Legality of Henderson’s check questionable
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.