City of Buchanan v. Pope, No. A96A0927

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtSMITH; POPE, P.J., and ANDREWS
PartiesCITY OF BUCHANAN v. POPE et al.
Docket NumberNo. A96A0927
Decision Date11 September 1996

Page 53

476 S.E.2d 53
222 Ga.App. 716
CITY OF BUCHANAN

v.
POPE et al.
No. A96A0927.
Court of Appeals of Georgia.
Sept. 11, 1996.

Page 54

[222 Ga.App. 722] Elarbee, Thompson & Trapnell, Walter O. Lamberth, Jr., Richard R. Gignilliat, Atlanta, Richard C. Sutton, Tallapoosa, for appellant.

Ted B. Herbert, Marietta, for appellees.

[222 Ga.App. 716] 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

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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 [222 Ga.App. 717] 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 [222 Ga.App. 718] 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

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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...

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  • Cochran v. City of Atlanta, CIVIL ACTION NO. 1:15–CV–0477–LMM
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • December 20, 2017
    ...law and which are not inconsistent with the Constitution or any charter provision applicable thereto."); City of Buchanan v. Pope, 222 Ga.App. 716, 476 S.E.2d 53, 56 (1996) ("Pope's contention that the police department manual creates permanent tenure in a position upon good behavior is in ......
  • CNL Ins. America v. Moreland, No. A96A1961
    • United States
    • United States Court of Appeals (Georgia)
    • March 19, 1997
    ...majority, but write to note a distinction overlooked by the dissent between this decision and such cases as City of Buchanan v. Pope, 222 Ga.App. 716, 722, n. 4, 476 S.E.2d 53 (1996). While in Pope the appellant assented by silence to the City's factual assertions that no disparate treatmen......
  • Preston v. Georgia Power Co., Nos. A97A0776
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1997
    ...to each part of the statute, and avoid constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga.App. 716, 717(1), 476 S.E.2d 53 (1996). Moreover, we must presume that at the time the 1992 amendment was enacted the legislature was aware of the existi......
  • Walker v. City of Homerville, Civil Action No. 7:12-CV-137 (HL)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • February 10, 2014
    ...other official city document, or any ordinance or statute that altered her status as an at-will employee"); City of Buchanan v. Pope, 222 Ga. App. 716, 719-20, 476 S.E.2d 53 (1996) (citing Waters v. Buckner, 699 F. Supp. 900, 902-03 (N.D.Ga. 1988)) (noting that the city charter's provision ......
  • Request a trial to view additional results
44 cases
  • Cochran v. City of Atlanta, CIVIL ACTION NO. 1:15–CV–0477–LMM
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • December 20, 2017
    ...law and which are not inconsistent with the Constitution or any charter provision applicable thereto."); City of Buchanan v. Pope, 222 Ga.App. 716, 476 S.E.2d 53, 56 (1996) ("Pope's contention that the police department manual creates permanent tenure in a position upon good behavior is in ......
  • CNL Ins. America v. Moreland, No. A96A1961
    • United States
    • United States Court of Appeals (Georgia)
    • March 19, 1997
    ...majority, but write to note a distinction overlooked by the dissent between this decision and such cases as City of Buchanan v. Pope, 222 Ga.App. 716, 722, n. 4, 476 S.E.2d 53 (1996). While in Pope the appellant assented by silence to the City's factual assertions that no disparate treatmen......
  • Preston v. Georgia Power Co., Nos. A97A0776
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1997
    ...to each part of the statute, and avoid constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga.App. 716, 717(1), 476 S.E.2d 53 (1996). Moreover, we must presume that at the time the 1992 amendment was enacted the legislature was aware of the existi......
  • Walker v. City of Homerville, Civil Action No. 7:12-CV-137 (HL)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • February 10, 2014
    ...other official city document, or any ordinance or statute that altered her status as an at-will employee"); City of Buchanan v. Pope, 222 Ga. App. 716, 719-20, 476 S.E.2d 53 (1996) (citing Waters v. Buckner, 699 F. Supp. 900, 902-03 (N.D.Ga. 1988)) (noting that the city charter's provision ......
  • Request a trial to view additional results

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