Thursday, July 30, 2009

Tim Coley's Allegations of Falsified Documents Appear to be Unfounded

Tim Coley has made accusations that our outside counsel (Frank Jenkins) falsified records regarding certain Planning Commission minutes. I asked Frank Jenkins to investigate the allegations, and explain. Here is his response:

Dear Bob:

I want to set the record straight; there were no falsified documents filed by the city of Albany in the Coley Musgrove suit challenging the denial of a subdivision plat. The suit was filed by Coley Musgrove and the civil action number is 06CV2990-2. The following account may be verified by looking at the file on record with the court.

Coley Musgrove appealed the planning department’s denial of the subdivision plat application to the Albany Dougherty Planning Commission. The first hearing before the Planning Commission was conducted on November 2, 2006. The Planning Commission, upon hearing the appeal, upheld the planning department’s denial. Coley Musgrove then filed a suit for mandamus to the Dougherty Superior Court requesting that the court order the issuance of the permit for the proposed subdivision.

On January 11, 2007, the superior court held the first hearing on the case. At that time Coley Musgrove moved the court to grant the mandamus on the basis that they had only two days notice of the Planning Commission hearing which was not sufficient time to prepare. Note that Mr. Coley was present at the November 2nd Planning Commission hearing, but he was not represented by counsel. The court did not rule at the hearing and allowed additional time to file the record of the proceedings before the Planning Commission and any other documents deemed appropriate. Both the city and Coley Musgrove were allowed to file documents.

On February 1, 2007, the city filed the record of the preceding before the Planning Commission. In that record filed with the court are the official minutes of the Planning Commission hearing on November 2nd which were approved by the Planning Commission at its meeting in December 2006. The minutes start on page 4 because that’s the first page on which the Coley Musgrove appeal is mentioned. There were other matters in the minutes regarding other appeals. These minutes are accurate and are the actual minutes approved. In addition to the minutes, we filed a verbatim transcript of the hearing before the Planning Commission. The transcript was prepared from the tape recording of the hearing. (I previously sent you a copy of the record including the transcript filed with the court.) The first item is the verbatim transcript of the Planning Commission hearing which was certified by Elizabeth G. Kelly, assistant city clerk. The transcript is accurate and reveals exactly what happened at the hearing. It should be noted that Coley Musgrove’s attorney sent a letter to the court requesting that the court consider the transcript in making its decision in the case.

I filed a brief with the court on January 25, 2007, in response to Coley Musgrove’s contention that they did not have sufficient notice of the hearing before the Planning Commission. With that brief, I filed unofficial minutes which were prepared to give more detail about what happened at the Planning Commission meeting. These were prepared before we had the verbatim transcript prepared. These unofficial minutes accurately show what happened at the Planning Commission meeting. I invite anyone to compare the unofficial minutes with the transcript which will show that these minutes are completely accurate. (I understand there is a contention that there is no transcript of the hearing, but the court file will show that a certified transcript was prepared from the tape recording of the hearing.)

The court entered its order on February 12, 2007, ordering the Planning Commission to conduct another hearing on the subdivision plat appeal since the court found that Coley Musgrove had not been given enough notice of the first hearing. The Planning Commission again denied the appeal after the second hearing. Ultimately, the trial court found in favor the Coley Musgrove and ordered the city to grant the subdivision plat permit.

There was never any falsified document filed with the court, nor were any minutes of the Planning Commission falsified to mislead the court. I stand by the record now on file with the court. The minutes filed with the court may be compared with the verbatim transcript to confirm the accuracy of all documents filed with the court.

Thank you for your attention to this matter. Frank Jenkins

Our website can now be found at: www.joandb.com.

