The Henry County Board of Commissioners held a Regular Meeting at 9:00 a.m. on Monday, December 6, 2004, in the Community Room, County Administration Building, 140 Henry Parkway, McDonough, Georgia.  Notice of this meeting was posted on the bulletin board in the entrance foyer of the County Administration Building.  The Daily Herald was notified of this meeting.  Those present were:


            Leland Maddox, Chairman, presiding

            Lee Holman, Vice-Chairman, District V Commissioner

            Warren E. Holder, District I Commissioner

            Gary M. Freedman, District II Commissioner

            Jason T. Harper, District III Commissioner

            Gerry Adams, District IV Commissioner


Also attending were Rob Magnaghi, County Manger; Patrick Jaugstetter, County Attorney; Susan B. Craig, County Clerk; Shay Mathis, Deputy County Clerk; Danny Taylor, Economic Development Division Director; Michael Harris, Public Works Division Director; Becky Zebe, Human Resources Director; Mike Bush, Finance Director; Tommy Smith, Interim Purchasing Director; and others.


Chairman Maddox called the meeting to order and asked for an Acceptance of the Agenda.  Commissioner Holman asked if there are any Emergency SPLOST issues to be added to the Agenda; Mr. Rob Magnaghi said the Mt. Carmel Park lighting issue should be addressed and Mr. Roy Clack, SPLOST Project Manager, can respond to any questions.  Commissioner Freedman referenced Item #3 – Announcement of the Earl Warrington (RZ-04-30) rezoning to be postponed to December 21, 2004, and stated he did not believe this issue could be heard legally again by the Board.  He referenced ‘Roberts Rules,’ and quoted, “the Chairman may vote, thus causing a tie which rejects a motion.  Since a majority in the affirmative is necessary to adopt the motion in the case mentioned, the final result in the form of a tie rejects it, and the result is thereby tied and the motion is lost.”  He said to reschedule this item would probably be a violation of the State law, because there is a zoning law that says once a motion fails on the rezoning, it cannot be brought back for a substantial period of time.  He said the Henry County Ordinance specifically says one (1) year, where some counties say six (6) months.   Commissioner Freedman thought the plaintiffs should go to Court and seek their resolve in the Court; for the Board to schedule this would not be a good idea. 


Commissioner Holman made the motion to accept the Agenda; Commissioner Harper seconded.  Commissioner Freedman said, “as long as it does not include the approval of that meeting.”  The motion carried 5-0-0 with Commissioners Holman, Harper, Freedman, Adams, and Holder voting in favor.


Chairman Maddox said the E. Earl Warrington (RZ-04-30) rezoning has been postponed to the December 21, 2004, Board of Commissioners’ Meeting.  Chairman Maddox said he and the County Attorney, Mr. Jaugstetter, had a meeting on this matter, noting a lawsuit has been filed.  Commissioner Freedman restated, “to hear this again is a violation of the law, and to schedule this is erroneous.”  


Commissioner Holder stated, “I don’t think there is a question of the Warrington rezoning not passing; the point is, nobody or no attorney tells you whether or not it can come back in six (6) months or twelve (12) months.  That is the key.  If we are playing by those rules, we had three (3) motions that night with the first one soundly defeated.  If we are playing by the rules that once something is rejected and can’t be brought back, why did we vote on it again, with it ending up as a tie?”


Mr. Jaugstetter stated the denied votes were not votes on the applicant’s request.  He said at some point, this Board is obligated to vote on the applicant’s request.  The third vote that resulted in a 3-3-0 tie was the request of the applicant. 


Commissioner Holder asked, “how many times do we sit in here and make motions on zonings that are not what the applicant has proposed?”  He said the Board has not been consistent in following the rules. 


Commissioner Freedman asked if a tie vote is a denial.  Mr. Jaugstetter answered, “a tie vote is a denial.” 


Commissioner Harper said the Commissioners have been served with a lawsuit regarding this property.  That means this Board can vote any time to rehear the matter and settlement of the lawsuit.  He said the Board could settle it by virtue of a settlement agreement to agree to rehear it, which would negate the one (1) year statute.  Commissioner Harper said if the Board votes affirmatively to do that, then the Board is in its right to do that.





