DeClue v. City of Clayton

• Decision Date: 24 October 2000
• Docket Number: No. A00A0958, No. A00A1530.
• Citation: 246 Ga. App. 487,540 S.E.2d 675
• Parties: DeCLUE v. CITY OF CLAYTON (Two Cases).
• Court: Georgia Court of Appeals

540 S.E.2d 675

246 Ga. App. 487

DeCLUE v. CITY OF CLAYTON (Two Cases).

Nos. A00A0958, A00A1530.

Court of Appeals of Georgia.

October 24, 2000.

Certiorari Denied March 19, 2001.

Orr & Orr, E. Wycliff Orr, Gainesville, Kristine E. Orr, Atlanta, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Aaron J. Aberson, Atlanta, William B. Barker, for appellee.

JOHNSON, Chief Judge.

The City of Clayton, fired Jeffrey DeClue from his position as Superintendent of the City's Department of Water and Wastewater Treatment. DeClue sued the City, alleging that the City violated his due process rights by changing its employment policies without giving him notice and a hearing and also by firing him without providing notice and a hearing. He further alleged that the City unconstitutionally impaired his employment contract rights by adopting and applying the new policies to him.

Both parties moved for summary judgment on the due process claim. The trial court granted the City's motion and denied DeClue's motion. DeClue also filed a motion for summary judgment on the impairment of contract claim, which the trial court denied. In case number A00A0958, DeClue appeals from these orders.

While the appeal in Case No. A00A0958 was pending, the City moved for summary judgment on DeClue's impairment of contract claim. The trial court granted the City's motion. In Case No. A00A1530, DeClue appeals from that order. Because the cases are related, they have been consolidated on appeal.

The following facts are relevant to these appeals. The City hired DeClue in 1987 for an indefinite period of time and with no written contract. At the time he was hired and throughout his employment, the City had written personnel policies in place. Although the parties have not introduced copies of the policies which were in effect in 1987, they both rely upon the City's 1992 personnel manual as containing the policies in effect from the date of DeClue's hiring until at least 1997.

The City's 1992 personnel manual provides that certain specified conduct by employees is cause for disciplinary action. Prohibited conduct includes, for example, negligence or inefficiency in performing job duties, unfitness, insubordination, absenteeism or tardiness, theft of City property, and alcohol or drug use while on duty. The manual sets out five types of progressively severe discipline and requires that employees be given notice prior to the effective date of any adverse action. The policies provide that in certain cases, employees may be disciplined immediately, but that they will still be given notice of the reasons for the disciplinary action within a reasonable time and shall have the appeal and hearing rights set out in the policies. The policies give the employee an opportunity to respond to the notice and to appeal through an administrative hearing process.

In contrast to these provisions, the manual also states that, in establishing the policies and procedures, the City is "not creating a property interest for employees that leads to the expectancy of continued employment at any time," and that the City is an "at-will" employer. The manual further provides that the policies are subject to periodic revisions throughout the year, additional policies will be incorporated into the manual, and the City will review the policies annually to determine if additional revisions are necessary.

Sometime in 1996, the Mayor told DeClue that the City was considering changing the personnel policies. Then, in July 1996, the City held a meeting with its employees, including DeClue, to discuss the proposed changes. DeClue could not recall if he had a draft of the proposed changes at the time, but he believed he did. DeClue spoke at the meeting, telling city officials "that I didn't think that it was right to take away the grievance procedures ... and that they should be protecting the rights of the employees...." He argued that the City should keep the current policy, only amending it as necessary. In January 1997, the City adopted new personnel policies. The new policies superseded the previous policies and removed all of the provisions regarding grounds for disciplinary action, notice, and grievance procedures. Like the 1992 manual, the new manual provides that the City is not creating a property interest and that employment is "at will." DeClue received a copy of the revised policies that same month.