Frank E. Jenkins, III, Esq.
Jenkins, Olson & Bowen, P.C.
15 South Public Square
Cartersville, Georgia 30120-3350
(770) 387-1373
Fax (770) 387-2396

24 Drayton Street, Suite 1000
Savannah, Georgia 31401
(912) 443-4049
Fax (912) 236-7250

Wednesday, July 29, 2009

H1N1 (Influenza A) Alert 7/29/09

Since it is not practical for the conventional media to publish the entire press release I just received on the above, I am copying and pasting it here:


SOUTHWEST PUBLIC HEALTH DISTRICT
1109 North Jackson Street
Albany, Georgia 31701-2022
(229) 430-4599 Fax (229) 430-5143 Emergency 888-430-4590
www.southwestgeorgiapublichealth.org
July 29, 2009 Contact: Carolyn Maschke, Public Information Officer
For Immediate Release 229-430-1969, 229-357-0257; cwmaschke@dhr.state.ga.us
Southwest Health District investigates two Influenza A clusters involving children
In response to separate Influenza A outbreaks involving children in two of its 14 counties, Southwest Health District has partially reactivated its Pandemic H1N1 Emergency Operations Center and stepped up surveillance and education efforts in the region.
“We are monitoring what appear to be Influenza Type A clusters in Dougherty and Lee counties,” said Southwest Health District Deputy Director Brenda Greene. “One of the clusters is associated with attendance at a summer program, while the other is associated with a church-related trip. Any time clusters of disease occur, we are concerned. When the clusters involve children our level of concern grows even more.”
Public Health is working closely with the organizations, parents and other healthcare providers to provide guidance and assistance in prevention, control and treatment of the disease, Greene said.
“While these are the first such Influenza A outbreaks we have seen in our District, Pandemic H1N1 (a strain of Influenza A) clusters are becoming common in summer camps and programs elsewhere in Georgia and across the country,” added Southwest Health District Health Director Dr. Jacqueline Grant. “Unfortunately, we expect to see more people, including more children, fall ill, possibly require hospitalization and perhaps even die as the pandemic progresses. Southwest Georgia residents need to be aware of that and prepare, especially when students begin returning to school in the days ahead.”
Public Health disease investigators learned this week that 20 out of 40 students enrolled in a Dougherty County summer program had fallen ill with flu-like symptoms, including two children with confirmed cases of Influenza A, Greene said.
On Monday, the Dougherty County summer program director voluntarily discontinued the program.
Baker Calhoun Colquitt Decatur Dougherty Early Grady Lee Miller Mitchell Seminole Terrell Thomas Worth
At the same time, a cluster of 40 youngsters who had attended a youth-oriented conference was reported in Lee County, Greene said. Ten of the Lee County young people are experiencing flu-like symptoms, with two having confirmed cases of Influenza A.
“Pandemic H1N1 is now so prevalent that we are assuming anytime we see flu-like illness it is the pandemic virus, especially if initial tests confirm the presence of Influenza A,” said Greene, explaining that Pandemic H1N1 is a strain of Influenza A.
“Also, we know that the pandemic has a high attack rate among children, teens and young adults. That makes it even more likely that we are dealing with Pandemic H1N1 when we see clusters in children. Therefore, even though we do not have confirmation that the clusters in Dougherty and Lee are H1N1, we are operating under the assumption that they are,” Greene said.
Grant emphasized that the Dougherty County summer program’s director made a voluntary decision to discontinue the program.
“At this time, Public Health is following the Centers for Disease Control guidelines, which don’t call for closure of camps, schools or children’s programs with confirmed or suspected cases of H1N1. That’s different from what was recommended early in the outbreak, when we didn’t know how severe the virus was.”
Now, however, data shows most people who catch Pandemic H1N1 experience mild to moderate illness. “So we are going with the same recommendation for Pandemic H1N1 that we make for seasonal flu: Unless so many counselors or so many students are sick that the program can’t operate, there’s no need to cancel the program,” explained Grant.
However, she warned, recommendations could change again – rapidly – should the virus change and become more dangerous. “Influenza is extremely unpredictable. We know the virus mutates. Our concern is that it will begin causing more severe illness or that it will become drug resistant. It is vitally important that the public stays informed and prepared,” Grant said.
Because of the rapid spread of Pandemic H1N1, the World Health Organization, the CDC, and now the State of Georgia no longer count and report cases. The focus now is on severity of illness, Grant said.
Baker Calhoun Colquitt Decatur Dougherty Early Grady Lee Miller Mitchell Seminole Terrell Thomas Worth
“Although work is moving ahead on a vaccine for this new virus, it is not yet available and is unlikely to be available until mid-October. We cannot stop this pandemic, so our best line of defense is to slow its spread and to be prepared to care for cases of mild to moderate flu at home,” she said.
Influenza is thought to spread mainly through the coughs and sneezes of those infected. The main symptoms of Pandemic H1N1 Influenza are fever plus at least either a cough or sore throat. Additional symptoms associated with it include headache, tiredness, runny or stuffy nose, body aches, chills, diarrhea and vomiting.
Additional information on Pandemic H1N1, including homecare for patients with H1N1, is available online at www.southwestgeorgiapublichealth.org and www.cdc.gov/h1n1flu/.
###
Baker Calhoun Colquitt Decatur Dougherty Early Grady Lee Miller Mitchell Seminole Terrell Thomas Worth

