Hunter spokesman: Gwinnett ethics board ‘entirely unconstitutional’

The ultimate fate of the ethics complaint against Gwinnett Commissioner Tommy Hunter may not be decided in the county he serves, but by a judge in DeKalb County.

Two Gwinnett County attorneys filed their ethics complaint against Hunter on Feb. 6, about three weeks after he called civil rights leader and U.S. Rep. John Lewis a "racist pig" on Facebook.

A hearing officer gave the complaint the go-ahead last week and triggered the assembly of Gwinnett’s first-ever ethics board, which will have the power to investigate the case and, if it sees fit, recommend penalties ranging from written reprimand to removal from office.

But while all that’s going on, a case challenging the constitutionality of certain aspects of ethics boards like Gwinnett’s is being litigated in neighboring DeKalb County — meaning that, regardless of what Gwinnett’s board decides, a judge’s ruling several miles to the west may determine the outcome.

And if the comments of Seth Weathers, a consultant who has acted as Hunter’s spokesman, are any indication, the commissioner’s team will be watching closely.

“The idea of a private group assembled to remove an official elected by voters is entirely unconstitutional,” Weathers recently told The Atlanta Journal-Constitution. “Doesn’t matter what rules a county implements.”

‘A bit strange’

On Tuesday morning, a judge will oversee the latest hearing in a 2015 lawsuit brought by now-former DeKalb Commissioner Sharon Barnes Sutton. Sutton's suit argues that DeKalb's ethics board is unconstitutional because, like in Gwinnett, a handful of its appointments are made by members of non-elected organizations — a policy that, in turn, gives private groups a say in decisions that could lead to the ouster of an elected official.

At the heart of the DeKalb lawsuit is a 1979 ruling by the Georgia Supreme Court. In that case, Rogers v. Medical Assn. of Ga., the state's highest court agreed that giving private organizations the power to make appointments to public office was unconstitutional.

Charles Bullock, a political science professor at the University of Georgia, said state law intentionally makes it difficult to remove elected officials by any means other than the ballot box.

“It does seem a bit strange to be able to do this with a private group,” he said.

Then again, Gwinnett’s ethics board is technically just a recommending body — it investigates and, if it votes to sustain a complaint, offers the Board of Commissioners a formal suggestion about what penalties should be assessed.

Kerwin Swint, a political science professor at Kennesaw State University, said he believes that any attempt to remove Hunter, or any other elected official, would still require a recall election.

One appointment down

The complaint against Hunter alleges that his social media activity violated several sections of the county's 2011 ethics ordinance, including one that urges officials to "never engage in conduct which is unbecoming to a member or which constitutes a breach of public trust."

After a hearing officer decided last week that the complaint met the "technical requirements" necessary to move forward, the county attorney is now soliciting ethics board appointments from five people or organizations. Two of them are private groups like those targeted in the DeKalb County lawsuit: the Gwinnett County Bar Association and the Association of County Commissioners of Georgia.

State Rep. Chuck Efstration, who also serves as president of the Gwinnett County Bar Association, said Monday he’d already made his organization’s appointment, tapping local attorney David Will to serve on the ethics board. The Association of County Commissioners of Georgia did not immediately respond to inquiries.

Board of Commissioners Chairman Charlotte Nash said Monday afternoon that the board is "consulting with [the county's law department] for guidance regarding the selection process."

The district attorney’s appointee will come from an already existing pool of grand jurors.

Weathers, Hunter’s spokesman, declined last week to reveal who the commissioner’s appointee to the ethics board may be. And while his questioning of the constitutionality of the board itself may foreshadow his client’s mode of attack, the attorneys who filed the complaint see it as just that.

Another attack.

“The way I read it,” one of the attorneys, Helen Kim Ho, said, “his attack is more on the Gwinnett County government and their choice … to pass ethics policies that would ensure elected officials are representing the people in a fair and unbiased manner, and being held accountable to the people.”