Justice Harold D. Melton, Supreme Court of Georgia (Photo: John Disney/ALM)

The Georgia Supreme Court ruled unanimously Monday that DeKalb County's process for appointing members to its Board of Ethics is unconstitutional because it lets private groups make the picks.

“As these private entities do not answer to the people as required by our Constitution, they are not authorized to wield the power to appoint public officials to the DeKalb County Board of Ethics,” Presiding Justice Harold Melton wrote.

The winning lawyer, Dwight Thomas, said the decision “puts the nail in the coffin” of ethics complaints against his client, Sharon Barnes-Sutton, and all others pending.

“The DeKalb ethics board has been operating illegally and improperly,” Thomas said Monday. “When you hold others accountable, you have to be held accountable.”

Darren Summerville, Kurt Kastorf and Angela Fox of the Summerville Firm represented the ethics board.

Kastorf emailed a statement on behalf of the Summerville Firm: “We are disappointed with today's ruling, which strikes down an appointment structure supported by the DeKalb legislative delegation, the Governor, the General Assembly, and—most importantly—92% of DeKalb voters. The Court's short opinion leaves unclear or in doubt the status of ethics boards in multiple metro Atlanta counties (not to mention dozens of other boards and commissions throughout the state). A strong and independent board of ethics is essential to good governance, and we are considering all our options to ensure that the board continues to effectively represent the interests of DeKalb's citizens.”

The high court upheld the DeKalb County Superior Court's ruling that the appointment process created by a recent DeKalb County local law violates the Georgia Constitution's requirement that public officials be held accountable to the people. That law delegates to private entities the power to appoint four of the ethics board's seven members.

The makeup of the board changed in 2016, following complaints filed in March 2015 against Thomas' client, then-Commissioner Sharon Barnes-Sutton, over alleged spending irregularities. Previously, the seven members of the board were appointed and overseen by the DeKalb County CEO and the seven county commissioners, Melton said.

While the complaints were pending against Barnes-Sutton, the DeKalb County legislative delegation ushered House Bill 597 through the General Assembly, creating a new board member makeup. The bill gave the power to appoint members of the ethics board to a variety of public and private organizations, including DeKalb's legislative delegation, chief superior court judge, probate court judge and specified private entities: the DeKalb Bar Association, the DeKalb County Chamber of Commerce, Leadership DeKalb and a group of colleges and universities located within the county. The Georgia Legislature passed House Bill 597, the governor signed it, and on Nov. 3, 2015, DeKalb County voters approved it.

Newly appointed board members took their places in January 2016. By then, Barnes-Sutton had filed a lawsuit against the ethics board and its chair, Clara Delay. After passage of the new legislation, Barnes-Sutton amended her complaint in March 2016 with a petition for a “Writ of Quo Warranto”—Latin for “by what authority”—challenging the board's makeup. Barnes-Sutton argued the appointment process was unconstitutional because the majority of the board's seven members were named by private organizations. Barnes-Sutton argued that those members had no right to their office because no elected official had final authority over their appointments.

The trial court judge ruled in Barnes-Sutton's favor, finding that under the state Supreme Court's 1979 decision in Rogers v. Medical Association of Georgia, the appointment process created by Georgia House Bill 597 violated the Constitution because it delegated appointment power for four of the seven ethics board members to private organizations that were not subject to any confirmation by any elected governmental official or body. The DeKalb County Board of Ethics appealed that ruling to the state Supreme Court. Meanwhile, Barnes-Sutton was voted out of office in 2016.

Melton quoted the high court's 1979 decision in Rogers, saying the issues in that case were similar. In Rogers, the court ruled that, “The General Assembly may, within constitutional limitations, establish qualifications for public office and designate a governmental appointing authority. But it cannot delegate the appointive power to a private organization.”

“As was the case with the appointed officials in Rogers, the appointed officials to the Board here wield government power. Also as was the case with the statute in Rogers, HB 597 delegates the power of appointment of officials to a public office with governmental powers to private organizations that are 'not accountable to the people as our constitution requires,'” Melton said. “Accordingly, the trial court correctly granted the writ of quo warranto as to the four challenged Board members appointed by private entities pursuant to HB 597, as these appointments were unconstitutional.”

The case is Delay et al. v. Sutton, No. S18A0765.