The Buie Fiasco

Finally.

Mr. Buie has been terminated as downtown manager. I only wish it had come sooner. The negative effects of his tenure will be endured for years to come. As many people I have spoken to over the last month have said, this has set downtown redevelopment back at least 10 years.

What went wrong?

I accept some of the blame. I sincerely thought that Mr. Buie wasn't going to be able to sneeze without the city manager knowing about it. I was wrong. Although Mr. Buie was a city employee and reported directly to the city manager (and his office was only two doors down), Mr. Buie was able to write whatever checks he wanted at ADICA without so much as a second signature.

I incorrectly assumed that ADICA had the necessary tools to carry out its mission to redevelop downtown. Part of those tools would have been bylaws that required a second signature on checks, board approval on purchases above a threshold amount, adoption of city-like purchasing policies, etc. As it turned out, it does not appear ADICA had any of that. It boggles the mind how ADICA has existed as long as it has (many years before ATI was created) without those tools, but it apparently has.

The city reserved the right to do an audit in its contract with ADICA, but the right was not exercised until fairly recently. The sooner the city did its audit, the sooner Mr. Buie's transgressions would have come to light.

Although there were valid concerns raised by city staff about interfering with the GBI's criminal investigation, the city should have investigated ADICA's books sooner. As you may have read in the Albany Herald, a check and lease allegedly went missing from a file since the city audit of ADICA's books began. One of the dangers of having multiple concurrent investigations is that one of the investigators can be blamed for missing documents, as opposed to the missing document being used to show efforts of a cover-up on the part of the alleged perpertrator. That is why I personally contacted the GBI special agent in charge last week to confirm that we would not be interfering with his investigation if we conducted our own internal audit of the facade grants. I wish I had contacted the GBI myself sooner. I was too optimistic as to when the GBI investigation would be completed. To my knowledge, it is still ongoing.

What can be done now?

We have to assess the damage. That is going to take time. I can only imagine what will be uncovered by the GBI investigation. Now that we have shut down ATI, we are still having creditors come forward complaining that ATI failed to pay them. Our records show specific payments to ATI for the specific debts, but it appears ATI never actually paid some creditors. If that has happened with ATI, there is no telling what creditors will surface against ADICA in the coming months in the wake of Mr. Buie.

We have to cooperate fully with any prosecution that might result from this situation. The decision about whether there is anything to prosecute rests solely with the district attorney.

I agree that we need to hold off on spending anymore on downtown redevelopment until public confidence can be restored. I think that restoration will only occur when we get a downtown redevelopment professional who truly DEMANDS that confidence -- someone with real estate and business savvy and impeccable ethics, someone like a Larry Walden or a Lamar Reese. Perhaps the job of bringing private investment into downtown could be done by someone local in a consultant-type capacity to ADICA. There are some fantastic oppurtunities on the table for downtown (like an ASU bookstore) that need to be capitalized on before they disappear forever. We've got to find the RIGHT person soon, or we will find ourselves 20 years behind on downtown redevelopment.

