On October 14, 2011 the Gilmer County Grand Jury voted to conduct a civil investigation of the Board of Commissioners office. This investigation came about after the Grand Jury was unable to return a true bill concerning charges against Former Chair Commissioner Mark Chastain. The case alleged that Chastain willingly misled Post Commissioners J.C. Sanford and Will Beattie, misappropriated funds from the G.O. bond, and did not execute his duties as the county’s executive officer properly. This all started when Gilmer citizen Randy Bell filed a complaint against Chair Commissioner Mark Chastain with the State Ethics Committee. The complaint alleged Chastain violated the ethics in government acts. Then on December 9, 2010 during a regular scheduled commissioners’ meeting Post Commissioner Will Beattie read the complaint into the record.
The allegations posted below are verbatim:
State Ethics Commission
200 Piedmont Avenue
Suite 1402 – West Tower
Atlanta, Georgia 30334
ALLEGING A VIOLATION OF THE ETHICS IN GOVERNMENT ACT
Person Bringing Complaint:
Randy J. Bell
Ellijay, Ga., Gilmer County, 30540
770 833 1194
Party Against Whom Complaint Is Brought:
Mark E. Chastain
Ellijay, Ga., Gilmer County, 30540
706 635 4362
Chairman, Gilmer County Board of Commissioners
Statement of Facts:
1. As Chairman of the Gilmer County Board of Commissioners, Mark E. Chastain knew of, agreed with, and aided employees in manipulating contracts and invoices for the purpose of avoiding the $20,000 limit in the Gilmer County Charter thus evading the bid process and approval of the entire Board of Commissioners as required by the Gilmer County Charter.( See exhibit A)
2. As Chairman of the Gilmer County Board of Commissioners, Mark E. Chastain directed then personal employee and also County surveyor Scott Chastain to survey County owned property. The County was billed by Scott Chastain, County Surveyor, who then paid Chastain & Assoc ( owned by Mark E. Chastain) most of the proceeds. It appears that Mark E. Chastain was directly profiting from work he commissioned on behalf of the County. (See exhibit B).
3. As Chairman of the Gilmer County Board of Commissioners Mark E. Chastain has repeatedly violated the Gilmer County Charter and his oath of office by spending more than the $20,000 allowed bypassing the required bid process and approval of the full Board of Commissioners in defiance of the advice of the County Attorney. Please see exhibit C for a partial listing and supporting documentation.
4. As Chairman of the Board of Commissioners, Mark E. Chastain has spent app. $1,015,557 for renovating the Gilmer County Civic Center. The full Board of Commissioners voted to authorize just $473,000. This not only violates the County Charter, but State Law as well since it went more than $100,000 over the authorized amount.
This got the attention of District Attorney Joe Hendricks. The D.A.’s office launched a full investigation into the charges against Chastain. With about 10 months of investigation Hendricks was ready to present the case to the Grand Jury.
The D.A. presented the case to the October 2011 Grand Jury. FYN was in the court room when Judge Amanda Mercier read the decision into the record.
“State of Georgia Vs Mark Chastain. Count 1. Making a false statement, no bill. Count 2. Unlawful receipt of payer from profit from a public works contract, no bill.”
A finding made on a bill of indictment by the grand jury when, after hearing the evidence, that the charges against the accused are groundless or the evidence is insufficient to present an issue for trial.
FYN spoke with D.A. Joe Hendricks afterwards and asked him how he felt about the Grand Jury’s “no bill” decision; “We made a full and fair presentation” Hendricks went on to say the oath of office was not administered properly; telling us that the commissioners never took the proper oath to uphold the county charter. What happens next we asked? Hendricks told us that the Grand Jury launched a civil investigation into the office of the commissioners of Gilmer County.
On January 18, 2012 the civil investigation was complete and made public. The Grand Jury looked at the commissioners office alleged legal violations and made recommendations for corrections. When reading the report the strongest reasoning stated for not being able to indict Chastain was because he did not take the “proper” county oath of office to uphold the county charter.
Page 7 of the report:
As to whether any commissioner violated the oath contained in the charter to support the ordinances of Gilmer County, none of the commissioners had taken the specific oath of office required under the County Charter. The Commissioners had taken the oath sent to the probate from the governor’s office. The oath in the charter requires the commissioners to comply with the charter and county ordinances. Since this oath was not administered, a commissioner who violated its terms could not be prosecuted for violation of oath of office.
What was that again?
I wondered who advised the Grand Jury about the Oath. They surely did not think this up on their own. So I went to the Georgia State Grand Jury handbook for the answer.
