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Snellville's Mayor Kautz Served with Ante Litem Notice Over Alleged Civil Rights Violation

Mayor Kelly Kautz is accused of violating Marilyn Swinney's First Amendment rights during a July council meeting.

A Snellville woman is threatening to sue Mayor Kelly Kautz and the City of Snellville because she says her civil rights were violated during a July City Council meeting. They have been served with an ante litem notice for "restrictions placed on [Marilyn Swinney's] speech."

"I really feel like this had to be done," Swinney, a Snellville resident, told Snellville Patch. "And I said from the beginning that we’ll let the judge decide."

A lawsuit has not yet been filed, but could be if a settlement is not reached.

Swinney, at her attorney's recommendation, will accept a $13,000 settlement in lieu of going to court. They are alleging that Swinney's civil rights were violated when the mayor cut her off during the public comments portion of the council meeting.

Swinney is being represented by the Counts Law Group, based in Atlanta.

"Ms. Swinney’s speech was cut off early on explicitly because of the content of the items she sought to discuss [the Mayor’s recent Mayors Report]," according to Swinney's attorney, Cynthia Counts. "Mayor Kautz’s move to silence Ms. Swinney violates both the United States and Georgia Constitutions."

From the official ante litem notice:

"In declaring Ms. Swinney “out of order,” and unilaterally ordering that the microphone be cut off, Mayor Kautz violated the procedure for decorum issues in sec. 2-53(3), which clearly  provides that once the chair rules that an individual is “out of order,” “[a] majority vote of the city council will rule on the point of order.”

"Instead, Mayor Kautz unilaterally ordered that Ms. Swinney’s comments be truncated, with no vote on the propriety of her arbitrary ruling that Ms. Swinney was 'out of order.'"

Snellville Patch previously reported that at the time set aside for public comments, Swinney planned on saying she was surprised at the mayor's report.

"And that was as far as I got," Swinney said.

Her plan, she said, was to question the mayor's assertion that she did not believe in the council.  Swinney wanted to cite specific examples of successes the council has had: the Farmers' Market, Snellville Tourism and Trade, the community garden, and a successful fundraiser for Aimee Copeland. 

The most recent citizen survey was the latest in a string of positive things, according to Swinney.

"I never got to say any of that," she said.

Instead, she said she was so flustered and embarrassed, she barely remembers what she said.

"I felt intimidated," she said.  "I felt humiliated.  I wanted the ground to swallow me up."

 Mayor Kautz said that when Swinney came to the podium, Kautz "knew where it was going."

"I asked for the mike to be turned off so that she would listen to me," Kautz said.  "I reminded her of our personal decorum policy, and then had the mike turned back on."

This can be seen in the video above.

Specifically, Ms. Swinney intends to file suit alleging violations of her First Amendment Rights under the United States Constitution, violations of her rights under the Constitution of the State of Georgia, and violations of Georgia State law, including, but not limited to, intentional infliction of emotional distress.

"We believe this demand is more than fair, and is consistent with prior settlements our firms have reached in cases specifically involving restrictions on speech at government meetings," wrote Counts, Swinney's attorney. "For instance, the undersigned counsel recently resolved a similar case in Smyrna where an individual was prevented from speaking and detained for several hours by police authorities. After filing federal civil rights litigation, the lawsuit eventually settled for $85,000. Because of the patently unconstitutional acts of Mayor Kautz and the City of Snellville, liability in this matter is clear."

, wrote on its website this afternoon that "Kautz’s disturbing history of abusing the power of her office will be costing taxpayers some money in the future and probably has in the past. We don’t think that should be allowed to happen without consequences. Kautz should be held accountable for her gross violations of the public trust."

City Attorney Tony Powell could not be reached immediately for comment.

Snellville Patch will continue to update you with this story as more information is available.

