By Arielle Robinson

What was voted on: Mableton City Council voted 5-2 to establish a seven-member Board of Ethics that would have three randomly selected members from the seven hearing ethics complaints.

• Points of Contention: Councilwomen Patricia Auch and Debora Herndon voted against the measure. 

• Auch has argued that the ethics board’s composition violates the city charter. 
• Auch believes the city charter states that all seven members should weigh in on a decision, while Councilman TJ Ferguson has advocated for having three out of the seven weigh in.
• Another point of contention is whether board appointees should be attorneys

Last Wednesday evening, Mableton City Council voted to establish a Board of Ethics and its composition after much discussion over the past few weeks.

The council and mayor approved the ordinance 5-2 with Councilwomen Patricia Auch and Debora Herndon in opposition.

The vote established a Board of Ethics with seven members appointed by Mayor Michael Owens and city council.

Any complaint will be heard by a three-member panel that is randomly selected by the city clerk from appointed board members.

“The Board can meet to establish bylaws, rules, and regulations, so long as not inconsistent with the City’s Charter and ordinances,” City Attorney Emilia Walker-Ashby told the Courier in an email.

The mayor and each individual city council member can appoint any city resident, with the requirement that a council member’s appointee be a resident in their district. The mayor and each council member can decide whether or not their appointee is an attorney.

Councilman TJ Ferguson made the motion to approve. 

This was the second and final read concerning the Board of Ethics and its composition.

The council discussed this item at length each time it was brought up. 

A lot of confusion existed among the council on Wednesday, particularly over how many members would be randomly selected from the pool of seven. Would it be the member selected by the mayor plus two randomly selected, or three random selections from the entire pool?

Auch said that the ethics ordinance provided to the council in that meeting’s agenda packet did not reflect the council’s consensus at its previous meeting. 

“The motion made by Councilman Ferguson was that the composition of the ethics board would be comprised of three members at random from a pool of seven,” Auch said. “The composition of the ethics board provided in the proposed ordinance in today’s packet states the composition of the ethics board would only be two members chosen at random and that the mayoral appointee would sit on the panel for every single ethics case.”

Councilwoman Dami Oladapo asked for clarification on Auch’s point, to which Walker-Ashby responded.

“If you recall at last meeting,” Walker-Ashby said. “You had substantial discussion on this issue in the workshop and in the regular meeting. So my request was for me to be able to put it in writing so you can see what’s there before you adopt it—so you didn’t approve it—but now you have the opportunity to actually see what’s there. 

“I have learned that…there is a difference of interpretation. But I think that issue is moot because you didn’t approve anything last meeting. So whatever you decide today, that’s what the face of the ordinance will be. And the difference in interpretation is, there was discussion last meeting to do two things—particularly by Councilman Ferguson, and it was to extend the term of the appointment of the members to mirror the councilmember’s term. 

“And then it was also to remove the requirement that the mayor’s appointee be an attorney. When Councilman Ferguson made that motion, he referred to the selection process as…[a] three-member random selection.

“So I interpreted that to mean that you’re going to have a three-member panel, and the process will involve random selection. However, it’s my understanding that another interpretation was to actually remove the mayor from having a permanent appointment.

“And I think that can be a reasonable interpretation. I didn’t understand it that way, because there was just no discussion back and forth on removing the mayor from having a permanent appointment, so I did not facilitate that change. But if that is the will of the council, we can easily facilitate that change, because the whole purpose of me and last meeting and putting this in writing was for you to be able to see what’s before you before you adopt it. So it’s your discretion, so whatever you advise, the composition you want to be…that will be the composition.”

Oladapo said she was a bit disappointed in Walker-Ashby’s interpretation.

“Because this says ‘three-member random selection,’” Oladapo said. “A three-member random selection is different from a two-member random selection and one standing appointee. So I just don’t understand how that could have been misinterpreted. But I guess if there are no other comments we can look to approve.”

Auch asked Ferguson to clarify what his motion was during the previous meeting.

“I certainly can,” Ferguson said. I’m reading the minutes, and [it says] the mayor’s appointment does not need to be an attorney, and it has a three-member random selection and a duration not exceeding the length of the councilmember who selected the position. That is 100 percent what I meant.”

