City of Stockbridge v. Stuart

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

October 21, 2014

In the Court of Appeals of Georgia
A14A0873. CITY OF STOCKBRIDGE v. STUART, IN HIS
OFFICIAL CAPACITY AS THE MAYOR OF THE CITY OF
STOCKBRIDGE.

BOGGS, Judge.

The City of Stockbridge (“the city”) appeals from a trial court order granting Lee

Stuart, the then Mayor of the City of Stockbridge (“the mayor”), injunctive and

declaratory relief, and attorney fees, in this dispute involving the extension of Ray

Gibson’s employment contract as the city administrator.1 For the following reasons, we

affirm.

1
In the same order, the trial court denied the city’s petition for a writ of
mandamus. The cross-appeals in this action were originally filed in the Georgia
Supreme Court, but that court found that the denial of mandamus relief is moot because
the mayor “has left office and a new city administrator has been appointed.” The court
then transferred the appeal of the injunctive and declaratory relief and award of
attorney fees to this court on the ground that those issues are not within its jurisdiction.
 The record reveals that in April 2011, the mayor and city council adopted an

ordinance creating the position of city administrator. This ordinance, which amended

the city’s Code of Ordinances, provided that the mayor desired to delegate certain of

his powers and duties to that position pursuant to Section 3.21 of the Stockbridge City

Charter (“the charter”) (1991 Ga. Laws 4359-4392). The new ordinance also provided:

(a) Within sixty (60) days of a vacancy in the position of city
administrator, the mayor shall recommend to the council at least (2)
qualified candidate(s) for the position of city administrator. In the event
the council rejects the mayor’s recommended candidates, the mayor shall
have an additional fifteen (15) days to interview qualified candidates and
make additional recommendations to the council. The council may accept
or reject the mayor’s additional recommended candidates.

(b) The council shall employ a city administrator pursuant to a written
contract and shall fix the city administrator’s compensation therein. Said
administrator shall serve at the pleasure of the mayor and city council . .
..

In May 2011, the city adopted a resolution approving the appointment of Ray

Gibson as city administrator. The resolution provided that the mayor “wishes to appoint

Ray Gibson to fill the vacant position of City Administrator through December 31,

2011.” The city’s contract with Gibson provided that the term of employment was from

2
May 3, 2011 to December 31, 2011, and also provided that city administrator serves

at the pleasure of the mayor and city council; that the mayor may recommend, and the

city council may remove or suspend, the city administrator; and that “the Mayor may

recommend and upon his recommendation, thereafter the City Council may terminate

City Administrator’s employment at any time, as provided in this Agreement. If the

City Council terminates the City Administrator’s employment, then this Agreement

shall terminate.”

In December 2011, the city council, by resolution, extended Gibson’s

employment contract for three months, until March 30, 2012. The mayor did not sign

this resolution, but the parties agree that he acquiesced in this extension of Gibson’s

contract.

On March 5, 2012, however, the mayor submitted two candidates for Gibson’s

position for consideration by the city council in accordance with the ordinance, because

in his view, the position would be vacant as of March 31, 2012. But during a meeting

the day after the mayor’s submission, the city council introduced a resolution to extend

Gibson’s contract to December 31, 2013. The mayor again refused to sign the

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resolution,2 and on March 26, 2012, he filed a verified complaint against the city

seeking an interlocutory injunction, a declaratory judgment, and attorney fees.

Subsequently, on April 3, 2012, the mayor again presented his nominations for the

position of city administrator to the city council.

The mayor’s complaint sought a declaration that the city council’s actions to

extend Gibson’s contract were illegal and ultra vires, and to temporarily and

permanently enjoin the city from the “illegal appointment of Ray Gibson as City

Administrator beyond March 30, 2012.” The mayor also sought to enjoin the city from

filling the position of city administrator except in accordance with the ordinance.

Following three hearings on the matter, the trial court entered an order granting

the mayor a permanent injunction, restraining and enjoining the city from “taking any

action that in any way relies on the validity of the extension of Gibson’s term of office

or his employment contract as City Administrator.” The court also granted the mayor’s

request for a declaratory judgment finding that the actions by the city council

seeking to unilaterally extend the Contract of Ray Gibson were without
authority, were ultra vires, and are void. Ray Gibson’s Contract expired

2
Each resolution to extend Gibson’s employment contract provided that the
resolution was “effective on the date of its approval by the City Council and Mayor as
provided in the City Charter.”