There were no public comments.









Request Approval to Accept the 2005 Operating Assistance Grant.


WHEREAS, The Georgia Department of Transportation has agreed to provide Transit Capital Assistance, Grant Number – GA-18-9021, Project Number: MTG00-010700150, for Henry County Board of Commissioners (d.b.a., Henry County Transit) for rural public transportation; for the period of January 1, 2005 through December 21, 2005;


WHEREAS, Henry County Board of Commissioners can receive four (4) sixteen (16) passenger Goshen II buses with wheelchair lift valued at $204,000.00;


WHEREAS, Henry County Board of Commissioners must provide a 10% local match of $20,400.00, which is available in the General Fund;


NOW, THEREFORE, BE IT RESOLVED the Henry County Board of Commissioners agrees to and accepts Part One (1) Transit Capital Improvement Assistance Grant Number – GA-18-9021, Project Number: MTG00-010700150.



Commissioner Holder made the motion to approve the resolution; Commissioner Adams seconded.  The motion carried 5-0-0 with Commissioners Holder, Adams, Holman, Freedman, and Harper voting in favor. 





A Resolution for the Creation of an Executive Secretary to the Board of Commissioners into the County Compensation Plan.


WHEREAS, Henry County Board of Commissioners adopted the County’s Compensation Plan in December, 2003, and


WHEREAS, the Compensation Plan calls for all newly created position be approved by the Board, and


WHEREAS, the County has determined there is a need for an Executive Secretary position to be created for the Board of Commissioners,


NOW, THEREFORE, BE IT RESOLVED that the Henry County Board of Commissioners hereby authorizes the creation of an Executive Secretary to the Board of Commissioners.  All budget amendments and/or transfers necessary for the proper accounting of this new position are hereby approved with this resolution.




Commissioner Harper made the motion to approve the resolution; Commissioner Adams seconded. 


Commissioner Holman said he has been in favor of this since January, 2003, but he stated he had some questions.  “Since this position is for the Board of Commissioners, should we not be the group who hires this person, like we do with the County Attorney and the County Manager?  Also, how do we share work product of this individual?  I am assuming the way the resolution is written, it is not solely for the Chairman.  I would hate to see this position to be monopolized.”


Commissioner Harper said he did not know how to answer that until the Board tries it; if one Commissioner is monopolizing, the Board would have to revisit the issue.  At the moment, Peggy Malcolm, Deputy County Clerk, is transcribing the Minutes and performing this function.  Commissioner Harper said it is not fair to her to answer all the telephones while writing the Minutes.  He said this position will report to the entire Board; if it turns out this is not working, the Board will revisit it. 


Commissioner Holman asked if the hiring would be a Board vote. 


Commissioner Harper said this is a clerical position, and he asked the Board to defer that.


Commissioner Holman said if the Board allows this position to fall under the regular organizational chart, it would be under the County Manager, and currently the County Manager is able to hire and fire everybody except the County Attorney and the County Clerk.  Commissioner Holman said he is trying to protect this position, so that this individual works directly for the Board of Commissioners. 


Commissioner Freedman said it is a necessary position, and he agreed the position should report to the entire Board.  The budget amendment shows the salary of $22,302.00 yearly.  He asked if he was reading this correctly. 


Ms. Becky Zebe, Human Resources Director, said the salary amount was not correct.  She said an Executive Secretary would start at the annual salary of $30,822.48. 


Commissioner Freedman asked if the County would advertise for this position under the Equal Employment Opportunity Act. 


Commissioner Harper said it has already been advertised.  Commissioner Freedman asked if anyone has been selected; Commissioner Harper said he has selected someone.  This position will take effect on January 1, 2005, and he hoped the County Clerk and the two (2) Deputy County Clerks will be able to train this employee. 


Commissioner Freedman said this is a current Board action, and he did not understand how one person could select the individual when the employee will work for the entire Board.   


