Brownlee v. Williams

• Decision Date: 28 January 1975
• Docket Number: No. 29069,29069
• Citation: 212 S.E.2d 359,233 Ga. 548
• Parties: Sam BROWNLEE et al. v. Harold E. WILLIAMS.
• Court: Georgia Supreme Court

Page 359

212 S.E.2d 359

233 Ga. 548

Sam BROWNLEE et al. v. Harold E. WILLIAMS.

No. 29069.

Supreme Court of Georgia.

Jan. 28, 1975.

Rehearing Denied Feb. 18, 1975.

Webb, Parker, Young & Ferguson, John Tye Ferguson, Atlanta, for appellant.

Houston White, Red Oak, for appellee.

Syllabus Opinion by the Court

JORDAN, Justice.

This is an appeal from an order of the Superior Court of Fulton County reversing on certiorari an order of the Fulton County Civil Service Board. The case involves the constitutionality of a section of the Fulton County Civil Service Act as well as a consideration of the procedures to be followed when an employee seeks reinstatement after discharge.

The facts of the case may be summarized as follows: Williams was employed by Fulton County in 1960. In 1963 he was employed by the Right of Way Department as a Right of Way Agent, and became Senior Right of Way Agent. Prior to his employment he was in the real estate business, and continued this business during his employment. As Right of Way Agent, Williams secured property deeds, easements and franchises, and agreements necessary for procuring rights of way.

During the 1960's the State Highway Department developed plans for a highway known as I-485. In 1967 Fulton County contracted with the State Highway Department to acquire rights of way for the state. Pursuant to this agreement Williams, as an employee of Fulton County, acquired property for the right of way of I-485. Williams worked on the acquisitions in the area south of Ponce de Leon Avenue in Atlanta. During off hours, Williams had an active real estate business of his own. Of more than thirty parcels of land personally owned by Williams, at least three were located on Virginia Avenue, in the neighborhood of the proposed highway, but north of Ponce de Leon Avenue. The plan for I-485 called for an interchange at Virginia Avenue. Depending upon which of the everchanging proposals one referred to, the ramp to the interchange would cut across or limit the access to Williams' property at Virginia Avenue.

In August, 1969, Williams offered to give the State Highway Department the right of way on the front of his properties in consideration of a relocation of the limit to access. This proposed trade was not accomplished because no final decisions had been made on certain design features of the interchange.

These activities came to the attention of the Right of Way Engineer for the State Highway Department. He contacted the Attorney General of Georgia and requested an investigation into possible conflicts of interest in Williams' activities as employee-Right of Way Agent and as private entreprenuer. In pursuit of that inquiry the Attorney General issued subpoenas to Williams, which we held Williams did not have to obey. See Williams v. Bolton, 227 Ga. 671, 182 S.E.2d 440.

Williams was discharged in January 20, 1971. He then appealed to the Fulton County Civil Service Board. Williams presented his case to the Civil Service Board unsuccessfully, and sought review of the case in Fulton County Superior Court by petition for certiorari.

After a hearing, the trial court held (1) that the advice of the Assistant County Attorney assigned to the Civil Service Board did influence the legal and factual conclusions reached by the board and that such was discriminate, capricious, arbitrary, and lacking in due process since another assistant county attorney represented the appointing authority; (2) that section 18 of the Act placed the burden of proof upon the discharged employee to show that his removal was for personal, political or religious reasons and was thus violative of due process and unconstitutional; (3) that the Civil Service Board should have granted Williams' motion to make more definite portions of the notice of his discharge; and (4) that as a matter of law the evidence showed that no conflict of interest existed between Williams and either the state or Fulton County.

The court concluded that the entire hearing before the Civil Service Board was null and void because Williams was deprived of his vested rights under the Civil Service Act of Fulton County in an illegal and unconstitutional manner.

Williams was ordered reinstated, and his appointing authority, the County Manager of Fulton County, has appealed the order of the Fulton Superior Court, enumerating as error essentially all of the above holdings of that court.

