Maxwell lawsuit seeks McCarty disqualification, alleges felony
A lawsuit has been filed by Fayette County Commissioner Eric Maxwell seeking the disqualification from office of J. Allen McCarty, who defeated Maxwell for his Post 5
commission seat in July and is poised to take office Jan. 1.
The lawsuit claims that McCarty in 2003 failed to pay $3.398.75 in state and local option sales taxes, but McCarty said Wednesday afternoon that he paid the tax in full "months and months" ago and has a receipt to prove it. The taxes, McCarty said, were due on a motor home he had purchased in Nevada under the belief that he would not have to pay Georgia
A copy of the state tax filing against McCarty has been provided to The Citizen, but McCarty chided Maxwell for not checking to see that the state had removed the lien from his property after making the final payment installment. McCarty said he would consider providing The Citizen of copy of the receipt tomorrow, though he may hold onto it until the matter gets into court.
"They removed the liens from the property, which means it was paid, and they should have been smart enough to check that," McCarty said.
Maxwell contends that since courthouse documents show McCarty failed to remit the sales taxes that he collected on behalf of the state, he is considered "the illegal holder of public funds payable to the State of Georgia" and therefore under Georgia law is unqualified to hold public office.
The state tax document provided to The Citizen indicates that McCarty owed $3,398.75 in principal and with interest, penalties and fees the amount ballooned to $8,950 as of the filing of the Georgia Department of Revenue's State Tax Execution in February 2009.
In the suit, filed late Tuesday afternoon in Fayette County Superior Court, Maxwell is also seeking an injunction to prevent McCarty from taking office until a final order is issued in conjunction with the suit.
The lawsuit by Maxwell also accuses McCarty of "the crime of false swearing," a felony, on two dates in April when he qualified to run for office and declared his candidacy with an affidavit under oath or affirmation.
In addition to seeking a court order disqualifying McCarty from holding office, Maxwell is also asking the court for an order ruling that McCarty was unqualified to be a Republican candidate in the July 20 primary, which presumably would leave Maxwell as the office holder since he was the only other qualified candidate in that race.
Maxwell is also seeking to invalidate the results of the post 5 commission seat in the Nov. 2 primary and also to have the individual with the most write-in votes in the Nov. 2 election to be declared the winner. There were 549 write-in votes submitted via electronic polling machines in that race, and elections officials will have to comb through another 2,002 paper ballots to determine who got the most write-in votes, said Fayette County Elections Supervisor Tom Sawyer.
Maxwell is also asking for McCarty to be forced to pay the costs of the lawsuit "and the cost of a new election if required by this Court."
McCarty bested Maxwell with 7,544 votes to Maxwell's 6,346 in the Republican primary.
Maxwell said today that he found out about the tax execution that was issued against McCarty the day after the Nov. 2 general election.
McCarty said the lawsuit is "retribution" for the lawsuit that is being filed against the commissioners on behalf of the West Fayetteville Bypass Coalition, of which McCarty is a member over the construction of the second phase of the bypass.
"Not to mention that I beat him in the election, which I'm sure didn't sit well," McCarty said.