Avondale cites state Supreme Court rule to rescind severance contract

Citing a 2011 Georgia Supreme Court ruling, Avondale Estates’ Board of Mayor and Commissioners have drafted a resolution refusing to honor a severance amendment in City Manager Clai Brown’s contract. The board is expected to approve the document during its regular meeting 6:30 p.m. Monday at Avondale Estates City Hall, 21 N. Avondale Plaza.

This resolution is the latest development in the relationship between the board and Brown who resigned on Dec. 6 and then un-resigned one month later.

According to documents obtained by the AJC through an Open Records Request, an amendment was added to Brown’s contract on Feb. 23, 2015. It pays Brown his full annual salary plus bonuses and accrued vacation and sick leave if he resigns or is fired. For 2018 this comes to a total of $317,408.17 which is about 9 percent of the city’s anticipated 2018 expenditures of $3,656,488.

For now the origins of this amendment are murky, since there’s no record that it was publicly approved, or who even wrote it to begin with. The most crucial feature is that Brown receives a full year’s severance for any reason except if he’s fired “with cause.”

“Never in 18 years of doing this have I seen a contact where an executive or key employee is allowed to quit for any reason and still get a payout,” said Nancy Pridgen, an Atlanta employment attorney specializing in severance agreements.

The justification for not honoring the severance lies within Official Code of Georgia Annotated § 36-30-3 (a) “One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.”

This prohibition, the code says, applies equally to both the enactment of ordinances and the execution of governmental contracts.

No current Avondale commissioner was on the board in February 2015.

A 2011 Georgia Supreme Court decision, City of McDonough v. Campbell upholds the code. In a scenario similar to Brown’s, James Campbell, employed as McDonough’s chief building inspector, had his employment agreement voided.

The contract addition was first revealed publicly during a Dec. 18 work session, around the time Mayor Jonathan Elmore and commissioners Brian Fisher and Adela Yelton said they first became aware of it.

None were on the board that approved the amendment, if in fact it was ever “properly” approved, which the resolution claims it wasn’t. Yet all three have twice renewed Brown’s contract in 2016 and 2017.

“We all approved the renewing of his original employment contract,” Elmore said Friday. “Not the amendment. I’ve read Clai’s contract, and I never saw this amendment until a month ago.”

When Brown learned his severance wouldn’t be honored, he rescinded his resignation on Jan. 11. Although he wouldn’t elaborate on what he plans to do next, Brown did say he has retained a lawyer.

He could sue the city for his severance but Pridgen believes his chances for a settlement are slim.

“I think if [Brown] filed in court it would be dismissed,” she said. “I mean this is a ruling handed down by the state Supreme Court and it’s a fairly recent decision. [The court case] does raise the specter that any agreement with any employee can be cancelled at any time. It almost allows a city to agree with a severance on one hand and take it away with another.”

Brown’s employment agreement is due for renewal next month, which would be his 10th anniversary as city manager. It is possible that the city could vote not to keep him.

“It’s the board’s decision,” Elmore said. “Personally I want to move forward in good faith with Clai. … I can work smoothly with Clai. We’re all good.”

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