Judge David Sweat speaks during a hearing of Hoschton Mayor Theresa Kenerly at Jackson County Magistrate Court on Wednesday, Oct. 2, 2019. Kenerly and Councilman James Cleveland contested a recall effort aimed at removing them from office. They have been under fire since an AJC investigation revealed a candidate for city administrator was sidelined because of his race. Sweat ruled the recalls can proceed. HYOSUB SHIN / HYOSUB.SHIN@AJC.COM
Photo: The Atlanta Journal-Constitution
Photo: The Atlanta Journal-Constitution

Hoschton recall petition can move forward, judge rules

A superior court judge ruled Tuesday that a citizen-led effort to recall the mayor of Hoschton and city councilman can continue.

Judge David Sweat said Hoschton Mayor Theresa Kenerly’s racially charged comments regarding a black candidate for City Council, her failure to see that an ethics committee was named to hear complaints against her, and a no-bid construction project given to the employee of a city councilman were sufficient grounds for voters to decide whether she stays on the job.

Separately, he found that Councilman Jim Cleveland’s role in failing to appoint an ethics committee was sufficient for a recall against him to proceed.

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.”

Hoschton Mayor Theresa Kenerly sits during a hearing before Judge David Sweat at Jackson County Magistrate Court on Wednesday, Oct. 2, 2019. Kenerly and Councilman James Cleveland contested a recall effort aimed at removing them from office. They have been under fire since an AJC investigation revealed a candidate for city administrator was sidelined because of his race. Judge David Sweat ruled the recalls can proceed. HYOSUB SHIN / HYOSUB.SHIN@AJC.COM
Photo: The Atlanta Journal-Constitution

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.”

Mary Morrison, chairwoman of the recall effort, testifies on witness stand during a hearing of Hoschton Mayor Theresa Kenerly at Jackson County Magistrate Court on Wednesday, Oct. 2, 2019. Kenerly and Councilman James Cleveland contested a recall effort aimed at removing them from office. They have been under fire since an AJC investigation revealed a candidate for city administrator was sidelined because of his race. Judge David Sweat ruled the recalls can proceed. HYOSUB SHIN / HYOSUB.SHIN@AJC.COM
Photo: The Atlanta Journal-Constitution

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 Bowers, 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.

Hoschton Mayor Theresa Kenerly sits with her attorney Tony Powell during a hearing before Judge David Sweat at Jackson County Magistrate Court on Wednesday, Oct. 2, 2019. Kenerly and Councilman James Cleveland contested a recall effort aimed at removing them from office. They have been under fire since an AJC investigation revealed a candidate for city administrator was sidelined because of his race. Judge David Sweat ruled the recalls can proceed. HYOSUB SHIN / HYOSUB.SHIN@AJC.COM
Photo: The Atlanta Journal-Constitution

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.

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