IN THE SUPERIOR COURT OF EFFINGHAM COUNTYSTATE OF GEORGIA

ANDREW BRANTLEY, ))

Appellant )) Civil Action No.:

vs. ) SU14CV046W)

SUPERINTENDENT OF )EFFINGHAM COUNTY )BOARD OF ELECTIONS )AND REGISTRATION )

)Appellee )

)and )

)VERA JONES )

)Appellee )

BRIEF OF APPELLANT ANDREW BRANTLEY

COMES NOW, Appellant ANDREW BRANTLEY (“Appellant”) and files this Brief of

Appellant to show the Court the following:

FACTS AND PROCEDURAL HISTORY

1.

On March 14, 2014, the Appellant filed a challenge of the qualifications of Candidate

Vera Jones (“Appellee”), as authorized by O.C.G.A § 21-2-6 challenging that the Appellee is

holding public funds in violation of the statutes and constitution of the State of Georgia.

2.

On April 4, 2014, the Effingham County Board of Elections (“Board”) held a hearing

regarding the Appellant’s challenge. Appellee, through her attorney, filed a Motion to Dismiss,

which was untimely and did not address the issues raised by the Appellant, which were before

the Board. The Board granted the Appellee’s motion to dismiss without considering the

evidence presented in the Appellant’s challenge therefore not requiring the Appellee to prove her

qualifications. In the dismissal of the Appellant’s challenge, the Board provided no findings of

fact, conclusions of law and relied solely on the irrelevant statements provided by the Appellee

Jones’ attorney. In the case of, Haynes v. Wells, 273 Ga. 106 (Ga. 2000), the Supreme Court of

Georgia held that after a candidate has filed an affidavit attesting to their qualifications, the

“entire burden is placed” upon a Candidate to “affirmatively establish his eligibility for

office.” By pre-emptively dismissing the Appellant’s challenge pursuant to a motion to dismiss

filed less than one (1) day prior to the hearing, the Board displayed an unwarranted exercise of

discretion as described in O.C.G.A. § 21-2-6(e)(6). Appellant timely objected to the filing of

the motion as reflected in the record before this Court.

3.

The Appellant’s challenge addressed the issuance of a check for $739,844.86 issued in

error by Effingham County Finance Department, the demand by the County for the return of the

money and the refusal/failure of the Appellee Jones, individually or as a principal stockholder

and officer of her closely held corporation, DM Jones Construction, Inc, to return the monies

paid in error. The facts giving rise to Appellant’s challenge petition were given through various

submissions by Appellant, submitted during the hearing, but not reviewed by the Election’s

Board. These facts included the sworn affidavits of seven (7) former Effingham County

Commissioners who were seated when the erroneous overpayment was made. The Appellant’s

challenge relied on O.C.G.A. § 45-2-1(2) which states in part: “Any holder or receiver of public

money of this state or any county thereof who has refused or failed when called upon after

reasonable opportunity to account for and pay over the same to the proper officer shall be

ineligible to hold any civil office;” and the Georgia Constitution, Article II, Section 2, Paragraph

3 which states in part, “No person who is the holder of public funds illegally shall be entitled to

hold any office or appointment of honor or trust in the State.”

The Board had a duty to the citizens of Effingham County to ensure that all candidates

are qualified to hold office and the preemptive dismissal of the Appellant’s challenge based on a

“motion to dismiss” filed by Appellee resulted in the Appellee again avoiding giving any type of

sworn testimony to prove her claims. Additionally, the Board did not consider any of the

evidence submitted from the public record evidencing the claims of the Appellant Brantley. The

record contains all such public records, however, the Board of Elections did not consider those

filings and did not review them during their executive session as all five (5) copies remained on

the desk of the Clerk and were not taken from the hearing room. Thus, the Appellee Jones, has

again, without justification, avoided addressing the alleged disqualifications. Therefore,

Appellee Jones, having failed to address the various points and evidences presented by Appellant

Brantley, leaves the initial concerns as expressed in Appellants challenge, regarding whether or

not the Appellee is qualified to hold office, unanswered.

The Appellant’s challenge presented sufficient evidence to support the following facts:

1) That the Appellee and her company, DM Jones Construction, Inc. were not due any

taxpayer monies as all contracts required (pursuant to the Georgia Development Impact Fee Act

O.C.G.A. § 36-71-1 ) re-payment for any services of any developer to be repaid solely from

impact fees actually paid.

2) That the Appellee sent several writings to the County claiming that the County owed

her company the full payment of $739,844.86 for infrastructure that her company constructed, in

violation of the False Claims Act O.C.G.A. § 23-3-121 and in violation of the Georgia

Development Impact Fee Act O.C.G.A. § 36-71-1 ;

3) The writings that the Appellee sent to the County contained false and misleading

statements that induced the County finance department to erroneously issue the full payment.

