Godwin, who is challenging Pearlberg in the Nov. 3 election for the Ward 4 seat on the City Council, filed the complaint Sept. 10. He alleges there is a conflict of interest with Pearlberg serving as city councilman while working as deputy chief assistant district attorney in the Cobb Judicial Circuit.
Godwin says he will likely appeal the decision to the Cobb Superior Court.
An order released Wednesday afternoon signed by the four Board of Election members states: "The BOE finds that neither the Constitution nor the laws of this state prevent Pearlberg from qualifying and holding the office of Councilman for Ward 4 of the City of Marietta while employed as an assistant district attorney for Cobb County."
After the four-hour hearing, Pearlberg said, "I'm very pleased and very thankful for it (ruling)."
Attorney Douglas Chalmers, of FSB Legal Counsel of Atlanta, a former partner with McKenna, Long & Aldridge, represented Godwin. Although he did not accuse Pearlberg of wrongdoing, Chalmers said there are numerous possibilities where a conflict could take place with Pearlberg's duel roles.
Pearlberg was first elected councilman in 2005, taking office in 2006. He served as an assistant district attorney from 1983 to 1984, rejoining the office in 1990. He and Jesse Evans both hold the title of deputy chief assistant district attorney in the Cobb Judicial Circuit. District Attorney Pat Head holds the only rank higher in the district attorney's office.
Chalmers said the district attorney's office relies on Marietta police officers in the prosecution of cases and a conflict exists in that Pearlberg votes on the city's budget, which allocates salaries for those police officers. Moreover, the district attorney is required to prosecute any criminal actions city employees and elected officials may engage in, meaning there was the potential that Pearlberg could end up investigating himself. Chalmers also revealed how Pearlberg once requested the City Council to approve a special parking space on the Marietta Square for Head, although the request was not granted.
Pearlberg's attorney Tom Cauthorn, a former Cobb Superior Court judge, slashed through the unofficial attorney general's opinions that Godwin used in his attempt to disqualify Pearlberg. One attorney general's opinion states how a state paid assistant district attorney could not also serve as mayor of the city of Comer, which is located about two hours northeast of Atlanta. According to the opinion, there is a conflict of interest because the district attorney's office could exercise "supervision and control" over city of Comer employees, who were also under the supervision and control of the mayor.
Cauthorn said the attorney general misread the common law doctrine pertaining to the conflict of interest in the cited opinion. But even if the opinion was correct, Cauthorn said, it addresses a state paid assistant district attorney, and Pearlberg is paid by the county. Moreover, the differences between the cities of Marietta and Comer are vast. Comer does not have a city manager like Marietta does. Rather, it has a powerful mayor with the power to hire and fire.
Cauthorn cited Marietta's charter: "Except for the purpose of inquiry, the mayor and councilmen shall deal with the administrative service solely through the city manager and neither the mayor nor any councilman shall give orders to any subordinates of the city manager, either publicly or privately."
Cauthorn also dismantled Godwin's argument about Pearlberg having a conflict of interest when it came to validating city bonds. While it's true that Pearlberg votes on issuing bonds as a councilman and Pearlberg's boss, Pat Head, files the bonds for validation, there is no conflict of interest because state code reads that the district attorney "shall" - not "may" - "prepare and file" the bond for validation.
Established case law states that the right to hold office is the rule, while ineligibility to hold office is the exception. Godwin failed to present election law that upholds the exception that Pearlberg is ineligible, Cauthorn argued. The elections board agreed.
The 4-0 decision came after the board discussed the matter behind closed doors for about 40 minutes with its attorney, Gregg Litchfield. Elections board member Patrick Gartland, an east Cobb small business consultant, made the motion, which was seconded by member Rob Garcia of Bank of North Georgia, to deny Godwin's complaint.
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Politicos consider the ruling a defeat for Councilman Philip Goldstein, who many believe lined up Godwin to enter the Ward 4 race, an accusation Goldstein denies.
In an e-mail to Goldstein last week, Mayor Bill Dunaway, who was at Wednesday's hearing, accused Goldstein of helping Godwin remove Pearlberg from office so Godwin could automatically be placed on the council without a contested election.
Godwin has come under criticism from some residents and Cobb Board of Commissioners Chairman Sam Olens for waiting until after the qualifying window closed for the Nov. 3 elections before he filed the complaint against Pearlberg. Now, if Pearlberg is booted from office, Ward 4 voters would only have Godwin to vote for. In other words, Olens said, Godwin is trying to win without an election.
But Godwin's attorney said a complaint may not be filed until after qualifying.
Godwin said he just hired Chalmers Tuesday because every other attorney he tried to retain was afraid of facing alleged repercussions from the district attorney's office. Gov. Sonny Perdue appointed Chalmers to the Georgia Department of Driver Services board, according to the bio on his Web site.
Speaking further on the issue of having only one candidate, Godwin said, "Van didn't have any opposition when he ran. So the people really didn't have a choice then, either. But where were all of these people saying, 'well, we want a choice.' Where were they then? It's only when someone asks one of our top law enforcement officials in this county to follow the law is the issue raised. So I still think in my opinion that Van should do the ethical and the correct thing and that is resign and have his name removed from the ballot."
Politicos say Goldstein wants Godwin on the seven-member council, because it would give him a four-vote majority since members Annette Lewis and Anthony Coleman typically vote with him on issues.
Godwin and Goldstein are considered political allies. Godwin's LLC leases from Goldstein's family the building currently occupied by First Landmark Bank on Atlanta Street by the Square. Godwin in turn subleases the building to First Landmark Bank.
Meantime, Goldstein and Pearlberg have locked horns over the years. In February, Goldstein infuriated Pearlberg's wife, Patti Pearlberg, by asking City Hall staff to determine whether some maple trees the Pearlbergs planted in front of their home were allowed there.
Pearlberg has also in the past accused Goldstein, whose family is one of the largest private landowners around Marietta Square, of being a "slumlord." Pearlberg has said Goldstein faces a conflict of interest between his council duties and his family duties.