1. The Civil Service Act of Fulton County (Ga.L.1943, p. 971, as amended by Ga.L.1945, pp. 850, 854) has the following provision:

'Section 18. Removal. Any appointing authority may dismiss a subordinate in the classified service for cause, upon filing with the Board copy of written notice furnished the employee to be removed, setting forth in detail the reasons for such action, before the effective date of such removal. The dismissed employee shall have an opportunity to answer the charges in writing within ten (10) days, and to file with the Board affidavits in support of such answer. All papers filed in the case shall be subject to inspection by the persons affected. Such action of the appointing authority shall be final, except the Board may reinstate an officer or employee so removed in case it appears after proper hearing that the removal was made for personal political or religious reasons and not justified.'

'Section 18(a). Whenever an employee has been suspended, demoted, discharged, disciplined, or otherwise caused to suffer any loss in classification, grade or salary, such employee shall have the right of appeal to the Civil Service Board. This right may be exercised at any time within ten days from the date of such suspension, demotion, discharge or other disciplinary action by a request in writing for such hearing filed with the Secretary of said Board. Immediately upon the receipt of such request, the Secretary shall notify the members of the Board and call a meeting of the Board for proper hearing of the case. The Board shall proceed to hear all parties at interest and such evidence as may be introduced by any of them at the earliest practicable date after notice of the appeal has been filed. The filing by an employee of an answer to charges to the written statement filed by the appointing authority with the Board as provided in Section 18 above, without further formality shall be deemed a sufficient demand for a hearing.'

The trial court held that the above quoted section is contrary to Article I, Section I, Paragraph II and III of the Constitution of Georgia, and Amendment XIV, Section I of the Constitution of the United States because it does not require a hearing on the merits of charges against an employee prior to his discharge.

The language of Section 18 has been considered before by this court. See Foster v. Vickery, 202 Ga. 55, 61, 42 S.E.2d 117. There we held that the Board is required to grant a hearing if a discharged employee complies with the provisions of the Act.

Employees who are covered by the Fulton County Civil Service Act have a property interest in their continued employment. This interest is protected by Art. I, Sec. I, Par. III of the Georgia Constitution, and the Fifth Amendment to the Constitution of the United States. Termination of this employment requires notice and a hearing. See Goldberg v. Kelley, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Board of Regents of State Collegas v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

This Act provides for notice prior to discharge, and a hearing subsequent to discharge. Must a hearing be accorded prior to discharge? 'The resolution of this issue depends on a balancing process in which the Government's interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment.' Mr. Justice Powell, concurring in Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15.

From the employee's standpoint, a vital interest is the continued receipt of his salary. Upon discharge this salary is lost; this creates hardship which might be severe in a case such as this where the final determination of the Fulton Civil Service Board was not rendered until more than six months after notice of discharge. Although this Act is silent on the question of back pay, we presume that any employee who was reinstated by the Board would be entitled to all salaries, increments and benefits that would have been his if he had not been discharged. It follows that if an employee is discharged, and his salary withheld, the deprivation, if unjustified, is only temporary.

By contrast, the Fulton County Government has an interest in maintaining control over its personnel. Frequently this control should be exercised with a degree of immediacy.

'This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work-place, foster discharmony, and ultimately impair the efficiency of an office or agency. Moreover, a requirement of a prior evidentiary hearing would impose additional administrative costs, create delay, and deter warranted discharges. Thus, the Government's interest in being able to act expeditiously to remove an unsatisfactory employee is substantial.' Arnett v. Kennedy, supra, p. 168, 94 S.Ct. p. 1651.

Having weighed the interests we conclude that the evidentiary hearing subsequent to discharge, as provided in this Act, meets the requirements of due process of law. It was error for the trial court to hold that Section 18 of the Act does not comport with constitutional guarantees of due process and equal protection.

2. The trial court held Section 18 of the Act...