Gwinnett County v. Yates

458 S.E.2d 791, 265 Ga. 504

• Court: Supreme Court of Georgia
• Decided: May 30, 1995
• Docket: S95A0135, S95X0136
• Status: Published

Opinions

Hunt, Chief Justice.

This case presents the issue of whether the Clerk of the Gwinnett County Superior Court is subject to the Gwinnett County Merit System. We hold that he is not.

In 1969, pursuant to constitutional authorization, the General Assembly adopted legislation creating the Gwinnett County Merit System. In December 1992, Gary Yates, Clerk of the Superior Court of Gwinnett County, discharged a deputy clerk. The deputy clerk filed an appeal with the Merit Board, and an attorney from the Gwinnett County law department was appointed to represent Yates in that appeal. Yates requested that the county attorney assert in his defense that the Merit Board had no authority to infringe upon his rights and responsibilities as Clerk of the Superior Court. The county attorney disagreed with Yates’s position and refused to assert that defense. Yates obtained private counsel and filed a declaratory judgment action seeking direction from the court as to whether deputy clerks of the Superior Court of Gwinnett County are subject to the county’s merit system. Gwinnett County filed motions to join the deputy clerks as necessary parties and to dismiss Yates’s petition on the ground that there was no actual controversy between the parties.

The court entered an order denying both motions but granted a certificate of immediate review; the Court of Appeals, however, denied Yates’s application for interlocutory appeal. Subsequently, Yates filed a motion for attorney fees, and both parties filed motions for summary judgment. The superior court found that under Georgia law the power of a clerk of the superior court to choose, hire and discharge deputy clerks cannot be taken away from the duly elected clerk except by statute specifically taking that action; that the power of the clerk of the superior court to hire and discharge is not superseded by the county’s merit system because that legislation does not specifically withdraw employment/discharge authority from the clerk; and that there was no basis for ordering the county to pay Yates’s attorney fees because the case does not present a separation of powers dispute. The county appeals the denial of its motion for summary judgment, and Yates appeals that part of the order denying his request for attorney fees.

1. Our resolution of the principal issue in this case depends on whether Gwinnett County effectively brought employees of the Clerk of the Superior Court under the coverage of its merit system either through specific legislation passed pursuant to a constitutional amendment or by following the procedure set forth in OCGA § 36-1-21.

a. The Constitutional Amendment

In 1968, the General Assembly passed a constitutional amendment authorizing it to provide by law for a “Merit System for any or all present and future employees of Gwinnett County other than elected officials.”¹ Pursuant to the constitutional authorization, the General Assembly adopted legislation creating the Gwinnett County Merit System.² 3****Under the merit system act, employees in the classified service, which covered “all appointed offices and positions of trust or employment in the service of Gwinnett County, except those placed in the unclassified service” by the act, were included in the system. Though the language of both the constitutional amendment and the merit system act appears broad in its coverage of employees, an examination of similar legislation reveals that in legislation regarding merit systems, the General Assembly observed a distinction between employees of a county and employees of the elected officials of the county.³ Given this distinction, the language employed in the constitutional amendment authorizing the creation of the Gwinnett County Merit System was insufficient to bring employees of the Clerk of the Superior Court within its coverage,

b. OCGA § 36-1-21.

Though Gwinnett County did not effect merit system coverage of the employees of elected officials through constitutional authorization, those employees could, nevertheless, be included in the merit system by statute. The power of the General Assembly to authorize by general law the creation of county civil service systems was made part of the 1983 Georgia Constitution. Article IX, Sec. I, Par. IV, which preserves the distinction between county employees and the employees of elected officials, provides that the General Assembly may authorize the establishment of civil service systems by county governments “covering county employees or county employees and employees of elected county officials.” The legislature again preserved this distinction between county employees and employees of elected county officials with the passage in 1986 of OCGA § 36-1-21. That statute provides that

[subsequent to the creation of a civil service system, the county governing authority which created the system may provide by ordinance or resolution that positions of employment within departments subject to the jurisdiction of elected county officers or subject to the jurisdiction of other commissions, boards, or bodies of the county shall be subject to and covered by the civil service system upon written application of the elected county officer, commission, board, or body having the power of appointment, employment, or removal of employees of the officer, department, commission, board, or body. Once positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system.

(Emphasis supplied.) OCGA § 36-1-21 (b). In short, the foregoing mandates that even if a county creates a merit system for employees of the county, the system does not cover the employees of elected officials until the elected official has sought coverage for his employees by “written application” and the county governing authority has passed an appropriate ordinance or resolution.⁴

Finally, we note that Art. IX, Sec. II, Par. I (c) of the Georgia Constitution dealing with home rule for counties states that the power granted to counties does not extend to:

(1) Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority.