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 by its terms on March 31,2012, and the resolution seeking to extend his
Contract is null and void. It is further declared that only the Mayor may
nominate or appoint individuals to the position of City Administrator and
the City Council may then accept or reject such nominees.

Finally, the court awarded the mayor attorney fees pursuant to Boswell v. Bramlett, 274

Ga. 50, 52-53 (c) (549 SE2d 100) (2001).

1. While an appeal from the relief granted to the mayor is arguably moot now

that Gibson is no longer employed by the city,3 we must nevertheless address the merits

of the city’s appeal in light of the trial court’s award of attorney fees to the mayor on

the ground that he “was successful in asserting his position.” See Babies Right Start

v. Ga. Dept. of Public Health, 293 Ga. 553, 555 (2) (a) (748 SE2d 404) (2013) (claims

for injunctive relief to stop disqualification and for a declaratory judgment that

disqualification was improper, were moot because term of disqualification expired;

relief would have no effect); see also Green Party of Tennessee v. Hargett, 2014 U.

S. App. LEXIS 16207 (II) (E) (1) (6th Cir. 2014) (pursuant to federal statute allowing

attorney fees for “prevailing party,” where plaintiffs succeed in obtaining relief sought,

3
It is undisputed that the Gibson is no longer employed as city administrator and
that Stuart is no longer mayor. The parties assert that Gibson voluntarily left office on
May 24, 2012.

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even though intervening event rendered case moot on appeal, plaintiffs are still

“prevailing parties” for purposes of attorney fees); Donovan v. The Punxsutawney Area

School Bd., 336 F.3d 211, 218 (IV) (3rd Cir. 2003) (although claim for declaratory and

injunctive relief is moot, attorney fee claim presents live controversy). Compare Babies

Right Start, supra (prayer for attorney fees without actual award of fees, does not

preclude a determination that case is moot).

2. The city argues that the trial court erred in granting the mayor injunctive and

declaratory relief. “The grant or denial of injunctive relief is a matter within the

discretion of the trial court, and appellate review of the trial court’s decision is limited

to a determination of whether the trial court abused its discretion.” (Citation omitted.)

Teague v. City of Canton, 267 Ga. 679, 680 (1) (482 SE2d 237) (1997). And “[i]n a

declaratory judgment action, the trial court is specifically authorized to grant injunctive

relief to preserve the status quo pending the adjudication on the merits.” (Citations

omitted.) Scott v. Prime Sales & Leasing, 276 Ga. App. 283, 287 (2) (623 SE2d 167)

(2005).

We begin our analysis with the relevant provisions of the Stockbridge City

Charter. Section 3.22 (2) of the charter provides that the mayor shall “[a]ppoint and

remove, for cause, with confirmation of appointment or removal by the council, all

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officers, department heads, and employees of the city except as otherwise provided in

this charter.” And Section 3.21 provides that the mayor “shall have the authority to

delegate any one or more executive or administrative powers to a person or persons

employed by the city and qualified in management and administration.”

The record here reveals that on April 18, 2011, the mayor, pursuant to Section

3.21 of the charter, delegated certain of his authority and powers by ordinance to the

position of city administrator. The mayor then, pursuant to the city council’s May 2,

2011 resolution, appointed Gibson to the position, and the city council approved that

appointment. The city then entered into an employment contract with Gibson effective

May 3, 2011 to December 31, 2011. The resolution and contract both provided or

anticipated that Gibson’s contract would terminate on December 31, 2011. And the

parties either consented to, or acquiesced in, the extension of Gibson’s contract through

March 30, 2012. The question presented here, then, is whether the city council had the

authority to unilaterally extend Gibson’s contract beyond the end of the contract term.

The city argues that only the terms of Gibson’s contract expired and that his

appointment never expired, that both the charter and the ordinance gave the city council

the final authority to hire and fire the city administrator, and that while the ordinance

is silent regarding the procedure to terminate the city administrator, it must be assumed

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that Sections 3.22 (2) and 4.10 (e) (council may override mayor’s suspension or

removal of directors) of the charter governs terminations.