4) That Vera Jones, as evidenced by business records of Effingham County, in her own

writing admitted that she was not due the entire claim and was only due the approximate

$150,000.00 in actual impact fees charged;

4.

The Appellee’s close held corporation, DM Jones Construction, Inc. (“DMJ”) contracted

with the county to install wastewater infrastructure that would provide service to two

subdivisions that they were developing. In the contract, DMJ agreed to install infrastructure that

would service 299 lots and the County would reimburse DMJ via impact fees collected from

South Effingham Plantation and Buckingham Plantation.. As of current, only 60 impact fees

have been collected and delivered to Effingham County of the 299 planned lots leaving a max

total of $150,000 in impact fees that DMJ could have collected on to date. Therefore, as of date

of the check, February 14, 2007, Appellee’s closely held corporation has been paid $589,844.86

more than the County had collected. The overage in these monies was paid, pursuant to County

records, by use of tax payer monies for a short term loan to cover the overage. The Appellee and

her closely held corporation continue to hold and refuse to return, these public monies. DM

Jones Construction, Inc., with the advice and consent of Vera Jones, its’ chief officer, voluntarily

chose to construct the applicable infrastructure, having submitted to Effingham County various

unrealistic and unreasonable plans to development of 299 lot subdivision. However, D.M. Jones,

Construction, Inc. failed to develop such lots and fraudulently invoiced the County as if those

lots had been constructed. As of the date of this writing, those lots are still not developed (see

public record – Effingham Tax Assessor – Various lots of Parcel 375-18 and Parcel 375-0051

117 undeveloped acres – Buckingham Plantation). Not only has the Appellee received a gross

overpayment in error, D.M. Jones Construction, Inc. and Appellee Jones, have failed to even

meet the basic terms of any contract with Effingham County and have prevented the County

from generating revenue from those potential customers promised by Appellee Jones and

endangering the financial viability of Effingham County.

5.

Acting in her individual and personal capacity, the Appellee submitted an informal and

extremely unprofessional invoice requesting full payment for work done by DMJ. The invoice,

as documented through business records of Effingham County in the Appellant’s challenge,

consists of four pages of emails in which the Appellee requests full payment because she states

that she paid for the entire project “up front out of our pocket”. The Appellee knew that she was

not entitled to the full amount of payment as reimbursement was required, in conformation with

the Georgia Development Impact Fee Act, only as impact fees were collected. In her handwritten

notes on the emails, the Appellee also acknowledges the approved amount and that it was

coming from the collected impact fees. According to Georgia Law, specifically doctrine of

piercing the corporate veil, Paul v. Destito, 250 Ga. App. 631(2001), the False Claims Act,

O.C.G.A. § 23-3-121 and Effingham County Code of Ordinances Chapter 1, Section 1-20,

officers and directors of a corporation become intertwined to a point that the corporation is a

mere alter ego any of the directors or officers, corporate protection is not valid and the directors

and or officers can be held personally liable for their fraud, abuse, or gross negligence. The

Appellant Brantley contends that the Appellee Jones acted in her individual capacity, to make

and submit false writings and therefore should not be afforded any corporate protection. (Please

see various emails obtained under Open Records Act from Effingham County)

6.

On April 14, 2014, the Board filed their final disposition stating their decision to grant

the Appellee’s Motion to Dismiss and on April 24, 2014, the Appellant filed this Appeal.

STANDARD OF REVIEW

7.

The standard of review is an appellate standard in which the court cannot substitute its

judgment as to the weight of the evidence on question of fact. The Superior Court may affirm the

decision or remand the case for further proceedings, but may reverse or modify the decision if

substantial rights of the appellant have been prejudiced because the findings, inferences,

conclusions, or decisions of the superintendent are:

(1) In violation of the Constitution or laws of this state;

(2) In excess of the statutory authority of the Superintendent;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole

record; or

(6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted

exercise of discretion. O.C.G.A. § 21-2-6(e).

In the absence of legal error, an appellate court lacks jurisdiction to interfere with a

verdict supported by some evidence even when the verdict may be against the preponderance of

the evidence.

ARGUMENT AND CITATION OF AUTHORITY

8.