Ms. Zebe said the position was advertised from November 22nd to November 29th on the Internet and the Intra-County Board, and there were only two (2) applicants who applied for the position. 


Commissioner Holman stated there was no position to advertise; he said these are the kind of things that irritate him. 


Commissioner Freedman asked, “was this position advertised before the Board approved the position?”


Ms. Zebe answered, “yes, prior to this meeting.”


Commissioner Holder said, “there have been some timing mistakes made; nobody was hired, but the position was advertised.  I commend Jason in looking ahead to January 1st to make preparations for what will be his administration.  If we had waited until January 1st, then that would have made us 30/60/90-days behind in starting.  This Board should look at the future, and rally around.  If this does not work, the Board runs the show, not the Chairman.  In ‘Roberts Rules,’ the Chairman is the peacekeeper on the Board.”


The motion carried 5-0-0 with Commissioners Harper, Adams, Freedman, Holder, and Holman voting in favor.



Request Approval of a Budget Amendment Regarding the Public Defender’s Office.


WHEREAS, the Henry County Board of Commissioners adopted the Fiscal Year 2004-05 Budget on June 14, 2004; and


WHEREAS, the Public Defenders Budget in the past was used exclusively to pay indigent attorneys for services provided; and


WHEREAS, the State of Georgia has mandated that a Public Defenders Office be operational starting January 1, 2005, for the Superior and Juvenile Courts; and


WHEREAS, the County needs to reallocate the current funds in the Public Defenders Budget to meet the new budget requirements,


NOW, THEREFORE, BE IT RESOLVED the Henry County Board of Commissioners approves the below-listed budget amendment:



            General Fund:               $752,041 from Various Accounts to

                                                $752,041 Various Accounts.



Commissioner Holman made the motion to approve the resolution; Commissioner Adams seconded.


Commissioner Freedman said he did not have any problem in transferring the funds, but there were some differences of opinion on the composition of the Public Defender.  He asked if this has been resolved. 


Mr. Jaugstetter said it had been resolved in Executive Session.  He said the question was how much of the public defense function would be transferred to the essential independent Public Defenders Office, noting the initial decision of the Board was to give all of the indigent defense in the County to the Public Defenders Office.  He further stated when they met with the Public Defender and the State Court Judge, it was determined it would be more efficient and cost effective to allow State Court to continue their current process by appointing one private law firm to handle State Court indigent defense.  The new Public Defender would handle all other indigent defense, which is the Budget Amendment that is in front of the Board now.  Mr. Jaugstetter stated the cost savings would be at least $150,000 up to $300,000 to utilize this method. 


Mr. Magnaghi stated they agreed to follow this path and would review it in six (6) months to determine whether or not it was operating as they thought it would. 


The motion carried 5-0-0 with Commissioners Holman, Adams, Harper, Holder, and Freedman voting in favor.



Request Approval of a Bid Pertaining to the Purchase of Photographic Print Film.


WHEREAS, sealed bids were solicited for the purchase of photographic color print film on a renewable contract basis; and,


WHEREAS, seven (7) vendors submitted bids for this contract, as indicated; and,


WHEREAS, funds for this commodity are allocated in the various departmental budgets; and


WHEREAS, Dixie Sales Company’s bid meets bid specifications and is the lowest bidder.


NOW, THEREFORE, BE IT RESOLVED, the Henry County Board of Commissioners awards the contract for the purchase of photographic print film to Dixie Sales Company; award shall be as a unit/price contract with no fixed quantities; prices shall remain fixed for the contract period; materials will be ordered as required by the department(s).  The Chairman shall be authorized to sign all documents necessary to accomplish this purchase.


Commissioner Holman made the motion to approve the resolution; Commissioner Harper seconded. 


Commissioner Freedman asked if the County has gone digital.


Mr. Tommy Smith, Interim Purchasing Director, said it was his understanding the County is slowly but surely moving to digital. 


Commissioner Holman stated some of the archiving is preferable on film, especially the Polaroid used on a crime scene. 


The motion carried 5-0-0 with Commissioners Holman, Harper, Adams, Freedman, and Holder voting in favor. 



