BOC declares Joint Projects agreement ‘null and void’

Larry Stanford Editor

October 26, 2013

Two months after Upson County and the City of Thomaston agreed on service delivery provided by each in a “Joint Projects Service Agreement,” part of the overall agreement between the county, Thomaston and Yatesville on the percentage split of the one percent Local Option Sales Taxs (LOST),the Upson County Board of Commissioners is of the opinion the agreement is null and void. They are basing their claim on the recent Georgia Supreme Court decision of Turner County v. City of Ashburn et al, which stated that the procedure for judicial resolution (arbitration) of the LOST negotiations between a county and city is a violation of the separation of powers doctrine and is unconstitutional.

Upson County and Thomaston had been in negotiations for the LOST and joint projects agreement since July 2012, with the joint projects agreement holding up the process. After the two governing bodies failed to come to an agreement on their own, state law mandated a mediator be brought in to attempt to reach an agreement, however that failed as well. The final step in the process was for judicial arbitration, with the decision to be made by a Superior Court judge from a different judicial circuit than the county and Senior Judge Stephen Boswell was chosen. He was to have begun dividing up the LOST revenue in April of this year, but both bodies decided to try one more time to come up with an agreement with the attorneys for each side handling the negotiations. The two sides approved the agreement the attorneys drew up on August 20, 2013, and it was sent to Judge Boswell for him to sign off on.

In a letter sent to Thomaston Mayor Hays Arnold on October 23, 2013, Upson County Commission Chairman Rusty Blackston stated that based on the Supreme Court decision calling the judicial arbitration unconstitutional, the Commission felt the Joint Projects Service Agreement between Upson and Thomaston is “null and void and of no legal import.” Blackston went on to write:

“We understand this ruling to mean that once the county and/or city availed itself of the arbitration framework contained in said code section to resolve the dispute regarding LOST, arbitration was “triggered,” and any subsequent agreement (including the Service Delivery Strategy Agreement above referred to) reached during this process was “tainted” as the product of an unconstitutional procedure. The judicial action, i.e., signature of the arbitrator, Judge Stephen Boswell, in approving the agreement, only serves to underscore the participation of the arbitrator in a critical step of the process.”

When the court ruling came out, the Georgia Department of Revenue requested that the LOST agreements be re-signed again and sent in. Upson County and Yatesville signed the LOST agreement, which set the percentages for each entity the same as they have been since LOST began in 1981. The City of Thomaston declined to sign the agreement after the county put in an expiration date of June 30, 2014 on the agreement. Thomaston objected to the expiration date, citing the Revenue Department request that no changes be made to the document before it was re-signed. The Commission stated the expiration date was set because they are not sure what the Georgia legislature will do during the upcoming General Assembly to change the procedure for deciding the LOST percentages.

In concluding his letter to Mayor Arnold, Blackston stated:

“We, in a spirit of cooperation, reach out to the city leaders to work with us as we attempt to unravel the ‘uncertainty’ this decision has created. Our community turns to us to harmoniously arrive at a resolution which is in its welfare. While we may disagree as to the impact the Georgia Supreme Court decision may have on us, it would be imprudent to react impulsively. Rather, now is the time for reasoned and well-intentioned positions to be achieved. Our community is struggling fiscally, and our desire and efforts will be to reach a solution which does not spurn further taxpayer consequences.”