The Board failed to provide findings of fact and conclusions of law in its final written

decision. The Board is a legislatively created agency authorized to hear contested cases

concerning the qualification of candidates in Effingham County. As such, the Board is required

to make and provide in writing, findings of fact and conclusions of law. Judicial review of an

administrative decision is a two-step process. The steps are as follows; the reviewing court first

determines whether there is sufficient evidence to support the agency’s finding of fact and then,

second, examines the soundness of the agency’s conclusions of law. Handel v. Powell, 670

S.E.2d 62, 65 (2008)

The Board, in its written decision failed to make any findings of fact relating to the

issues. In fact, the Board made no findings of fact whatsoever. Furthermore the Board stated no

conclusions of law whatsoever that formed the basis for its decision. The Board had a duty to

make a determination of facts as alleged by the Challenger and to determine whether the

evidence that was submitted supported those facts. The Challenger submitted evidence that

supported its allegations. Jones submitted no evidence in dispute of the Challengers evidence.

The Board may only make findings of fact based upon evidence that is presented. The Board, in

its written decision, simply stated that the Board made no statement about the existence or lack

thereof of a debt owed by Jones to Effingham County. The Court has the authority to either

remand or reverse the decision of the Board, in whole or in part. The Appellee was fully

appraised of the issues and factual allegations plead by the Appellant in his Petition and in his

pre-hearing memorandum.

The Appellant respectfully requests that the Court determine that based upon the

evidence on record, Vera Jones was a holder of public funds illegally and that Jones, when called

upon by public officials, failed or refused to account for or return the money, or grant any any

other relief that the Courts deems fair and just. There is no evidence on the record to find

otherwise. The Board did not decide otherwise. An appellate court’s duty “is not to review

whether the record supports the decision of the local governing body or administrative agency..

The court is to affirm if any evidence on the record substantiates the agency’s findings of fact

and conclusions of law. The court gives “deference to the factual findings of the agency ... [and]

may reject those findings only if they are clearly erroneous in view of the reliable probative, and

substantial evidence on the whole record; or arbitrary or capricious or characterized by an abuse

of discretion of clearly unwarranted exercise of discretion. Decisions are not reviewed de novo.

Douglas Asphalt Co. v. Georgia Public Service Commission, 589 S.E.2d 292 (Ga. App. 2003).

Based on the evidence as a whole, it would have been clearly erroneous for the Board to

have decided findings of fact otherwise. The Board's failure to make findings of fact constitutes

an unwarranted exercise of discretion.

9.

The court should make conclusions of law the Appellee, as a holder of public funds

illegally is not entitled to hold any office or appointment of honor or trust in the state. Also, the

court should conclude as a matter of a law that jones as a holder or receiver of public money of

this county, who refused or failed when called upon after reasonable opportunity to account for

and pay over the same to the proper officer, shall be ineligible to hold any civil office; and shall

be sufficient reason for vacating any office held by such person.

A plain language read of O.C.G.A. § 45-2-1(2) shows that the disqualification statute

applies to all persons except those persons who commit such acts while holding a commission.

The instruction sentence to states “ The following persons are ineligible to hold any civil office;

and the existence of any of the following facts shall be a sufficient reason for vacating any office

held by such person; but the acts of such person, while holding a commission, shall be valid as

the acts of an officer de facto, namely:

(2) All holders or receivers of public money of this state or any county thereof who have

refused or failed when called upon after reasonable opportunity to account for and pay over the

same to the proper officer;

The first sentence of this statute makes a bright line distinction between persons who

commit the acts specified in 45-2-1 (2) in the course of their duties and a public official and all

other persons who commit the acts. The statute clearly states that ineligibility to hold office shall

not apply to persons who have committed the acts in the performance of their official duties.

However, the statue also states plainly that if the existence of any acts are committed by any

other person, not included in the exclusion group, that person is not eligible to hold office. The

plain language meaning of a holder of money that is used by the legislature is defined in the

Georgia Uniform Commercial Code, article 3. A holder is a person who has obtained or received

possession of property or financial instruments, but does not own legal title to the financial

property. The argument of the Appellee purports that the Court should make a conclusion of

law, directly opposite to that which the plain language of the statute requires. This argument

should be rejected where a plain language read of the statute requires an opposite conclusion. In

support of its position, the Appellee relies only on the hearsay opinions of Cathy Cox, a former

secretary of state and that the hearsay statements of Attorney Cole, counsel to the Board. Mr.

Cole's hearsay statement is based upon a hearsay statement he made about a discussion that he

had with a member of the state Attorney General's office.

Both hearsay opinion statements are not allowed as evidence under Georgia laws.

