Showdown at the O.K. Coral
I was reading in the Times about a potential crisis between the Hall County Commission and the Tax Assessors board in Hall County. Here is the situation, the former Commissioner, Banks, pulled a John Adams and made a midnight appointment to the Tax Assessors board in order to prevent the incoming Commissioner, Lutz, from making the appointment. Lutz came in and on January 6th, and appointed someone else.
The minutes from the January 6th meeting are very interesting. What you will see is that the Hall County Commission agreed to leave the seat open and give the State Attorney General 90 days before seating Lutz’s man. What has happened, however, is that the Banks appointment has been at the meetings, drawing a paycheck, making motions and voting on issues ever since January 6th.
The Banks nomination was problematic because O.C.G.A. § 48-5-295(a) says that an appointment to the tax assessors board can only happen “…In case of a vacancy on the board at any time, whether caused by death, resignation, removal, or otherwise, the vacancy shall be immediately filled by appointment of the county governing authority.” A similar issue has already been looked at by an appellant court in Murphy v. Pearson (284 Ga. 296), which says:
“As a general rule, an appoint authority may make a prospective appointment, that is, an appointment that fills a prospective vacancy before the vacancy occurs. Bryan v. Makosky, 380 Md. 603, 611 (846A2d392) (2004); Mullinax v. Garrison, 296 S.C. 370, 371 (373SE2d 471) (1988)… However, the general rule comes with a caveat: the appointing authority may make a prospective appointment so long as the vacancy to be filled by the prospective appointment will exist at a time when the appointing authority is still in office.”
Basically, commissioner Banks could not make the appointment because he was not going to have the authority when the vacancy became available. The Justice Benham went on to say; “Stated another way, the appointing body does not have the power to make a prospective appointment if the term of the appointing body will expire prior to, or at the same time as, the vacancy will occur.”
It looks like the showdown will occur on April 6th when the 90 days expire and the seat is to be filled by Lutz’s appointment. The question is who will blink 1st? Will the commission back down and allow the illegal appointment to stay, or will the Tax Assessors Board back down and accept the new appointment? If neither happens, the guns will blaze and we will all lose, except for the lawyers.
Hugh Hall County Akston