Request Approval of a Resolution Pertaining to a Lease/Purchase of Vehicles for Fleet Services.


WHEREAS, Henry County Board of Commissioners (“Lessee”) has entered into a Master Equipment Lease (the “Master Equipment Lease”) dated as of October 16, 2003, with Association County Commissioners of Georgia, for the leasing from time to time of certain property pursuant to Lease Addenda;




1.      The Chairman of Lessee is hereby authorized and directed to execute and deliver a Lease Addendum pursuant to the Master Equipment Lease to put into effect one or more leases for a fleet of patrol vehicles (the “Equipment”); said officer of Lessee is authorized and directed in the name and on behalf of Lessee to execute and deliver (i) one or more Lease Addenda for items of the Equipment in substantially the form attached to the Master Equipment Lease, with such changes and additions as may be approved by said officer, and (ii) such other documents as may be deemed by such officer to be necessary or desirable to effect the purposes hereof or of the Master Equipment Lease, and such execution shall constitute conclusive evidence that the executed document has been authorized and approved hereby; the aforesaid officer is further authorized to do all things necessary or appropriate to effectuate the purposes hereof.


2.      An appropriation in Lessee’s current operating budget has previously been made in the amount of $702,043.08, which shall be sufficient to pay the “Rents” during the “Commencement Term” under such Lease Addenda; or


(   check box if applicable) an appropriation from un-appropriated and unreserved funds in the Lessee’s current operating budget is hereby made in the amount of $702,043.08 for the “Rents” during the “Commencement Term” under such Lease Addenda, and the budget of Lessee is hereby amended to reflect such appropriation to the extent necessary.





The lease or leases contemplated by the said Lease Addenda are hereby designated “Qualified Tax-Exempt Obligations” within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended, and said officer shall be authorized to confirm such designation by execution of appropriate documents in connection therewith.  (This paragraph 3 is not applicable and the Lease will be a Non-Bank Qualified Lease if the following box is checked:          )


4.   This authorization shall be effective immediately. 



Commissioner Holman made the motion to approve the resolution for discussion; Commissioner Holder seconded. 


Commissioner Holman asked staff to strike the language that is not applicable; Mr. Mike Bush, Finance Director, said the second paragraph of #2 should be stricken from the resolution, and the box in #3 should be checked because it is a Non-Bank Qualified Lease.  Commissioner Holman said, “let the record reflect in #2 the box will not be checked and is not applicable, but in #3, the box will be checked.” 


Mr. Magnaghi said the agreement needs to be modified; this was a follow-up to a resolution that was passed some time ago when the County Manager requested feasibility of Purchasing under a lease/purchase agreement for $4,000,000 worth of equipment.  He said, “the paperwork was prepared based upon that recommendation; after reviewing the request, rather than ask for $4,000,000, would ask for $3,000,000.  After researching the list of equipment to be replaced, one document shows approximately $2.2 million of vehicles that are 150,000 miles or more or their maintenance records indicate they are a high maintenance cost item; going back through that, and also replacing some fire apparatus, some DOT equipment, ten (10) vehicles for the Sheriff’s Office, and replacing the natural gas cars.  The reason we are replacing those is because currently it costs the County $1,000 a month just for the pumping mechanism to maintain these vehicles.  He said they have limited use and will be phased out.  Mr. Magnaghi thought the County could purchase and replace the vehicles necessary under this budget for $3,000,000 as opposed to $4,000,000; that would reduce the debt service about $350,000 a year. 


The motion carried 5-0-0 with Commissioners Harper, Holder, Freedman, Adams, and Holman voting in favor.





Emergency SPLOST Items – Mt. Carmel Park.


Mr. Magnaghi said this is an issue brought to our attention because time is of the essence; he said this agreement needs to be put in place to be able to finish the park.  He stated the people who were operating the park were going to purchase the lights, and rather than having a long-term agreement, discussions were held and it was determined the County would install the lights, or be a part of putting the lights in.  Mr. Magnaghi said this agreement would allow the County to move forward with an understanding with the individuals who operate the park.   He said this group had already ordered the lights, but the County will compensate them for the purchase and will take over and control the operation of the park.   He said the County should move forward and get those lights in and complete some of the other things under construction to finish the park and finalize this agreement.


