Barnett v. Mobile County Personnel Bd.

• Decision Date: 04 November 1988
• Citation: 536 So.2d 46
• Parties: Rose BARNETT v. MOBILE COUNTY PERSONNEL BOARD, et al. 86-444.
• Court: Alabama Supreme Court

Page 46

536 So.2d 46

Rose BARNETT v. MOBILE COUNTY PERSONNEL BOARD, et al.

86-444.

Supreme Court of Alabama.

Nov. 4, 1988.

Steven A. Martino of Cunningham, Bounds, Yance, Crowder & Brown, Mobile for appellant.

Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Zoghby, Mobile, for appellees Mobile County Personnel Bd. and Bernard M. Richardson, Jr.

William H. McDermott of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky, Mobile, for appellee John Gartman.

BEATTY, Justice.

Appeal by plaintiff, Rose Barnett, from summary judgments in favor of defendants, Mobile County Personnel Board ("the Board"); Bernard M. Richardson, Jr., director of the Board; and John A. Gartman, mayor of the Town of Mount Vernon, Alabama, in plaintiff's defamation action arising out of an unauthorized payroll plan in Mount Vernon. We affirm.

Plaintiff was the town clerk of Mount Vernon from 1973 until 1982. As the town clerk, she had the primary responsibility for organizing and issuing the payroll for the town. Although in this position plaintiff acted under the direction of the mayor and town council, it was the Board that governed and controlled the town's employees, as it did all of Mobile County's public service employees in the "classified service." The Board's responsibilities included testing prospective employees, maintaining employment registers, and approving the payrolls of the local governments and agencies in Mobile County.

In order to grant a pay raise to a town employee, the town council of Mount Vernon had to initially approve the raise and then have the mayor submit the proposed action to the Board for final certification. The controversy in this case arises from the Board's discovery that its authority over payroll changes was being overridden in the town of Mount Vernon, and that the town employees were actually receiving all of the pay raises proposed by the council that had been disapproved by the Board.

According to the plaintiff, Mayor Gartman initiated this scheme of granting pay raises in late 1976, soon after the elections that placed him and the town council in office for four-year terms. While the plaintiff admits to issuing the unauthorized paychecks and submitting falsified payroll reports to the Board, she maintained that she acted under the direction of the mayor, who, she said, instructed her to grant all of the pay raises and assured her that he would take care of any of the problems that might arise. Plaintiff also insisted that the town council was aware of her actions, yet both the mayor and the council denied any knowledge of the situation.

Three new members were elected to the five-member town council in October 1980. In January 1981, after the newly-elected chairman of the town council's finance committee, Ronald Middleton, asked the plaintiff for information regarding pay raises, she told him about the unauthorized payroll. Thereafter, Middleton contacted the director of the Board, Bernard Richardson, Jr., and revealed the town's practice of granting unauthorized pay raises. Richardson notified the mayor and the council that they would be held liable for any overpayments and that he would be taking the "necessary action" to recover the funds.

A meeting was held in Mount Vernon with the mayor, the town council, and the plaintiff present. The plaintiff contends that when she told the council that she had acted under the mayor's direction he then accused her of lying. She also stated that following this accusation, one of the council members reported at this same meeting that Mayor Gartman had told a town citizen that the plaintiff was keeping "two sets of books," one of them in secret. It is on the basis of these statements that the plaintiff based her defamation claim against Mayor Gartman.

Later, in the course of correspondence between the town council and the Board, the council requested that the Board formally approve the unauthorized pay raises that the town's employees had received, including one for the plaintiff. While the Board granted most of the raises, it denied the plaintiff's raise, stating the following in a letter from Richardson to the mayor and town council:

"Action on the request for a two-step special merit increase for Rose Barnett, Town Clerk, is being held in abeyance until it is determined, through Court action or otherwise, where the responsibility lies as concerns the falsification of payrolls submitted to the Mobile County Personnel Department."

Upon an additional request to the Board to approve the plaintiff's raise, Richardson replied with the following letter to the mayor and members of the town council:

"I am in receipt of your letter of April 15, 1981, concerning your request for a two-step merit increase for Mrs. Rose Barnett, Town Clerk. Please be advised that in my own personal telephone conversations with Mrs. Barnett concerning the violations that we are currently trying to adjudicate, she readily admitted that she submitted falsely fabricated payrolls to my Department knowing full well that such was a blatant violation of the Law. Mrs. Barnett contends that she submitted these payrolls at the instruction of the Mayor and the Council. The Mayor and members of the Council to whom I have been able to speak have denied such allegation by Mrs. Barnett. If you now, as the current Mayor and Council, are willing to certify to me that Mrs. Barnett blatantly disobeyed the Law at your instruction, I will be glad to at least consider this matter, but in the absence of such certification from you, you must understand that we do not reward fraud with special merit increases." (Emphasis added.)

