Hoschton recall petition can move forward, judge rules

Kenerly left the Jackson County Courthouse the same way she entered it: smiling and saying little about the controversy that has engulfed her small town for months.

“I’m sure he did what he thought was right,” she said of Sweat’s decision. “Right now I need to concentrate on my re-election.”

Kenerly and Councilman Jim Cleveland have spent months fighting demands from angry voters to resign or face a recall election after an Atlanta Journal-Constitution investigation this spring detailed allegations that Kenerly withheld the resume of a candidate for city administrator because he was black. In interviews with the AJC, Cleveland defended the mayor's actions and expressed his own views on racial integration, including that seeing interracial couples on television made his "blood boil."

Citizens filed dozens of ethics complaints against the Kenerly and Cleveland, but those complaints stalled because the city had failed to appoint an ethics commission, as required by city ordinance, to hear them.

Stymied, a group of local residents filed papers to have them recalled, but Kenerly and Cleveland challenged the grounds of the recall petition in court.

“This is a political decision that has to be made (by the voters),” Sweat said. “The court only acts as a gate keeper.”

Recall organizers now need to collect signatures from 30% of the city’s registered voters to trigger a recall election. Hoschton resident Mary Morrison, who chairs the recall committee, testified that both politicians needed to go.

“We want the city to get this blemish off of it,” she said. “We want to be better.”

Attorney Tony Powell, who represented Kenerly, argued that the grounds stated on the recall petition were not legally sufficient to remove an elected official.

Those grounds were: that Kenerly withheld the resume of a candidate for city administrator because he is African American and Cleveland’s subsequent racist statements violated their oaths of office; that both Kenerly and Cleveland, as mayor pro tem, failed to convene an ethics committee to hear dozens of ethics complaints filed against them; and that Kenerly and Cleveland conspired to avoid a competitive process of a $30,000 construction project, steering it to an employee of Cleveland’s remodeling firm to do the work and bill the city.

Brandon Bowen, attorney for the recall committee, dropped Cleveland’s racial comments as grounds for recall because his statements were his personal views and the judge likely would not rule they violated his oath of office.

Hoschton City Council members Hope Weeks and Beth Powers both testified about Kenerly’s alleged comments regarding job candidate Keith Henry. But their testimony was limited when Sweat agreed with Kenerly’s lawyer that statements in executive session were secret under attorney-client privilege.

The ruling meant Weeks could not testify to Kenerly's statement about Henry and neither of the councilwomen could testify to a tearful apology Kenerly allegedly made in a subsequent meeting, both of which were in executive session and detailed in the AJC report.

Weeks did testify that Kenerly repeated her comments to her in the parking lot outside City Hall after the meeting.

“She started to tell me that the candidate was real good but he was black and Hoschton didn’t have a big black community and she wasn’t sure that Hoschton was ready for that,” she said.

Powell minimized Kenerly’s views on hiring a black city administrator by pointing out that the council eventually received his resume and application, and could have hired Henry if they chose.

Henry voluntarily withdrew his name from consideration shortly after the March 4 meeting, accepting another offer in Texas. He has filed a discrimination complaint against the city, according to his attorney.

Regarding the no-bid contract, Cleveland testified that he was in control of the project, but denied he had financial responsibility over it.

“In my opinion, I did take on responsibility for getting jobs done around the city,” said Cleveland, who did not have an attorney.

Sweat dismissed that charge as a basis of the recall, leaving intact the charge related to the ethics committee.

Morrison said she got involved in the effort when she saw Kenerly interviewed by a television station after the AJC investigation. She said Kenerly was asked directly whether she had made the statements attributed to her.

“She couldn’t answer. She said, ‘I love the city of Hoschton. I love the people of my little town. I’m not prejudiced,’” Morrison said. “That was not the question.”

Morrison, who is black, said she has two African-American grandsons and she doesn’t want them brought up where their prospects are limited by racial bias. She said she had hoped the mayor would resign, but when she did not, a recall was the next step.

Georgia’s recall process

In Georgia, grounds for recalling a public official can include violation of the oath of office, misconduct, failure to perform lawful duties, misappropriating funds, and “acts of malfeasance.” The recall effort must have at least 100 “sponsors” who were registered voters during the most recent election. The public officials subject to recall can ask a judge to rule on the grounds stated in the petition or challenge the signatures of sponsors. State law charges the judge to determine “whether probable cause exists to believe that such alleged fact or facts are true.” The burden of proof rests on the parties bringing the petition to prove probable cause. If the effort survives that step, sponsors of the petition must collect signatures from 30% of registered voters in a municipal recall to trigger a recall election. If a majority of voters in a recall election vote to approve, the elected official is immediately removed from office.

Our reporting

In May, an AJC investigation broke the story of how the Hoschton mayor allegedly withheld a black job candidate from consideration as city administrator because of his race. The story ricocheted around the country and prompted some Hoschton residents to call for the mayor and a council member to step down. Political activity over the summer culminated in a recall petition against the two officials.