Ellis v. Caldwell

• Decision Date: 09 January 2012
• Docket Number: No. S11A1748.,S11A1748.
• Citation: 12 FCDR 68,161 Lab.Cas. P 61219,720 S.E.2d 628,290 Ga. 336
• Parties: ELLIS et al. v. CALDWELL.
• Court: Georgia Supreme Court

12 FCDR 68

161 Lab.Cas. P 61,219

290 Ga. 336

720 S.E.2d 628

ELLIS et al.

v.CALDWELL.

No. S11A1748.

Supreme Court of Georgia.

Jan. 9, 2012.

Michelle Lynn Thomas, Laura Karen Johnson, Lisa Ellen Chang, Decatur, for appellants.

Andrew Yancey Coffman, Parks, Chesin & Walbert, P.C., Joshua Marks Capilouto, Atlanta, for appellee.

THOMPSON, Justice.

Appellants Burrell Ellis, DeKalb County CEO, and Eddie O'Brien, Fire Rescue Chief of DeKalb County (collectively, “the County”) appeal from the grant of a writ of mandamus ordering the County to reinstate appellee Sell Caldwell III to his former position as a fire captain in the DeKalb County Fire Rescue Department and awarding him back pay and costs of litigation. For the reasons that follow, we affirm.

The facts are not in dispute. On February 2, 2010, Caldwell's employment as a captain with the DeKalb County Fire Rescue Department was terminated by the former Fire Rescue Chief based on allegations that Caldwell: (1) failed to locate the dispatch address in the course of responding to a fire; and (2) failed to take command of the scene of a fire.¹ As a Merit System employee, Caldwell was informed of his right to appeal that action to the DeKalb County Human Resources and Merit System Department by filing a written request for appeal within ten days of his termination. Caldwell exercised that right, and a timely notice of appeal was filed. On February 11, 2010, Caldwell applied for early retirement from the County in order to mitigate his loss of salary. He began receiving retirement benefits on March 1, 2010.

After hearing evidence in connection with Caldwell's appeal, a hearing officer determined the fire department did not correctly apply the facts to the cited violations, resulting in errors of fact with regard to Caldwell's termination. In accordance with those findings, the hearing officer reversed Caldwell's termination. The County sought review of that decision by the Merit System Council,² asserting that the hearing officer's factual findings were not consistent with his conclusion that termination was based on an error of fact. The Council unanimously upheld the hearing officer's decision to reverse Caldwell's termination. The County did not seek further review. See Anderson v. McMurry, 217 Ga. 145, 121 S.E.2d 22 (1961) (a writ of certiorari lies to review the rulings and findings of the DeKalb County Merit System Council).

Despite the administrative rulings in Caldwell's favor, he was not reinstated to his former position. As a result, Caldwell filed the present mandamus action to compel his reinstatement as Fire Captain and for back pay and benefits, as well as attorney fees and costs of litigation. After an evidentiary hearing, the trial court ruled that Caldwell had a clear legal right to reinstatement under the DeKalb County Code, and that he had no adequate remedy other than to have his position restored. In accordance therewith, the court granted the writ of mandamus and ordered the County to reinstate Caldwell to his former position and pay him the difference between the sum he received in retirement benefits and the amount of compensation he would have received as a permanent DeKalb County Fire Captain. The court further found that the County had been stubbornly litigious in failing to reinstate Caldwell despite the mandate from the Council, and it awarded attorney fees and costs of litigation under OCGA § 9–15–14.

1. The County asserts mandamus was not authorized because Caldwell did not have a clear legal right to the remedies imposed by the trial court.

“The extraordinary writ of mandamus will not lie unless the petitioner seeking it has a clear legal right to have the act performed. The law must not only authorize the act be done, but must require its performance.” (Citations and punctuation omitted.) Thomason v. Fulton County, 284 Ga. 49, 50(1), 663 S.E.2d 216 (2008). Here, Caldwell pursued his administrative remedies after his termination and produced evidence at the hearing in opposition to his termination. The DeKalb County Code authorizes a hearing officer to “reverse a disciplinary action ... upon a finding that it is based upon an error of fact.” DeKalb County Municipal Code § 20–193 (1976).³ That is precisely what the hearing officer determined in this case—that both grounds specified in the termination notice were based on errors of fact. The appropriate remedy then was to “reverse” Caldwell's termination by the chief which would have the effect of placing him in the same position he would have been had he not been terminated. It is disingenuous for the County to argue that although the Code allows “reversal” of the chief's decision, it does not contemplate reinstatement. By definition, reversal of a termination constitutes reinstatement. See McAfee v. Bd. of Firemasters of Atlanta, 186 Ga. 262(3), 197 S.E. 802 (1938) (mandamus appropriate to compel reinstatement of firefighter who was suspended in violation of the Civil Service Act). Similarly, the County asserts that because the Code only allows the Council on appeal to “affirm or reverse” the hearing officer, the Council's ruling did not amount to reinstatement. Our response to that argument is the same—affirmance by the Council of the decision of the hearing officer entitled Caldwell to reinstatement. County officials may not ignore the outcome of the merit system proceedings as well as its own unsuccessful appeal. To the contrary, “the decision of the Council is binding upon the governing authority of the county.” Anderson, supra at 151, 121 S.E.2d 22.

Because Caldwell has a clear legal right to reinstatement, a right violated by the County's steadfast refusal to abide by the order of the hearing officer, as affirmed by the Council on appeal, mandamus was properly granted. We also approve the monetary award fashioned by the trial court to make Caldwell whole for the full amount of salary he was denied from the date of his wrongful termination. See Bradford v. Bolton, 215 Ga. 188, 191, 109 S.E.2d 751 (1959) (mandamus to enforce right to payment); McCallum v. Bryan, 213 Ga. 669, 671(5), 100 S.E.2d 916 (1957) (mandamus to compel official duties, including payment of monies owed).

The County further argues that Caldwell gave up any right to reinstatement when he elected to receive monthly retirement benefits.⁴ It was established at the mandamus hearing through the testimony of the assistant director of Human Resources for DeKalb County that a retiree cannot be a full-time employee of the County, but if the retiree were to give up retirement benefits, he or she could be reinstated. Caldwell acknowledges that he must relinquish his pension benefits when he is reinstated to his former position as fire chief.⁵

2. The trial court assessed attorney fees and expenses of litigation against the County under OCGA § 9–15–14, after finding that the County has “been unnecessarily litigious in this action by not reinstating [Caldwell] to his position, despite the fact that [the hearing officer] and the Council found that there were errors of fact in [Caldwell's] termination action and reversed [his] disciplinary action.”

(a) Although the court's order failed to specify whether the award was made pursuant to subsection (a) or (b) of OCGA § 9–15–14, the foregoing language describes conduct which falls within subsection (b).⁶ See Century Center at Braselton v. Town of Braselton, 285 Ga. 380(1), 677 S.E.2d 106 (2009). Compare Francis–Rolle v. Harvey, 309 Ga.App. 491, 710 S.E.2d 659 (2011) (award vacated where no statutory basis stated in final order and no notice or opportunity given to opposing party). In...