.
The seat to which Neighbors was appointed had been vacant for
more than a year.
Mark Miller, representing Cochran, Neighbors and Fountain
said the members of the boards shouldn't be considered personnel as
they are not given payroll benefits such as social security or
healthcare. He said they should be considered volunteer members of
the board.
Milam said the court finds that the members of board will be
considered personnel as they are on the payroll, even though they
don't get any benefits.
The issue involving Dan Cochran's appointment was more
complex with the arguments centering around whether and when a
commissioner can adjust the term of someone serving on a board.
The court upheld the county's position that once a term was
established, it had to be completed before the length of service
could be changed. Cochran had been appointed to fill an unexpired
term but Newton had appointed him to a full four years.
Also at issue here is a requirement that the five member
board can not have three members completing their terms in the same
year. Miller argued that Bill Newton, in his change of Cochran's
term, had been trying to avoid having that occur.
Several times Milam encouraged Jones and anyone later serving
as a commissioner to keep detailed records of the terms and their
expiration dates for all members of all boards.
"It's a matter that some people don't sit down and figure
things out," Milam said. "It is important to the people but I realize
sole commissioners are busy and can't always be sure everything is
right with all the appointments.
Both sides acknowledged that the term lengths and a majority
of the members of the board "coming off" at the same time presents a
problem. Jones has previously said he was seeking to have Cochran's
appointment invalidated in order to get the schedules back on track.
Milam said he didn't believe that the fact that three terms
were expiring at the same time made them void, but it is a situation
which needs to be cleared up.
Miller however, argued that there are numerous irregularities
with all the BOA appointments, which need to be corrected but without
replacing Cochran.
"We're off the map," he said. "And I do imagine the
commissioner has opened the door for someone to challenge the
operations of the tax board back as far as 1997," he said.
Milam ordered the county to draft a resolution later that day
to get this in order.
Miller also argued that the commissioner had singled out
Cochran to "pick on" for removal to clear up the problem with three
of the members' terms ending at the same time. Miller said there were
other ways to rectify the problem instead of suing Cochran.
Milam replied, picking board member is much like choosing a
spouse, "you just like who you like."
Prior to getting to the main issues, the court admonished
Jones and his counsel for not paying the legal fees of the three BOA
members in question. The three members had to seek outside counsel as
the county attorney couldn't represent them since they had been
placed in an adverse position to the county.
The judge said the idea of public service is the county will
pay for it. "When you are appointed to a board by someone who you
think has the authority, and since the citizens are only paid $20 per
meeting, you shouldn't expect to pay your own legal fees," he said.
Neither Pendley nor Fountain had ever attended a meeting or
done any work on the county's behalf before being sued over their
seats by the commissioner.
Attorney Range first responded to the judge that they were
standing by their earlier statement they would not pay for the legal
representation as the law said the commissioner wasn't required to
pay for it.
Milam replied, "This case will have a ripple effect. This
man (Jones) has to serve four years and maybe more. And it will be
difficult to get someone to serve on a board which serves an
important function with measly pay. You can't get people to do it.
You need to discuss this (not paying legal fees) with your client."
Milam then declared a ten minute recess for the commissioner
and his counsel to reconsider the issue.
After recess they agreed they would pay the fees as long as
the commissioner got to "scrutinize" them.
Regardless of the appeal, it was unclear when or in what
venue the county suit to remove Fountain from her seat would be taken
up again. Milam said while they were pondering the appeal, it would
give time for them to take the testimony of Herbert Roland, the
former holder of the seat Fountain was appointed to. The suit against
her rests on when or if Roland resigned and how long the seat had
been vacant when the former commissioner appointed Fountain.
In another post hearing comment, Neighbors said he wanted to
respond to a public statement made by Commissioner Jones previously
that the whole issue boils down to the three Newton appointments
desire to fire Chief Tax Assessor Roy Dobbs. "We've never even
discussed that. The issue is professionalism in the office. So far
all we've asked for is they install a time clock, like those used in
other county offices," he said.