5/8/2017 – MOU – City of Dunwoody

Memorandum of Understanding Between the City of Dunwoody and DeKalb County Board of Education

DUNWOODY CITY COUNCIL MEETING
May 8, 2017
6:00 PM – Council Chambers

The following Memorandum of Understanding outlines the procedure for issuance of City of
Dunwoody Certificates of Occupancy for DeKalb County Board of Education buildings.
http://dunwoodyga.gov/index.php?section=government_agendas_and_minutes

[00:00:15]

Memorandum Of Understanding (MOU) between the city of Dunwoody and the DeKalb County Board of Education.

Bill Riley (Dunwoody City Attorney)
School district wanted more language on item four in the memorandum of understanding. this is a memorandum of understanding that clarifies the methodology by which the school board will get certificates of occupancy from the city and outlines the existing law.

If you’ve seen my executive summary, it’s pretty simple. The fire marshal will do the fire safety review and will do the inspections of the fire safety review. The city will do the land disturbance and certify that. The school board will go through a process where they have their own engineering and programming that they will go through an engineer. The engineer will certify the plan process and the execution of the same back to the city. The city will review all that and make sure it’s all in order and will issue certificates of occupancy.

Doug Thompson (City Councilman)
Are we allowed to charge the county for our process of issuing the certificate of occupancy?

Bill Riley
The school board takes the position that they are not required to pay any city or county any funds for the permitting process.  I don’t think that’s one we want to get in the middle of.

[00:02:41]

Doug Thompson
With this MOU, DeKalb would be required through the AE, their engineer, to do the inspection process and certify to us that it is up to our building codes, or the ICC?

Bill Riley
That’s our limited part of it.  You need to go back to the state school board.  State school board has a series of regulations. County school board has to go through the entire process permitting through the state school board befor they ever come to us. They have a series of regulations …

Part one of the guidelines require planning documents be submitted to the facilities service unit of the State Department of Education  for review and approval.  Then the preliminary plans, then a check set of plans, project manuals, and finally final plans and a project manual.

Part two states luminary plans include project plans and specifications, a site plan, floor plans, elevations  and sections, heating ventilation and air conditioner requirements  and construction delivery methods.

Then they go through a programming piece including food service, media, vocation, department of human resources, engineering.  And they also submit their plans to the state fire marshal prior to anything coming to us.

Part of that legislative scheme within the state regulation, requires their engineer to certify all the documents, that all of this is according to code.  Then, and only then, after they have all of these certifications by the state, they have already pre approved it.  Then their regulations say to get whatever local permits are required.

That’s under the state education, the board of education, how they control the county districts.  So, they’ve already done it all once that way.  They’ve already done the state’s scheme has the AE, or the registered engineer, do the same sealing process and guarantee to the state board of education who has already done this same process before it gets to us and that’s their methodology and that’s the same methodology that we’re employing here which is allowed by state law for us also.

Doug Thompson
What standard does the state inspect to?  The ICC?

[00:05:53]

Bill Riley
There is a whole regiment that the DOE places on them.  I believe it requires the state codes.

Doug Thompson
I assume their codes would be the same as our codes.

Bill Riley
This is the wording.  Regulation 160-5-4.16 (http://www.gadoe.org/External-Affairs-and-Policy/State-Board-of-Education/SBOE%20Rules/160-5-4-.16.p…) states further design and renovation of all educational facilities shall be in accordance with all applicable provisions of the latest edition of guidelines available from the Department of Education.

That is the guidelines they must meet.

Regulation 160-5-4.10 (http://www.gadoe.org/External-Affairs-and-Policy/State-Board-of-Education/SBOE%20Rules/160-5-4-.10.p…) The local school system shall obtain approval for all plans and specifications from the department, State Fire Marshal , and Georgia Department of Human Resources or any other state or federal agency as may be applicable.

They must follow their authorization process.  I don’t know what the state school board is, I can only imagine it is the same as the rest of us.  We update ours based on what the state does.  We are required to … they pick whichever edition they want for the electrical code or any other code.  Then we adopt those same codes.

Doug Thompson
So, hypothetically, the Austin elementary school that’s going to be built … the school board’s got to go to the state, get the state sign off, the state fire marshal before they come to us …

Bill Riley
The review that we are requiring by the engineering firm is part of this methodology of review.  They’ve already done it once before.  I’m sure they’ll be using the same people they sent to the state board of education because they have to have all their CO plans with them and it’s all been done and reviewed once.

Then they’ll go through it and do the same thing.  They can’t begin construction until they have gone through the entire process through the state system before they get to us.

Terry Nall (City Councilman)
We have a voluntary MOU before us tonight.  It highlights the gaps in Georgia law about the allocation of enforcement powers.  That’s the key … enforcement powers of one jurisdiction over another.

