Craig Call

From: Steve Scheer Sent: Thursday, April 03, 2014 9:03 PM

To: Craig Call

Subject: FW: My telephone conversation with Attorney General's office

From: Thomas L. Cole [m~Jlt9~IQlJl@1=Qle_~Lil""',-<::Qrn]

Sent: Thursday, April 03, 2014 9:01 PM To: 'Warren'; Steve Scheer Subject: My telephone conversation with Attorney General's office

Warren and Steve,

I did not get off the bench in Thunderbolt until later than I expected. Here is additional information I received late

today.

In an effort to find additional authority regarding the meaning of the Constitutional provision and the statutory provision cited by Challengers, I called the Attorney General's Office today. I spoke to Asst AG Russ Willard. He indicated that he and his office regularly represent the Secretary of State in Election matters. He was quite familiar with the subject language. Mr. Willard reviewed the Challenge Petition. My specific questions for him were regarding the interpretation of the provisions:

"All holders or receivers of public money of this state and any county thereof who have refused or railed when called upon after reasonable opportunity to account for and pay over the same to the proper officer"

" ... who is the holder of public funds illegally".

He said his office has not issued any formal or informal opinions on that provision.

Mr. Willard indicated that they regularly receive inquiries regarding this provision from the public. He indicated however, that the provision is tied to the former system in which certain public officers used to collect funds and keep a percentage. Apparently Clerk's of Court and Tax Commissioners used to get a percentage of the funds collected. They would collect funds, keep a percentage and turn over the balance to the Counties. When they failed to do this, the provisions above would apply. He said because of the change in how monies are collected, this provision is an anachronism.

He said each time an inquiry is made by the public, they are told it does not apply. He said the provision does not apply to people that owe money to the County.

He indicated that based upon the challenge, Ms. Jones is not the type of "holder or receiver" of public monies that is referred to in the Code and Constitution.

It was too late in the day to get you guys on the telephone with him. He offered to participate in a conference call if the parties are inclined. He said he would explain the position of the Attorney General on this matter.

I also asked him how an advisory opinion is obtained. He indicated that it would be possible to obtain an opinion, but because we are not a State agency, issuance of an opinion would be discretionary by the Attorney General.

I will be at the Commission Building by 8:30 to chat.

Tom Cole

Thomas L. Cole Cole, Fleming & Clark, P.c.

337 Commercial Drive, Suite 500 Savannah,GA 31406 912-354-2653 - Tel 912-354-8559 - Fax

E-mail: IQ~ll@(glE::La_\o\I~()n}

wwwCOle-IJW.COIll

2

BEFORE THE ELECTIONS BOARD FOR EFFINGHAM COUNTY, GEORGIA

ANDREW DANIEL BRANTLEY, and ) JOCELYN BRANTLEY, )

Petitioners, ) )

v. ) )

VERA JONES, ) Candidate. )

VERA JONES' MOTION TO DISMISS

NOW COMES Vera Jones, Candidate, and moves the Board of Elections to dismiss as a

matter of law, the challenge to the candidacy of Vera Jones and shows the Board. The following:

DM Jones Construction Company is not a candidate for the Second District Commission

seat of Effingham County. As a matter of fact and law there is not public money held illegally or

unaccounted for.

Undisputed Facts

I. In February 2005, Effingham County rezoned property which later became known as

South Effingham Plantation.

2. The zoning was granted conditioned upon the subdivision use of Effingham County

sewer and water.

3. Effingham County did not have a water and sewer system within 1,000 feet of South

Effingham Plantation. Effingham County assured DM Jones Construction Company

water and sewer would be available for South Effingham Plantation in the year 2006.

4. As of October of2006, 57 of 59 of those lots were sold in South Effingham

Plantation.

5. Many of the homeowners and builders of those lots had obtained building permits

from Effingham County based upon the promise that Effingham County would have

sewer lines available by year-end 2006.

6. In April 2006, Effingham County told OM Jones Construction Company that in order

to provide the sewer lines to South Effingham Plantation, Effingham County would

be applying for a loan from the Georgia Environmental Facilities Authority (GEFA).

7. In order to obtain the GEFA loan, Effingham County informed DM Jones

Construction Company they were required to obtain to a letter of credit to guarantee

one half of the repayment of the GEFA Joan. The February 2005 rezoning was not

conditioned upon any requirement for a letter of credit. In spite of the questionable

legal ity of the requirement for the letter of credit, OM Jones Construction Company

provided a letter of credit and signed a water/sewer agreement on April 6, 2006. That

agreement prov ided in re levant part:

"[t]he County shall ensure the availability of potable surface water, reuse water and

wastewater services at the connection point not later than 2006."