The Grand Jury’s Legal Advisor – the District Attorney
By law, the district attorney is the legal advisor for the grand jury. In so providing, the legislature recognized that most citizens who serve on the grand jury are unfamiliar with the many technicalities of the law. The district attorney is responsible for advising you on any questions of law or procedure which you may have as a grand jury. In 1973, the Georgia Supreme Court held that the grand jury must rely on the district attorney for legal advice and may not employ any other lawyer for that purpose. Assisting the district attorney in carrying out these duties will be assistant district attorneys.
In addition to serving as legal advisor to the grand jury, the district attorney and his or her staff are counsel for the State in all criminal cases which will be brought before you. The district attorney’s office will prepare the cases for presentation to the grand jury and subpoena necessary witnesses. The district attorney and assistant district attorneys are authorized to be present with the grand jury when cases are being presented. They may also administer the oath to and question witnesses before the grand jury. Any presentments or indictments which the grand jury requests be drawn will be prepared by the district attorney’s office.
After looking at the report I wanted to look closer at the oath of office.
Qualifications and Disqualifications
for Holding State or County
Elective Office in Georgia
Oath of Office
11. Every public officer must take the oath of office and any oath prescribed by the Constitution of Georgia and must swear that he or she:
a) is not the holder of any unaccounted for public money due this state;
b) is not the holder of any office of trust under the government of the United States, any
other state, or any foreign state which he or she is by the laws of the State of Georgia
prohibited from holding;
c) is otherwise qualified to hold said office according to the constitution and laws of
d) will support the constitutions of the United States and of this state.
O.C.G.A. § 45-3-1
The official acts of an officer are valid regardless of his or her omission to take and file
the oath, except in cases where so specially declared. See O.C.G.A. § 45-3-10
The Note at the bottom of the oath is interesting.
O.C.G.A. 45-3-10 (2010)
45-3-10. Effect of failure to take and file oath upon validity of official acts
The official acts of an officer shall be valid regardless of his omission to take and file the oath, except in cases where so specially declared.
Does this mean that even if the oath is omitted the Commissioner’s actions are valid, meaning legally binding? Would the act of voting on the approval monthly meeting be an action item? When Chair Commissioner Chastain presented to the public and the Post Commissioners the budget for the renovations for the civic center and made the statement that the Golf course pro shop was not a G.O. bond funded project, was that an action item, legal and binding?
FYN spoke with Gilmer County Probate Judge Anita Mullins, who administers the oath to county constitutional officers. We asked what oath she administered, she let us know she administers the one sent to her by the state. She has been doing the same thing for 19 years. She was not aware there was another oath required. The state oath requires constitutional officers to uphold the State constitution which includes the state laws. The county charter is state law so if you take the state oath are you not swearing to uphold the county charter.
FYN personally presented a copy of the grand jury report to House Speaker David Ralston and State Senator Steve Gooch. We highlighted the area concerning the oath of office and asked them the following questions:
1. Why would the State send an oath that would not require the Commissioner to uphold the county charter?
2. Do you believe the oath as it stands covers the county charter?
3. If the oath does not require the Commissioners to uphold the charter how could a Commissioner vote to change the charter?
We asked those questions in February and have not received any comment from the Speaker or Senator at this time.
Now we look at a portion of the Grand Jury’s recommendations to correct the problem:
2. The Grand Jury recommends that the oath contained in the charter be administered to each member of the Board of Commissioners.
3. The Grand Jury recommends that Gilmer County’s legislative delegation consider legislation imposing criminal penalties for violation of the County’s Code of Ethics.
Who advised the Grand Jury on this? The State already has laws in place that cover this. Why retake the oath. Chastain was Post Commissioner for four years and Chair Commissioner for two years. What years did he uphold the charter-year 3? Should all Constitutional officers retake an oath?
In fairness to D.A. Joe Hendricks, if he allows a weak case to go to trial, that a defense attorney will easily defeat, then he has cost the county a lot of money and thus his judgment to bring a weak case to trial will be questioned. The D.A. is responsible for explaining to the Grand Jury how a defense would expose weaknesses in a case. The D.A. is not responsible for the Grand Jury returning a no bill in this case. However he is responsible for presenting the evidence in the case. The oath of office to uphold the county charter seems to have played a big role in the Grand Jury’s decision to not return a true bill in the case against former Chair Commissioner Mark Chastain. If Georgia Code 45-3-10 states that an official act of an Official shall be valid (legal) regardless of the oath one would reason that said commissioner could be found to commit an illegal act. All legal action has a counter balance of illegal.