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Final Copy 290 Ga. 327 S11A1502. BOARD OF COMMISSIONERS OF MILLER COUNTY et al. v. CALLAN et al.

CARLEY, Presiding Justice. The Board of Commissioners of Miller County (Board) was created by Ga. L. 1983, p. 4594 (Local Act). Section 14 of the Local Act prohibits members of the Board from transacting business with the County. Ga. L. 1983, pp. 4594, 4603. Section 10 provides that all bills shall be paid by check signed by the clerk, who is not an elected official, and by the chairman or vicechairman. Ga. L. 1983, pp. 4594, 4601. In April 2010, pursuant to its constitutional home rule powers, the Board enacted Ordinance No. 10-01, which amended these two sections of the Local Act. Ga. L. 2010, pp. 4192, 4194, 4198. Section 3 of the Ordinance amended section 14 of the Local Act by adding a provision that section 14 would not apply where a majority of the Board approves the contract or transaction after establishing that the goods, services or property cannot be obtained for less and that the taxpayers' interests would be served. Section 2 of the Ordinance amended section 10 of the Local Act by providing that all bills shall be paid by check signed by at least two of the

following officials: the chairman or vice-chairman, the clerk, and the chair of the Board's finance committee. In June 2010, three individuals who are residents, registered voters, and taxpayers of Miller County (Appellees) brought suit against the Board and its members in their individual and official capacities (Appellants), alleging that sections 2 and 3 of the Ordinance are unconstitutional and seeking declaratory judgment and injunctive relief, as well as nominal damages and expenses of litigation, including attorney's fees. On cross-motions for summary judgment, the trial court declared sections 2 and 3 of the Ordinance unconstitutional, denied Appellants' motion for summary judgment, granted partial summary judgment in favor of Appellees on their claims for declaratory judgment and injunctive relief, as well as the affirmative defenses of legislative, sovereign, governmental, official, or other immunity, and reserved the remaining claims for trial. Appellants filed a timely notice of appeal from this order. 1. Appellants contend that the trial court erred in ruling that sections 2 and 3 of the Ordinance violate certain home rule provisions of the Georgia Constitution of 1983. Specifically, the trial court held that both sections of the Ordinance violate subparagraph (a) of Art. IX, Sec. II, Par. I, that section 3
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violates subparagraph (c) (1) of that same paragraph, and that section 2 violates subparagraph (c) (2) thereof. We begin by recognizing that "[t]he power of county boards of commission in Georgia is not unlimited." Channell v. Houston, 287 Ga. 682, 683 (699 SE2d 308) (2010). "[N]either the counties of this state nor their officers have the power to do any act, make any contract, or incur any liability not expressly authorized by a legislative grant of power or necessarily implied from an express legislative grant of power. [Cits.]" Stephenson v. Bd. of Commissioners of Cobb County, 261 Ga. 399, 400 (2) (a) (405 SE2d 488) (1991). However, "[t]he Georgia Constitution grants home rule to counties." Krieger v. Walton County Bd. of Commissioners, 269 Ga. 678, 679 (1) (506 SE2d 366) (1998) (Krieger I). (a) Both the county and the municipal "home rule systems confer two `legislating' powers upon local governments. . . . At the first tier, the governing authority is empowered to adopt measures for its municipality or county that do not rise to the level of affecting state legislation." R. Perry Sentell, Jr., The Georgia Home Rule System, 50 Mercer L. Rev. 99, 133 (III) (A) (4) (1998). This first power enables county commissions "to adopt clearly reasonable
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ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law. . . ." Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a). "When controversy arises over the first-tier delegation, the governing authority is seeking to function within its existing charter or local statutes and to utilize this additional grant of power." Sentell, supra. However, "[t]he second-tier delegation constitutes the system's most extensive grant of local `legislating' power; it comprises, no less, the essence of Georgia's home rule complex." Sentell, supra at 136 (III) (A) (5). Art. IX, Sec. II, Par. I (b) provides that, "[e]xcept as provided in subparagraph (c), a county may, as an incident of its home rule power, amend or repeal the local acts applicable to its governing authority by following either of the procedures hereinafter set forth . . . ." Under this delegation, counties "are empowered to change existing state law. . . . [T]he anticipated modifications are amendments or repeals of local statutes `applicable to (the) governing authority.' [Cit.]" Sentell, supra. The Ordinance here expressly and specifically "amended" sections 10 and 14 of the Local Act. Ga. L. 2010, pp. 4192, 4194, 4198.
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"[T]hat action could be sustained only under the second-tier delegation . . . ." Sentell, supra at 137 (III) (A) (5) (a). Therefore, Art. IX, Sec. II, Par. I (a) is irrelevant to the home rule analysis, and sections 2 and 3 of the Ordinance cannot be said to "violate" that subparagraph. A careful reading of the trial court's order shows that it held otherwise only by blurring the distinction between the two delegations of legislating power set forth in subparagraphs (a) and (b). Such blurring is easy to occur and has happened before. Sentell, supra. Thus, "the obvious but crucial distinction between the legislating delegations bears reemphasis. First-tier delegations are subservient to local statutes. Second-tier delegations (by either procedure) are employed to change local statutes." Sentell, supra. (b) Subparagraph (c) of Art. IX, Sec. II, Par. I of the Georgia Constitution of 1983 proscribes the application of home rule authority as to certain enumerated matters which are subject to general law or local acts of the legislature. Specifically, home rule authority shall not extend to an "(a)ction affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority," subparagraph (c) (1), or an ["a]ction affecting the [composition or] form . . . of the county governing authority." Subparagraph (c) (2).