In March 1997, after allegedly receiving complaints from City employees about DeClue's conduct at work, the City Manager asked DeClue to attend a meeting with City Council members. At the meeting, the City Manager told DeClue he was going to be fired and gave him the option of resigning. DeClue replied that he wanted to consult an attorney and then left the meeting. His termination became effective the same day. DeClue did not request a hearing or file a grievance regarding his termination. Instead, he filed this lawsuit.

Case No. A00A0958

1. The due process claim. DeClue contends the trial court erred in denying his motion for summary judgment and granting the City's motion for summary judgment on the due process claim. DeClue claims he had a property interest in his employment, and he was deprived of that property interest without due process, in violation of the federal and state constitutions. We hold that he was not denied due process.

The Fourteenth Amendment to the U.S. Constitution protects persons from deprivation of liberty or property without due process of law.¹ Property interests are not created by the federal constitution; they are created and defined by rules and understandings stemming from an independent source, such as state law.²

Under Georgia law, generally, one in public employment has no vested right to such employment.³ However, a public employee has a property interest in his job if his employment allows dismissal only for cause.⁴ An explicit contractual provision, rules, or common understandings may determine whether an employee is terminable at will or only for cause.⁵ The issue is not dependent upon the presence of the specific words "for cause" in the employer's written personnel policies, as long as whatever provisions apply are meant to be analogous to allowing termination only for cause.⁶ The expectations of the parties involved are also relevant to this issue.⁷

There is some evidence supporting DeClue's argument that he had a property interest under the 1992 policy manual. As discussed above, the 1992 manual allows disciplinary action against employees only for certain reasons, requires notice before disciplinary action is taken in most cases, provides for progressive discipline, and provides employees with an opportunity to respond to charges and pursue administrative appeals. In fact, the manual lists as grounds for disciplinary action "violation of any other provision of these policies or any other reason which is just cause for discipline." (Emphasis supplied.) And, there is some evidence that the parties expected that termination would be only for cause, given a council member's testimony that he believed the City needed a reason to fire employees and DeClue's testimony that he believed an employee had a right to a grievance hearing before being fired. Thus, there is evidence that the 1992 manual allows termination only for cause.⁸

At the same time, however, the 1992 manual expressly provides that the City is not creating a property interest, that employment is at will, and that the policies are subject to periodic revision and annual review by the City. This indicates that termination can be without cause. Therefore, DeClue has not shown as a matter of law that the 1992 policies gave him a property interest in his continued employment with the City. Thus, he was not entitled to summary judgment on this issue.

Although the evidence conflicts regarding the existence of a property interest, the City was entitled to summary judgment on the due process issue. This is because even if we assume DeClue had a property interest under the 1992 policy, two material due process questions remain: Was the City authorized to change the rules in 1997 and apply those rules to DeClue? Did DeClue receive due process? We answer both questions in the affirmative.

An employer may affect revoke or terminate even vested property rights so long as it does so in accordance with constitutional standards of due process.⁹ The constitutionally guaranteed right to due process is, at its core, the right of notice and the opportunity to be heard.¹⁰ The due process right does not guarantee a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard and to present its claim or defense.¹¹

DeClue complains that the City deprived him of his property interest in continued employment by changing the personnel policies without first giving him notice and an opportunity to be heard. Specifically, he complains that the City did not emphasize the fact that employees would lose their "for cause" rights if the proposed changes were made, held only one meeting to discuss the proposed changes, and did not provide employees with a draft of proposed changes.

Despite these arguments, DeClue admitted on deposition that the Mayor notified him in advance that the City was considering changing the personnel policies. Then, before the policies were changed, the City met with employees, including DeClue, about the changes. DeClue voiced his opposition to the changes, specifically addressing the repeal of the grievance procedures. DeClue told city officials that he wanted to keep the old policies. It is clear that DeClue was aware of the proposed changes, that he had notice of the proposed changes, and that he exercised his opportunity to be heard regarding the changes. Therefore, his argument that the City changed the policies without first giving him the requisite notice and...