Public statements of opinion, even hyperbole, have been blogged about and posted on social media about the enforcement power of the city of Dunwoody over another governmental entity.  As with opinions, it’s OK disagree, but lately the public statements have turned into allegations of negligence by the city.  It’s time to clear the air about who has city code enforcement powers over another governmental entity such as the DeKalb County School District.

I have some questions.  Is DeKalb County School District a separate sovereign government entity?

Bill Riley
Yes.

Terry Nall
Other than fire codes and erosion control or land disturbance, is there a Georgia statute that grants the city of Dunwoody with city code enforcement authority over another sovereign government such as the school district?

Bill Riley
No.  In fact, in their rules and regulations 160-5-4.10 (http://www.gadoe.org/External-Affairs-and-Policy/State-Board-of-Education/SBOE%20Rules/160-5-4-.10.p…) All the processes they are required to go under which include the state board of education state fire marshal processes, do they send back to us.

Then their requirements go to us, is only through the state law.  That’s the only reason they have to come to us.  The regulation specifically states that failure to follow the plan approval process designated for the school board shall be a violation of state law.
So, we do not have code enforcement powers over that.  Those violations are state law violations and they would not be code violations for the municipality.

Terry Nall
Who provides fire plan reviews in Dunwoody?

Bill Riley
DeKalb County Fire Department under an IGA.

Terry Nall
Who provides fire code enforcement in Dunwoody?  Who writes the fire citations?

Bill Riley
The DeKalb County fire marshals

Terry Nall
Who provides the fire code inspections in Dunwoody?

Bill Riley
The DeKalb County Fire Marshals

Terry Nall
Is the school district obligated to obtain a Certificate of Occupancy (CO) and if so, which government entity requires it?

Bill Riley
Yes they are required to get a CO.  But, it’s the state board of education that requires them to do that.

Terry Nall
Given that the state board of education requires that the school district to obtain a CO and DeKalb County Fire provides fire plan reviews and fire code enforcement in Dunwoody, is there any other city code enforcement available to Dunwoody?

Bill Riley
No.  But we can enforce land disturbance and erosion control.

Terry Nall
If the school district fails to obtain a CO, which they have done, as required by the state board of education, does the city of Dunwoody have liability exposure on that failure?

Bill Riley
No.

Terry Nall
Do we have enforcement power to make them obtain a CO?

Bill Riley
No.  In fact, the enforcement powers say it’s a state law violation provided within the state board of education rules.

Terry Nall
Does this MOU create any new obligations of the school district or of the city?

Bill Riley
No.

[00:13:35]

Terry Nall
Does the MOU result in the city of Dunwoody abdicating its responsibilities in any way?

Bill Riley
No.  What we have done is memorialized the statutory scheme that has been the outline of state law all along.

Terry Nall
If the school district fails to follow the MOU, does the city have any enforcement capability to make the school district follow the MOU?

Bill Riley
Only to the extent of land disturbance, but not all of these other things that have been talked about.

Terry Nall
An allegation was made by our local county commissioner and local school board representative, that the city of Dunwoody has shirked its responsibilities with respect to the school district.  Are you aware of any shirking or negligence by our staff as it relates to the school district?

Bill Riley
No.  We have authority to issue but authority to enforce.  Whenever the school district comes to us, we have gone as far through the process as they have desired to go.  When they don’t come, we can’t enforce it.  When they come and don’t finish out, we can’t enforce them to finish.  In every instance that we’ve worked through the process, we’ve completed the process.

Terry Nall
The process you described for Doug, where else has this process been used?

Bill Riley
When they built the new school on Ison road in Sandy Springs (Ison Elementary) this is the exact same process that Sandy Springs used with Fulton County School Board.

Terry Nall
In my view, this settles the issue about what we can control.  The questions have been asked and answered.  It mirrors the answers I have received with other attorneys and cities outside of DeKalb.

The MOU spells out the responsibilities of the school district and the city and DeKalb Fire.  Just as it’s been along, it’s up to the school district to follow through as the city is without city code enforcement authority against another government entity.

If we desired a city to have more city code enforcement authority over another government entity, we must ask our state legislators to enact a state statute to provide the cross jurisdiction authority.  We should revisit when we settle our legislative priorities for the next session of the general assembly.

[00:16:46]

Lynn Deutsch (City Councilman)
Has the issue of one government paying fees to another government been litigated?

Bill Riley
I don’t know.  Every school system I have worked with has said they aren’t paying the fees.

Lynn Deutsch
One of the concepts of Georgia Law is that one government can’t give another government something without getting something in exchange.

Bill Riley
There are no gratuities between …

Lynn Deutsch
Mr. Lundsten has said that no COs have been issued by the city since 2009.  He didn’t specify buildings or trailers.  Do we know?  … we don’t know …. both … OK

I’m struggling with, it seems like it is on the school system to get their COs.  Correct?

