COVINGTON - Board of Commissioners District 5 Republican candidate Tim Fleming's name will remain on the Nov. 4 ballot.
The Newton County Board of Elections could not reach a consensus following a Thursday morning hearing on a residency challenge against Fleming; therefore, by default, the challenge did not stand.
Board of Elections Chairman Hugh Steele recused himself at the beginning of the hearing, disclosing that he had made a contribution to Fleming's campaign. That left Republican Stan Edwards and Democrat Jeanette Perry with voting power.
After hearing evidence from both sides, the two were at a stalemate - with Perry wanting to uphold the challenge and Edwards to deny it - and an attorney advising the board said no decision simply leaves things as they are.
The special called meeting was in response to a residency challenge filed by Jerry Childers, who claimed Fleming is not qualified to run for the District 5 seat because he has a homestead exemption on property outside the district.
The board dismissed Childers' challenge because it was not filed within two weeks of the close of qualifying as required by law. However, since the board faces no similar time limitations, it opted to pose its own challenge against Fleming, who waived the notification process and opted to move forward with a hearing immediately.
During the hearing, Fleming testified that he has lived in a house at 1194 Floyd St. in District 5 since March. The house is owned by Fleming's father, Commissioner Ester Fleming Jr. Fleming is renting the house under a lease-purchase agreement.
Fleming testified that he and his wife, Lacey, have lived continuously at the house since March. Fleming said he had spent about 10 nights away from home since moving in, including a one-week vacation to Florida and two or three nights away on business.
Fleming maintains a homestead exemption on his property at 35 Mandy Lane in District 4, which he said is for sale. Fleming said he intends to buy the Floyd Street property once the home on Mandy Lane is sold.
Fleming said he intends to have the homestead exemption removed from the Mandy Lane property in 2009, if he is still the owner. Legally, a property owner may file for an exemption or have it removed only between Jan. 1 and March 1. During that timeframe this year, Fleming was still living at the Mandy Lane property, said his attorney, Jim Alexander.
"There's no action he can take to unring a bell on claiming a homestead," Alexander said.
Alexander produced numerous documents to prove Fleming's change of address, including utility bills for both properties that he said showed minimal usage at the Mandy Lane property and much higher usage on Floyd Street; a copy of Fleming's driver's license and tax returns, which list Floyd Street as his address; bills sent to the Floyd Street address; and a copy of the lease purchase agreement.
Paul Oeland, the attorney for Fleming's Democratic opponent, Randy Vinson, told the board, however, that none of that matters: Residency is determined by homestead exemption when it comes to qualifying for election, he said.
Oeland cited a ruling by Secretary of State Karen Handel on a challenge against Public Service Commission candidate Jim Powell. Handel ruled that even though Powell lived in the district he was running for, he was not qualified to run for office because he maintained a homestead exemption outside the district.
Alexander said, however, that both an administrative law judge and a Fulton County Superior Court judge have ruled that Powell is qualified to run. The case is on appeal to the Georgia Supreme Court.
Alexander said the challenge was a "cheap shot by the other side at the last minute" to disqualify Fleming.
"He's not hidden anything. He's not made any mistakes. He's not done anything wrong," Alexander said.
Peter Olson, an attorney from Cartersville hired by the county to advise the board, said in addition to homestead exemption, courts have considered everything from the address listed on driver's licenses and voter registration cards, to the address where mail is received, to where a candidate attends church to determine residency.
Olson said the county brought him in as an independent advisor to avoid any appearance of bias, since the case involved the son of a sitting commissioner.
Following the presentation of evidence, Perry and Edwards deliberated in whispers that were not audible to the public.
Finally, Edwards moved to deny the challenge, but Perry would not second the motion. Though the law only requires that Fleming live in the district six months prior to the Nov. 4 general election, Perry found it problematic that he did not live in the district six months prior to the primary or qualifying.
Perry then made the motion to uphold the challenge, which Edwards refused to second.
The stalemate meant Fleming could remain on the ballot, Olson said.
After the hearing, Fleming accused Vinson, who was not present, of engaging in "politics of desperation."
Childers previously told the Citizen that Vinson asked him to file the challenge and Oeland said he sketched an outline of "what the law requires" for Childers to use.
"Today, Randy Vinson and Paul Oeland attempted to make a mockery out of the electoral process. They attempted to take the election out of the hands of the people of District 5 ... These are politics of desperation, and the voters of District 5 aren't going to accept it," Fleming said.
"I've lost a lot of respect for my opponent this past week," he added.
Oeland said he was surprised by the board's indecision. The board's rulings can be appealed to Superior Court, he said, but added he didn't know how to appeal a non-decision.
"I am caught off guard," he said, but added that the board's ruling "illuminates the question of (Fleming's) residency."
Crystal Tatum can be reached at email@example.com.