City of Albany v. Pait

• Decision Date: 18 November 2015
• Docket Number: A15A1181.,Nos. A15A1180,s. A15A1180
• Citation: 780 S.E.2d 103,335 Ga.App. 215
• Parties: CITY OF ALBANY, Georgia et al. v. PAIT. Pait v. City of Albany, Georgia et al.
• Court: Georgia Court of Appeals

335 Ga.App. 215

780 S.E.2d 103

CITY OF ALBANY, Georgia et al.

v.PAIT.

Pait

v.City of Albany, Georgia et al.

Nos. A15A1180

A15A1181.

Court of Appeals of Georgia.

Nov. 18, 2015.

Reconsideration Denied Dec. 9, 2015.

Richard Read Gignilliat, Richard Murray Escoffery, Atlanta, for Appellant.

Maurice Luther King Jr., for Appellee.

McFADDEN, Judge.

The City of Albany Fire Department terminated the employment of firefighter Joseph Pait after he pled guilty to two counts of theft. Pait appealed the termination to the city manager, who held an evidentiary hearing and affirmed the decision. Pait filed a petition for writ of certiorari in the superior court against the city, fire chief James Arrowood and deputy fire chief James Carswell. In the petition, Pait sought review of the city manager's termination decision and also set forth several additional civil counts for damages and other relief. The superior court granted the writ, reversed the city manager's decision, and reinstated Pait as a firefighter with back pay and benefits. The superior court granted summary judgment to the city, Arrowood and Carswell on all of Pait's civil claims except for a procedural due process claim. The court awarded attorney fees to Pait pursuant to OCGA § 9–15–14, finding that the city, Arrowood and Carswell had, in numerous instances, acted without substantial justification in defending the termination decision.

In Case No. A15A1180, the city, Arrowood and Carswell appeal, arguing that the superior court erred in finding that there was no evidence supporting the city manager's decision to terminate Pait's employment and in finding a procedural due process violation. Because the termination decision was supported by some evidence and there was no procedural due process violation as Pait was given notice and a hearing pursuant to the city personnel ordinance, the superior court's decision was erroneous and must be reversed. The city, Arrowood and Carswell further challenge the trial court's lump sum award of attorney fees to Pait under OCGA § 9–15–14. Because such a lump sum award is not allowed without specific findings allocating fees to sanctionable conduct, the attorney fees award is vacated and the case is remanded with direction.

In Case No. A15A1181, Pait cross-appeals from the trial court's grant of summary judgment to the city, fire chief and deputy fire chief on his various claims for civil damages and other relief. But because Pait has failed to show any error by the record, we affirm that ruling.

Case No. A15A1180

1. Sufficiency of the evidence.

The city, Arrowood and Carswell ("appellants") assert that the superior court erred in holding that the city manager's termination decision was not supported by sufficient evidence. We agree.

The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this [c]ourt, our duty is not to review whether the record supports the superior court's decision[,] but whether the record supports the initial decision of the local governing body or administrative agency. Neither the superior court nor this [c]ourt reweighs credibility determinations of the factfinder. In other words, because the factfinder in the initial proceedings is charged with weighing the evidence and judging the credibility of the witnesses, the superior court and this [c]ourt must view the evidence in the light most favorable to the factfinder's decision and must affirm the decision if there is any evidence to support it, even when the party challenging the factfinder's conclusions presented evidence during the initial proceedings that conflicted with those conclusions.

DeKalb County v. Bull,

295 Ga.App. 551, 552(1), 672 S.E.2d 500 (2009) (citations, punctuation and emphasis omitted).

Viewed in the light most favorable to the city manager's decision, the evidence presented at the termination hearing shows that in June 2002, the fire department received notice from the police department that Pait was suspected of theft. On December 19, 2003, Pait pled guilty to two misdemeanor counts of theft by taking and one misdemeanor count of criminal trespass. He was sentenced to a total of 24 months of probation and was given first offender treatment. On December 24, 2003, deputy chief Carswell, at the direction of Arrowood, sent a letter to Pait notifying him that his employment was being terminated for theft. The letter referenced Section V, Articles 2 and 7, of the fire department standards of conduct, which provide that causes for dismissal include, but are not limited to, conviction of a felony or crime of moral turpitude, and the theft or destruction of department or public property. The letter notified Pait that he could appeal the decision to the city manager, and Pait requested a hearing.

