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Judge wants evidence in Snellville council suit

Snellville Mayor Kelly Kautz, right, takes notes Friday, as her attorney Phyllis Miller makes arguments to a judge seeking temporary restraining orders against the city council, city manager and city clerk. (Staff Photo: Camie Young)

Snellville Mayor Kelly Kautz, right, takes notes Friday, as her attorney Phyllis Miller makes arguments to a judge seeking temporary restraining orders against the city council, city manager and city clerk. (Staff Photo: Camie Young)

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Snellville City Clerk Melisa Arnold, center, and City Attorney Tony Powell listen Friday, as Judge Warren Davis hears arguments in a lawsuit Mayor Kelly Kautz filed against members of the city council, city manager and city clerk. (Staff Photo: Camie Young)

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Snellville Councilmen Tom Witts and Bobby Howard listen Friday, during court proceedings involving the lawsuit the mayor filed against them and other members of the city council, the city manager and the city clerk. (Staff Photo: Camie Young)

A judge wants more evidence before picking sides in a case where Snellville’s mayor sued the city council.

After hearing arguments Friday, Judge Warren Davis scheduled a hearing for the week of Feb. 24 on the controversy, which could decide who the city’s top appointed officials are.

Mayor Kelly Kautz sued last month, after a dispute over the contract of City Manager Butch Sanders and attempting to hire a new city clerk. The city’s five council members have voted unanimously to continue acknowledging Sanders as city manager and Melisa Arnold as city clerk, saying that the mayor did not have the authority to fire either.

While Judge Davis did issue a temporary restraining order keeping the city from using Kelly Kautz’s signature without her permission, he wants to see evidence on allegations that the city continued to issue checks without her permission and that some council members met in an illegal meeting. The judge also waited to hear evidence on whether Sanders should continue as city manager, as the mayor contends that she never re-appointed him after his contract expired.

While he heard debate on the clerk position, Davis did not rule, instead asking that the sides consider appointing a general master to help flush through the city codes.

“I can see how you can take this either way,” Davis said of arguments that the city clerk serves a one-year term versus a provision that says the clerk serves “at the pleasure of the mayor and council.”

“This is really about the citizens of Snellville. … Running a city is hard enough without this,” Davis added. “The citizens of Snellville would like you to solve problems not create them. So let’s move forward.”

Councilman Dave Emanuel said the judge’s decision to seek evidence instead of issuing a temporary restraining order “shows the fallacy of filing it in the first place.” But he added that the he hopes a ruling can allow the city to move forward.

“All we want is a proper legal definition. It’s unfortunate that it drags out and costs money,” he said. “It’s disappointing when there is no conversation and the first response is litigation.”

Kautz said she was happy with the developments Friday and added that they will play no part in the city council’s upcoming public meeting Monday.

“We didn’t expect to gain a lot today because of the evidentiary (needs),” Kautz said. “So any small victory is a good thing today.”

City Attorney Tony Powell, who was representing the council members, city clerk and city manager, who were named in the suit, said he planned to file a motion for “plea and abatement,” asking that the case be merged with a 2013 lawsuit Kautz filed against many of the same players. That case, a portion of which is under appeal, involves Kautz’s attempt to fire Powell as city attorney.

Kautz’s attorney, Phyllis Miller, said she plans to file a motion seeking that Powell be taken off the case due to a conflict of interest.

Porter closes investigation

Also on Friday, District Attorney Danny Porter said he will not pursue criminal action against Kautz on a citizen’s complaint alleging the misuse of funds.

“We have completed a thorough investigation into the allegations including getting information from the mayor and members of the City Council and I find no basis for criminal charges in this matter,” Porter said.

While the complaint concerned the use of city funds for Kautz’s membership to Leadership Gwinnett, a training program, Porter said other local governments have deemed the course suitable for public funds and at least one member of city council was aware of the plans to use the funds when it was approved as a line item in the city budget. He added that the allegation involving the use of an attorney in a lawsuit was not a crime because she was being sued in her capacity as mayor.

Porter declined to comment on whether he was investigating any other allegations involving the city but said that allegations have surfaced about every two years, coinciding with election season.

“There’s no question I get drawn into these things by both sides … Neither side comes out with clean hands,” he said, adding that he would not say an investigation is a waste of time as, “just because something is politically motivated doesn’t mean it isn’t true.”

“I’d really like to get disengaged from investigating Snellville,” he added. “It would save a lot of time, but I don’t expect to.”