Echols v. DeKalb County

247 S.E.2d 114, 146 Ga. App. 560, 1978 Ga. App. LEXIS 2457

• Court: Court of Appeals of Georgia
• Decided: May 9, 1978
• Docket: 55556
• Status: Published

Opinions

Banke, Judge.

The appellant, Darnell Echols, sued the appellee, DeKalb County, to recover back wages which he claimed he was due. The trial judge granted summary judgment to DeKalb County, and this appeal followed.

Echols worked for DeKalb County as a senior water quality control operator. He alleges that he was promoted and fulfilled the duties of water quality control foreman from July 1974 to May 1975 but never received the corresponding salary increase to which he was entitled. He stated that he repeatedly asked his superiors for the extra pay, but that he was always given some excuse for the delay in payment. On March 12,1976, Echols notified the DeKalb County Merit Council of his claim by letter. The merit council heard and denied his claim in June 1976. On July 30, 1976, he filed this action against DeKalb County in the superior court.

The DeKalb County Merit System was created in 1956 (Ga. L. 1956, pp. 3111-3117). Section 4 (b) of the Act authorizes the merit system council "To conduct hearings and render decisions on charges preferred against [county employees] and to hear appeals from any employee who claims to have been improperly dismissed.” In this case, Mr. Echols was relieved of his duties as foreman on May 18, 1975, but his employment with the county was not terminated. Thus, the council lacked the authority to render any binding decision on Mr. Echols’ complaint.

In bringing his independent suit to recover wages against the county in the superior court, Mr. Echols relied on Deason v. DeKalb County, 222 Ga. 63 (148 SE2d 414) (1966). The decision in Deason was based on a finding of an implied waiver of the county’s immunity from suit. However, as this court, quoting from Justice Jordan’s dissent in Busbee v. Ga. Conference, Am. Assn. of Univ. Professors, 235 Ga. 752 (221 SE2d 437) (1975), stated with regard to Code Ann. § 2-3401 (Ga. L. 1973, pp. 1489, 1490) (ratified 1974) in Dept. of Human Resources v. Briarcliff Haven, 141 Ga. App. 448, 450-451 (233 SE2d 844) (1977): "In other words [because of the 1974 constitutional amendment], it is an entirely new ball game as far as the doctrine of sovereign immunity is concerned.. . What we do know, and what this court has said in Azizi (Sheley) and Revels ... is that the doctrine now has constitutional status, and applies, in my opinion, to any 'suit’ involving claims for 'injury’ or 'damage’ against the state unless and until there is a waiver by Act of the General Assembly... Likewise, other opinions of the courts of this state dealing with the judicial application of the rule prior to the 1974 amendment are not applicable to claims against the state since the 1974 amendment.” See also Health Facility Investments v. Ga. Dept. of Human Resources, 238 Ga. 383 (233 SE2d 351) (1977); C. F. I. Const. Co. v. Bd. of Regents, 145 Ga. App. 471 (243 SE2d 700) (1978).

Argued March 2, 1978 Decided May 9, 1978 Rehearing denied July 5, 1978 Wayne M. Purdom, for appellant. William S. Olsen, James H. Weeks, for appellee.

There is no express statutory waiver of the county’s (as an arm of the state) sovereign immunity applicable to Mr. Echols’ suit in this case. We affirm, therefore, the trial judge’s grant of summary judgment to DeKalb County.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Webb, McMurray, Smith and Birdsong, JJ., concur. Shulman, J., concurs specially. Deen, P. J., dissents.