On February 6, 2004, the city manager held the hearing, at which Pait appeared with counsel. At the hearing, Arrowood explained that because firefighters have access to other people's property, the department holds its members to a high standard with regard to theft, and the department practice was to terminate any employee involved in theft regardless of whether there had been a conviction. With regard to the theft and criminal trespass charges to which he had pled guilty, Pait admitted that he had gone onto the property in question, taken a canoe and other items, sold the canoe for $200, and would have sold the other items but never had the chance. Despite his guilty pleas, Pait claimed that he had no criminal intent when he entered onto another's property and took the items because he thought they were abandoned, and he presented his mother and two other witnesses to support this claim.

Ten days after the hearing, on February 16, 2004, the city manager issued her decision upholding the termination of Pait's employment "based upon [Pait's] admission that [he] did, knowingly and willingly remove property belonging to a private citizen without their consent." Additionally, the city manager found that Pait's conduct violated the fire department's standards of conduct, and she particularly identified the same two standards that had been referenced in the department's termination letter as Section V, Articles 2 and 7.

In reversing the city manager's decision, the superior court found that it was not supported by any evidence because Pait's guilty pleas to theft by taking were given first offender treatment and thus did not constitute convictions, and because the property taken by him was from a private citizen. Accordingly, the superior court concluded, there were no violations of either of the fire department standards cited by the city manager, one which required a conviction (Section V, Article 2) and the other which required theft or destruction of department or public property (Section V, Article 7). The superior court further found that those two standards provided the only basis in the record for the termination of Pait's employment.

The superior court, for the reasons explained above, was correct in concluding that the two cited department standards of conduct did not support the termination. However, the court erred in finding that those were the only two grounds in the record that supported the city manager's decision to terminate Pait's employment. Section V, Article 1 of the department standards of conduct, which were introduced into evidence at the termination hearing, provides that a member may be dismissed "[f]or misconduct on the part of a member, on or off duty, which tends to degrade the member of the department." Similarly, the city's personnel ordinance, which also was introduced at the hearing, provides that the reasons for "dismissal [of an employee] include but are not limited to ... [m]isconduct."

Because the term "misconduct" is not defined in the department standards or city ordinance, "we therefore look to its plain and ordinary meaning as defined by dictionaries." Mornay v. Nat. Union Fire Ins. Co. of Pittsburgh, 331 Ga.App. 112, 115(3), 769 S.E.2d 807 (2015) (citation omitted). The term "misconduct" is defined as meaning "[b]ehavior not conforming to the prevailing standards or laws" and "[d]eliberate wrongdoing." American Heritage Dictionary of the English Language, Third Edition. Likewise, Black's Law Dictionary, Revised Fourth Edition, defines "misconduct" as meaning "unlawful behavior" and "improper or wrong behavior," and notes that "its synonyms are misdemeanor, misdeed, misbehavior[.]" Given the plain and ordinary meaning of "misconduct" as used in the department standards and the city ordinance, it is apparent that theft is the type of unlawful and improper behavior that supports dismissal of an employee.

And contrary to the superior court's ruling, there was sufficient evidence to support the city manager's finding that Pait had admitted to having committed theft. As recounted above, evidence of Pait's guilty pleas to two counts of theft by taking was admitted at the hearing; and at that time, Pait was on probation for the offenses, having served less than two months of his 24–month probated sentence. While the superior court correctly found that the first offender pleas did not constitute convictions at the time of the termination hearing, see Humphreys v. State, 287 Ga. 63, 70(4), 694 S.E.2d 316 (2010), they still constituted guilty pleas to the offenses of theft by taking that required successful completion of Pait's probated sentences. "Unlike other probated sentences the [first offender] defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner may be rehabilitated." State v. Wiley, 233 Ga. 316, 318, 210 S.E.2d 790 (1974). First offender treatment "allows a defendant's slate to be wiped clean for the purposes of recordation of a criminal...