Decatur County attorney’s contract raises questions on legality

Published 12:00 pm Thursday, July 3, 2014

Questions have arisen concerning the legality of the terms of the contract executed between the Decatur County Board of Commissioners and the county attorney, Brown Moseley.

During their meeting on June 24, the commission voted 5-1 to extend to Moseley an 18-month contract to serve as county attorney. The term is set to expire on Dec. 31, 2015, according to the contract.

The agreement between the county and Moseley is titled “Contract of Employment,” but contains a clause indicating Moseley, “at all times material to this contract agreement, shall be engaged as an independent contractor.”

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Moseley is not an employee of Decatur County, but rather a service provider or contractor. Hall Booth Smith, P.C., a law firm headquartered in Atlanta, is Moseley’s actual employer.

Georgia law says that counties or municipalities cannot enter into multi-year contracts without certain provisions.

O.C.G.A 36-60-13 says, “Each county or municipality in this state shall be authorized to enter into multi-year lease, purchase, or lease-purchase contracts of all kinds for the acquisition of goods, materials, real and personal property, services, and supplies provided that such contract shall contain provisions for the following: The contract shall terminate absolutely and without further obligation on the part of the county or municipality at the close of the calendar or fiscal year in which it was executed and at the close of each succeeding calendar or fiscal year for which it may be renewed as provided in this code section.”

In essence, the only allowable way a county can enter into a multi-year contract is if that contract is renewed every year, after terminating at the end of the calendar year.

There is no such renewal clause in Moseley’s contract. The contract says, “The term of this Agreement shall be for eighteen months.”

The intent of this law is to not allow one commission or council the ability to “bind” a succeeding commission or council to contracts or obligations.

In our view, the term of this contract clearly violates this state statute and should become null and void on Dec. 31, 2014, the end of this calendar year as the law states.

The agreement also includes a termination clause that says Moseley would be paid a lump sum of $50,000 should the commission choose to terminate the agreement “without cause” before the expiration of Dec. 31, 2015.

This payment, in our view, would be in violation of Article III, Section VI of the Constitution of the State of Georgia dealing with gratuities. The Gratuity Clause of the Constitution says that any governmental agency “shall not have the power to grant any donation or gratuity or to forgive any debt or obligation to any public officer, agent, or contractor after the service has been rendered or the contract entered into.”

A benefit flowing from one to another, with no reciprocal benefit from any source, is donation or gratuity according to an Attorney General’s opinion. Further, from the same opinion, in order to avoid violations of the gratuities clause, the state, city, or county must derive some “substantial benefit” from the transaction.

The payment of $50,000, or any sum, as a punitive measure for the commission terminating an independent contractor’s contract is clearly a violation of this clause.

The best course of corrective action would be to void the contract agreed upon on June 24. Let Moseley’s current term expire on Dec. 31, 2014, and then let the newly seated commission vote on the county attorney at the first meeting in January 2015. We urge the Decatur County Board of Commissioners to do just that.