AllOnGeorgia reported Monday evening that Georgia law prohibits someone holding an appointed position in a city (i.e. city clerk, city administrator, police chief, city attorney, etc.) from also serving as the municipal court judge, per O.C.G.A 15-8-2.
According to an Open Records Request obtained on January 14, 2016, Reidsville City Attorney Van Cheney issued a letter to the mayor, council and city administrator the morning after the article was published claiming AllOnGeorgia was incorrect. He cited the following Georgia statute:
OCGA 15-1-8(d): In all cases in which a part-time judge has a conflict because such judge of his or her partner or associate represents a governmental agency or entity, a subdivision of government, or any other client, the judge will recuse himself or herself or, with the permission of the parties, transfer the case to the state or superior court, but such judge will not otherwise be disqualified or prohibited from serving as attorney for such government entities.
Two attorneys were contacted – one in Statesboro and one in middle Georgia- both of whom affirmed the statute referenced by Mr. Cheney applies to his service as the city attorney, not as a judge. Even if that were not the case, the very statute Mr. Cheney cited in his letter claims that if there is no conflict, the service is okay. But the City of Reidsville is the client (and when in Collins, Collins is the client). He has a vested interest in the city generating funds for financial stability. Every action by the city could potentially need legal representation from Van Cheney.
What is noteworthy, however, is the practice of having the police chief stand in as a prosecutor when Judge Cheney is serving on the bench. No solicitor, no prosecutor, no advocate on behalf of the city – just someone from the same agency who has issued the ticket/citation/misdemeanor offense/zoning violation etc.
What happens when the next person who gets a ticket, has a hearing, and is sentenced by Van Cheney files a class-action lawsuit? The City of Reidsville will have to re-try all of those cases and possibly refund fines and fees. Not one, not two, but three attorneys in Georgia indicated that that is a possibility.
State bar ethics encourage avoiding even a perception of impropriety. That perception is a resounding, recurring noise right now. Attorneys in the region and around the state have commented on the muddied waters and the unethical nature of “double dipping.” One even went as far to say, “This is what is wrong with my profession.” Of the many attorneys contacted, none believe Mr. Cheney’s interpretation of the law to be proper.
As this carries on, the Attorney General’s office has been contacted for a formal opinion on the matter. State Representative Bill Werkheiser was contacted in an effort to obtain an interpretation from the legislative counsel in the Georgia General Assembly, but did not return emails for a comment on the situation.