(7) Action affecting any court or the personnel thereof.

Reading this paragraph in harmony with OCGA § 36-1-21 and in light of the central issue in this appeal, we interpret this to mean that a county merit board can take no action affecting the clerk of the superior court and his employees unless, pursuant to OCGA § 36-1-21 (b), the clerk of the superior court has asked that his office be subject to the merit system and the county has provided for such coverage through an appropriate resolution or ordinance.

Nothing in the original legislation authorizing the creation of the Gwinnett County Merit System specifically provided that employees of elected officials would be covered by the system along with the employees of the county. Likewise, it does not appear that, subsequent to the passage of OCGA § 36-1-21, the superior court clerk requested that his employees be covered by the merit system,⁵ 6 *or that the Gwinnett County governing authority provided for such coverage by ordinance or resolution. Accordingly, we are compelled to hold that the Clerk of the Superior Court of Gwinnett County is not subject to the Gwinnett County Merit System.⁶

2. Yates appeals the trial court’s decision that there was no basis for ordering Gwinnett County to pay his attorney fees. Yates was forced to hire private counsel after an attorney for the county refused to argue his position that he was not subject to the county merit board. We hold that where, as here, an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official’s attorney fees. This is not because of any bad faith or improper conduct on the part of the local government, in this case, the county. Rather, attorney fees in this instance are simply an expense of government operation. A local government may, as the county in this case could have, retain independent counsel for the official. However, having chosen not to do so, and because Yates was successful on his legal claim that his office was not subject to the Gwinnett County Merit System, the county must pay Yates’ reasonable attorney fees.⁷ Our holding in Stephenson v. Bd. of Commrs., 261 Ga. 399 (405 SE2d 488) (1991), that a clerk of the superior court does not have authority to retain counsel for the clerk’s office because that authority rests only in the county governing authority, does not apply here, where the county would not retain counsel to assert the legal position on which the clerk prevailed.

Accordingly, we remand this case to the trial court for an assessment of attorney fees in favor of Yates and against Gwinnett County, in accordance with this opinion.⁸

3. The remaining enumerations of error regarding joinder and failure to state an actual controversy are without merit.

Judgment affirmed in Case No. S95A0135 and reversed and remanded in Case No. S95X0136.

All the Justices concur, except Ben-ham, P. J., who dissents.

1 Ga. L. 1968, p. 1884.

2 Ga. L. 1969, p. 3051.

3 Particularly significant for the purposes of our analysis is the legislation connected with the creation of the Floyd County Merit System. In language identical to the language of the constitutional amendment authorizing creation of the Gwinnett County Merit System, a constitutional amendment authorized the General Assembly to create a merit system for “any or all present and future employees of Floyd County other than elected officials.” Ga. L. 1967, p. 930. As with the Gwinnett County Merit System Act, the Floyd County act provided that, with certain exceptions similar to those set forth in the Gwinnett act, all employees of the county would be covered. Yet, despite this apparently broad coverage and the fact that employees of the superior court clerk other than the chief deputy clerk were not listed among exceptions to coverage, the act was amended by the General Assembly in 1968 “so as to include certain employees of . . . the office of the clerk of the superior court of Floyd County.” Ga. L. 1968, p. 3400. This amendment was introduced in the legislature in the same year in which the constitutional amendment authorizing the creation of the Gwinnett County Merit System was introduced. The fact that the General Assembly, which passed the original bill authorizing the Floyd County Merit System and which is presumed to know the coverage of its own legislation, found it necessary to amend the original Floyd County legislation so as to specifically include, among others, employees of the superior court clerk lends support to the contention that the Gwinnett County legislation, contemporaneous with and virtually identical to that concerning Floyd County, did not include employees of elected officials in the merit system.

See also Ga. L. 1939, p. 36 (constitutional amendment authorizing creation of the Fulton County Civil Service authorized the General Assembly to create a merit system “for county employees and employees and deputies of county officers of Fulton County, including deputies and employees of the . . . Clerk of the Superior Court.” (emphasis supplied); Ga. L. 1949, p. 2137 (constitutional amendment authorized the General Assembly to create a “merit system for employees of DeKalb County and for employees and deputies of’ DeKalb County officers (emphasis supplied); however, the subsequent act authorizing the establishment of the merit system “for employees of DeKalb County” specifically exempted, among other employees of elected officials, “deputies of the clerk of the superior court.” Ga. L. 1956, p. 3111); Ga. L. 1980, p. 2305 (1980 amendment to the constitution authorized the creation of a merit system “for employees of Clarke County paid in whole or in part by county funds, other than elected and certain appointed officials”; but, even after creation of the merit system, coverage of that system could be extended to positions of employment within departments subject to the jurisdiction of elected officers only after those persons having the power to hire or terminate within those departments made written application for coverage and the county board of commissioners provided for such coverage by ordinance or resolution. Ga. L. 1980, p. 2305 (1). Cf. OCGA § 36-1-21 (b), discussed infra).