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Krieger v. Walton County Bd. of Commissioners, 271 Ga. 791, 792-793 (1) (524 SE2d 461) (1999) (Krieger II). The trial court held, and Appellees argue, that Section 2 of the Ordinance here violates subparagraph (c) (2) because it confers executive powers on the chair of the finance committee without requiring him to be an elected commissioner. An ordinance which pertains to personnel subject to the

jurisdiction of the county governing authority, which is administrative in nature, and which does not confer executive powers on such personnel cannot be considered an action affecting the composition or form of county government. Krieger II, supra; Krieger I, supra at 680 (1). Section 2 amends only the last sentence of section 10 of the Local Act. Thus, left unchanged is the Local Act's requirement that all bills be "submitted to the [B]oard for approval . . . and if approved at a regular meeting of the [B]oard, approval shall be endorsed on said bills by the chairman." Ga. L. 1983, pp. 4594, 4601. Such endorsement clearly constitutes the exercise of executive authority. After approval and endorsement, section 2 mandates that "[a]ll bills shall be paid by check which shall be signed by at least two (2) of the [named] officials . . . ." Ga. L. 2010, pp. 4192, 4194, 4198. "The use of the word `shall' in [section 2] clearly indicates that the
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[finance chair] has a ministerial and mandatory duty, rather than a discretionary duty, to sign the checks." Stork v. Sommers, 630 A2d 984, 987 (II) (Pa. Commw. Ct. 1993). In other words, the finance chair's "check-signing authority extended only to those expenses that were approved for payment by" the Board. Michaud v. United States, 40 Fed. Cl. 1, 22 (I) (B) (1) (1997). Where an employee has no decision-making power beyond the ministerial duty of cosigning checks, a court cannot justifiably conclude that the individual controls the allocation of funds or possesses authority over expenditures. Heimark v. United States, 18 Cl. Ct. 15, 23 (1989). We conclude that section 2 conferred only administrative rather than executive authority on the chair of the Board's finance committee and that it therefore did not violate Art. IX, Sec. II, Par. I (c) (2) by affecting the composition or form of the Board. The trial court further held, and Appellees argue, that section 3 of the Ordinance violates Art. IX, Sec. II, Par. I (c) (1) because, contrary to section 14 of the Local Act, section 3 of the Ordinance grants authority for commissioners to transact business with the County and places duties on the commissioners to consider proposed transactions, approve or disapprove them, and make findings of fact to be recorded in the Board's minutes. The argument that section 3
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affects an elective office in violation of subparagraph (c) (1) is particularly weak if OCGA

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