Attorney Dwight Thomas argues during a Georgia Supreme Court hearing on May 21, 2018, that members of the DeKalb Board of Ethics appointed by private groups are serving illegally. TIA MITCHELL/TIA.MITCHELL@AJC.COM

Supreme Court hears appeal on makeup of DeKalb’s Ethics Board

Georgia Supreme Court justices had tough questions for attorneys on both sides of a case challenging the makeup of the DeKalb County Board of Ethics.

Former DeKalb County Commissioner Sharon Barnes Sutton filed a lawsuit against the Ethics Board, saying it should be dissolved because the way some of the members were appointed is unconstitutional. A lower court agreed last year, ruling that allowing private groups such as local colleges and the Chamber of Commerce to appoint members, instead of by elected officials, violated state law.

VIDEO: Previous coverage of this issue

The decision may mean that DeKalb is without an effective ethics board indefinitely.

Sutton’s attorney argued during Monday’s Supreme Court hearing that the board members appointed by outside groups are not accountable to the public and should be replaced. But an attorney for the Ethics Board said the law does allow this unique set up and that DeKalb voters overwhelmingly approved the change in 2015.

If the Supreme Court rules in Sutton’s favor, the ramifications could be widespread. The Ethics Board likely would be put out of commission for months while a new system for appointing members is implemented, and its work for the past several months could be nullified.

Justices will announce a ruling in the coming weeks or months.

During the hearing, they asked attorney Kurt Kastorf, who is representing the Ethics Board, whether allowing private groups to appoint a majority of members was setting a precedent for the state that could have widespread consequences.

Kastorf argued that local entities are allowed to come up with different systems for appointing people to government functions as long as the General Assembly or voters, or both, sign off, as was the case in DeKalb.

Justices asked how far that freedom should extend and mused about what could happen if a county decided to dissolve its court system and let the local bar association decide cases.

“When you look at the constitution, it seems like everyone who is exercising government power of any sort is either elected themselves or appointed by somebody who is elected,” Justice David Nahmias said.

Dwight Thomas, who represents Sutton, said the people made a mistake in approving the referendum to allow private groups to appoint members. The four members are ultimately not accountable to voters, he said.

“You can’t vote any of them out of office, and you can’t vote any of people who put them there out of office,” he said.

The Ethics Board changes were approved by DeKalb voters after a series of scandals involving public officials accused of criminal wrongdoing. Before the revamping, Ethics Board members were appointed by Board of Commissioners members, who sometimes later found themselves the target of investigations.

Sutton filed the challenge to the Ethics Board makeup after she was accused of improperly using a county purchasing card. The ethics case against her was put on hold, and she has denied any wrongdoing.

Thomas said the court should ask the General Assembly to go back to the drawing board in revamping the Ethics Board. He suggested the members could be appointed by nonpartisan judges serving in the county court instead.

The Supreme Court hearing Monday morning was conducted at the Cobb County Superior Court as part of an ongoing effort to allow people outside of Atlanta to view justices in action.

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