BOARD OF PUBLIC SAFETY v. Jordan

• Decision Date: 27 November 2001
• Docket Number: No. A01A1328.,A01A1328.
• Citation: 556 S.E.2d 837,252 Ga. App. 577
• Parties: BOARD OF PUBLIC SAFETY v. JORDAN.
• Court: Georgia Court of Appeals

556 S.E.2d 837

252 Ga. App. 577

BOARD OF PUBLIC SAFETY v. JORDAN.

No. A01A1328.

Court of Appeals of Georgia.

November 27, 2001.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., John C. Jones, Senior Asst. Atty. Gen., Gray, Hedrick & Edenfield, Bruce M. Edenfield, Atlanta, Evan R. Mermelstein, for appellant.

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Atlanta, Jet Harris, Athens, for appellee. BLACKBURN, Chief Judge.

Under the auspices of OCGA § 47-2-2, the Georgia Board of Public Safety ("Board") terminated Bennett A. Jordan's employment as Superintendent of the Georgia Police Academy. Following his discharge, Jordan sued the Board and other defendants, asserting multiple claims and amending his initial complaint five times.¹ Ultimately, the sole issue remaining for trial was Jordan's claim for intentional infliction of emotional distress. The jury found against the Board and awarded Jordan $1.8 million in compensatory damages and $360,000 in attorney fees which was reduced to the statutory limit of $1 million.

In this appeal, the Board contends that (1) sovereign immunity bars Jordan's claim, (2) Jordan should have been collaterally estopped from injecting evidence of a Board "pretext" for termination at trial, (3) the facts presented failed to support Jordan's claim, and that the trial court erred by (4) allowing the admission of character evidence, (5) failing to bifurcate the trial, (6) restricting the Board from tendering the hearing officer's recommendation to terminate Jordan to the jury, (7) failing to admit testimony from Board members, and (8) refusing to give three specific charges to the jury. After review, we reverse.

As a merit system employee in a classified position, Jordan could be terminated only upon a "for cause" finding pursuant to OCGA § 47-2-2. Subsection (d) of the Employees' Retirement System of Georgia ("ERS") Code lists the following grounds for termination for cause:

An employee may be discharged from employment pursuant to the requirements of this Code section for insubordination, irresponsible performance of duties, malingering, neglect of duty, or unsatisfactory performance of duties in a willful manner or for any combination of such reasons. Any employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123.

OCGA § 47-2-2(d). The ERS Code specifically defines each ground, including the two pertinent here: "[i]rresponsible performance of dut[ies]" and "neglect of duties." OCGA § 47-2-2(c)(5), (7). When discharge is under consideration, the State employer must transmit a written notice to the employee in the format specified by subsection (g). See OCGA § 47-2-2(g). An employee's service may end by "involuntary separation from employment without prejudice," or " involuntary separation from employment with prejudice." OCGA § 47-2-2(a).

In early October 1991, the Board sent two state troopers to Jordan's house to serve Jordan with formal notice of the proposed termination and the right to a hearing. In the letter, the Board formally apprised Jordan of eight charges, most of which pertained to Jordan's failure to reduce expenditures during a state-wide budgetary crisis and his failure to disclose certain information to the Board. The Board subsequently sent two amended notices to Jordan. More than two months after the initial notice, on December 11, 1991, presiding officer Melvin M. Goldstein conducted an administrative hearing on the eight charges pending against Jordan. At the hearing, the State sought to prove that Jordan "had been fiscally irresponsible" and "deceptive" in providing or failing to provide certain information to members of the Board. In his opening statement, Jordan's counsel disputed the validity of the charges and argued, "This is a case that has an underlying motive that's going to have to be explored in this matter and has really two levels of motive." Jordan's attorney claimed that the Board was "attempting to terminate Mr. Jordan as part of a reorganization of the Georgia Police Academy, the Georgia Fire Academy and the Georgia Public Safety Training Center." He argued that the Board did not want to give him his rights and privileges as a merit system employee and that the Board wanted to prevent him from obtaining involuntary separation benefits and submitting his case to the Merit System Board.