8. The contract assured DM Jones Construction Company that by December 31,2006,

the sewer lines would be installed and available for South Effingham Plantation.

9. The letter of credit requirement was later declared an impermissible prepayment of

impact fees. See Effingham County Board of Commissioners vs. Park West

Effingham, LP., 308 Ga. App. 680 (2011), cert. denied, 2011 Ga. Lexis 762.

10. Between June 2006 and September 2006, building permits were issued by Effingham

County to homeowners and builders in South Effingham Plantation. No indication

was given by any official of Effingham County that the sewer lines would not be

available as promised and contracted for by Effingham County

11. Both OM Jones Construction Company and the homeowners believed the County

would honor their obligation and provide water and sewer by December 31, 2006.

12. In September 2006, the County advertised for bids for the sewer line construction to

South Effingham Plantation.

13. The bids were to be opened on September 26,2006. On September 20,2006, the

engineers on the project were told not to open the bids but to kill the bid process.

(See attached emails.)

14. In September and October of2006, OM Jones Construction Company was also

seeking approval for development of Buckingham Plantation. Buckingham

Plantation was in close proximity to South Effingham Plantation. Buckingham

Plantation sewer lines were going to be connected to South Effingham Plantation

sewer lines. The distance required for the connection between the two subdivisions

was approximately 800 linear feet.

15. OM Jones Construction Company continued to rely on the County's written

agreements made in February of 2005 and April of 2006, that the County would

ensure that sewer lines would be available to South Effingham Plantation. During

this time frame, the County repeatedly orally assured DM Jones Construction

Company water and sewer would be available for South Effingham Plantation by

year-end 2006.

16. Buckingham Plantation was to hook up their sewer line to the gravity line furnished

by the County for South Effingham Plantation. The construction of the sewer line

consisted of approximately 2,700 linear feet of gravity sewer line for South

Effingham Plantation and an additional 800 linear feet sewer line and a lift station for

Buckingham Plantation.

17. In October 2006, Effingham County informed DM Jones Construction Company that

they could not fulfill their promise contained in their April 6, 2006 contract and could

no longer ensure the availability of sewer for South Effingham Plantation.

18. DM Jones Construction Company was also informed that the County would not

provide sewer to Buckingham Plantation and South Effingham unless DM Jones

Construction Company self performed the construction of the sewer system for both

subdivisions.

19. DM Jones Construction Company, was left with no alternative but to self-perform the

system improvements under the terms of the Buckingham water/sewer agreement.

The alternative was litigation. Dennis Jones, the principle of DM Jones Construction

Company, has been a homebuilder and developer for over 25 years. He has never

sued anyone or been sued by anyone. DM Jones Construction Company undertook

the obligation that the County could or would not do.

20. DM Jones Construction Company was to be paid by the sewer impact fees unless a

delay was caused by the County.

21. DM Jones Construction Company was given a notice to proceed on October 26, 2006

to build the 3,500 linear feet sewer line. (See EPD; approvals)

22. The first home in South Effingham Plantation was scheduled to receive a certificate

of occupancy in January 2007.

23. As of October 16, 2006, the County had not begun construction of the sewer Iine for

South Effingham Plantation. As stated homes were set to be occupied in January

2007.

24. Faced with the alternative offiling a lawsuit against Effingham County or

undertaking the obligation breached, OM Jones Construction Company signed the

contract on October 16,2006 to provide 3,500 linear feet of sewer lines.

25. On October 26,2006, OM Jones Construction Company received the notice to

proceed with construction of the 3,500 linear feet sewer line. The sewer line was

designed for the sole purpose of providing sewer to South Effingham Plantation and

Buckingham Plantation. OM Jones Construction Company was not obligated to

provide a system with capacity for any other subdivisions except South Effingham

Plantation and Buckingham Plantation. OM Jones Construction Company certainly

would never have voluntarily agreed to build a system with capacity for other

subdivisions on a cost only basis.

26. In December, 2006, OM Jones Construction Company was required by the County to

increase the capacity of the lift station and sewer lines. The sewer line construction

was increased to over 6,000 linear feet and the sewer piping was increased to 8-inch

diameter pipe, with the capacity of the lift station increased to a capacity of 350

G.P.M. (gallons-per-minute) at 50-feet T.O.H. (total dynamic head). The County

instructed OM Jones Construction Company to proceed on the increased project prior

to obtaining the necessary easements necessary to complete the project.

