Board of Elections loses legal case against mayor and commissioners

Judge Connie Williford dismissed the fatally flawed lawsuit over who has the authority to select an elections supervisor candidate


Liz Fabian

A Bibb Superior Court hearing May 22 in a nine-month legal battle between the Board of Elections and Macon-Bibb County’s mayor and commissioners led to the case being dismissed.

The Macon-Bibb County Board of Elections’ lawsuit filed against Mayor Lester Miller and county commissioners over the selection of an elections supervisor was dismissed Wednesday, but legal questions linger.

In a ruling posted late Wednesday, Judge Connie L. Williford ruled the lawsuit was fatally flawed and had to be dismissed for violating the Georgia Constitution that dictates conditions for waiving the sovereign immunity which protects government entities from being sued.

The case dates back to issues created after former elections supervisor Jeanetta Watson resigned in January of 2022. Three months later, the mayor and commission rejected the board’s nominee to fill the job after the applicant’s questionable social media posts surfaced.

The board withdrew its nomination and filed legal action in August after Miller announced plans to form a selection committee with county commissioners and members of the board. Miller said he hoped that committee could find a suitable candidate that could breeze through the confirmation process.

The crux of the dispute is ambiguous language in the consolidated government charter that states: “upon the recommendation of the Board of Elections, the governing authority shall appoint an elections supervisor… .”

The board believes only nominees it approves can be hired and alleged Miller was usurping its authority to select the job candidate. Although they initially reluctantly agreed to be part of the mayor’s committee, the board reversed its decision. They initiated the legal action that resulted in more than 270 pages of documents being filed over nine months before Williford dismissed the case due to its “fatal flaw.”

In October, the county began its quest to have the lawsuit dismissed.

A state constitutional amendment generally prohibits using the waiver of sovereign immunity to sue individuals, and the lawsuit named Miller and each of the Macon-Bibb County commissioners. According to that constitutional amendment that was reinforced by a March decision of the Georgia Supreme Court, the case “shall be dismissed.”

Board of Elections can’t sue

Judge Connie Williford said she had already studied the case and written the draft of her ruling before holding the May 22 hearing, but wanted to hear the attorneys’ arguments because of the important nature of the case. (Liz Fabian)

After a 90-minute hearing Monday morning, Williford also determined the board is an agency of Macon-Bibb County “that lacks inherent power to sue and be sued.”

Interim County Attorney Duke Groover successfully argued that the Board of Elections was created in 1969 by a local act of the Georgia General Assembly, but that act did not grant it the power to sue and be sued – something that was specified in the creation of the Macon-Bibb County Industrial Authority and Macon Water Authority.

“The Board of Elections’ powers are very limited. This is not a general governmental agency,” Groover told the court. “They are limited by the duties granted to them by the election code.”

The law creating the board only gives it the authority to manage voter registration and conduct primaries and elections.

Williford’s ruling also mentioned Groover’s “compelling facts” that the board is a subsidiary of Macon-Bibb County which fixes compensation for the board, employs the supervisor and staff, provides offices and equipment, and sets its budget.

“The board has no funding mechanism that is independent of Macon-Bibb County and no ability to raise money,” the judge’s order stated.

It remains to be seen who will pay the board’s attorney fees.

Because the board’s regular attorney William Noland had a perceived conflict since he was hired by and is compensated through the Macon-Bibb County’s attorney’s office, the board enlisted Atlanta-based voting rights lawyer A. Lee Parks to represent them.

The board also was seeking attorney fees in the failed lawsuit.

Mike Kaplan, the current independent member of the Board of Elections who was chairman at the time the board voted 3-1 to file the lawsuit, said he has a signed letter stating that the board will not be responsible for the attorney’s fees.

Kaplan said his name is on the lawsuit only because he was chairman at the time. The partisan members of the board approved the suit, so he didn’t have to vote for it, although he supports the legal action.

