IN THE SUPERIOR COURT OF FORSYTH COUNTY0 INTHISc:fl'l~""''OJ STATE OF GEORGIA VERIFIED COMPLAINT

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1 ~P.<MnYGfOfm, IN THE SUPERIOR COURT OF FORSYTH COUNTY0 INTHISc:fl'l~""''OJ STATE OF GEORGIA CT 12 ZOU NYDIA TISDALE, Plaintiff, v. CITY OF CUMMING, GEORGIA, Defendant ~~, " CIVIL ACTION FILENO. r~cv' -,J.,:l..,:l..g VERIFIED COMPLAINT Pursuant to the Georgia Open Meetings Act, O.e.G.A et. seq., and Georgia Constitution, Plaintiff files this Complaint seeking to invalidate an illegal real estate transaction concerning the Pilgrim Ridge Subdivision that was entered into by the City of Cumming prior to any approval in an Open Meeting by the Cumming City Council. All actions in violation of the Open Meetings Act and City Charter are ultra vires, null and void. PARTIES 1. Plaintiff, Nydia Tisdale is a citizen of the State of Georgia and concerned citizen seeking to have the City of Cumming honor and abide by the Georgia Open Meetings Act and Georgia Constitution. 2. Defendant, City of Cumming, Georgia is a municipal corporation and an "agency" subject to the Georgia Open Meetings Act. The authority of the City

2 of Cumming is set out in its Charter as approved by the Georgia General Assembly. JURISDICTION AND VENUE 3. Defendant is subject to the jurisdiction of this Court pursuant to O.CG.A Jurisdiction is also had under Ga. Const. (1983, Art. IX, Sec. II, Par. II; O.CG.A etseq. See Koehlerv. Massell, 229 Ga. 359, (1972 ("Municipalities are creatures of the legislature. They possess only such powers as are expressly delegated to them by the legislature. They possess no inherent powers.". Venue is proper in Forsyth County. STATEMENT OF FACTS/CLAIMS 4. On April 17, 2012, the Cumming City Council held a public meeting the agenda and subsequently drafted minutes for which are attached hereto as Exhibit A ("Utility Department land purchase" Item IV-B. The real estate transaction concerning the Pilgrim Ridge Subdivision was set on the agenda for consideration in accordance with the Cumming City Charter. Approval required a majority vote on the matter by a quorum of the Cumming City Council. See Cumming City Charter, Part 1, 2, 3, 10, 19, 20 (Section 10 "Council shall exercise its powers only in public meetings.". 5. On information and belief, the Cumming City Council had previously violated the Open Meetings Act by failing to comply with the Executive 2

3 Session requirements at a prior meeting concerning this transaction. " See O.e.G.A (b(1(executivesessionallowed for real estate transactions, but action "shall [not] be binding on an agency until a subsequent vote is taken in an open meeting where the identity of the property and the terms of the acquisition, disposal, or lease are disclosed before the vote". 6. At the April 17, 2012 meeting, the Cumming City Council approved certain real estate transactions concerning the Pilgrim Ridge Subdivision. Exhibit A (Minutes Meeting April 17, A video of the meeting is at: with time stamp=42:10 "Utility Department land purchase." 7. The April 17, 2012 meeting and approval of the Pilgrim Ridge Subdivision was in clear violation of the Georgia Open Meetings Act and Georgia law because the City of Cumming had previously executed and entered into agreements and deeds regarding the Pilgrim Ridge Subdivision. See H.G. Brown Family Ltd. v. Villa Rica, 278 Ga. 819 (2005 (contract null and void if entered into prior to City Council approval in public meeting under Open Meetings Act. As the Court explained: The undisputed facts, as discussed above, show that the contract between the Partnership and the City was neither drafted by nor submitted to the city attorney before authorization from the council was sought; was notapproved by a quorum of the council; and was not 3

4 authorized by the council before beingsigned by the Mayor. Moreover, the contract was not considered by the council in conjunction with an openpublic meeting, as required by the Georgia Code... Itfollows that the City entered the contract in derogation of its limited grant of authority; in other words, the City acted "beyond the power or competence of the local government." Therefore, wehave no choice but to conclude that the contract is ultra vires, null and void. Id. at The Pilgrim Ridge Subdivision transactions acted upon prior to the meeting approving those transactions are ultra vires, invalid, null and void. O.e.G.A (b(2 (" Any resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as required by this chapter shall not be binding.". 9. The following transactions and deeds are ultra vires, null and void, because of the actions of the Cumming City Council in violation of the OpenMeetings Act and Georgia Constitution and law: Limited Warranty Deed Dated April 16, 2012 (Ex B Release Dated April 16, 2012 (Ex C Quitclaim Deed April 16, 2012 (Ex D PRAYERS FOR RELIEF WHEREFORE, Plaintiffs pray that this Court: (a Issue an injunction declaring all actions identified herein of the City of Cumming prior to approval by the Cumming City Council ultra vires, null 4

5 and void and enjoining these transactions; (b Impose civil penalties for each violation of the Open Meetings Act as provided in the Open Meetings Act, O.CG.A ; (c Award Plaintiff's reasonable attorneys' fees and expenses as provided in O.CGA (b and Georgia law; and (d Grant such other and further relief as to which Plaintiff may be entitled. DATED: THIS THE ~AY OF (; (i'i!.ef2012. Law Offices of Gerry Weber, LLC Post Office Box 5391 Atlanta, Georgia ( /( Attorneys for Plaintiff Respectfully submitted, v/1 Gerald Weber (Georgia Bar No.: