Cobb County v. Jones, 72053

• Decision Date: 29 May 1986
• Docket Number: No. 72053,72053
• Citation: 345 S.E.2d 917,179 Ga.App. 240
• Parties: COBB COUNTY v. JONES et al.
• Court: Georgia Court of Appeals

Page 917

345 S.E.2d 917

179 Ga.App. 240

COBB COUNTY v. JONES et al.

No. 72053.

Court of Appeals of Georgia.

May 29, 1986.

Robert H. Cleveland, Y. Kevin Williams, Marietta, Donald T. Wells, Jr., Athens, for appellant.

Guy E. Davis, Jr., Atlanta, John H. Moore, Marietta, for appellees.

POPE, Judge.

In March 1985 appellee James Alex Jones, a Cobb County policeman, was involved in a shooting incident while on duty. Following an internal investigation, the police department determined that Jones had violated police policy in regard to use of force and ordered that Jones' rank be reduced one grade and that he be suspended for 30 days. Jones appealed the actions to the Cobb County Civil Service Board (Board).

On June 18, 1985 the Board met and considered Jones' appeal. Although there was a quorum, only four of the five Board members were present. At the conclusion of the hearing, the members present voted 2-2 in regard to the matter. On June 28, 1985 the Board notified appellant Cobb County that it would rehear the Jones appeal in an attempt to break the tie. Appellant Cobb County objected and filed the present declaratory action in superior court asking the court to determine whether the tie vote was a final determination. Appellant took the position that the tie vote was a final decision and automatically affirmed the action of the police department. The trial court rejected this argument. In its conclusions of law, the trial court found that the Rules and Regulations of the Cobb County Civil Service Board made no provision for tie votes in hearings or appeals, that it was the duty of the Board to render decisions affirming or disaffirming actions of the Appointing Authority under review, that a tie vote is not a decision, and that the Board was authorized to interpret its rules to allow a rehearing in the event of a tie vote. Held :

While we agree with appellant that the Board acts in a quasi-judicial manner when it hears appeals (see Anderson v. McMurry, 217 Ga. 145, 121 S.E.2d 22 (1961)), we cannot agree that it necessarily follows that a tie vote by the Board operates automatically to affirm the action appealed. Appellant cites several Supreme Court cases in which the court recites that it is evenly divided, and that the decision of the lower court is therefore affirmed by operation of law. Appellant argues that this is a proposition applicable to all bodies sitting in an appellate capacity. However, the proposition is not universal. Rather, it is a function of a specific statute governing procedure in the Supreme Court. "In all cases decided by the Supreme Court ... [i]f the Justices are evenly divided, the judgment of the court below shall stand affirmed." OCGA § 15-2-16(a). The rule is different in the Court of Appeals. "In the event of an equal division of the judges when sitting as a body, the case shall be immediately transmitted to the Supreme Court." Ga. Const.1983, Art. VI, Sec. V, Para. V. In order to determine the effect of a tie vote by any body acting in an appellate...