Gibson’s employment contract with the city provides that it can be extended “on

a day to day or month to month basis in a separate written Agreement executed by both

parties if approved by the City pursuant to the procedure allowed for by the Charter and

Ordinances of the City.” But neither the charter nor the ordinance provide a procedure

for the extension of a city employee’s contract. The procedure for the employment of

a city employee, however, is governed by the charter - the mayor appoints and the city

council confirms - which is consistent with both the ordinance’s creation of the position

of city administrator and city council’s approval of the mayor’s appointment of Gibson.

While the ordinance provides that within 60 days of a vacancy, the mayor shall

recommend candidates to fill the position which the city council can accept or reject,

and the city council points to other language it claims gives it the authority hire and fire

the city administrator, neither the language relied upon by the city nor any other

language in the ordinance, resolution, or contract, can alter the mayor’s authority to

appoint a city employee pursuant to the charter. “What can not be done by an ordinance

can not be done by contract.” (Citation and punctuation omitted.) CSX Transp. v City

of Garden City, 277 Ga. 248, 249 (1) (588 Ga. App. 688) (2003).

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 The city argues that because the employment contract was between Gibson and

the city, and the charter granted the city council the power to contract on behalf of the

city, the extension of Gibson’s contract was within the city council’s power. While

pursuant to Section 1.12 (b) (7) of the charter, the city has the power to enter into

contracts with private persons, that power is not unlimited. See City of McDonough v.

Campbell, 289 Ga. 216, 218 (2) (710 SE2d 537) (2011). The contract here, for the

position of city administrator, exists by virtue of the mayor’s delegation of his authority

and his power to appoint officers and employees of the city. Therefore any employment

of Gibson, beyond what was provided for in the charter and ordinance, must be

governed by the same procedure set forth in the charter for the mayor’s delegation of

authority and power to appoint. The city could not extend the mayor’s delegation of his

administrative powers without his permission to do so. Cf. id. (while charter allows city

to enter into contracts of employment, it could not bind hands of successor councils).

There is no evidence here that the mayor delegated his powers and authority to the

position of city administrator after March 30, 2012, nor is there evidence of any

appointment and confirmation of Gibson to the position after that date. Rather the

evidence showed that the mayor expressly delegated his authority to the position

through December 31, 2011, and acquiesced in the same through March 30, 2012.

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 In providing that employees of the city are appointed (and removed) by

confirmation, the charter anticipates that the mayor and city council will act in concert.

Neither party could act alone in the extension of Gibson’s contract.4 See City of

Jonesboro v. Shaw-Lightcap, Inc., 112 Ga. App. 890, 892 (1) (147 SE2d 65) (1966)

(when charter authorized governmental action by mayor and council as a body, mayor

could not act alone to bind city). The city was therefore without authority to unilaterally

extend Gibson’s contract beyond that date. See id.

Because the city council could not unilaterally extend Gibson’s contract, the trial

court did not err in concluding that any extension beyond March 30, 2012, was ultra

vires, or void, and in granting the mayor the relief sought. See, e.g., City of Baldwin v.

Woodard & Curran, 293 Ga. 19, 27 (2) (c) (743 SE2d 381) (2013) (city contract ultra

vires and void where mayor signed but city council never approved as required by the

city charter). This holding therefore requires us to consider the trial court’s award of

attorney fees.

4
We note that Section 2.10 of the charter provides that the legislative authority
of the government of the city, unless otherwise provided, is vested in a city council
composed of the mayor and five councilmembers.

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 3. The city argues that the trial court erred in awarding the mayor attorney fees

in the amount stated because the fees were not supported by competent evidence, and

the authority allowing for fees should not apply to a city officer. The mayor’s verified

complaint contained a prayer for attorney fees and costs of litigation. The parties

waived a hearing on the issue and agreed to present argument regarding attorney fees

by brief and affidavit. The mayor’s counsel then filed an affidavit asserting that the

legal work he provided to the mayor amounted to $22,297.00 in attorney fees and

$522.21 in costs, and that the amount billed to the mayor was “reasonable and

appropriate in the legal marketplace.” Attached to counsel’s affidavit is an invoice

listing the dates of service, the task completed, the hours expended, the cost for the

hours expended, and the initials of the attorney who performed the task.