Chairman Maddox asked if this pertained to just the Soccer portion of the park or the park itself.


Commissioner Freedman said it pertains to the Soccer portion.  He said we can either allow them to pay the $230,000, but the County has to give them exclusive use of those fields, and the previous County Manager had a problem with that, saying one association should not control the parks fields.  He said the alternative was for them to pay the $230,000 (which they agreed to do), but they have that control. 


Mr. Magnaghi said the lights were ordered by this group and is an obligation to them at the present.  He said for the County to step in, we would have to look at following the Purchasing procedures that could prohibit the County from Purchasing the lights. 


Commissioner Freedman said the Soccer Association has always been good about helping; they have paid for the irrigation system, the well, and lines to run the well water to the fields.  He said they agreed to pay $230,000 for the lights, so the County has to give them credit. 


Chairman Maddox thought it would be a good idea for someone to look at designating the park as a Soccer Field Park for Henry County and take the use of the land across the street for other functions benefiting the County Administration Building and the County as a whole. 


Commissioner Holder said, “any time improvements are done on someone’s property, the underlying or the real property is the one who controls it; so we are ‘letting the tail wag the dog.’  The County owns the property, and no one should get to the position that they have total control of a County-owned park.”


Commissioner Freedman said the Soccer Association had the opportunity to receive a grant from the U.S. Soccer Association; they could not receive the grant unless they had a lease on the property.  He said we have a dire need for soccer fields in Henry County.


Mr. Roy Clack, SPLOST Project Manager, said there is money in SPLOST I and SPLOST II that could be used to purchase the lighting.  SPLOST I, Account #4102201 has $281,328 remaining as of this morning that could be used for the lighting, and in SPLOST II, Account #4320150, the balance is $224,455 which is capital money (left over money from concession stands and restrooms at Mt. Carmel Park).  Also SPLOST II Account #4410150, park improvements, has $185,994 as the balance.  He said either one or a combination of the three accounts could be used to fund the lighting.  Commissioner Harper suggested using accounts from SPLOST I to empty and close the accounts. 


The Agreement reads as follows:


This AGREEMENT is made and entered into this 6th day of December, 2004, by and between HENRY COUNTY, GEORGIA (the “County”) and the HENRY COUNTY SOCCER ASSOCIATION (the “Association”).


WHEREAS, the provision of recreational service to its citizens is an essential function of a local government;


WHEREAS, the Association provides recreational services, in the form of youth and adult soccer programs, on behalf of the County and for the benefit of the citizens of Henry County;


WHEREAS, by providing such services, the Association provides a real and substantial service to the County;


WHEREAS, the County has constructed soccer facilities at North Mount Carmel Park (the “Park”);


WHEREAS, the Association has installed lighting facilities on the soccer fields at the Park to serve the citizens who utilize such park and to improve the Park for the benefit of the County and its citizens;


NOW, THEREFORE, for and in consideration of (i) the continued provision of youth and adult soccer programs on behalf of the County and for the benefit of the citizens of Henry County; and (ii) the installation of lights to serve North Mount Carmel Park, the County and the Association agree as follows:


1.      Payment to the Association.  The County shall pay to the Association a sum not to exceed $230,000.00.


2.      Transfer to County.  The Association does hereby transfer, assign, convey and set over unto the County all ownership rights in the lighting facilities installed at the Park and all rights under any and all warranties, guaranties, and service agreements held by the Association with respect to the lighting facilities.



Commissioner Freedman made the motion to approve the agreement wherein the County will reimburse the Soccer Association $230,000.00 for the lights at the Soccer Complex at N. Mount Carmel Park, and for it to be taken out of SPLOST I; Commissioner Harper seconded.  The motion carried 5-0-0 with Commissioners Freedman, Holder, Harper, Adams, and Holman voting in favor. 