Hearsay evidence, when objected to by the other party, is not allowed as evidence and

furthermore is unlawful in the state of Georgia. The Appellant made a timely objection to the

hearsay evidence on the day prior to the hearing when it first received a copy of the motion to

dismiss. Opinion testimony is not allowed as evidence unless the proponent meets the

requirements set forth in the rules of civil procedure. Finally, even if the hearsay opinion

statements could pass those hurdles to admissibility, the opinions are nothing more than personal

opinions. There is no citation of law, or reference to appellate authority. There is no reference

whatsoever that would qualify these statements as acceptable expert opinions.

Based on the foregoing Appellant respectfully request that the Court rule that the Board,

based upon the record, should have concluded as a matter of law that, Appellee, Vera Jones was

a holder of public funds, that the County officials demanded that she return the funds, that the

Appellee refused or failed to return or account for the public money and therefore, Vera Jones is

ineligible to hold civil office as a matter of law under OCGA § 45-2-1 (2).

10.

The Board allowed the Appellee's motion to dismiss to be submitted the evening before

the scheduled challenge hearing. The Board heard the Appellee's motion at the hearing and rules

in favor of the motion. The Board had not promulgated any of its own rules of procedure. The

Georgia Administrative Procedure Act does not provide a rule for the submission of motions to

dismiss. Therefore, the Board must next go to the GA rules of Civil Procedure which provide for

a ten day notice to the non-moving party. The Boards decision violated the Appellant's rights to

procedural due process under the fourteenth amendment to the United States Constitution. The

Board exceeded its authority and it acted upon unlawful procedure in allowing this motion to be

heard on that date. Therefore, the Appellant requests that the Court reverse the ruling of the

Board allowing the Appellee’s motion to dismiss.

11.

Assuming, arguendo, that the Board based its decision to allow the Appellee's motion to

dismiss based upon the Appellee's argument that the money was paid to a corporation, then the

Board committed Error. The facts did show that the Vera Jones submitted the false writings and

claim to the County, which caused the County to erroneously send a check to Vera Jones

company D.M. Jones Construction, Inc. However this fact does not in and of itself provide any

complete immunity for Jones, not does it exempt her from the statute. In order to form a decision

as to whether Vera Jones had individual liability would require the Board to allow the parties to

introduce and examine witnesses. The Board refused to allow the parties to examine, or cross

examine any witnesses. There are several legal theories that could and would hold prevent Jones

from attempting to use the corporation as a defensive shield. For example, Jones and the

corporation could be found to be co-conspirators or co-tortfeasors. Further, under O.C.G.A § 23-

3-120 et seq, the Taxpayer False claims act, directors and officers have direct liability for acts

such as those in this matter. Where the County received federal funding at that time, the Federal

False Claims act would also apply and Jones would not be shielded from liability.

CONCLUSION

Appellee Vera Jones has held public monies of Effingham County now for more than 7 years.

Although demand has been made for repayment, Appellee Vera Jones has refused to repay any

monies. Her excuses are varied and imaginative, but none of her excuses, defenses, or

statements address the crux of this issue, ie: money was paid to DM Jones Construction, Inc. in

error, the amount of money is significant, demand was made to repay the money, DM Jones

Construction, Inc. and Vera Jones, as the instigator, have refused to repay the monies to

Effingham County, and as such Vera Jones is disqualified from running for public office under

the present laws and constitution of the State of Georgia. Although Appellant Brantley has

brought forward much evidence, the Court nor the Elections Board should place that burden on

him. The burden for proving her qualifications rests solely on Vera Jones who has yet to give

any testimony or appear in Court to answer to any of these charges. Mr. Brantley accepts and

relies on the public record that the County has taken no action to forgive or otherwise discharge

the monies due to be returned by Appellant Vera Jones although Ms. Jones has had more than 6

years (3.5 as Commissioner) to clear up this issue, that no opinion of any qualified attorney

knowledgeable of all facts has stated that Appellant Vera Jones received the monies legally, and

that, to this date, Appellant Vera Jones has yet to give a sworn statement as to the monies being

paid in error.

Appellant Mr. Brantley has shown that there is more than enough evidence to have Vera

Jones, Appellant, disqualified. The fact that Ms. Jones relied on a motion to dismiss in light of

the challenges and overwhelming public evidence provided by Mr. Brantley instead of proving

her qualifications as required by law, points to a person who is concerned to give a sworn

statement, be cross examined, and someone who has sought to use the Voter Election Board and

the Citizenry of Effingham County to further cover her bad acts.

Respectfully submitted, this ____ day of May, 2014.

______________________________ Warren E. Ratchford State Bar No. 595127Richard R. RafterState Bar No. 591860

Attorneys for Appellant1575 Highway 21 SSpringfield, GA 31329912-754-7800

801 N. Oak StreetPost Office Box 176Springfield GA 31329912 754 7200