Demorest - Two weeks have passed since Demorest City Manager/Clerk Kim Simonds terminated Robin Krockum due to “performance issues.” Now, Simonds is asking City Attorney Joey Homans to resign.
Homans received an emailed letter from Simonds Thursday, April 30, asking him to resign due to failed “responsibilities as legal counsel to Demorest.”
Demorest Mayor Rick Austin tells WCHM the email was originally sent to Homans, asking him to keep the communication confidential. Within an hour later, Mayor Austin and council received the letter that was sent to Homans, saying “I’m sending this email to let you all know about a very important step I took this afternoon.”
In her email, Simonds writes “After the debacle on Tuesday night, it became painfully clear that our City Attorney, Mr. Homans, has given up his responsibilities as legal counsel to Demorest. Over the last month he has advised more than one person AGAINST the City. I am MORE than sure that the announcement of Tuesday’s meeting met every legal standard it should meet (per GMA and other legal counsel) and yet he declared our meeting illegal. I have to wonder why he felt the meeting should not be held. It ABSOLUTELY was not because of the announcement. I have no doubt that he no longer cares for the best interests of the City of Demorest. In light of this, I have sent the attached letter to Joey asking that he resign. I hope he will do so and we will be able to move forward. There is SO much work to do and we have spent far too much times with issues that are setting us back rather than moving us forward.”
In her letter to Homans, Simonds claims that “There have been significant concerns raised by members of the City Council that you should no longer remain the City Attorney.” Mayor Austin says he spoke to one councilmember who did not raise that concern. “The only councilmember that I have spoken with has been councilman Moore and he indicated that he did not support it.”
“The City Manager does not have the authority to request the resignation of an appointed member of the city such as the City Attorney,” Austin tells WCHM.
Homans was appointed as City Attorney over six years ago. “He is above reproach on how he handles himself professionally and the services he delivers,” Austin said. “We’re making appropriate decisions in order to prevent any legal actions and he has done that with great expertise.”
“Communications have been exceedingly sparse with me,” Austin said. “There have been emails I have sent that have gone unanswered, a text requesting a professional and courteous phone call that has not been answered.”
At the end of the letter, Simonds gave Homans a deadline for a response for 5 p.m. Friday, May 1. If Homans does not respond, Austin says “there’s nothing that can be done. There’s no consequence to him. He does not answer to her, he was appointed by council and can only be removed by council action.”
Simonds Letter Is As Follows:
"Dear Mr. Homans:
"As you are no doubt aware, the duties of the City Attorney under the Charter are to “advise the mayor and councilmembers and other officers and employees of the city concerning legal aspects of the city's affairs.” As such, your duty of confidentiality exists as to each whenever you advise any of those listed entities. You are hereby informed of the specific direction that the matters discussed in this letter are to remain confidential.
"There have been significant concerns raised by members of the City Council that you should no longer remain the City Attorney. I have been asked to communicate those concerns to you and inquire if you would be willing to voluntarily relinquish the position of City Attorney. There may be legislation brought before the Council to have you removed from the position but it is hoped that this legislative action, whether occurring soon or later in the year, could be avoided by your resignation.
"Much of what has happened results from the disregard of a motion of the City Council passed on 03/03/20 that the City Manager was to be the point contact for matters concerning your representation of the City. There are sound reasons for this policy. It is necessary that the City Manager, the City Council and the City Attorney work collaboratively to reach consensus on any issue, so that a consistent position can be stated and so that costs can be controlled. Because you have not followed that specific instruction to include the City Manager in all legal matters, many serious problems have resulted.
"The most recent action which has brought these concerns into sharp focus concern the events surrounding the termination of former Chief of Police Robin Krockum and the subsequent swearing in of the interim Chief, Greg Ellingson. Had you chosen to follow the procedure which the City Council set for contact with the City Manager, prior to giving advice to Chief Krockum, the issues may have turned out differently.
"By a letter sent on April 17, 2020, you informed the Mayor and City Council that you may have a “conflict of interest” but do not really state the reason. Apparently, you believe that such conflict existed because you gave Chief Krockum legal advice, which you assumed was contrary to the legal basis for the reason for which you also assumed led to his termination.
"First, the nature of the conflict which you claimed in the letter of April 17, 2020 misstates key facts related to Chief Krockum’s termination. Chief Krockum was not terminated for his refusal to discipline an employee. There have been other performance issues which were a part of a pattern that were demonstrated by his refusal to follow the directive that all contacts with the City Attorney be through the City Manager. Had you, as City Attorney, been willing to counsel Chief Krockum to follow the City Council’s directive and work collaboratively with the City Manager, you could have advised him to do so.
"Second, your “conflict of interest letter” of April 17, 2020 indicates an unwillingness to provide the City with a vigorous defense. As I would assume that you would know, under Georgia law, in the absence of a contractual or statutory “for cause” requirement, an employee, even a public employee, serves “at will” and may be discharged at any time for any reason or no reason. An “at-will” employee has no legitimate claim of entitlement to continued employment and, thus, has no property interest protected by the due process clause. The City Code, at Sec. 49-2, is clear on this point. Even though the City Council retains the right to approve the hiring of department heads, the city manager has the authority to terminate department heads.
"Further, had you chosen to even try to defend the actions of the Council, you would have discovered that O.C.G.A. § 35-1-12 requires that “any county, municipality, or other public subdivision of this state which has a law enforcement agency shall declare a chief of police or a law enforcement head for such law enforcement agency. The swearing in of the interim chief of police was a good faith attempt to comply with the understanding of the law which was available to the Council at the time. However, your apparent withdrawal from being willing to give advice on this issue, then compounded its complexity because, it is now believed that the “interim appointment” can be ratified by the Council and address any of the potential issues which you chose to state as problems leading to the conflict.
"Third, even after the April 20, 2020 letter stating that you had a conflict concerning the “circumstances related to the appointment of a new police chief,” you then apparently decided that you could represent the City by participating in a follow-up conference call with the Office of the Attorney General. Again, this representation occurred despite the specific instruction that the City Manager was to be the point contact for matters concerning your representation of the City, and despite the fact that you represented in the April 20, 2020 letter that you would contact the Council if further contacts with the Office of the Attorney General were to occur
"Not only does it appear that you have again chosen to ignore the directive that you are to contact the City Manager with respect to matters concerning your representation of the City, you have made comments in the press which indicate that you have apparently decided that you can continue to represent the City despite the conflict, even though you specifically stated in the April 20, 2020 letter that you would notify the City Council if you were contacted by the Office of the Attorney General. While your comments to the press may not have disclosed any confidential attorney client information, you would have been directed to have limited your comments to a factual statement about what the Office of the Attorney General stated to you and not comment about the advice which you were going to give to the City Council on how to proceed with respect to the very issue about which you admitted you have a conflict of interest.
"Finally, for some time, members of the Council have been concerned about the amount of your legal fees and the way in which you have chosen to state how such fees are justified. This letter will not go into detail concerning the issue of the fees but you should be aware that this issue may be revisited in the future.
"Please respond by COB (5:00 p.m.) tomorrow, Friday, May 1, 2020."
Photo provided by Fox, Chandler, Homans, Hicks & McKinnon, LLP