Owens said that Ferguson would have to add his motion to the initial reading from around May 24 of last year, since nothing was voted on during the April 10 city council meeting that occurred this year.

“I will go on record and I’ll say I would expect and want every councilmember to place an attorney on this,” Owens said. “And I don’t think I’m alone with that sentiment. As a quasi-judicial board, an ethics board, I see no problem where there should not be an attorney on an ethics board. I just think that’s in many cities across the state and why there seems to be an issue with having an attorney on this board, I don’t understand—but having free will, to your point of allowing anybody to have it boils down to this, your motion will need to be amended—and l’ll ask that it be amended now, if possible, to exactly the changes that you had or the changes that you want that you said you wanted in place. Make that motion with the changes, just the Delta changes that you want, so it can be accurately recorded and then so we can put it on there.”

A little later, Councilman Ron Davis asked Walker-Ashby what the disadvantage of having an attorney on the Board of Ethics would be.

“My opinion would be that it would only be advantageous to have legal counsel or to have a board member who was an attorney,” Walker-Ashby said. “And in fact, multiple cities have a board that’s only an attorney. It’ll be a pool of attorneys, and that person, whoever’s selected will constitute the board for the purpose of that particular complaint. So I don’t think there’s any downside of having an attorney present on the board.”

“I’m not hearing a con, so I’m just trying to understand why the pushback,” Davis said.

“I don’t think there is any pushback,” Auch said. “It’s just if you would like to have an attorney, just make that your appointee. It was just not to make it a requirement so that the mayor and every councilperson could have the flexibility of appointing who they would like.”

“To your point, Councilman Davis, it was stripped out for me to have specifically, explicitly have an attorney,” Owens said. “But as the Madam Clerk said and from research with other cities, there are many other cities that require attorneys to sit on the board, for any or all of the positions. That is not part of the motion. Actually, the motion kind of goes backwards and takes the requirement to have an [attorney] out. 

“However, anyone any one of us could select an attorney…You can’t have elected officials actually as part of the board, but nothing stops you from having a bar-certified attorney…I do personally like the idea of having a requirement to have attorneys, at least because in this scenario, even going down to the randoms, if we go to two randoms and as mayor, there’s not an attorney present on there, then you could be looking at a panel with no attorney. I’m not a fan of that.”

“And that’s my fear,” Davis said. “Because again, we’re talking about operating less than efficiently and that’s the problem I have, we don’t ever want to get to that point because let’s take where there’s no attorney on this board. Now what happens? You’ll have to what, get an attorney or we have to refer to an attorney when we can have the attorney right there on the board to interpret what we need interpreted and make sure that we are not in violation or we’re being as ethical as possible.”

“This is just an advisory board,” Auch said. “It will have to still come before the mayor and city council, so we will still have our attorney to give interpretation if there is any legal question.”

“Sure, sure,” Davis said. “And I do understand that, and thank you for that, but still, I just feel that it will be more efficient to have one on there.”

A lot of back and forth occurred at the meeting, with Ferguson repeatedly clarifying what he said during the last meeting and councilmembers seeming puzzled over what he specifically meant.

Owens eventually sounded frustrated as the discussion lingered for longer than expected and different interpretations were given. He repeated what he said earlier about a Delta change from Ferguson and pushed for a final vote.

After that, Auch said she would like to see a third read of the ethics ordinance.

“Because of the confusion surrounding this ordinance I would like to go another read, [so] that it’s very explicitly clear that what has been voted on or will be voted on is a consensus and direction of the council,” Auch said.

“Duly noted, but that is not the motion that’s on the floor,” Owens said. “The motion on the floor, as our agenda states is a consideration and approval of this ordinance because this is the second read. Last [meeting] when we tabled it there was discussion, so…we’ve had two meetings now…we’ve already had discussion, this is the third. The motion is on the floor and he [Ferguson] can craft that motion however he’d like to make those changes that were discussed amongst other councilmembers, but it is his motion that’s on the floor and we will proceed with what they vote.”

