County attorney defends DeKalb BOC’s vote on $24,107 raise

DeKalb County is denying that it violated the state’s Open Meetings law when the Board of Commissioners failed to add notice of a large salary increase for itself to its Feb. 27 meeting agenda.

In a May 24 response to inquiries from Georgia Attorney General Christopher Carr's office, interim County Attorney Viviane Ernstes says that even though the BOC failed to put the raise on its advertised agenda, commissioners acted within the confines of Georgia law by advertising the intent to raise their salaries in the county’s legal organ prior to the meeting.

The 6-1 vote on Feb. 27 increased the commissioners’ base part-time salary by $24,107 -- 59.4 percent -- to $64,637, up from $40,530. Commissioners get an annual increase of $1,500 to their annual base pay, and a maximum of three longevity increases of 2.5 percent each, for every full four-year term that they serve. 

In a March 6 ethics complaint to the attorney general, Lithonia resident Ed Williams argued that the board was obliged under law to put the salary raise on the Feb. 27 meeting agenda so that citizens could comment.

Commissioners approved the increase at the meeting without any discussion.

Ernstes said the legal notice, stating that the financial impact of the raise would be an extra $229,660 annually, was published by the county on Feb. 8 and twice again in the lead-up to the Feb. 27 meeting.

The county’s response followed Assistant Attorney General Jennifer Colangelo's May 15 letter to the county in the wake of Williams’ ethics complaint. In that letter, which gave the county 10 days to respond, Colangelo said she reviewed the agenda and meeting minutes.

“I did not see the topic of salary increases on the agenda, but the meeting minutes show that the Commission voted on that matter,” she wrote. “I would appreciate a response to Mr. Williams’ complaint.” 

Ernstes' letter said DeKalb intends to comply fully with the Open Meetings Act, and “the county has done so in this instance.”

“In short, the salary item was added the day of the BOC meeting and not previously listed on the agenda because, up to the day before the vote, the General Assembly was considering legislation to increase salaries and county elected officials wanted to provide as much time as possible for the General Assembly to act,” Ernstes said.

She said DeKalb commissioners were hoping state legislators would implement a salary raise themselves prior to Feb. 27, negating a BOC vote.

But, when that did not happen, commissioners took matters into their own hands and advertised the intended raise in the county’s legal organ, as required by law, then went ahead with the vote.

Ernstes says a vote on the salary increase had to be done by March 5 – the qualifying deadline for candidates in the May 22 primary and nonpartisan elections – and the Feb. 27 meeting was the last opportunity for the BOC to act.

Under state law, a vote to increase salaries cannot occur between the qualifying deadline and Jan. 1 of the following year.

She also said that if the BOC did not vote on the salary ordinance at the Feb. 27 meeting, there could be no salary increase under state law for commissioners until 2021.

She said commissioners also believed that it would be confusing to add a possible salary raise to the Feb. 27 meeting agenda in advance of that date, while state legislators were still considering a salary raise at the General Assembly.

“Since the legislature did not act on or before Feb. 26, the county added the salary ordinance as a walk-on item on Feb. 27 when it became necessary to approve the item prior to the statutory deadline for the BOC to act,” Ernstes wrote. “Because the action was made in accordance with the salary statute and is permitted by O.C.G.A. (Official Code of Georgia Annotated), the Open Meetings Act was not violated.”

The new $64,637 base pay, which goes into effect Jan. 1, makes DeKalb commissioners among the highest paid commissioners in metro Atlanta.  

Williams, who was one of three candidates who opposed Super District 7 Commissioner Gregory Adams in the May 22 Democratic primary, called the county’s response “hogwash.”

“I will wait to see what the assistant attorney general’s response to that is,” he said May 30. “But regardless I intend to take legal action against the county.”

Williams wants the county to rescind the salary raise because he says the BOC does not have the legal authority to vote themselves a pay increase.

“If [Colangelo] responds and says they’re not going to accept the county’s explanation then we would have to go to mediation,” he said. “If the attorney general accepts the county’s explanation, then I have no other option but to file court action against DeKalb.”

In her May 15 letter, Colangelo said the attorney general has the discretionary authority to enforce the Open Records Act and the Open Meetings Act, and that it has chosen to exercise that discretion by establishing a mediation program that attempts to resolve disputes between citizens and local governments.

The attorney general also reserves the right to pursue litigation in matters where it deems doing so is appropriate, she said.

Williams said the DeKalb BOC should have called a special meeting between Feb. 27 and March 5, to discuss the salary raise. He said that would have allowed time for the item to be publicly advertised correctly and added to an agenda, while still within the commissioners’ timeframe for approving a raise.

“Poor planning is not an excuse for not following the law,” Williams said.