Le­gal­ity of Hen­der­son’s check ques­tion­able

The Covington News - - FRONT PAGE - ROB DEWIG rdewig@cov­news.com

There’s a clause in the Ge­or­gia con­sti­tu­tion that says gov­ern­ments can’t give money with­out re­ceiv­ing a “ben­e­fit” in ex­change. It’s re­it­er­ated in nu­mer­ous hand­books for lo­cal gov­ern­ments.

For in­stance, the Hand­book for Ge­or­gia May­ors and Coun­cilmem­bers says court “de­ci­sions have ac­knowl­edged the prin­ci­ple that whether a mu­nic­i­pal­ity makes a do­na­tion or gra­tu­ity de­pends upon the ben­e­fits re­ceived by the city.” The hand­book says the rule ap­plies to coun­ties, as well.

So did the check is­sued by New­ton County to Com­mis­sioner J.C. Hen­der­son vi­o­late the gra­tu­ities clause? Maybe. “It likely vi­o­lates the gra­tu­ities clause of the Ge­or­gia con­sti­tu­tion,” said at­tor­ney David Hud­son of Hull-Bar­rett PC, a firm that rep­re­sents Ge­or­gia me­dia in le­gal mat­ters. He said var­i­ous court “cases and At­tor­ney Gen­eral opin­ions (show) that the pro­hi­bi­tion against gra­tu­ities ap­plies to lo­cal gov­ern­ments, too. The gra­tu­ity is giv­ing the com­mis­sioner monies he has not yet earned and al­low­ing pay­ment in­ter­est free.”

W. Thomas Craig, New­ton County’s at­tor­ney for the last 38 years, ac­knowl­edged Tues­day that the check cer­tainly comes close to violating the prin­ci­ple of the clause.

“I think in the con­text of em­ploy­ees and an em­ployee’s ad­justed pay, it’s prob­a­bly per­mis­si­ble to have pay­roll ad­vances, so long as it’s rea­son­able to be­lieve they’ll re­main on the job,” he said. “It’s a bad idea for com­mis­sion­ers to come and take ad­vances from their pay, and they should not be able to.”

The county Board of Com­mis­sion­ers voted 4-0 to for­bid any more pay­check ad­vances

Hen­der­son took out a pay­check ad­vance for $4,500 on Aug. 15 to send his son to col­lege after a promised tu­ition break failed to ma­te­ri­al­ize. Hen­der­son needed the money fast, so he turned to Com­mis­sion Chair­man Keith El­lis.

For his part, El­lis said he tried to con­tact the county man­ager and failed, so he talked with the county’s pay­roll depart­ment and county clerk. He learned that sim­i­lar pay­check ad­vances had been made un­der pre­vi­ous ad­min­is­tra­tions and that no county pol­icy pro­hib­ited it, so he had the check is­sued with the pro­viso that it be paid back in in­cre­ments of $86.54 per pay­check.

Hen­der­son paid the check back in 10 days, be­fore the pay­check de­duc­tions took ef­fect.

“Somebody (with the county) did a cal­cu­la­tion to de­ter­mine how much it cost the county (to not have that money for 10 days) and it was around $14,” Craig said. “It was out for such a short pe­riod of time. Given that fact, there’s not much to be con­cerned about” fi­nan­cially.

The con­sti­tu­tion’s gra­tu­ity pro­vi­sion “may be stretched to cover a sit­u­a­tion like this; the vari­able would be so mi­nor it would not merit a lot of at­ten­tion, prin­ci­pally be­cause he paid it back so fast.”

The county’s code of ethics hand­book does seem to for­bid such checks.

In par­tic­u­lar, the code for­bids “grant­ing or mak­ing avail­able to any per­son any spe­cial con­sid­er­a­tion, treat­ment, ad­van­tage, or fa­vor beyond that which it is the gen­eral prac­tice to grant or make avail­able to the pub­lic (at) large.”

It also pro­hibits “ac­cept­ing any gift, whether in the form of money, thing, fa­vor, loan, or prom­ise, that would not be of­fered or given to him if he were not an of­fi­cial or em­ployee.”

Again, many sim­i­lar pay­roll de­duc­tions were made un­der pre­vi­ous ad­min­is­tra­tions, in­clud­ing at least two to com­mis­sion­ers. Hen­der­son him­self re­ceived a $1,000 pay­check ad­vance in 2007.

The At­tor­ney Gen­eral’s of­fice was un­able to pro­vide an opin­ion by dead­line Tues­day.

Another con­tro­versy sur­round­ing the check to date may not de­serve the term. Two em­ploy­ees of Craig’s of­fice did help Hen­der­son and his son ne­go­ti­ate a lower tu­ition rate with Tuskegee, but Craig said it was done pro bono – mean­ing for free – and es­sen­tially in­volved a phone call to the col­lege. Craig said he found out his em­ploy­ees helped Hen­der­son after the fact but said he was happy they helped where they could.

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