Athens government seeks to be dismissed from lawsuit challenging mayor's recall effort

In two recent court filings, the Athens-Clarke County government contends it should be dismissed from legal action filed by Mayor Kelly Girtz challenging a recall effort against him.

The mayor named the county as a respondent in an April petition in Superior Court challenging the recall effort led by Winterville conservative firebrand James Lee DePaola. Girtz’s petition contends, in part, that the county elections office violated its duties under the state Recall Act to notify him of the status of various steps in the recall effort.

On June 7, outside counsel for the county filed documents contending that other than failing to provide Girtz with timely notification that DePaola had filed a completed application for a recall petition, the local government “is not a necessary party to this action and can offer no relief to Girtz whatsoever.” Instead, the filings contend, the only proper parties to Girtz’s petition are Girtz and DePaola.

According to the filings, Girtz got written notice from the county of the return of the application for a recall petition on April 2, instead of on March 28 -- the date he should have received notice -- when DePaola filed his application for a recall petition with the county elections office.

Regarding the admittedly late notification, the county nonetheless contends in its June 7 filings that Girtz’s legal action “has failed to establish any harm suffered by the failure of (Athens-Clarke County Elections Director Charlotte) Sosebee to provide written notice of DePaola’s return of the Application.”

Beyond the notification issue, the motion to dismiss the county from the case contends the local government has no role in determining whether DePaola’s stated grounds for recalling Girtz are legally sufficient to allow the effort to continue.

The county, according to its counsel’s filings, “by law, is not to evaluate the validity or lack thereof of any factual allegations” connected with the recall effort.

The judge assigned to the case has halted all proceedings pending completion of a court review of the recall initiative. Girtz had asked the court for such a review to consider “the sufficiency of the grounds (for the recall), if any, and the facts, if any, upon which the grounds in the Application are based.”

DePaola initially was not a target of Girtz’s petition. He was added as a respondent to the case last month by Judge J. David Roper, a retired Superior Court judge from outside the local judicial circuit hearing it.

Girtz contends in court documents that DePaola’s application for a recall petition is not legally sufficient because it did not check off any of the specific grounds – malfeasance, violation of oath of office, misconduct, failure to perform prescribed duties, or willful misuse of public funds – listed in the official state form for an application for a recall petition. The form lists those specific grounds, along with a space for physically marking which grounds are being applied to a recall.

A copy of the recall application filed with Athens-Clarke County shows that DePaola did not check off any specific grounds for recalling Girtz.

Instead, the document comprises an unsupported statement signed by DePaola asserting that Girtz “violated oath & failed to perform duties prescribed by Ga. law by knowingly operating Athens as a sanctuary city without a voice or vote from citizens of Athens & secretly entering into contract with federal officials and or NGO (non-governmental organization) to make Athen (sic) a refugee resettlement area.”