City of Buchanan v. Pope

Decision Date11 September 1996
Docket NumberNo. A96A0927,A96A0927
PartiesCITY OF BUCHANAN v. POPE et al.
CourtGeorgia Court of Appeals

Elarbee, Thompson & Trapnell, Walter O. Lamberth, Jr., Richard R. Gignilliat, Atlanta, Richard C. Sutton, Tallapoosa, for appellant.

Ted B. Herbert, Marietta, for appellees.

SMITH, Judge.

Jimmy V. Pope served as the Chief of Police of the City of Buchanan, Georgia for approximately 21 years. In November 1993, the Mayor and Council of the City voted not to renew Pope's term of employment under the city charter. The City then brought this declaratory judgment action seeking clarification of a potential conflict between Pope's employment status under the charter and the provisions of a personnel manual drafted by Pope for the police department and adopted by the City.

Pope answered and counterclaimed for defamation and intentional infliction of emotional distress. He also filed a separate civil action reasserting the claims made in his counterclaim and asserting claims of due process and equal protection under 42 USC § 1983, contending his employment with the City had been wrongfully terminated. His wife brought a claim for loss of consortium. The trial court dismissed the claim for declaratory judgment, consolidated the actions, and realigned the parties to show the Popes as plaintiffs and the City as defendant.

Pope claims a right of continuing employment constituting a property interest under the terms of the police department "policies and procedures" manual. Pope relies on the provisions found under the general heading of "S.O.P. [Standard Operating Procedures] DISCIPLINE." Item (1)(D), "Dismissal," provides: "No permanent employee may be dismissed except for cause. The Chief of Police may recommend dismissal to the City Council, but only the City Council may dismiss a permanent employee. A permanent [employee] being dismissed must be notified of the cause." Pope contends, in essence, that the manual grants him permanent tenure in his employment during good behavior, unless he chooses to resign.

The City contends that it did not terminate Pope, but simply determined that his 12-month term of employment would not be renewed when it expired. The City relies on Section 16 of the city charter: "[S]aid council shall be authorized to employ such police officers as they may see fit for the proper police protection of said city, which officers shall be known and designated as marshals, or marshals and deputy marshals as may be provided by said ordinance, and who shall be elected for such term not exceeding twelve months as the council may see fit, and who shall receive such compensation as may be fixed by the council, and who shall be directly responsible and accountable to the mayor of said city and subject to his orders...." (Emphasis supplied.) Ga. Laws 1908, pp. 468, 475. According to the City, the provisions of the manual by their terms apply only to dismissal for cause, not to failure to renew the term of a city officer.

The trial court found that the police department manual provisions were "adopted ... as a supplement to [the City's] employment provisions under § 16" and "evince sufficient 'mutually explicit understandings' of Pope's continued employment to satisfy Pope's burden" of proof. The trial court granted the City's motion for summary judgment on Pope's claims of defamation and intentional infliction of emotional distress, but it concluded that issues of fact existed as to the remaining counts and denied the City's motion for summary judgment.

Interpretation of statutes, ordinances, and charters, however, presents a question of law for the court. Curlee v. Mock Enterprises, 173 Ga.App. 594, 600(4), 327 S.E.2d 736 (1985). The issue of whether the City's charter or the personnel manual controls Pope's employment is also a question of law. Under Georgia law, to the extent, if any, that the provisions of the personnel manual conflict with those of the City charter, the charter must prevail. For this reason, we conclude that the trial court erred in denying the City's motion for summary judgment.

1. In considering these various enactments, we must apply the principal rules of statutory construction. It is axiomatic that, if an enactment is plain and unambiguous, we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1(b). We must seek "to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256-257, 450 S.E.2d 233 (1994). " '[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes "in pari materia," are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.' [Cit.]" Bennett v. Wood, 188 Ga.App. 630, 632(1), 373 S.E.2d 645 (1988). Finally, "[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning." (Citations and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748(3), 452 S.E.2d 476 (1994). These principles apply in the interpretation of city or county ordinances as well as statutes. See, e.g., Hogan v. DeKalb County, 196 Ga.App. 728, 729, 397 S.E.2d 16 (1990) (harmonizing provisions of county sanitation ordinance in accordance with general statutory rule).

(a) Turning to the provisions of the police department manual relied upon by Pope, we find that by their terms they pertain to "discipline," e.g., "(a) reprimand, (b) suspension without pay, (c) probation, [or] (d) dismissal" rather than to nonrenewal of a term of employment. Moreover, the disciplinary provisions contained in the police department manual are largely administered by Pope himself, as chief of police, either by making a disciplinary decision himself or by making a disciplinary recommendation to the City Council. Reading the police department manual in light of the rules of construction described previously, it is apparent that Pope was not "dismissed" within the meaning of the manual's chapter on discipline. This interpretation also harmonizes the provisions of the manual with § 16 of the City's charter, limiting the application of the manual's provisions to discipline imposed within the term of an officer's service.

The distinction between termination and nonrenewal has been recognized by federal courts in interpreting wrongful discharge claims under Georgia law. For example, in Hudgins v. City of Ashburn, 890 F.2d 396 (11th Cir.1989), a city clerk brought a § 1983 action claiming wrongful discharge under the City's personnel management plan. The Eleventh Circuit rejected her claim, in part because the plan specifically excepted the plaintiff's position of city clerk. The court also noted, however, that the city's Code was "explicit and unambiguous" in its provision of a one-year term for the city clerk, 890 F.2d at 405, that the city clerk was not fired but "simply was not re-elected as city clerk," 890 F.2d at 407, n. 21, and that she had no property interest in continued employment as the city clerk. Id. 1

(b) Moreover, Pope's contention that the police department manual creates permanent tenure in a position upon good behavior is in direct conflict with the term of office provided by the City's charter, and the charter must prevail. Under OCGA § 36-35-3(a), municipal corporations have the power to adopt only "clearly reasonable ordinances, resolutions or regulations ... for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto." Moreover, "[a]ny such charter provision shall remain in force and effect until amended or repealed." Id.

The Georgia Supreme Court has interpreted this Code provision to invalidate municipal ordinances inconsistent with a city's charter. In Ga. Branch, etc., Contractors v. City of Atlanta, 253 Ga. 397, 321 S.E.2d 325 (1984), contractors challenged the City of Atlanta's minority set-aside ordinance, contending it violated the city charter's requirement that contracts be let to the "lowest and/or best bidder." The Supreme Court agreed, holding that the city ordinance must yield to the legislative mandate in the charter and that the ordinance was therefore void. 253 Ga. at 398-399(2), 321 S.E.2d 325.

The federal courts have also agreed that a city's charter must control where inconsistent with personnel regulations. In Waters v. Buckner, 699 F.Supp. 900, 902 (N.D.Ga.1988), aff'd, 889 F.2d 274 (11th Cir.1989), the district court considered a City of Canton charter provision that any officer elected or employed by the Mayor and City Council could be terminated "with or without cause." The district court held that this charter provision prevailed over personnel regulations: "The plaintiff appears to argue and allege that the defendants failed to follow personnel regulations in city ordinances and that he was fired for an improper cause. However, as discussed above, the city charter controlled on the terms of his employment. Any part of the personnel regulations that purport to say the police chief can only be fired for cause, which plaintiff has failed to point out to the court, would be void under Georgia law. City ordinances which are inconsistent with a city charter are void. [Citing Ga. Branch, supra.]" 699 F.Supp. at 903. Pope's contention that Waters is distinguishable because he, unlike Waters, has pointed out a personnel regulation stating he can only be fired for cause, is without merit. Waters plainly states that such a...

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