The Board offered evidence showing that despite an ongoing severe budget crisis, Jordan went on trips to Unicoi State Park and Jekyll Island costing $5,000 and over $17,000 respectively. Vice Chairman of the Board, Robert E. Wilson, testified that the Board had oversight responsibility for the Department of Public Safety, the Georgia Bureau of Investigation, the Police Academy, the Fire Academy, and the Georgia Public Safety Training Center. According to Wilson, while there was a proposed plan to create a "supercop" to oversee all these agencies, Jordan's position would not be eliminated, but the hierarchy would change and he would have reported to an intermediary and not directly to the Board. Under the reorganization plan, Wilson explained that the Police Academy would form an operational division of the Public Safety Training Center. Wilson described political in-fighting as a continuing problem between the Police Academy and the other agencies. Wilson also detailed instances in which he felt that Jordan had not been completely forthright with members of the Board. Wilson testified that it was his conclusion that Jordan's Jekyll Island trip was "a boondoggle," "a defiant act toward the Governor," and "an attempt by Mr. Jordan to have a nice outing, one in the mountains for in the fall, and one at the beach in the summer for chiefs and sheriffs that he could get to attend to keep his political wheels greased." According to Wilson, Jordan admitted having used bad judgment. Wilson testified that Jordan refused to retire and "insisted that we fire him" because "he wanted involuntary separation" benefits. The administrative hearing consumed three days.

The hearing officer, Goldstein, submitted a lengthy decision to the Board in which he recommended Jordan's termination for cause. In a 25 page decision, that included comprehensive factual findings as well as legal conclusions, the hearing officer found that: Jordan had misled the Board with respect to the use of certain computer equipment; Jordan's participation in unnecessary seminars was fiscally irresponsible; Jordan had been untruthful regarding the cancellation of one seminar; Jordan's decision to proceed with a staff retreat was fiscally irresponsible; and Jordan had been untruthful about his awareness of the general budget crisis in state government. The hearing officer recommended Jordan's employment be terminated pursuant to OCGA § 47-2-2(c)(5)(D) for "irresponsible performance of duties" and under OCGA § 47-2-2(c)(7) for "neglect of duty." The Board adopted the hearing officer's recommendation, and Jordan's employment ceased effective February 5, 1992.

For reasons not made clear by the record, Jordan did not avail himself of his right to judicial review of the Board's decision as provided in OCGA § 47-2-3. Acting without a jury, a superior court is empowered to reverse or modify the decision of the employer,

if substantial rights of the employee have been prejudiced because the administrative findings, inferences, conclusions, or decision of the employer were: (1) In violation of constitutional or statutory provisions; (2) In excess of statutory authority of the employer; (3) Affected by other error of law; (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 47-2-3(f). Although judicial review is normally confined to the record, "[i]n cases of alleged irregularities in procedure before the employer, not shown in the record, proof thereon may be taken in the court," and the superior court, "upon request, shall hear oral argument and receive written briefs." OCGA § 47-2-3(e).

Instead of exercising his statutory right to appeal the Board's decision, Jordan waited nearly two years after his discharge to file a multi-count lawsuit which included a claim for intentional infliction of emotional distress. The gravamen of Jordan's suit was that his rights were abrogated and his reputation sullied when he was wrongfully discharged and that he suffered great emotional harm as a consequence. In a claim for intentional infliction of emotional distress, Jordan specifically alleged that "[the] reprimands, suspensions and ultimate termination of Plaintiff's employment as the Superintendent of the Georgia Police Academy have caused Plaintiff to suffer and to continue to suffer severe emotional anguish, humiliation, distress and embarrassment." The Board moved to dismiss Jordan's case, in part relying upon the doctrine of sovereign immunity. The trial court denied the motion, and the case proceeded to trial.

Eventually the legal issues were narrowed and confined to the parameters of a consolidated pre-trial order. The gist of Jordan's case as outlined in the PTO was that the Board desired to reorganize and restructure certain public safety organizations and wanted to eliminate certain positions including his superintendent position. According to Jordan's theory of the case:

[t]he "Super Chief" bill, as it was referred to, would have consolidated all state law enforcement training agencies under one umbrella agency with one agency director. The proposed legislative reorganization plan would have eliminated the Superintendent positions for both the Police Academy and the Fire Academy. The "Super Chief" bill failed to pass the

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