On March 23, Atlanta lawyer Alex Joseph released an updated memorandum challenging the legality of the ground lease agreement between the Atlanta Police Department (APD) and the City of Atlanta. On Sept. 8, 2021, the Atlanta City Council authorized the lease, which permitted 381 forested acres of land to the Atlanta Police Foundation (APF) for the construction of a $90 million militarized police training facility.
The memo, originally released on March 10, summarizes the incentives for terminating the lease, establishes the grounds by which the contract should be rendered illegal and void, and sets forth the precedent of assured powers granted to the Atlanta City Council and the mayor to do so with minimal negative repercussion.
“Some issues are very complex,” Joseph stated, “but the thing about this lease is that it’s not complex. You do not need a legal background to understand it. Four different councilmembers said there are no options, [which] was not the truth. It’s particularly egregious because they know better. They know organizing can’t happen if you don’t even understand the playing field.”
The stipulations of the lease, as noted by Joseph, are extremely favorable to the city. The lease lacks a penalty section for termination or default. While it requires a prior notification of 180 days to be made to the APF, the contract can be canceled by the State of Georgia with or without cause at any time. In such instance, the APF is likely dis-incentivized from pursuing legal action against the City of Atlanta, as its constituency relies on the support provided by the city to the APD.
“Right now,” Joseph said, “Atlanta Police Foundation would actually have no grounds to sue, period.”
The expected funding for the project is to be sourced through philanthropic and corporate donations to the APF, while $32 million would be committed by the city over the course of 30 years, starting in late 2024. However, the mounting cost of responding to ongoing protests against the facility’s construction may galvanize a financially sounder alternative: immediately terminating the project.
According to the memo, the legal grounds to void the lease are as follows:
(1) Lease impermissibly binds future administrations. The term of the lease is fifty years. The memo cites Aven v Steiner Cancer Hospital, a case in which the proposed agreement was rendered illegal and void on the grounds that it would bind for 35 years. The court’s ruling cited a state statute that, “One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.”
(2) Failure to abide by fair market rental value and competitive bid requirements. The Atlanta City Council leased the proposed site location to the Atlanta Police Foundation for $10 a year. In violation of city ordinance, the city failed to appraise the fair market rental value of the proposed site location and failed to solicit competitive bids from potential occupants.
(3) Municipal parks cannot be leased for private gain. Citing Harper v. City Council of Augusta, “Georgia courts have held that a municipal park is a public utility…”
Signatories to the lease, including Mayor Andre Dickens, have gone on record stating that they were advised by city attorneys that they do not have the grounds to cancel the contract. Dickens was one of the 10 council members that voted to authorized the lease in September 2021.
“It has become increasingly clear to me,” said Joseph, “that council members do not understand their power and authority here. This is a contract, this is an agreement that got a ton of attention. The council should know if they have the power to terminate a lease. And it seems to me like they do not know the answer to those, frankly, very, very basic questions.”
The memo argues that the power to terminate the lease lies fundamentally within the purview of the mayor, citing Section 3-104.10 and 2-176 of the City of Atlanta Charter. The mayor is granted the power to enter into and terminate city business contracts on the city’s behalf. While the city council would have to pass a resolution in order to cancel the lease, Mayor Dickens need simply provide a written notice to APF.
Per Joseph, “If you look at the ordinance that was used to pass this specific lease, the ordinance says that the mayor is standing in for the city. When you go to the provision 1.3, it says the leaseee, the city, can break the lease with a without cause, as long as they give it a note. There is basically no length to stand on that it’s not the mayor. The mayor can certainly end this agreement period.”
The memo provides an extremely relevant example: in 2018, the Executive Order to end a legal agreement with ICE was issued by Dickens’ predecessor, Keisha Lance Bottoms. The agreement required ICE detainees be housed in the City of Atlanta Detention Center and facilitated the separation of immigrant children from their parents under the Trump Administration. Mayor Bottoms stated, “As we work as a nation to end this despicable immigration policy, the City of Atlanta will not take the risk of being complicit in the separation of families at the border. Thus, I have signed an Executive Order that prohibits the City jail from accepting any new ICE detainees.”
As it currently stands, Dickens appears to be digging his heels in on Cop City. During a recent interview addressing the memo, Mayor Dickens reiterated his support for the lease, but put the onus of its authorization on the citizens of Atlanta. “I voted for the public safety training center and still won an election of Atlanta by 64 percent,” Dickens said. “So to be clear; the people knew that I was for this Public Safety Training Center [and] allowed me to be their mayor.”
Earlier this month, Dickens recently announced the formation of a South River Forest and Atlanta Public Safety Training Center Community Task Force. Community members expressed transparency concerns about the task force’s vague list of subjects to address, the process by which each subject will be delegated, and whether or not task force meetings will be open and accessible to the public.
“If you tell the citizens of your city that there is nothing to be done about the lease,” said Joseph. “That there’s no piece of legislation that can be brought…no simple vote…no simple remedy. If you eliminate those options from the table, then of course the people will respond with extreme behavior. Of course, they protest. Of course, they use their bodies to stop the destruction of the forest. Because they’ve been told that there is no reason to make phone calls, that all the legislative channels that would normally be open to them are closed.”
The memo notes that DeKalb County administration is not signatory to the lease agreement and therefore has no say on the progression of the project beyond the permitting process. However, ethics complaints against DeKalb County Michael L. Thurmond can be filed by DeKalb County citizens on bases of lack of representation, lack of transparency, and unchecked development of the proposed site location.
Joseph plans to periodically update the memo to provide relevant legal documentation and civic advice for interested parties.