The plaintiff bases her defamation claim against Richardson on the last phrase of this letter.

Several weeks later, on May 12, 1981, Richardson and the Board filed an action against Rose Barnett and the members of the town council in their individual capacities in order to recover the payroll overpayments. However, since these plaintiffs brought the action as taxpayers of Mobile County and in the name of the Town of Mount Vernon, the trial court dismissed the action for lack of standing, since none of the plaintiffs was a citizen of the town.

Several months later, the Board initiated its own investigation into this matter, including a full hearing with testimony from all parties involved. This process culminated in a finding that Rose Barnett had knowingly engaged in a violation of the Board's laws and rules and that she had acted under the authorization of Mayor Gartman. Thereafter, the Board dismissed the plaintiff from her position as town clerk, yet recognized that it had no jurisdiction over an elected official such as the mayor. Barnett appealed her dismissal to the circuit court, but the court affirmed the dismissal order in August 1986.

In the meantime, the plaintiff had filed this present defamation action on July 16, 1981, naming Richardson, the Mobile County Personnel Board, and Gartman as defendants. Later, she attempted to amend the style of her complaint by adding to the listing of defendants the names of four individual members of the Board. On November 17, 1986, the trial court granted summary judgments in favor of all of the original defendants. The four individual members of the Board did not file a separate motion for summary judgment, and the trial court did not expressly include their names in its orders. This appeal followed.

As a threshold issue, we must determine which of the defendants are properly before this Court. The plaintiff's original complaint named Richardson, the Board, and Gartman as defendants:

"ROSE BARNETT, Plaintiff

"-vs-

"BERNARD M. RICHARDSON, JR.; THE PERSONNEL BOARD OF MOBILE COUNTY; JOHN A. GARTMAN, Defendants

"FIRST CAUSE OF ACTION

"1. Beginning in April of 1981 the Defendant, Bernard M. Richardson, Jr., individually and acting within the line and scope of his employment as Personnel Director of the Personnel Board of Mobile County and John A. Gartman, maliciously slandered the Plaintiff on several occasions by accusing the Plaintiff of submitting falsely fabricated payrolls thereby implying that the Plaintiff was guilty of theft or embezzlement.

"2. As a proximate result of the Defendants' malicious and slanderous remarks the Plaintiff's reputation has been severely and irreparably damaged.

"WHEREFORE, Plaintiff demands judgment against Defendants, separately and severally, in the sum of ONE HUNDRED THOUSAND ($100,000.00) DOLLARS, plus interest and costs."

Later, on September 28, 1981, the plaintiff filed the following pleading:

"AMENDED COMPLAINT

"Comes now the Plaintiff in the above styled cause and amends the style of her complaint heretofore filed as follows:

"ROSE BARNETT, Plaintiff

"-vs-

"JOHN A. GARTMAN, THE PERSONNEL BOARD OF MOBILE COUNTY; BERNARD M. RICHARDSON, JR., ERNEST A. ROUSE; H. CONRAD FREEMAN; JAMES K. HUFFSTUTLER; EDITH C. VAUGHAN, Defendants

"CIVIL ACTION NO. CV-81-001638"

(Emphasis added.) While this pleading purports to amend the complaint by adding the four individual members of the Board, we must examine it to determine whether it is adequate to achieve its desired effect. We recognize at the outset that this is a confusing pleading and that it acts not through addition, but through substitution. The plaintiff has added no additional claims in this pleading, but has merely replaced the former style, or caption, with the amended one. We discussed the impact of an amended pleading in Zeigler v. Baker, 344 So.2d 761 (Ala.1977):

"An amended pleading pro tanto supersedes a pleading which it amends, United States v. L.D. Caulk Co. (D.C.Del.), 114 F.Supp. 939 (1953).... The liberalized rules of procedure have not eliminated pleadings as the principal means by which parties themselves choose the issues which they wish to litigate. When pleading to amendments, counsel should see that their pleadings incorporate grounds or allegations previously pleaded if they wish...