By Pat Cooper
After the Fayette County Board of Commissioners maneuvered to insure that county attorney Scott Bennett received his severance package on Wednesday afternoon, Superior Court Judge Tommy Hankinson handed out another defeat to attorney Wayne Kendall in court on Thursday morning. However, Kendall is striking back through another arena, attempting to enlist the aid of Griffin Judicial Circuit District Attorney Scott Ballard.
In a 4-1 vote after a called executive session on November 15, the board of commissioners voted to terminate Bennett’s contract ‘without cause’ as of December 31 and give him a six months severance package with an estimated cost to the county of $67,500.
Last week, an ethics complaint lodged against Bennett was dismissed by the Fayette County Board of Ethics for lack of evidence of wrongdoing. The next morning, Hankinson dismissed Kendall’s attempt to get unredacted records for a suit stemming from the same complaint.
On Monday afternoon, Kendall filed a petition for a temporary restraining order and injunction to stop Bennett from collecting his termination package and asked the Superior Court for a hearing. The board was notified on Tuesday.
Kendall contended in his petition that state law provided that “one council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” He notes that the Georgia Supreme Court has held the ruling also applies to county governments.
“...has been held to prevent a governmental authority from paying severance pay to an employee on a salary continuation plan after termination of the employee’s contract, as any such contractual provision which would bind a successive governing authority to do so, is void as against public policy.”
On Wednesday afternoon, after the regularly scheduled commissioners workshop, as the commission was about to enter its executive session to discuss personnel, litigation and land acquisition, commission chairman Herb Frady asked for an additional item of personnel to be added for discussion.
Less than half an hour later, the five members came out for a public vote. Commissioner Robert Horgan moved to change Bennett’s termination date from December 31 to December 5, the day of the meeting , the day before the scheduled Superior Court hearing, saying that, after listening to advice from outside counsel, the board felt this was the way to go. The change provided Bennett’s payment from the severance package to an immediate lump sum. The move passed in a three-two vote.
Then the board voted, four to one, to hire Bennett as interim county attorney through the end of the year, allowing the interim county supervisor to negotiate the salary through the remainder of the 2012.
The next morning, in Superior Court, Kendall was apprised by the county’s outside counsel, Dana K. Maine of Freeman Mathis & Gary, LLP, of what had transpired the day before and the fact that Bennett had already received payment. Kendall objected to the move, telling Hankinson that he’d told the commission what he was doing as a courtesy and they had circumvented the hearing by proceeding, making it a moot point.
“While I can understand how you feel,” said Hankinson, “the horse is already out of the barn.”
Ultimately, the petition was dismissed.
Kendall, however, isn’t accepting that as the last word in the situation.
On Friday morning, Kendall sent a letter to Ballard urging him to ‘initiate an investigation on the misuse of county funds’’
“My understanding is that once the Fayette County Board of Commissioners learned of the hearing the day before, on Wednesday, they directed the County Administrator to transfer the funds into Mr. Bennett's account via direct deposit prior to the time of the hearing on Thursday.”
“We consider the actions of the Fayette County Board of Commissioners to circumvent the court proceedings as a tacit admission that the payment of these funds is unlawful. If we are wrong in our assertion that the payment of severance compensation to Bennett is unlawful then the court presumably would rule in a manner to deny our request and the Fayette County Board of Commissioners would have the imprimatur of the court as validation for making the payment. By making such a large payment of taxpayer funds to an employee, who technically had not even been severed from employment, underscores the will of these elected officials to flaunt the processes of the law.”