After consideration of the evidence, the trial court awarded the mayor $8,500 in

attorney fees, less than half of the amount requested, in accordance with Boswell,

supra, 274 Ga. 50. In Boswell, the Georgia Supreme Court held that

a local government must pay a local official’s attorney fees (1) when the
official, acting in his official capacity, is required to hire outside counsel
to assert a legal position the local government attorney cannot assert
because he or she has a conflict arising from his or her representation of
the local government, and (2) when the official is successful in asserting

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 his or her position. This is not because of any bad faith or improper
conduct on the part of the local government. Rather, attorney fees in this
instance are simply an expense of government operation.

(Citations, punctuation and footnotes omitted.) Id. at 52-53 (3).

The city urges this court to hold that because OCGA § 45-9-21 (e) (2) (defense

of actions in lieu of insurance) applies to attorney fees specifically for a county officer,

inter alia, we should interpret Boswell to apply only to a county officer. But Boswell

does not rely upon this Code section for its holding and provides specifically that its

rule applies to “an official, acting in his official capacity.” Id. at 52 (3). Boswell relies

upon Gwinnett County v. Yates, 265 Ga. 504, 508-509 (2) (458 SE2d 791) (1995), and

Griffies v. Coweta County, 272 Ga. 506, 509 (2) (530 SE2d 718) (2000), neither of

which is limited in its application. We find no authority limiting the application of

Boswell only to county officers, and we decline to do so here.

The city argues that the evidence is insufficient because other attorneys’ initials

are noted on the invoice and those attorneys did not submit affidavits. But counsel

averred that he was lead counsel in this case, and that the legal representation was

performed by him and his firm. Counsel also stated that “the invoices attached to this

Affidavit represent a true, correct, and accurate accounting of the time spent by myself

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and my firm in this case and the expenses incurred.” Counsel asserted further that

“[t]he amount of time spent by this law firm in this matter was reasonable and

necessary in relation to the dispute encountered between the Mayor and the City of

Stockbridge.” This was sufficient to establish that counsel had personal knowledge of

the number of hours of work that had been performed by the members of his firm. See

Fulton County Bd. of Assessors v. Greenfield Investment Group, 314 Ga. App. 523,

526 (2) (724 SE2d 828) (2012) (testimony presented by managing partner of firm that

his partner did majority of work and of the reasonableness of his partner’s rate, which

he set, along with the firm’s billing records, was sufficient evidence of amount of fees

recoverable).

The city cites to Paul v. Destito, 250 Ga. App. 631 (550 SE2d 739) (2001), for

the proposition that counsel’s affidavit was inadmissible to prove the time spent by

other attorneys. But this court in Paul affirmed the trial court’s decision to grant a

j.n.o.v. on the issue of the amount of attorney fees because there were no billing

records or any other evidence describing how the attorneys spent their time, and

counsel’s cursory testimony regarding the number of hours other attorneys spent on the

case and hours they charged was insufficient for a jury to calculate fees. Id. at 642 (9)

(case remanded for rehearing on amount of expenses).

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 The city also complains that the affidavit did not describe the legal work or

expenses, that some of the entries relate to other matters, and that the time entries on

each day are not itemized by task. But the invoice contained entries that adequately

described the tasks performed in this case and the time spent on each task that would

support the trial court’s award of $8,500. See Greenfield Investment Group, supra, 314

Ga. App. at 526 (2).

The trial court therefore did not abuse its discretion in concluding that the mayor

was entitled to attorney fees pursuant to Boswell, because he was acting in his official

capacity and was required to hire outside counsel to assert a legal position the city

attorney could not assert on his behalf,5 and, as we have held in Division 2 that the trial

court did not err in granting the mayor injunctive and declaratory relief, he was

successful in asserting his position. Boswell, supra, 274 Ga. at 52-53 (3).

Judgment affirmed. Barnes, P. J., and Branch, J., concur.

5
The city attorney represented the city in this action.

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