The city has to provide the necessary support for ADICA to right its ship. City staff is going to have to help ADICA write or adopt appropriate safeguards and policies.

I have asked Phil Cannon of ADICA to consider having ADICA enter into an agreement with the city whereby the city manager would have to counter-sign every check written from ADICA accounts, and approve every ADICA expenditure. This would NOT allow the city commission itself to stick its nose into every ADICA matter, but it would require the city manager to be accountable for every expenditure ADICA makes. That type of accountability was what sold me on the city/ADICA model for downtown development over the city/ADICA/ATI model in the first place.

Monday, July 13, 2009

If city property taxes aren't going up, then how do you explain my tax bill?

Someone asked me the following question the other day after reading my blog posting http://boblangstaff.blogspot.com/2009/07/myth-city-property-taxes-are-rising.html:

"If city property taxes aren't going up, then how do you explain my ridiculously escalating tax bill?"

Part of the answer to that question lies in the "Current 2009 Tax Digest and 5 Year History of Levy" that Georgia law requires the Dougherty County Board of Commissioners, the Board of Commissioners of the City of Albany, and the Dougherty County Board of Education each to separately publish in the Albany Herald. I will try to figure out how to post the ads as printed on this blog later, but for now I will just point out the pertinent figures.

Here's what each of the three entities collected in property taxes in 2004 and 2009 and the additional tax being collected:

City of Albany
2004 $14,295,798
2009 $14,881,969
diff + $586,171

Dougherty County
2004 $24,660,986
2009 $26,594,844
diff + $1,933,858

Dougherty County Board of Education
2004 $35,314,955
2009 $40,913,275
diff+ $5,598,320

According to the "Current 2009 Tax Digest and 5 Year History of Levy" published in the Herald, the City of Albany's two largest percentage tax increases came in 2005 at 1.43% and in 2009 at 1.02%. Dougherty County's two largest percentage tax increases came in 2004 at 22.75% and in 2007 at 7.78%. The Dougherty County Board of Education's two largest percentage increases came in 2007 at 15.88% and in 2005 at 0.76%.

Your property tax bill is also affected by action by the General Assembly this year which will add another $200 to $300 to most tax bills. A state homestead tax relief grant started when state coffers were fuller is not being funded in the current fiscal year and the next fiscal year.

The Georgia General Assembly paid about $428 million statewide in 2009 to local governments to offset the property tax bills of their residents. The theory was that the money would help offset some of the cost of the unfunded mandates passed onto local governments by the State of Georgia. That is no longer being done. Local governments won't receive more money because of the change, but taxpaying property owners will be paying more due to the state's decision not to continue this tax relief.

Friday, July 10, 2009

Myth: City Property Taxes are Rising Fast. Fact: City Property Tax Revenues are only up $400k since 2003.

In preparation for a meeting I had yesterday, I reviewed some interesting tax data. While it is fresh on my mind and legal pad, I though I'd share it with you to help dispel a popular myth that city property taxes seem to be rising. Other property taxes which make up your property tax bill are rising, but not the city's portion.

How is the tax rate figured?

The tax rate, or millage, is set annually. A tax rate of one mill represents a tax liability of one dollar per $1,000 of assessed value. Example:The assessed value-40 percent of the fair market value-of a house that is worth $100,000 is $40,000. In a county where the millage rate is 25 mills the property tax on that house would be $1,000; $25 for every $1,000 of assessed value or $25 multiplied by 40 is $1,000.

If you live in the City of Albany, your property tax bill has 4 components which total 39.746 mills. Those 39.746 mills are collected for (1) the Dougherty County School System (2) Dougherty County (3) the City of Albany and (4) the State of Georgia. The State actually collects a very small amount to cover administrative costs -- 00.25 mills. The City of Albany receives the next smallest share of your property taxes at 9.157 mills. However, if you live within the city limits of Albany, you are still taxed by the Dougherty County School System at 18.445 mills and by Dougherty County at 11.894 mills.