Bill Riley
Yes

Lynn Deutsch
If I’m going to add on to my house and I do it without getting a permit, if code enforcement catches me, then the city knows.  Otherwise they don’t know and I never get the CO.  It’s almost as if the school system is trying to fly under the radar and is certainly breaking state board rules.  Correct?

Bill Riley
Yes.

Lynn Deutsch
My concern is that this may have been done with intention.  The school system knows they have to get COs.  These are not inexperienced people.  My kids were at Chesnut back in 2009 and couldn’t get in them because there was no CO.  Because they couldn’t get a CO because of one issue or another from DeKalb County, this was pre cityhood.

Somewhere between 2005 and 2009, the school system stopped asking.  Trailers could show up and we may or may not know.  Electrical systems could be replaced and they aren’t coming to the city.  Correct?

Bill Riley
Yes.

Lynn Deutsch
So, if our code enforcement staff is out driving around and they see overnight a PTO has put up a backlit sign.  Do we have any enforcement authority?

Bill Riley
No.  We don’t have any authority of signage on their property.

Lynn Deutsch
When a building is built, I don’t understand how the school system chose to ignore that process.  The fire marshal never came out?

Bill Riley
We don’t know.  We know the fire marshal didn’t write any violations.

Lynn Deutsch
While there can be some debate about our role.  The bigger picture is that this is an utter failure on the part of the school district to do what they know is required.

Do we know that they go to the state board?

Bill Riley
I don’t know.

Lynn Deutsch
The state board has requirements for trailers as well as buildings, right?

Bill Riley
They are manufactured buildings.  There is state law that allows manufactured buildings to be placed on the property with the exception that the cities and counties may regulate that, but they regulate that through a zoning process.

There’s a state law that says you can use manufactured buildings.  There’s a CO if they meet a certain requirement … there’s a piece that’s on that manufactured building that says it’s been built in accordance with all the standards that are required.  That is what would be looked at to see if it had a spec plate on there and that would be the extent that we would do the certificate of occupancy based on that plate.

[00:22:03]

And meeting the fire codes.  And if there was some land disturbance that required permits.  That’s it.

Lynn Deutsch
The school system can come in over the weekend, cut trees down, never tell us they’re going to do it and never file for a CO … and we are pretty powerless from y’alls take to penalize them?

Bill Riley
The power to penalize the school district goes to the state board.  The rules that have been promulgated say that it is a violation of state law.

Lynn Deutsch
If you wanted to, we could file a complaint with the state board tomorrow that DeKalb has all the trailers and no COs.

Bill Riley
You might want to do a Freedom of Information Act to make the determination if they have.

Lynn Deutsch
This is what Fulton is doing

Bill Riley
Yes, that’s what we did at the school where pitts changes to ison.

This is a process allowed by state law.  There a state statute that allows this as a methodology to use.  It mirrors the review process the state board of education does on the same plans.  It’s basically a second review that has already occurred with the state board of education.

Lynn Deutsch
Kevin, I have a question for you.  When a contractor in the normal course of business doing big work, they would normally follow normal operating procedures.  In the normal course of business, the manufactured classroom buildings, the contractor would know they are supposed to seek a permit.

Kevin
Yes

Lynn Deutsch
I circle back to the intention behind all of this.  I think there was intent on behalf of the school system to avoid doing what they were supposed to do.  The argument has gotten framed in such a way that the important point has been lost, that the school system is not doing what they are supposed to do.

Kevin
I agree with Mr. Riley.  For the 9 years I have been with the city of Dunwoody, we’ve been consistent in the way we’ve addressed the issue.  There have been a number of times the school district has come to us and let us know about a project and sometimes give us plans.  In the past we’ve issued review comments, but that’s usually where it stopped.

They’ve chosen to address the issues in different ways.  It’s possible they get their issues addressed at the state.

Lynn Deutsch
So there was a drainage issue at Peachtree MS they chose to ignore on the field.  Have you seen that at other school systems, or do they fix what the local governments ask them to fix?

Kevin
The drainage issue you are referring to, I’m not sure about the jurisdiction to address that.  We can address erosion and sediment control issues.

Lynn Deutsch
If Gwinnett puts in a building in Lawrenceville and the community development staff tells them something, do they usually fix it?

Kevin
Our involvement is typically courtesy.  We have at times asked for things, but they don’t have to address them … such as the trees you mentioned earlier.

[00:26:35]

Lynn Deutsch
It seems to me since 2009, cause we know they were getting them before, that this was purposefully evading what they were supposed to do … at least what is required by state law.

We don’t get to enforce state law.  The state board has to enforce state law …

Kevin
Attorney General, or District Attorney … those would be the avenues to go

[00:27:14]

Doug Thompson
I’m trying to understand the aspect of going back to the state.  We don’t know if DeKalb went back to the state or not.

