The DeKalb County Board of Ethics is asking a judge to throw out a lawsuit by Commissioner Sharon Barnes Sutton, saying she’s using the court system to dodge charges of misconduct.
Allegations of 12 ethical violations by Sutton have been put on hold since she sued in November, alleging that the Board of Ethics is unconstitutional because some of its members are appointed by private organizations. A judge prevented her ethics cases from moving forward while the lawsuit is pending.
“Likely, the commissioner’s real plan is to avoid investigation entirely, or at least to stall any particularized inquiry until after the runoff election on July 26,” according to the motion to dismiss filed Friday by attorney Darren Summerville, who represents the board.
Sutton’s attorney, Dwight Thomas, said the Georgia Supreme Court has made clear that government board members can’t be chosen by private entities. He said the DeKalb Board of Ethics is attacking Sutton to distract from the legal issues of the case.
“When you don’t have the facts or the law on your side, then you try to smear your opposing party,” Thomas said. “This is not about delaying anything.”
Pending ethics complaints accuse Sutton of misspending taxpayer money on a personal attorney, home office equipment and a portrait of President Barack Obama at a charity fundraiser, among other allegations. She has said her spending was legitimate.
Sutton’s lawsuit relies on a 1979 Georgia Supreme Court decision, Rogers v. Medical Association of Georgia, which found “the delegation of the power of appointment to public office to a private organization is unconstitutional.” In that case, the court invalidated a statute requiring the governor to appoint medial doctors to the State Board of Medical Examiners solely from a list provided by a the Medical Association of Georgia.
But the appointment of ethics board members is different, according to Summerville’s motion.
“Our board and the appointment avenues for its members were approved via referendum by the citizens of DeKalb County. This distinction is all the difference,” he wrote. “DeKalb’s electorate did have a direct say, approving the appointment regime suggested — but not adopted — by the General Assembly.”
About 92 percent of voters approved the overhaul of the DeKalb Board of Ethics in November, replacing its politically appointed members with individuals appointed by community groups, judges and state legislators.
Sutton’s lawsuit objected to the four board members appointed by private organizations: the DeKalb Bar Association, the DeKalb Chamber of Commerce, Leadership DeKalb and a consortium of universities and colleges.
The board improperly took on a judicial role, acting as “prosecutor, judge and jury” as it reviews cases against public officials, according to previous legal filings for Sutton.
However, if the DeKalb Board of Ethics is unconstitutional, so are many other boards that are appointed by private organizations as called for by the Georgia General Assembly, wrote Summerville. Those include the 9-1-1 Advisory Committee, the Georgia Aviation Hall of Fame, county boards of equalization and county boards of health.
DeKalb Superior Court Judge Asha Jackson hasn’t scheduled a date to hear arguments in the case.
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