“So, it was kind of a bipartisan thing that we decided to do what we did,” Kaplan told The Macon Newsroom Thursday morning. “What are we to do as laymen when we’re told by our attorney that he can’t represent us, and we think that a politician is doing something that he shouldn’t do? … So, we have no recourse and I guess politicians control the process.”

Miller has always maintained that as the head of the governing authority of Macon-Bibb County that he had the legal right to assemble a committee to select a nominee.

His comments made to The Macon Newsroom last year, stating that he didn’t have to include the board of elections on the committee, fueled the board’s desire to sue.

After the lawsuit was filed, the board recommended Interim Elections Supervisor Tom Gillon take the job permanently, but the mayor and commissioners have not acted on that nomination or the list of names submitted by the board last month to replace Kaplan as the independent fifth member.

Attorney Trey Foust, who works with Parks, told the judge no appointments have been made.

“No action is being taken by the mayor out of whether it’s become a personal vendetta or an act of anger, it is where we are. And if there is no recourse, then we are rendering the creation of the board of elections as an absolute nullity,” Foust said.

“Did the filing of this lawsuit have anything to do with them refusing to act?” Judge Williford asked.

In his final remarks, Groover said the lawsuit did indeed delay the mayor’s action.

“Before they sent another recommendation, they filed a lawsuit. And you’re exactly correct, that under those circumstances, given the heated nature and potential fallout of this case, the best course of action for the county was to bring it before the court and have some kind of decision before they did anything,” Groover said.

Moving forward from here

Thursday morning, Miller told The Macon Newsroom he followed the law in settling this dispute.

“Since that case has been dismissed, we’ll move forward as quickly as possible to make sure that we have the best person for that position,” Miller said.

Although the mayor said he plans to put forth nominations for the fifth member of the board to replace Kaplan in June, he gave no timetable to consider Gillon’s nomination.

“We’re just going to take the advice of our attorneys based on this recent decision and will move forward according to what we believe the law suggests we ought to do,” Miller said.

Georgia State Senators John Kennedy and Rick Williams tried to clear up the charter language earlier this year by putting the role of selecting an elections supervisor solely on the governing authority – meaning mayor and county commission.

 Senate Bill 227 also attempted to settle a dispute over whether private organizations such as political parties can appoint members to a public board like the Board of Elections without approval from the governing authority.

That legislation did not pass but is expected to come up again next year.

When asked how this legal battle will affect the future relationship between the mayor and board of elections, Miller said he doesn’t harbor any hard feelings.

Board of Elections’ Mike Kaplan follows attorney Trey Foust (left) out of court as Mayor Lester Miller stands in the back row of the courtroom following the hearing. (Liz Fabian)

“Honestly, it’s the way we do business on a regular basis,” Miller said. “As an attorney by trade, I’m used to going to battle with folks and then walking out and having lunch with them right afterwards. I think we have to do right by the people.”

The mayor said he is the only person in the governing authority that was elected by the whole county and he will be held accountable for selecting an elections supervisor that is acceptable for the entire community.

Kaplan wasn’t sure how everyone involved will get past this dispute.

“I don’t know. We have a new board, and we’ll see how they get along and see if the mayor treats this board with any more respect than he’s treated the last,” Kaplan said.

Two of the three members who voted for the lawsuit are off the board.

Democrat Darius Maynard, who works for the Community Foundation of Central Georgia, said he resigned because he needs to remain more politically neutral due to his job. The Democratic party appointed Tom Ellington to replace him. Republican Herb Spangler retired from the board and was replaced by Robert Abbott. Republican Joel Hazard, who voted against taking legal action, is now chairman as the position rotates among the party representatives and the independent member.

Although Kaplan hadn’t yet read the judge’s ruling, he said: “I still think we did what we thought was right, regardless of the outcome.”

Civic Journalism Senior Fellow Liz Fabian covers Macon-Bibb County government entities and can be reached at [email protected] or 478-301-2976.