Dave Emanuel November 02, 2012 at 03:22 PM
I fully agree with MWTW that the politicians should should keep the bickering behind closed doors. I'm one of those politicians, and I have a question. How do we do that? By state law, all work sessions and regular meeting must be open to the public. There are no closed doors, so outbursts are very public. If you review videos of our Council meetings, you will see that this isn't the first time that Ms. Kautz has called someone out of order as a means of preventing them from speaking. I've included a link to a video in which I was called out of order, when I attempted to ask a question at a meeting in January. Recently at a public meeting with the directors of the Evermore CID, Kautz once again used an out of order call as a means of preventing someone from speaking. All of these actions were initiated by Kautz in public meetings, and they were all unnecessary and improper in my estimation. But having been the victim of a "You're Out of Order" call, let's discount my opinion as not being impartial. What do you propose as a means of eliminating public bickering? Should Council members simply refrain from making any comments that might upset Kautz? Should we put the desire to eliminate public bickering ahead of serving what we feel are the best interests of our citizens? I'm not being facetious, I'd honestly like to hear some opinions. Link- http://www.youtube.com/watch?v=pVlWgp9CyRs&feature=relmfu
MWTW November 07, 2012 at 02:46 AM
Dave: No, you should continue to speak your mind and represent your ideas at every meeting. All of the Council Members should. Once the meeting is over, the disagreements should cease and the group should present an air of solidarity; even if none exists. My comments don't necessarily refer to the Council Meetings. They refer to what goes on behind the scenes afterward by "well meaning?' citizens. Example: When Kautz made her gun law's comment, this should have been put aside and buried within a minute. Instead it escalated and "someone" thought it would be a good idea to bring in Georgia Carry. It made national news! My niece in California watched it and had a good laugh. Did Kautz's comment really merit national exposure for our city? No, it shouldn't have, but "someone" thought they'd make a big deal out of it. When those of influence in Snellville start talking, then well meaning citizens start with hate filled comments getting the attention of the media. When Council Members attend meetings with volunteers trying to help the city, the Council Members should not sit with puckered faces and walk out before the meeting is over without speaking to any volunteers. Ms. Swinny is another example of something being publicized that shouldn't be. It is a waste of time and money and is gathering media attention. Yes; I think you should continue to speak your mind but the group should exhibit teamwork to the public once the meetings are over.
Dave Emanuel November 07, 2012 at 05:36 PM
Once again, you've made some good points, but you're essentially stating that private citizens are incapable of, or unwilling to take action on their own. That is not correct. As far as I know, no one on Council initiated any contact with Georgia Carry. That group was largely motivated into action by an article written by attorney Ed Stone (a 2nd Amendment rights activist). for Examiner.com. In fact, the first indication I had that a public backlash was brewing was when a citizen contacted me with a concern. If you recall, I wrote a response to Mr. Stone's article entitled, "Snellville's Proposed Gun Ban, Much Ado About Nothing." The only way minimize or eliminate negative publicity is to eliminate the negative actions that generate it. Thus far, the majority of those actions have been taken by Kautz. The negative publicity resulting from Kautz proposing the possibility of a gun ban, the negative publicity resulting from Kautz calling Ms. Swinney out of order, the negative publicity resulting from Kautz calling Bobby Howard out of order are all a consequence of unilateral actions by Kautz in a public forum, with media in attendance. The bottom line is that none of these actions serve the best interests of our citizens. As a member of the City Council, I believe that it's my job to serve our citizens both during and after meetings. To cut to the chase- I welcome solidarity, but not for self aggrandizement, and not at the expense of our citizens.
MWTW November 08, 2012 at 09:21 PM
Dave: To clarify. I have never insinuated that a Council Member is responsible for any of the "behind the scenes" activity. Others have said that; not me. I have no proof, nor do I believe that any Council Member initiated these occurances. I do believe that there are influencial people within the city contributing to this. These are the ones that I am referring to. You call them private citizens. As I have said, I have a good idea who escalated the Georgia Carry issue and you are right, it was not a Council Member. Thank you for soliciting my thoughts. I am appreciative of your attention. However, if I continue with this discussion and the subject matter, then I will be violating my beliefs that these issues should not be part of a public forum. If you wish to talk in person, I would be happy to meet with you and continue this discussion. If you don't know me by MWTW (I believe you might), you should recognize me should we meet.
Dave Emanuel November 11, 2012 at 05:20 PM
I'm always happy to talk with anyone who has a question or comment about city government. If you'd like to continue the conversation, private message me through Patch, or at my city e-mail address. (I don't want to list it here because it will undoubtedly generate a lot of spam. You can find it on the city web site.

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