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Tough legal questions linger

Attorney general-mayor dispute complicated

POSTED: July 28, 2013 12:29 a.m.
 

A hearing Thursday in Forsyth County Superior Court gave rise to many unanswered legal questions, particularly regarding the term “sovereign immunity.”

So many questions, in fact, that a visiting judge ultimately decided to see if the two parties  — Georgia’s Attorney General Sam Olens and Cumming Mayor H. Ford Gravitt — could work out a solution themselves.

Senior Judge Robert W. Adamson gave attorneys until Aug. 9 to resolve a dispute over whether Gravitt violated the Georgia Open Meetings Act in April 2012.

If they are unable to do so, they will then have until Aug. 30 to submit supplemental briefs in the matter for a later hearing.

“There are so many headaches attached here that are not answered by me or [the prosecution or the defense] that it concerns me,” Adamson said.

Thursday’s hearing was the result of an April 17, 2012, incident in which Nydia Tisdale, a Roswell woman who records many government meetings in Forsyth County for a Web site, was asked by Gravitt to remove her video camera from a Cumming City Council meeting.

Tisdale has contended that she was forcibly removed from council chambers on Gravitt’s orders and later, after she had returned to the meeting, was asked by a Cumming police officer to stop filming it on a still camera.

Tisdale filed a complaint with the attorney general, as well as a civil case in federal court.

After receiving her complaint, attorneys with Olens’ office and those with Miles Patterson Hansford Tallant LLC, which represents the city of Cumming, attempted to resolve the situation.

When a resolution couldn’t be reached, Olens filed suit against Gravitt, who has served as Cumming’s mayor since 1970.

In it, the attorney general cites what he contends are three violations of the open meetings act and asks the judge to impose fines, as well as to award attorney's fees and other litigation costs.

The case could be historic in that it’s the first time an elected official has been sued by the attorney general’s office for violating the act, which was recently updated.

The changes, ironically, were signed into law by Gov. Nathan Deal the same day as the city council meeting in question.

Kevin Tallant, an attorney with Miles Patterson Hansford Tallant, argued Thursday that the case should be dismissed because Gravitt has “sovereign immunity” as an elected official who was acting in his official capacity at the time of the incident.

Tallant contended that the Georgia Constitution stipulates that sovereign immunity can be waived only by an act of the state legislature.

However, Adamson questioned that theory since the case involves two governmental agencies.

“Cities, counties, authorities are subdivisions or agencies of the state. They are creations of the legislature of the state and they’re essentially subparts of that state,” Adamson said.

“This is an action by a state agency against another state agency and a person acting within the responsibility of the authority of that sub-agency.”

Tallant countered that sovereign immunity doesn’t come from the state legislature, but rather ultimately the people of Georgia.

“The city’s sovereign immunity comes from the constitution, which comes from the people of the state of Georgia that ratified it,” he said.

“That’s a key point … [the state] is not the genesis of that sovereign immunity.”

Kelly Campanella, the attorney who presented evidence on behalf of the Olens’ office, maintained that sovereign immunity doesn’t apply in this case.

“Sovereign immunity cannot be invoked by something that is a child of the state, a creation of the state,” Campanella said. “The state is sovereign to the city of Cumming, but Cumming is not the state’s sovereign. Conceptually it just doesn’t apply.”

Ultimately, the question of the city’s sovereign immunity in the case went unanswered by Adamson.

Rather, he instructed the parties to try to work out some resolution on their own over the next two weeks. If either party wishes, they may enter into mediation.

 

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