Avondale attorney says city manager’s severance wasn’t properly approvedAvondale Estates City Manager Clai Brown stands next to a portrait of his father, former city manager and police chief Dewey Brown. Photo by: Dan Whisenhunt
The Avondale Estates City Commission on Monday will be voting on whether to undo an amendment to City Manager Clai Brown’s contract that would’ve paid him a full year’s severance if he resigned.
The unusual provision was added to his contract in 2015. That amendment would’ve paid Brown more than $300,000 as he walked out the door, an enormous sum for a small city like Avondale, amounting to about 9 percent of the city’s budget.
A resolution on the City Commission’s Jan. 22 meeting agenda says the contract amendment wasn’t properly approved in a public meeting and said it may conflict with state law because of the financial burden it placed on the city.
Open government advocates recently told Decaturish that they had questions about how the contract amendment was approved and why. An investigation by Decaturish found that there was no evidence of a public discussion about the contract amendment before it was approved in 2015. The city has been unable to produce definitive evidence that the City Commission voted on the amendment and there’s no evidence that the public knew about it beforehand.
The resolution being considered at the Monday Jan. 22 meeting, confirms there was no public approval of the contract amendment. The resolution says, “Upon investigation and legal research, the City Attorney has advised the Board of Mayor and Commissioners that the purported First Amendment was not properly approved in a public meeting.”
But the resolution says if the amendment had been properly approved, it would not have been enforceable under state law.
“Even if it had been properly adopted, cannot legally bind the current Board unless the current Board elects to ratify it,” the resolution states.
City Attorney Bob Wilson signed off on the contract amendment in 2015 records show and is also listed as someone who will sign the resolution that’s being considered at Monday’s meeting. Wilson previously declined to answer questions about the contract amendment.
None of the current commission members were on the board when this contract amendment was signed. The amendment was added during a tumultuous time for the city. Former mayor Ed Rieker had resigned in 2014 following a controversy over the city’s annexation plans. The interim mayor at the time was Mayor Pro Tem Terry Giager. He signed the contract amendment on Feb. 23, 2015, a few weeks before Jonathan Elmore, the current mayor, was elected. The former commissioners who were on the board when the amendment was added have not returned messages seeking comment.
The resolution being considered at Monday’s meeting cites a 2011 state Supreme Court decision in the case of City of McDonough V. Campbell. In that case, the city’s building inspector, James Campbell, sued the city because it would not honor a contract approved by the previous mayor and council. In that case, Campbell’s contract stipulated he was eligible for 12 months of severance pay if his contract was terminated. A new council declared that contract null and void and refused to pay the severance, prompting the suit. Ultimately, the Supreme Court sided with the city of McDonough, saying the contract conflicted with state law OCGA § 36–30–3(a). The law says ordinances approved by one council can’t bind succeeding councils.
The law says, “One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.”
The state Supreme Court ruled in McDonough V. Campbell that, “Under the circumstances of this case, we must also consider whether the contract places a substantial financial obligation on the part of the city. Because the contract is renewed automatically and the severance package requires the city to pay Campbell his salary and benefits for an entire year after the year in which the contract is terminated, we hold that the contract is ultra vires and void.”
If the City Commission approves the resolution on Monday’s agenda, they would be formally declining to ratify the 2015 contract amendment. The amendment came to light when Brown unexpectedly announced his intention to resign. He then rescinded that resignation when the commission refused to pay his severance.
The resolution also accepts Brown’s rescission of his resignation. The resolution concludes, “The Board of Mayor and Commissioners is committed to working openly and cooperatively with Mr. Brown to resolve the issues between them and expects Mr. Brown to do likewise, in order to best serve the interests of the citizens of Avondale.”
The Jan. 22 City Commission meeting starts with a public hearing at 6:30 p.m. The meeting is open to the public and will be held at City Hall, located at 21 North Avondale Plaza (North Avondale Road on Google maps).
Here is a copy of the resolution being considered at the Jan. 22 meeting: