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BRENNAN v. CHATHAM COUNTY COMMISSIONERS et al.
A93A0727.
JOHNSON, Judge.
Action on agreement. Chatham Superior Court. Before Judge Gadsden.
1. Brennan argues that the trial court erred in holding that the action taken in executive session by the county commissioners removing Brennan from office was effective because the commissioners violated the Open Meetings Law. OCGA 50-14-1 et seq. The Open Meetings Act is not applicable when the dismissal of a public officer is under consideration. OCGA 50-14-3 (6) provides that "[T]his chapter shall not apply to . . . [m]eetings when discussing or deliberating upon the appointment, employment, hiring, disciplinary action or dismissal, or performance of a public officer or employee." We note that an amendment to that section now requires that any vote affecting any of the issues contained in 50-14-3 (6) be taken in public and minutes of the meeting made available. This amendment, which became effective April 6, 1992, was not in effect at the times relevant to this litigation. Accordingly, the vote taken on May 15, 1991 was proper.
Section 19 of the Chatham County Enabling Act (Ga. L. 1984, p. 5050 et seq.) provides that the county attorney may be removed at any time by a two-thirds vote of the total membership of the board of commissioners. Id. at 5068. The record reveals that the requisite percentage voted in favor of Brennan's removal.
2. In his second enumeration of error, Brennan asserts that the trial court erred in finding that the contract between Brennan and the county was void as against public policy.
Brennan argues that OCGA 36-60-13, which authorizes counties to contract for "necessary services, outside professionals and business entities" should control, rather than the Chatham County Enabling Act. OCGA 36-60-13, however, applies to "multiyear lease, purchase, or lease purchase contracts" and is inapplicable to the provision of legal services. Section 20 of the Enabling Act authorizes the board to fix the compensation of the county attorney but it does not authorize the board to appoint an attorney for a fixed term. The contract was void as against public policy in that both under the Enabling Act and the law generally, a county attorney is an appointed public official who serves at the pleasure of the governing body. Madden v. Bellew, 260 Ga. 530, 531 (2) (397 SE2d 687) (1990). Incident to the power to appoint is the power to discharge. Bailey v. Dobbs, 227 Ga. 838, 839 (1) (183 SE2d 461) (1971).
We believe that the trial court correctly applied the law as construed by this court in Andrews v. Richardson, 32 Ga. App. 687 (124 SE 378) (1924). In Andrews, Fulton County appointed Andrews for a term of four years as a deputy tax collector. He was fired after one year and sued for the remainder due over the next three years. This court held that the contract was void. Brennan argues that the Andrews case, supra, is antiquated and overlooks modern realities, such as the need to hire additional staff in contemplation of performance of the agreement, and therefore the county should be estopped from now claiming that the contract is void. We disagree. A governmental body cannot be estopped from denying the validity of a void agreement. "The mere fact that the city may have operated under some form of agreement with appellant for a period of time does not change the result." (I.e., that the contract was unenforceable.) (Citation omitted.) Simmons v. City of Clarkesville, 234 Ga. 530, 531 (216 SE2d 826) (1975). As county attorney at the time he drafted the contract, Brennan knew or should have known that it was unenforceable. The trial court correctly granted summary judgment to the defendants.
Chamlee, Dubus & Sipple, George H. Chamlee, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., for appellees.
Duffy & Feemster, Dwight T. Feemster, Jo Beth Gosdeck, for appellant.
DECIDED JUNE 8, 1993 -- RECONSIDERATION DENIED JUNE 24, 1993.
Saturday May 23 21:19 EDT


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