27. OM Jones Construction Company was not obligated, nor should they have been

required, to build an additional 2,500 linear feet of sewer line and increase the

capacity of the lift station for the benefit of other developers. Only after payment of

the first invoice and through open records requests did DM Jones Construction

Company discover that the County had required DM Jones Construction Company to

install sewer lines and an increased capacity lift station for the benefit of other

developers.

28. DM Jones Construction Company worked feverishly between October 2006 and late

January of 2007 to complete the construction of the sewer line and lift station during

inclement weather.

29. Because of the late start, change in scope, and inclement weather, sewer service was

not available by December 31 2006. One homeowner in South Effingham Plantation

had closed his loan and the County realized that they had breached their agreement

not only to DM Jones Construction Company but to that homeowner. The County

paid for a temporary pump for waste disposal until such time as the sewer lines and

greatly expanded lift station were completed.

30. DM Jones Construction Company completed the sewer system by the end of January

2007. The completed sewer system which should have been the County's

responsibility, saved the County of hundreds of thousands of dollars. The County had

budgeted $675,000.00 as sewer cost for South Effingham and $1,489, 00.00 for

Buckingham. (See cost estimate provided by Effingham County).

31. DM Jones Construction Company presented an invoice for repayment of the monies

they had borrowed to fulfill the County's obligation in the amount of $739,844.86 for

reimbursement of the actual cost to DM Jones Construction Company for building the

increased sewer line and expanded lift station.

32. The invoice was submitted on January 31,2007. The County had already collected

hundreds of thousands of dollars in impact fees and had been holding those fees for

months. The conduct of the County had placed OM Jones Construction Company on

the verge of bankruptcy. They had to borrow the money to complete the County's

obligation.

33. The invoice was submitted for the full amount and the County was requested to pay

the full amount. Since 2007 until present, there has been no attempt whatsoever to

claim the monies were not owed to OM Jones Construction Company or that Vera

Jones individually should "pay the money back."

34. OM Jones Construction Company was never formally asked by any official resolution

of the County to refund any of the monies as OM Jones Construction Company was

owed the full amount. OM Jones Construction Company used the money to pay back

obligations and monies that were borrowed to complete the County's obligation.

35. In 2007, the County Commission sought the advice of the County attorney who, after

reviewing the documents and the events, informed the County Commission that OM

Jones Construction Company was akin to a credit card company. The County had, in

effect, forced OM Jones Construction Company to fulfill the County's obligation.

There was no question as to the amount owed, only as to the timing of the payment.

The October 16, 2006 contract was incomplete as to when the monies owed to OM

Jones Construction Company were to be paid. More significantly, OM Jones

Construction Company was given no choice but to build a regional pump station for

the benefit of other developers at a much lower cost than the County had projected.

36. Had there been any basis for asking OM Jones Construction Company return any

monies, the County was obligated to formally seek reimbursement from OM Jones

Construction Company. The County realized that there was no basis for such action.

In fact, OM Jones Construction Company was owed money.

37. In 2012, OM Jones Construction Company invoiced the County for an additional

charge for a generator, which was paid for by OM Jones Construction Company.

This generator was required because of the increase from 2,500 linear square feet to

6,000 linear square feet of sewer line as well as the increased lift station capacity. The

County hired independent counsel who charged the County over $9000.00 to

determine whether Effingham County was responsible to pay a bill of approximately

$30,000.00 (actual invoice was approximately $49,000.00) to OM Jones Construction

Company for a generator that was used as part of a water and sewer system providing

service to South Effingham Plantation and Buckingham Plantation. (see Hart letter)

38. The independent attorney, as part of his preparation, reviewed the water system

contracts pertaining to the subdivisions, all emails and other correspondence from

County staff, County attorney material, project engineering information and

interviews with interested citizens. The independent counsel found that the delays of

delivery of the sewer system were caused as a result of change in administration staff

of the County; GEF A and other lawsuits filed by others. The independent counsel

placed the blame for the delay on County staff, lawsuits and GEF A.

39. No attorney, County official or citizen under the whole canopy of heaven, has ever

suggested that the delay in the sewer service to South Effingham Plantation or

Buckingham Plantation was caused by OM Jones Construction Company.

40. The County has valued the improvements done by OM Jones Construction Company

in excess of $1.5 million.

41. OM Jones Construction Company's actual cost far exceeded $739,844.86.

42. On March 18, 2014, the County attorney memorialized in a letter to the County

Commissioners his recollection of the OM Jones Construction Company issues,

which occurred in 2006 and 2007.

