White v. Georgia Peace Officer Standards & Training Council

605 S.E.2d 136, 269 Ga. App. 747, 2004 Fulton County D. Rep. 3204, 2004 Ga. App. LEXIS 1280
CourtCourt of Appeals of Georgia
DecidedSeptember 28, 2004
DocketA04A0901
StatusPublished
Cited by2 cases

This text of 605 S.E.2d 136 (White v. Georgia Peace Officer Standards & Training Council) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Georgia Peace Officer Standards & Training Council, 605 S.E.2d 136, 269 Ga. App. 747, 2004 Fulton County D. Rep. 3204, 2004 Ga. App. LEXIS 1280 (Ga. Ct. App. 2004).

Opinion

Phipps, Judge.

Leonce S. White appeals a superior court order affirming an administrative decision of the Georgia Peace Officer Standards and Training (POST) Council that denied his requests for waivers of certain POST rules. Because White has not demonstrated reversible error, we affirm.

White was certified as a peace officer by the POST Council (council). Since 1990, he had been working for the Atlanta Police Department (APD) as a law enforcement officer. On October 16, 2001, White was suspended for 30 days without pay based on the APD’s determination that facts underlying a criminal charge against White demonstrated that he had violated certain work rules. After the suspension, White resumed his duties at the APD.

In February 2002, White received a letter from a POST investigator sent by regular mail to his residence. The letter advised him that, because of his suspension for violating work rules, the council had “initiated an investigation in order that it may make an appropriate decision regarding [his] certification.” The letter offered White the opportunity to provide a response to the investigation and asked him to “please include a complete residential mailing address and telephone number(s) for future correspondence.”

White provided no response to that letter and heard nothing further about the matter until January 13, 2003, when he was informed by the APD Office of Professional Standards that his peace [748]*748officer certification had been revoked. Because that certification was required for White to work as a peace officer, his employment with APD was terminated.

White thereafter contacted the council and learned that on September 27, 2002, it had mailed to his residence a certified letter setting forth allegations of work rule violations that stemmed from the criminal charge against him. The letter stated that, based on those allegations and in accordance with OCGA § 35-8-7.1, his peace officer certification was “[t]hereby subject to revocation.” The letter explained that White could request a hearing on the matter if he followed the two-step procedure set forth in POST Rule 464-8-.01.1 Under that rule, a peace officer must make a written request for a hearing “within fifteen (15) calendar days of receipt of notice of adverse action. For purposes of notification, mailing by certified mail to ... the last known address of the officer ... shall constitute proper service.”2 The rule further requires that the peace officer send to the council a response to the outlined allegations within “thirty (30) calendar days after service of notice.”3 Under that rule, “[a]ll allegations which are not specifically answered are deemed to be admitted.”4

The letter also expressly warned that allegations not responded to would be deemed admitted, that failure to send a timely response to the council would result in the proposed revocation becoming final, and that no other notice would be sent. However, the letter had been returned to the council in its envelope stamped “unclaimed” and “1st notice 9-30-02[;] 2nd notice 10-9[;] returned 10-15.”

White immediately retained counsel and, relying on the council’s announced procedure,5 mailed a written request to the council asking for a “waiver before [the] Executive Committee” and for the matter to “be placed on the agenda for the Executive Committee of the next available POST Council meeting.” A “waiver” is a “decision by an agency not to apply all or part of a rule to a person who is subject to [749]*749the rule.”6 White’s request cited POST Rule 464-18-.02,7 which provides that “for good cause shown, the Council may, in the exercise of its discretion, grant a waiver or waivers of an existing requirement or grant a reasonable period or periods of extension of any requirement imposed under these Rules.”

On June 11, 2003, White appeared with counsel at a hearing before the executive committee. Minutes of White’s hearing begin, “This is a request from Leonce S. White for a waiver to the 24 month Rule 464-18-.014.” The minutes record that White’s counsel outlined White’s law enforcement career, asserted that White had not received the September 2002 letter, and then requested that the council either (1) allow White to respond to the September 2002 letter, despite the lapse of time, or (2) allow White to proceed with a petition to reinstate his certification without waiting 24 months from the time of the revocation (as required by POST Rule 464-18-.01).8 According to the minutes,

Committee members expressed that it was hard to believe that Mr. White did not receive some kind of notification from the Postal Service that he had certified mail that needed to be picked up. Especially since there had been 4 attempts to deliver it. [A POST director] made a motion to deny the request for 24 month waiver of POST Rule 464-18-.014 for Mr. Leonce S. White. [Another POST director] seconded the motion. All were in favor, and the motion carried.

The next day, the full council met. Minutes from that meeting show that the full council accepted the executive committee’s recommendation that White’s “request for a waiver of the 24 month rule” be denied. On June 17, 2003, the council sent White’s counsel a letter stating that it had “considered [White’s] petition for a waiver of Rule 464-18-.01. It was the decision of the Council to Deny your petition.”

White appealed to the superior court. He argued that (1) he was denied due process because he never received the September 2002 letter and thus had no opportunity to respond to the allegations that resulted in the revocation; (2) POST Rule 464-8-.01 (l),9 providing that “mailing by certified mail to the last address specified on the application or the last known address of the officer... shall constitute proper service,” is unconstitutional because it considers service proper even where the certified letter is returned to the council “unclaimed”; [750]*750(3) his request for waivers had not been considered by the council since only the executive committee had attended the June 11 meeting; and (4) the council’s denial was an abuse of discretion. In addition, White claimed that he had not received “any alleged postal notification forms informing [him] of any attempted delivery of certified mail to [his] residence.” After a hearing, the superior court issued an order affirming “the decision of the City of Atlanta Officer of Professional Standards.”

1. As an initial matter, we agree with the parties that the superior court affirmed the decision of the council, yet incorrectly, but inadvertently, referred to the “City of Atlanta Officer of Professional Standards” in its order.

2. Citing various Code sections and POST rules vesting the “council” with the duty and power to decide issues regarding peace officer certification,10 White argues that the council’s decision is void because the full council was not present at the June 11, 2003 hearing. In addition, White complains of the council’s procedure that permitted the executive committee involvement in his case.

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605 S.E.2d 136, 269 Ga. App. 747, 2004 Fulton County D. Rep. 3204, 2004 Ga. App. LEXIS 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-georgia-peace-officer-standards-training-council-gactapp-2004.