The Georgia Department of Transportation Request Approval of a Right of Entry Regarding Project #BRST-165-1(71) on Turner Church Road.


The Right of Entry reads as follows: 


“We, the undersigned, in order to expedite the construction of Project No. BRST-165-1(71), Henry County, and in consideration of the sum of one dollar ($1.00) to each of us in hand paid, the receipt of which is hereby acknowledged, do hereby grant to the Department of Transportation the right to enter upon the right of way described as Parcel No. 2A and reflected in color on the map and drawing hereto attached, marked Exhibit “A,” for the purpose of completing construction of said project.  This document in no way affects future negotiations between the Department of Transportation and the property owner and/or the property owner’s legal rights to receive payment of compensation.”


Mr. Jaugstetter said the County is going to repair the curve on Hwy. 155 North where it crosses Walnut Creek, noting to do that, they will shift Hwy. 155 over.  Over a year ago, the County abandoned the old Turner Church Road; he said we hold title to that portion of Turner Church Road, and this will give the DOT the right on the County’s property to make this shift. 


Chairman Maddox asked about the remaining portion of the ‘old’ road. 


Mr. Jaugstetter said the County will have to decide what to do with it at some point.  The County abandoned the right-of-way, but the County has to convey title to it. 


Chairman Maddox asked, “backing up to beyond that subdivision, where the entrance to the subdivision is located, is the State going to do that or is it going to be required by the developer?”


In Mr. Jaugstetter’s opinion, they built their improvements far enough back, that Hwy. 155 will not impact the subdivision. 


Chairman Maddox said, “the egress going in, if they move the road over, it’s going to take over what he’s got there now, is it not?”


Mr. Jaugstetter stated, “I don’t think they are moving it over to that point; it is going in the curve.”


Commissioner Harper made the motion to approve the Right of Entry; Commissioner Holman seconded.  The motion carried 5-0-0 with Commissioners Harper, Holman, Freedman, Holder, and Adams voting in favor.





Commissioner Holman said he had the November 15th and 16th Board of Commissioners’ Minutes, and he asked the County Clerk, Ms. Susan B. Craig, if these were the only two (2) to be adopted; Ms. Craig confirmed. 





12/20/04          Monday           9:00 a.m.          Regular Board of Commissioners Meeting


12/21/04          Tuesday           6:30 p.m.          Regular Board of Commissioners Meeting


12/23/04          Thursday                                  All County Offices will close at 12:00 noon.


12/24/04 and 12/27/04                         All County Offices will be closed in

                                                                        Observance of the Christmas Holiday


12/31/04                                                          All County Offices will be closed in

                                                                        Observance of New Year’s Day



Commissioner Holder made the motion to adjourn into Executive Session, in accordance with the provisions of O.C.G.A. 50-14-3, and other applicable laws, and pursuant to advice by Patrick Jaugstetter, the County Attorney, for the purposes of discussing the acquisition of real estate, pending and/or potential litigation, and personnel matters; Commissioner Holman seconded.  The motion carried 5-0-0 with Commissioners Holder, Holman, Harper, Freedman, and Adams voting in favor.


                                    (An Executive Session was held.)



Commissioner Holman made the motion to reconvene into Public Session; Commissioner Harper seconded.  The motion carried 4-0-0 with Chairman Maddox, Commissioners Holman, Harper, and Adams voting in favor.  (Commissioners Holder and Freedman were not present for the vote.)


Commissioner Holman made the motion to authorize the Chairman to execute the affidavit of Executive Session; Commissioner Adams seconded.  The motion carried 4-0-0 with Chairman Maddox, Commissioners Holman, Harper, and Adams voting in favor.  (Commissioners Holder and Freedman were not present for the vote.)


Commissioner Adams made the motion to adjourn at 10:56 a.m.; Commissioner Holman seconded.  The motion carried 5-0-0 with Chairman Maddox, Commissioners Adams, Holman, Holder, and Harper voting in favor.


                                                            Leland Maddox, Chairman


Peggy L. Malcolm, Deputy County Clerk