43. The County has sought opinions from two different attorneys. The challengers to Mrs.

Jones candidacy are attempting to use this forum as a platform for a smear campaign.

44. In effect, the challengers are asking the Board of Elections to tell the County that the

two attorneys who rendered opinions, the Attorney General of the State of Georgia

and all present and past County Commissioners, including Mrs. Jones opponent, do

not understand Georgia law or their oaths of office.

45. The Affidavit of Cathy Cox, former Secretary of State, establishes as a matter of law

that there is no holding of public monies either illegally or unaccounted for.

SCHEER & MONTGOMERY, P.c. 8 E. Liberty St. Savannah, GA 3 1401 912-233-1273 912-233-6584 facsimile sscheerral,sam pclaw.com ccall@sampclaw.com

bgrove@sampclaw.com h.vlata'clients'steveuones, veralmotion to dismiss 2 201404-02.docx

CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the foregoing has been hand delivered to Counsel for Petitioners, Warren Ratchford.

This'f day of April, 2014.

~~ Striven E. Scheer Georgia Bar No.: 629050

STATE OF GEORGIA )

COUNTY OF TOWNS )

AFFIDAVIT

Personally appeared before the undersigned officer authorized to administer oaths comes

now L. Catharine "Cathy" Cox who, after being duly sworn, deposes and on oath states:

1. Deponent states that she is L. Catharine "Cathy" Cox and over the age of 18 years of age

and has personal knowledge of the matters set forth herein.

2. Deponent states that she served as Secretary of State for the State of Georgia from 1999

until the year 2007, and as Assistant Secretary of State from 1996 through 1998.

3. Deponent further states that she has been an active member in good standing of the State

Bar of Georgia for 28 years, and is admitted to practice before all courts of Georgia and

the United States Supreme Court.

4. The official duties of the Secretary of State include overseeing all election administration

and activity, including voter registration, and municipal, state, county, and federal

elections.

5. The Secretary of State's office is also responsible for certification of election results, as

well as certifying the qualifications of candidates, and the preparation of ballots, elections

forms and materials on the state level.

6. Deponent states that she is thoroughly familiar with the requirements for qualifying for

elected office in the State of Georgia.

7. Deponent states that she has read the challenge filed by Andrew and Jocelyn Brantley,

and has also reviewed the opinion letters of attorneys Eric Gotwald and Jon Hart.

8. Deponent states that she finds that the qualification challenge against Mrs. Jones to be

without merit.

9. Georgia Constitution Article II, Section 2, Paragraph 3, is not applicable to Mrs. Jones

because it applies only to an office holder who is illegally holding public funds, not

properly accounted for, that are otherwise supposed to be turned over to the public

treasury.

10. D.e.O.A. § 45-2-1 is also not applicable to Mrs. Jones because it applies only to acts

committed by persons by virtue of their elected offices - i.e., "person(s) ... while holding

a commission," not to a situation where a person acting in a private capacity as was Mrs.

Jones when her company was paid money by a county government.

11. Although I am aware that during the year 2007, Mrs. Jones served as an elected member

of the Effingham County Board of Education, the payment to her company was made to

her business as a private concern, not to her individually nor to her as an office holder,

and therefore a.e.o.A. § 45-2-1 would not apply to that situation and her acceptance of

that payment did not make her a holder of public funds illegally nor a holder of County

funds who had refused or failed when called upon to repay the same, under the statute.

12. Deponent states that the constitutional provision and statute cited were enacted to prevent

public officials who received public monies from not accounting for those monies. These

provisions simply do not apply to the scenario in which Mrs. Jones' company was paid

for work performed for the County, even though she may have been holding a Board of

Education office at the time. Mrs. Jones would never have held any of this money in

trust for the public.

13. In Deponent's experience as Secretary of State and as an Attorney at Law, both a.C.G.A.

§ 45-2-1 and the Article II, Section 2, paragraph 3 of the Georgia Constitution are

designed to disqualify public officers and employees from seeking public office when

their employment requires them to hold or receive monies in trust unless these officials

provide appropriate accounting and timely payment to the government which entrusted

them with this responsibility (i.e. Tax Commissioners, Clerks of Court). These provisions

do not apply to an officer of a private corporation paid for work by the State or County

and should not be applicable in this case.

14. This affidavit is made of deponent's own personal knowledge and experience.

" Cox

Signed, sealed and notarized this \-=s\ day of April,2014.

My Commission Expires: