IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
CITY OF MILTON, GEORGIA BOARD OF ETHICS,
CITY OF MILTON, GEORGIA and NEAL J. O’BRIEN,
Defendants in Certiorari
Civil Action No. 2010CV184381
PETITION FOR WRIT OF CERTIORARI UNDER O.C.G.A. § 5-4-3
1. The petitioner seeks review of the “Findings of Fact and Conclusions of Law,” along with the “Disciplinary Action,” of the City of Milton Board of Ethics, the Honorable Clint Johnson, Chairman. That final decision was rendered within the quasi-judicial authority of that tribunal. The final decision is dated March 16, 2010, and was entered on findings and conclusions dated March 16, 2010. This petition is filed within 30 days after the date of that final decision. A copy of this decision is attached as Exhibit A. 2. All costs accrued on the trial and proceedings in the tribunal have been paid. A copy of the certificate of payment of costs is attached as Exhibit B, and the original will be filed separately. 3. A bond and good security sufficient for and conditioned on the payment of any sums sought as an award to be recovered, and such further costs as may accrue, has been obtained. The original is filed with the clerk of this Court along with this petition. A copy of the bond and security is attached as Exhibit C. A certificate
showing the chief judicial officer before whom the matter was heard has approved the bond is attached as Exhibit D. 4. The petitioner respectfully specifies the following errors in the findings of fact, conclusions of law, and other decisions of the tribunal: a. The tribunal denied the petitioner due process of law by refusing to allow her to call the complaining party as an adverse witness for cross examination. The complainant was present at the hearing and available to testify. He was actively directing the prosecution of the complaint through his counsel. See Milton, Ga., Ordinance No. 08-10-28 [the “Ethics Ordinance”] art. 5, § 12.(I) (“hearing shall be conducted in accordance with the requirements of due process”). (The Ethics Ordinance is attached as Exhibit E.) See also Ethics Ordinance Bylaws and Rules of Procedure [the “Bylaws”] § 7.1(e) (“The subject of the ethics complaint shall have all of the due process rights, privileges, and responsibilities of a witness appearing before the courts in the state . . . the right to present and cross-examine witnesses, . . . .”) (A copy of the Bylaws are attached as Exhibit F.) A denial of the substantial right to cross-examine the opposing witness is reversible error. O.C.G.A. § 24-9-64; Cornelius v. Macon–Bibb County Hosp Auth., 243 Ga. App. 480, 533 S.E.2d 420 (2000). For decades in Georgia, in civil proceedings either party may make the adverse party a witness with privilege of subjecting him to a thorough and sifting cross-examination and impeachment, as if the witness had testified in his own behalf and was being cross-examined. O.C.G.A. § 24-9-81; Parker & Co. v. Glenn, 90 Ga. App. 500, 83 S.E.2d 263 (1954). b. The tribunal erred by refusing to admit or consider any evidence that the complaint was unfounded, frivolous, false, or politically motivated. See Ethics Ordinance art. 5, § 17. (Wrongful Use of the Board of Ethics). c. The tribunal erred by refusing to admit or consider any evidence that the complaint was “filed in a negligent, reckless, or purposeful manner without any basis in law or fact and for purpose other than reporting a violation of this ordinance.” See Ethics Ordinance art. 5, § 18.
(A) (Wrongful Use of the Ethics Ordinance). d. The tribunal erred by refusing to admit or consider any evidence of the following factors, despite the mandatory language in the Ethics Ordinance. See Ethics Ordinance, art. 5, § 18.
(B) (“the Board of Ethics shall also consider the following, without limitation:”).
(1) The timing of the complaint was such that it was calculated to do the maximum amount of damage to D’Aversa’s campaign for reelection to the Milton City Council.
(2) The nature and type of publicity surrounding the filing of the complaint further served to maximize the damage to D’Aversa’s reelection campaign. This is shown by the newspaper articles attached to the complaint, and from Longoria’s political ad headed, “Which District 5 Candidate is truly The Developers’ Best Friend?”
(3) The nature of the relationship between D’Aversa and the complainant before the complaint was filed was one of political rivalry, to say the least. Mr. O’Brien (the complainant) was elected to the Milton City Council in November 2006. When O’Brien ran for reelection in 2007, D’Aversa staunchly supported his challenger. O’Brien lost that election. In this 2009 election, O’Brien supported D’Aversa’s opponent, Mr. Joe Longoria. O’Brien also supported Council Members Thurman and Lusk; D’Aversa was on record supporting their respective challengers. Further, O’Brien and D’Aversa have had differing views on what is appropriate for development and for accepting campaign contributions and money from developers in our city. They have for years been at odds on related issues.
(4) Mr Longoria used the ethics charge as a political weapon to oppose D’Aversa’s reelection. This is clear from his ad headed, “Which District 5 Candidate is truly The Developers’ Best Friend?”
(5) That the complainant knew or reasonably should have known that the allegations in the complaint were groundless is evident on the face of the complaint. The complainant has bent over backwards to construe his allegations in the most nefarious light possible.
(6) The complainant wanted to see D’Aversa defeated in her bid for reelection. e. The tribunal further denied the petitioner due process of law by refusing to allow her to perfect the record with an offer of proof of evidence the tribunal had refused to allow before it could be presented.
f. The tribunal erred by refusing to admit or consider any evidence that the petitioner was entitled to recover attorney’s fees from the complainant. See Ethics Ordinance art. 5, § 17. (Wrongful Use of the Board of Ethics) (individuals directing politically motivated complaints may be subject to payment of costs and attorney’s fees).
g. The findings of fact by the tribunal were in error because there is no clear and convincing evidence that the e-mail in question “contained an offer to nominate Joe Longoria to a City board or committee in exchange for Joe Longoria withdrawing from the election to run for the District 5 seat on the City Council.”
h. The conclusions of law by the tribunal were in error because there is no clear and convincing evidence to support that “D’Aversa’s actions constituted a violation of the Ethics Ordinance.”
i. Part of the Ethics Ordinance that the petitioner was found to have violated is void for vagueness and unconstitutional. Ethics Ordinance art. 3, § 8 (“Never engage in other conduct which is unbecoming to a member or which constitutes a breach of public trust.”)
j. The tribunal’s decision is contrary to the law.
k. The tribunal’s decision is contrary to the evidence.
l. The tribunal’s decision is strongly against the weight of the evidence.
Therefore, the petitioner respectfully requests that the Court issue its writ of certiorari, hear this petition according to law, hold that the tribunal erred as
described above, and according to O.C.G.A. § 5-4-14(b) decide the case finally without sending it back to the tribunal below. The Court should enter judgment for the petitioner for the costs paid to obtain the certiorari according to O.C.G.A. § 5-4-16.
Petitioner has ordered a full transcript of the proceedings and will provide it to the Court as soon as it is completed.
Dated April 15, 2010.
LUCIAN GILLIS, Jr.,
Georgia Bar No. 295163,
Attorney for Petitioner.
GILLIS & CREASY,
Two Ravinia Drive, Suite 650, Atlanta, Georgia 30346 770-394-3127; fax 770-394-3117; LGillis@gilliscreasy.com.
CERTIFICATE OF SERVICE
I have served this paper on every party by U.S. Mail, first-class postage prepaid and addressed:
PAUL B. FRICKEY, Esq. JARRARD & DAVIS, LLP
105 Pilgrim Village Drive Suite 200 Cumming, GA 30040
Mr. NEAL J. O’BRIEN
635 Devonshire Farms Way Milton, GA 30004-4322
Hon. JOE LOCKWOOD
Mayor 13000 Deerfield Parkway, Suite 107A Milton, GA 30004
More to come.