According to the FY2010 budget passed by the City Commission (which I personally voted against for a variety of reasons I can explain later), the City will fund its budget with $14,672,008 in property taxes. The rest of the $102 million budget is funded from other sources including federal and state grants, sales taxes, fees, and fines.

What is interesting, is that the FY2003 budget which was passed under former city manager Janice Jackson included property tax revenues for the city of $14,283,023. That means that since 2003 property tax revenue for the city has only risen about $400k to its present FY2010 budget level of $14,672,008.

That's even more interesting when you consider that the police department budget from FY2003 was about $11 million, and now it is at $16 million for FY2010. Also, the fire department budget went from about $8 million in FY2003 to $11.9 million in FY2010. What this means is that City staff has found ways to increase funding to essential services without increasing property taxes.

I know some of you are asking how city property tax revenues could have only risen $400k since FY2003. I asked the same question of our finance director. The answer is that the City Commission has been doing city millage rate rollbacks for the last 5 years with very little fanfare. Here are the city millage rates from 2004-2008.

2004 -- 10.8
2005 -- 10.792
2006 -- 10.777
2007 -- 9.159
2008 -- 9.157

The city commission voted for a budget that assumes the millage rate will stay at 9.157 in 2009.

Remember, the total millage rate you pay if you live in the city limits of Albany is now 39.746. Thus, the city's portion of your property tax bill accounts for about 23% of your total property tax bill. Almost 30% of your property tax bill goes to the county. A whopping 46% of your tax bill goes to the school system. The state gets the remaining 1%.

Let me make it clear that I do think taxes for city residents are too high. A 2006 report from the governor's office stated that Albany residents suffered the highest "total" millage rate in the state, but I think you can see from the above data that the city does not receive the bulk of that "total" millage rate. I think the city's millage rate can be lower with certain belt tightening, and I'll continue to advocate for that. However, I am pleased to see that city staff has been able to keep a lid on the city millage rate since at least 2003.

Wednesday, July 8, 2009

Sign Ordinance Moratorium Sounds Good, but Problematic

For the record, I should first make it clear that Jon Howard and I were NOT satisfied with the new sign ordinance, and voted against it for a lot of different reasons. I am not against having a sign ordinance. They are GOOD for business. Sign ordinances keep the business next door from blocking the view of your sign with an enormous sign of their own. They keep the playing field fair. I just couldn't vote for the particular sign ordinance proposed.


Most recently, I was initially supportive of doing a moratorium on enforcement of the sign ordinance. Here's why:

The code enforcement director said Harvest Moon should never have received the warning handed out by one of his employees. Apparently, the director believes the ordinance gives Harvest Moon three years to rectify their alleged error in having two ground signs. Thus, it appears there is some confusion in the ranks about how the ordinance should be applied. Moreover, I understand that the owner believes he got some type of permission to use the sign, and invested money into it based on that permission. As a lawyer, that says to me that the owner may have detrimentally relied on city assurances, and may be entitled to some relief.

Overall, it seems ludicrous to me to worry about whether Harvest Moon is over the ground sign limit when we have burned out shells of buildings all over town. We have decades of ignored blight to deal with. That blight contributes to our crime problem. Crack heads, copper thieves, and meth cooks love abandoned buildings.

That is why I have asked staff to consult with outside legal counsel about the legality of adopting a resolution that acknowledges our limited code enforcement resources, and directs staff to focus on the worst code enforcement problems first -- namely dilapidated and abandoned buildings and junk cars. We would still enforce the sign ordinance, but enforcement would be complaint-driven. If a business complains that a business next door is blocking the view of his sign in violation of the sign ordinance, then we can address it.

The city attorney has given a preliminary opinion that we cannot do this, but I want to hear it from our sign expert. I have to believe this is permissible. As an analogy, we know we have speeders, robbers, burglars, and drug dealers in this town. The unwritten policy is that we put more resources into stopping drug dealers, robbers, and burglars than stopping speeders. We enforce all the laws on the books, but we put more money into stopping drug dealers, robbers, and burglars. If we cannot direct our resources via a resolution, then we should do it via our budget.