Bill Riley
We don’t.  That is within the legislative scheme of the state board of education … of supervising the local school districts.

Doug Thompson
We can get that information from them?

Bill Riley
We can get that through a Freedom of Information

Doug Thompson
What is the employee agreement with the MOU regarding making sure our children are safe?  What is the urgency of this agreement?

Bill Riley
The school district wants to get this.  We want to do this.  There’s been a lot of discussion.  We want to do this expeditiously as possible.  It sets up the steps necessary to make this happen.

They have promised they will do that.  An MOU is a statement of how they will do that.  It has no responsibilities to each other except to the extent that we’ve outlined for the responsibilities we already have under state law.

Doug Thompson
….

[00:29:36]

Jim Riticher (City Councilman)
I don’t perceive that we are in a huge hurry, nothing says we must do this tonight.  So I’m in favor of deferral….

Second, in talking about the Georgia Department of Education, I find at the GaDOE website in their facilities services division, there is a large store of docs used for the school construction process.  One of which, under the section titled Architectural Review Guidelines … Guidelines for submission of documents for review of planning and bidding and construction of educational facilities, within that doc … it says …

Prior to final approval, submit one set of complete plans including facility codes, … for a review by this office.  So, the state board is clearly reviewing these document sets.  They are reviewing documents.  Perhaps we should get with the state board to make sure they are doing a complete plan review, but my read, they are indeed doing that.

Doug Thompson
If we change zoning and say no trailers in Dunwoody and put that as part of zoning, that would not be enforcable.

Bill
I would think not.

Doug Thompson
Because they control their own government.

What if we went passed an ordinance in our land development code that said no school trailers shall be constructed in Dunwoody?

Bill Riley
The case Decatur vs DeKalb County, it only outlines two things and it’s frankly not on point.  This comes out of the state board of education law and promulgated rules, that have the affect of law.  It only gave the city two things they could do.  It’s land disturbance/erosion control and fire safety.

Doug Thompson
So, we could regulate trailers as it relates to land disturbance and fire.  But a blanket statement about trailers is too far.

Bill Riley
Unless you want to litigate that for several years and have an Amicus Brief from every school district in Georgia, and spend hundreds of thousands of dollars and lose.  I would think we don’t want to go there.

Denny Shortal (Dunwoody Mayor)
This boils down to trailers.  People don’t like trailers.  This is why I push for local control.  They aren’t equal to brick and mortar school.  It gets down to the 3 things: land erosion control, land disturbance and fire.

Fire is around evacuation

Bill Riley
Our IGA with the county covers fire evacuation and includes plan review with the fire marshal. ….

Denny Shortal
One of the items battered around here and various blogs is that DeKalb County has its own fire marshal.  DeKalb County Schools has its own fire marshal.  But our fire marshal is DeKalb County itself.  That’s our IGA.  That makes it cleaner when the fire marshal doesn’t work for the school board.

Has the state board of education ever cited a school district for a violation of codes.

Bill Riley
I don’t know.

Denny Shortal
The answer is yes.  The MOU doesn’t allow either side to enforce against the other side … basic MOU.

…. Have we ever done this?

Kevin
Not since 2009

Denny Shortal
The payment of fees, is that just a gentlemen’s agreement?

Bill Riley
I believe there is state law somewhere.

[00:40:22]

Denny Shortal
In the past we have informed the school board of things that needed to be done and usually folks do these things, but sometimes they don’t get done.  Then school is open and we don’t have a CO.

Who’s the bad cop?  I think the rash would come down heavily on us and not the school.

Have there been any cases where city or county ever denied a school district a CO?

Lynn Deutsch
The fire marshal used to keep DeKalb from opening fairly regularly.  I’m less concerned about trailers since they are certified.  But school buildings, are we thinking we have school buildings without a CO?  Like DES?

Denny Shortal
We don’t know.  That’s the thing.  In that case it was DeKalb County Fire Marshal.  But in the case where we stand up and say, we told you to fix it … you’re not going to get a CO.  Dunwoody would take the wrath.

Lynn Deutsch
That’s what happened at the field at Peachtree.  There was a lot of political pressure from parents for the city to get out of the way.

Denny Shortal
The school district would like to use this MOU as a standard method with other jurisdictions.

….

[00:45:45]

Kevin
When an open records request was done, there were no recent COs.  Since then we got together last week with the school district and completed 17 COs.  We have most of them completed.  We have identified some issues.  We’ve notified them of some issues and we understand they are addressing them.

Denny Shortal
If they are going to have their engineer inspect their building, it would be better if the engineer was a third party contractor and not an employee of the school district.

13 more minutes … discussing the language of the MOU