4 Recent cases decided by the Court of Appeals illustrate the necessity of following the procedure outlined in OCGA § 36-1-21 (b). In Burbridge v. Hensley, 194 Ga. App. 523 (391 SE2d 5) (1990), the court found that a sheriff who had discharged one of his employees was not subject to the county’s civil service commission because, even though the county had lawfully enacted an ordinance creating a civil service system, the county had failed to enact a second resolution or ordinance pursuant to OCGA § 36-1-21 (b) which provided that employees of elected officials would be covered. In Floyd v. Chaffin, 201 Ga. App. 597 (411 SE2d 570) (1991), the Court of Appeals affirmed the trial court’s grant of summary judgment to a sheriff who asserted that he was not subject to the county civil service system. Again, this holding was based on the fact that the county had not, as required by OCGA § 36-1-21 (b), passed a resolution or ordinance providing that employees of the elected officials would be covered by the system. The court went on to say that under the law that existed prior to the enactment of OCGA § 36-1-21, any attempt by the county and the elected official to make the employees of a department subject to the civil service system would have been invalid. In other words, unless legislation passed by the Georgia General Assembly prior to the effective date of OCGA § 36-1-21 specifically provided that employees of elected officials were covered by a merit system, no subsequent action of the county would have validly extended coverage to those employees.

Gwinnett County cites Wayne County v. Herrin, 210 Ga. App. 747 (437 SE2d 793) (1993), as support for its position. Herrin is inapplicable since in that case the court specifically found that the “Board and [the sheriff] fully complied with all requirements set forth in OCGA § 36-1-21 (b) necessary to bring employees of the sheriff’s office within the personnel system.” 210 Ga. App. at 750.

5 The County does not argue that Yates, by permitting his employees to be covered, impliedly has requested coverage, nor does it argue he is, thereby, estopped to assert non-coverage.

6 Any holding to the contrary, including that of the trial court in Henderson v. Sherrington, Civil Action No. 88-A-1214-2, Superior Court of Gwinnett County, affirmed without opinion by Rule 59 at 256 Ga. XXVIII (1986), is disapproved. We note also that a Rule 59 decision has no precedential value.

Our holding does not mean, as the county suggests, that the superior court clerk’s power to hire and fire is unfettered. The clerk is prohibited by both federal and state law from basing hiring and firing decisions on improper criteria. Further, OCGA § 36-1-21 (b) provides that “[o]nce positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system.” Thus, should a clerk of the Gwinnett County Superior Court decide to apply for merit system coverage for his employees and the governing authority make proper provision through ordinance or resolution for such coverage, subsequent clerks of the superior court will be subject to the merit system.

Further, our holding in this opinion should not be read to preclude employees of elected county officials, including employees of the Superior Court clerk’s office, from asserting any rights that may have accrued by virtue of their association with the County merit system.

7 Of course the trial court’s determination of the amount of reasonable attorney fees should include all relevant factors, including the extent of the County’s reliance on Henderson v. Sherrington, supra, n. 6, as well as the point suggested in the third division of the dissent, i.e., that the merit system appeals process was resolved in the clerk’s favor prior to the conclusion of the declaratory judgment action.

8 With this opinion I conclude 24 happy years of service in the state judiciary. Following the precedent set by two of my predecessors, Justices Hall and Weltner, see Grantham v. State, 244 Ga. 775, 776 (262 SE2d 777) (1979) (Hall, J., concurring); Davis v. City of Macon, 262 Ga. 407 (421 SE2d 278) (1992) (Weltner, C. J., concurring), I take this opportunity to thank my long suffering law clerks, my colleagues on the appellate courts, those on all tiers of the trial courts, our clerks of court, sheriff, tax commissioners and other constitutional officers for their service to the state and for making my work so pleasant. They have, and will, continue to serve the citizens of our state tirelessly and selflessly. They exemplify Carlyle’s thesis: sic vos non vobis. Thomas Carlyle, Sartor Resartus.