Then there's the whole Moe's thing about code enforcement going out and citing them for parking their Moe's van too close to the street. First off, the code enforcement director knew he had a problem after the Harvest Moon incident. Code enforcement did NOT go to Moe's as was reported. The code enforcement director met with the Moe's manager who appeared on TV as well as the owner. Both said code enforcement had not been out there in two years. In fact, the Moe's manager said she tried to explain that to the reporter who went out there. Unfortunately, that did not appear on camera.

Nonetheless, the Moe's story raises the issue of why we should even worry about trying to regulate the Moe's van signage anyway. There are cars driving all over this town with similar signage all day long!!!! All I can figure is that it wouldn't be fair to tell Harvest Moon they can only have one ground sign, but allow a pizza place to open next door and park a fleet of delivery vehicles with signs on them right next to Dawson Road. But I don't realistically see that happening. I am truly struggling to understand why we are concerned about car signage. That's one of the sign issues I want to explore further.

Okay, all the above suggests a moratorium would be a good idea, so last week I asked our planning director to call our outside attorney who is the sign ordinance expert about the pros and cons of a moratorium. This outside attorney is the one who has re-written sign ordinances for a number of cities in the state to make them enforceable. What is and is not enforceable changes every year. He has also been involved in lots of litigation over regular billboards and LED billboards. To date, our planning director has not heard back from him about the pros and cons of a sign ordinance moratorium.

Being a lawyer myself, here are the potential pitfalls I see in placing a general moratorium on enforcement of the sign ordinance. I defer to our sign expert to make the call, but I think it is my job to point out the issues.

First, right now the sign ordinance prohibits any NEW billboards in the city. If we say we are going to suspend enforcement of the sign ordinance for a period of time, I bet the billboard companies are going to immediately submit tons of requests to place more billboards all over town. Of course, if we have a moratorium on enforcement, they could really just put the billboards up wherever they wanted without submitting a request. That could be a mess.

Second, we have limited LED billboards in the city to 8, and are currently being sued to allow one more. During our last "moratorium" on LED billboards, we were slapped with about a dozen new LED billboard permit requests. If we put a moratorium on the ordinance which currently limits the number of LED billboards, then there is no law preventing billboard companies from putting up as many LED billboards as they want. That's another mess.

Third, let's say we just want to put a moratorium on enforcement of a specific provision in the sign ordinance, like say the one that is affecting Harvest Moon that says you can only have one ground sign. Well, if you stop enforcing that provision for 6 months, you can bet that a lot of businesses are going to take that opportunity to go ahead and plant another sign in the ground. Can you imagine if we woke up in six months, and had double the number of current ground signs? That could still be a mess.

Where do we go from here?

I am hopeful our sign expert is going to say we can adopt a policy regarding the allocation of our code enforcement resources that will take the focus off of aesthetics of our signage until we get the major blight cleaned up. Sign enforcement would be complaint-driven. That would give us the necessary time to get the sign ordinance right.

In the meantime, a task force (to include Chamber representatives, hopefully) is going to take a critical look at certain provisions within the sign ordinance. My hope is they will look at how cities like Valdosta, Tifton, Thomasville, etc. handle the same issues. I actually have a spreadsheet showing some comparisons that staff has worked up for me. I just have to figure out how to post it to this blog.

More to come...





Downtown Manager Investigation

Last week I spoke to the city manager, and raised the issue of having the downtown manager suspended with pay pending completion of the GBI investigation. I specifically asked the city manager to consult with our outside employment law specialist before making a decision on the issue.

The city manager informed me this week that he has consulted with our outside employment law specialist, as well as our own in-house attorney. The consensus among the attorneys is that suspension would NOT be appropriate at this time, and the city manager agrees. I believe the city manager has thoughtfully and professionally considered the issue.

I learned today that the GBI anticipates completing its investigation within the next two weeks. No matter what the outcome, ADICA and the city will need to make several administrative policy changes.