This is an appeal by plaintiffs City of Decatur, City of Chamblee, City of Doraville, and City of Stone Mountain “Cities” from an order of the Superior Court of DeKalb County granting summary judgment to defendant DeKalb County “County” in this litigation for alleged breach of an intergovernmental agreement “IGA” entered into by the County and the Cities for the distribution of funds generated by a special sales tax instituted pursuant to the Homestead Option Sales and Use Tax Act “HOST”, OCGA § 48-8-100 et seq. The superior court found that the IGA is unconstitutional as violative of the Intergovernmental Contracts Clause of the Georgia Constitution, 1983 Ga. Const., Art. IX, Sec. III, Par. I a. For the reasons which follow, we affirm. This litigation has been before the appellate courts of this State multiple times, and a summary of the salient facts and a procedural history are warranted. In January 1998, the County and the Cities, which are municipalities located within the county, entered into a 49-year agreement for the expenditure of tax revenue generated by a HOST, which had been approved by the County’s electorate in 1997. The County and the Cities disagreed about the calculation of the funds to be distributed to the Cities, and in 2000, the Cities filed suit against the County initially seeking damages for breach of the IGA, conversion, and attorney fees. The superior court granted judgment in favor of the County after finding that the IGA violated the plain language of the HOST statute, OCGA § 48-8-100 et seq. The Cities appealed to the Court of Appeals, which held that the IGA violated the express provisions of the HOST statute and affirmed the judgment of the superior court. City of Decatur v. DeKalb County , 255 Ga. App. 868 567 SE2d 332 2002.1 This Court granted certiorari to the Court of Appeals to determine whether it had properly interpreted OCGA § 48-8-100 et seq. to prohibit the IGA, and concluding that the Court of Appeals erred, this Court reversed. City of Decatur v. DeKalb County , 277 Ga. 292 589 SE2d 561 2003. We determined that the Court of Appeals had incorrectly found that the sole issue to be resolved was whether the IGA violated the plain language of the HOST statute in that inasmuch as IGA’s are provided for in the Georgia Constitution, that power could not be limited by HOST or any statutory pronouncement; however, at that time the trial court had not ruled as to whether the IGA at issue was authorized under the State Constitution but instead erroneously based its ruling on a statutory ground. Id. Following remand, the superior court denied the County’s motion for summary judgment and granted the Cities’ cross-motion for summary judgment, on the issue of how to calculate the proceeds under the IGA and on whether the agreement constituted an unlawful gratuity. See 1983 Georgia Const., Art. III, Sec. VI, Par. VIa. On appeal to the Court of Appeals, the County contended that the IGA was invalid under the Intergovernmental Contracts Clause of the State Constitution, and the Court of Appeals agreed and reversed. DeKalb County v. City of Decatur , 287 Ga. App. 370 651 SE2d 774 2007. This Court granted certiorari and held that the Court of Appeals was without jurisdiction to decide the constitutional question. City of Decatur v. DeKalb County , 284 Ga. 434 668 SE2d 247 2008. The judgment of the Court of Appeals was vacated, and the case remanded to that Court with direction that it examine, after recognizing that the constitutional issue was not ripe for review, whether the superior court erred in denying summary judgment to the County; if the Court of Appeals determined that the superior court erred in its conclusion that genuine issues of material fact existed, then it was to vacate the superior court’s judgment and remand the case to the superior court for it to address the constitutional issue. Id. at 438. After return to the Court of Appeals, that Court concluded that the superior court applied an erroneous legal analysis in denying summary judgment to the County; therefore, it vacated the superior court’s judgment, and remanded the case with direction that the superior court address and resolve the constitutional issue of whether the IGA is a contract pertaining to the provision of services under the Intergovernmental Contracts Clause. DeKalb County v. City of Decatur , 297 Ga. App. 322 677 SE2d 391 2009. Following remand, the County renewed its motion for summary judgment and the superior court granted it and entered judgment in its favor after finding that the IGA is not a contract for the provision of services, and therefore, is outside the scope of the Intergovernmental Contracts Clause and unconstitutional. We agree.
The analysis begins and ends with our State Constitution.2 It sets debt limits for counties, municipalities, and other political subdivisions, and provides that new debt cannot be incurred without the assent of a majority of its qualified voters. 1983 Ga. Const., Art. IX, Sec. V, Par. Ia.3 Furthermore, the general rule is that a local government “may not enter into a contract that lasts longer than that government’s term of office.” Greene County School Dist. v. Greene County , 278 Ga. 849, 850 607 SE2d 881 2005; OCGA § 36-30-3a.4 However, the Intergovernmental Contracts Clause found in Art. IX, Sec. III, Par. Ia of the 1983 Georgia Constitution “provides an exception to that rule, and allows political subdivisions of the State to contract with one another or with other public agencies, so long as the term of the contract does not exceed 50 years.” Greene County School Dist. v. Greene County , supra at 850. This exception does not give the State and its institutions and subdivisions the authority “to enter into any and every contract which they might in their discretion deem advisable.” Id. The agreement must satisfy certain requirements. It must involve “the provision of services, or . . . the joint or separate use of facilities or equipment” and “deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.” Id. at 851; Nations v. Downtown Development Auth ., 255 Ga. 324, 328 338 SE2d 240 1986.
