Fifteen months ago, a vast majority of DeKalb voters approved giving the county Board of Ethics independence from the officials it investigates.
About 92 percent of voters supported changes that gave private organizations the power to appoint most of the board's members. Previously, the DeKalb Commission and CEO picked board members.
The legitimacy of that decision came into question Tuesday as attorneys argued a constitutional issue in Superior Court: Whether power should come directly from the people, or if appointments must be made by the leaders they elect.
Superior Court Judge Asha Jackson is considering the argument that the new Board of Ethics is unconstitutional because most of its members were appointed by private organizations: the DeKalb Chamber of Commerce, the DeKalb Bar Association, Leadership DeKalb and local colleges. Judges and state legislators choose the other three board members.
Former DeKalb Commissioner Sharon Barnes Sutton filed a lawsuit that argued only elected officials can appoint board members. Sutton sued as she was facing ethics allegations related to her spending and political fundraising. Another judge put a hold on Sutton's ethics cases while the lawsuit is pending.
After repeated corruption scandals, voters demanded sweeping reforms to ethics in DeKalb government, said Darren Summerville, an attorney for the Board of Ethics.
“It defies common sense to say the electorate has no say,” Summerville told the judge. “The old scheme was the fox watching the henhouse.”
But Dwight Thomas, who represents Sutton, said voters can’t hold the Board of Ethics accountable if its members are chosen by private groups. He said elected officials are answerable to their constituents, and they should be the ones to appoint board members under the Georgia Constitution.
“The law requires a public process all the way through,” Thomas said. “Even the people must abide by the Constitution, and the Constitution says all of its government is run by elected officials. You can’t run government by private organizations, and that’s what this is.”
Sutton's case relies on a 1979 Georgia Supreme Court decision that said elected officials can't delegate their appointment power to non-government groups. In that case, Rogers v. Medical Association of Georgia, the court overturned a state law that required the governor to appoint members of the State Board of Medical Examiners from nominees submitted by the Medical Association, a private organization.
The difference in the DeKalb Board of Ethics case is that voters made the decision to remove appointment power from the DeKalb Commission and the county CEO, Summerville said.
Sutton, who lost re-election last year, attended the hearing Tuesday but declined to comment. She was defeated by Commissioner Steve Bradshaw, whose campaign focused on integrity and responsiveness to residents.
Ethics charges against Sutton are pending even though she’s no longer in office. Three residents accused her of accepting gifts from a YMCA, abusing her county purchasing card, using government employees at a political fundraising event and other alleged violations. She has denied wrongdoing.
Scott Bonder, a member of the Board of Ethics appointed by the DeKalb Bar Association, said Sutton’s lawsuit delayed the resolution of her case.
“We have been improperly stalled, and it’s important that the board moves forward for the benefit of the county,” Bonder said after the hearing.
Jackson suggested that the problem of private appointments could be resolved. State lawmakers are considering legislation that would make private organizations' nominations to the board subject to confirmation from the county's state legislators.
“Who sits there is not that much of an issue. It’s just how they got there,” Jackson said.
No matter how Jackson rules, the case likely will be appealed to the Georgia Supreme Court, Thomas said.
The high court’s decision could affect many ethics boards across the state that have members appointed by private groups, he said.
The Atlanta Board of Ethics is chosen by organizations like the Gate City Bar Association, the Atlanta Business League and the League of Women Voters. The Cobb County Board of Ethics includes appointees from homeowners associations.
Gwinnett and Fulton counties have a mix of appointments from public and private entities, though Fulton's ethics nominees are subject to approval from its Board of Commissioners.