“Are you saying there’s not discussion?” Auch said. 

“That’s what we’ve just been having, is discussion,” Owens replied.

Auch asked Ferguson if he could add a third read to his motion.

Ferguson did not, and moved forward with his motion.

“Why are we not having seven [members to hear complaints]?” Auch asked.

An awkward silence ensued after she said this.

Herndon once again asked for clarification.

“To be clear she [Walker-Ashby] did not make any changes [to the original motion],” Owens said. “Because the original reading on May 24 [2023] is still standing. There was no change that was made at the last meeting [on April 10, 2024], the last meeting was to table. So what Councilman Ferguson is doing is going back to the May 24th—”

“No, that wasn’t his motion, his motion was to table in interim to make these changes that were stated—that is what the motion was,” Auch said.

“Yes,” Owens said. 

“I don’t think it was a valid motion because to table it is one motion,” Auch said. “And to amend it would be a second, but it was allowed, so it’s very unclear—I don’t know how anyone could vote in favor of this.”

“Well, the motion has been made and it’s up for a second,” Owens said.

Oladapo seconded the motion while at the same time, it appeared that Councilwoman Keisha Jeffcoat was about to say something.

“Oh my gosh,” Auch said.

As the mayor and council voted and Auch voted nay she spoke up again.

“What is it that we’re even voting—can—” Auch said.

“We’ve already voted, it’s passed, we’ll move on, thank you,” Owens replied.

The item has been much debated, with Auch questioning over previous weeks whether the composition of the board the council voted on follows the city charter.

She specifically references Section 3.11 on boards, commissions, and authorities.

Auch and Owens have interpreted the section differently and it has been a point of contention between them.

At the last city council meeting about the Board of Ethics, Auch argued that all seven members of the board should get to advise the mayor and council on an issue, rather than a few out of the seven members. The following is part of what she told the Courier after the April 10 meeting.

“What I would like to happen at our next meeting, is for our ethics ordinance to follow the provisions stated in our charter. This means:

“The board will consist of seven members to be appointed by majority vote by each member of the city council and mayor. Each appointee by a council member must reside within the district of the council member. And that would be our board. To conduct business, there would need to be a quorum, which would be the same criteria as the governing board of the city council: four members. 

“What Mayor Owens and Councilman Ferguson have proposed, is that the council will pick seven appointees, but only three of the appointees will be able to [advise] on any given case. The seven appointees would go into a pool, and then three members would be selected at random, and those three people would make up the ethics board for each case being heard. Their argument is that this proposed three-member board would still counts as a seven member board because there were seven appointees in the pool. I disagree with their logic and I think the provisions in the charter stating the board composition was not only clear, but deliberate and very specific for a reason. 

“If only three members are allowed to [advise], then only three voices are represented on the board at any given time. If only three members are permitted to participate, then that would make the board a three member board. The charter is clear in stating that all ordinances (unless there an existing state law that dictates differently), then our ordinances cannot violate the provisions in our charter. Our charter states we are to have seven-member boards.  Seven appointees is not the same as seven members. To be a member, the appointee must be able to participate in the duties and influence the decisions of the board. I think their interpretation is faulty, and I think our attorney is wrong in her interpretation as well if she agrees.”

Owens argued against Auch’s position and said the charter is not being violated.

Owens told the Courier after that meeting:

“I have to add that the debate over the composition [of the Board of Ethics] has future impact on our other CABs [commissions, authorities, and boards], which is why I’m being clear that [what we] proposed is not in violation of our charter. Our attorney representing affirmed this at the meeting.  GMA [The Georgia Municipal Association] provides four options for the composure of the ethics board. I’m attempting to steer the council [toward] the adoption of one of these options.”

In an email from Walker-Ashby, she clarified the role of the three members who will be on the ethics board. They do not have final approval on ethics complaints, but give recommendations:

“The three-member panels are just advisory and render recommendations to ‘the mayor and council within seven (7) calendar days after completion of the Board of Ethics Panel’s final hearing.’ The Council, however, makes the ultimate determination, which may be dismissal of the complaint, a public reprimand, or a request for resignation.”