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Judge says county must pay sheriff’s attorney fees

By JOHN MUNFORD
jmunford@TheCitizenNews.com

The Fayette County Board of Commissioners must pay the attorney’s fees for Sheriff Randall Johnson in the suit they filed against him last year for failing to accept a prisoner arrested by the county marshal’s department.

That ruling came from Senior Superior Court Judge William Ison during a hearing Monday morning. Ison reserved ruling on the county’s latest motion for summary judgment, which would end the case in the county’s favor without it going to trial.

The county had taken money for Johnson’s attorneys fees in the case from his departmental budget, and Ison ruled that they must put it back, Johnson added.

Johnson has petitioned the court to allow the matter to be heard at a jury trial.

“I want to get it to trial and get it behind us,” Johnson said Tuesday morning.

The suit was filed by the county in December 2003, days after jailers turned away a DUI suspect arrested in Fayetteville by a county marshal. The suspect had run through a red light without attempting to apply his brakes and was stopped by the marshal who witnessed the infraction, according to a report filed by the county.

Although county marshals rarely handle traffic cases, they are certified police officers and are empowered to make arrests, county officials have said. The main duties of the marshal’s department include patrolling county-owned property, investigating county matters and enforcing county ordinances, which includes the writing of citations.

Johnson claims the marshal’s department was improperly operating as a police agency and thus housing any prisoner at the jail who was arrested by county marshals might result in himself and the county facing a lawsuit.

After the county filed the suit, Johnson and the county agreed to a consent order where the jail would accept any prisoners arrested by the marshal’s department for an indictable offense until the suit could be settled.

Johnson cites a Georgia law indicating that counties creating a police force after 1992 must hold a referendum to do so. But the county argues that the marshal’s department was serving as a bona fide law enforcement agency in 1989, before that requirement went into effect.

In briefs arguing for summary judgment, County Attorney Dennis Davenport wrote that between 1989 and 1991, county marshals helped catch an escaped female prisoner from the medical center and made three other arrests for theft, criminal trespassing and an outstanding warrant. He also noted that the County Commission approved more than $200,000 for the marshal’s department in the fiscal year budget for 1990-91.

The county’s brief also said the county adopted the sheriff’s department’s policies and procedures manual for the marshal’s department on May 17, 1989; the same manual was later revised in 1991 and it covered topics such as proper use of deadly force and how to arrest suspects.

Johnson’s attorneys, Charles W. Byrd and William H. Noland, filed a brief including several documents of minutes from the County Commission during the same time frame. In one of the documents, then-County Commissioner Dan Lakly said in a discussion about purchasing uniforms for the marshal’s department: “For the benefit of the press, this was not the start of a county police force, but merely a means of identifying the county enforcement division.”

County attorneys argue that Johnson, by law, is required to take custody of all offenders who are arrested on indictable offenses.

This is not the only active legal dispute between Johnson and the commission. He sued the county last summer after it threatened to remove a hangar building the sheriff’s department built on the former site of the county’s magistrate and juvenile courts, which is immediately adjacent to the sheriff’s department complex.

The commission threatened to remove the building after which Johnson filed suit to keep that from happening. The hangar houses the department’s helicopter, impounded vehicles and other law enforcement equipment including uniforms, vests and radios.

Johnson maintains he got permission from the county to build the storage facility in 2002, but the commission contends it has not authorized building the structure at that site.

That suit also remains unresolved.