Foster v. Vickery

• Decision Date: 05 February 1947
• Docket Number: 15613.
• Citation: 42 S.E.2d 117,202 Ga. 55
• Parties: FOSTER, Sheriff, v. VICKERY.
• Court: Georgia Supreme Court

42 S.E.2d 117

202 Ga. 55

FOSTER, Sheriff, v. VICKERY.

No. 15613.

Supreme Court of Georgia

February 5, 1947

Rehearing Denied March 20, 1947.

Certiorari from Court of Appeals.

Syllabus by the Court.

The Court of Appeals erred in reversing the judgment of the superior court, which judgment overruled the action of the Civil Service Board in ordering the reinstatement of the discharged employee.

The present case came to this court on certiorari. On June 29 1945, A. B. Foster, Sheriff of Fulton County, served Mrs Rubye Vickery with written notice of her dismissal for cause as deputy sheriff and matron of the county jail, giving the charges against her as: conduct unbecoming an officer, in the reckless driving of an automobile in the city of Atlanta in the early hours of the morning on June 23, 1945, and driving an automobile at such time under the influence of intoxicating liquors. Mrs. Vickery, previously, was holding the classified position under the Civil Service Act of 1943 applicable to Fulton County, Ga.L.1943, p. 971, as matron in the jail, and pursuant to the notice she was dismissed from the classified service.

She filed an answer to the charges with the Civil Service Board, accompanied by affidavits, which answer constituted a demand for a hearing in her behalf. In her answer she denied that she was guilty of the conduct charged, and declared that, in her opinion, her removal was made for (1) personal reasons, (2) political reasons, and (3) that it was not justified by the facts of the case; and prayed that she be restored to her position.

The appeal of Mrs. Vickery came on for hearing before the Civil Service Board of Fulton County. After hearing evidence and argument of counsel, the board passed an order, the material part of which is as follows: 'The appeal of Mrs. Rubye Vickery, permanent employee holding the classified position of matron, from an order of dismissal, coming on regularly to be heard after notice, after hearing the evidence submitted and the statement of the appellant and her counsel, it is considered, ordered and adjudged, the decision of this board is that the appellant is guilty of conduct unbecoming an officer as charged by the sheriff, but there are some extenuating circumstances in favor of the appellant, to wit: the fact that she was not on duty, and also the past good record of the appellant as a county employee and matron. It is further the decision of this board that the disciplinary action taken by the appointing authority, namely, the dismissal from the classified service, be reduced from dismissal to suspension for a period of six months without pay, said suspension to date from July 1, 1945, at the expiration of which period, without further order, the appellant shall stand reinstated to her classified position with all rights under the classified system.'

Foster excepted to this order of the civil service board, and carried the case by certiorari to the Superior Court of Fulton County. The superior court sustained the portion of the order which gave the decision of the board that Mrs. Vickery was guilty of conduct unbecoming an officer as charged by the sheriff, but disapproved, and ordered stricken, the remainder of the order, reducing the dismissal to suspension for a period of six months. Mrs. Vickery entered her appeal from the judgment of the superior court to the Court of Appeals, and Foster filed a cross-bill, assigning error on various rulings of the trial court.

The Court of Appeals construed the act approved March 15, 1943, Ga.L.1943, p. 971, and the amending act of March 6, 1945, Ga.L.1945, p. 850, creating and setting up a Civil Service Board for Fulton County, and held that the trial court erred in disapproving and striking that part of the order of the Fulton County Civil Service Board which reduced the penalty imposed on Mrs. Vickery, but affirmed the other rulings of the trial court.

Foster filed a motion for rehearing, pointing out in detail the errors which he alleged the Court of Appeals had committed in construing the acts creating the Civil Service System for Fulton County, by which construction the Court of Appeals arrived at the conclusion that the civil service board had authority to reduce the penalty of Mrs. Vickery from dismissal to reinstatement after six months, even though the board held that she was guilty of the charges made against her. On the denial of his motion for rehearing, Foster filed a petition for certiorari in this court, which was granted.

Houston White and Sam F. Lowe, Jr., both of Atlanta, for plaintiff in error.

Geo. & John L. Westmoreland and Wm. G. Grant, all of Atlanta, for defendant in error.

HEAD, Justice (after stating the foregoing facts).

The application for certiorari assigns error on various rulings by the Court of Appeals. Only one question needs to be considered here. Could the Civil Service Board of Fulton County, under its findings that the charges made by the sheriff against Mrs. Vickery--'(1) reckless driving of an automobile on Piedmont Avenue in the City of Atlanta in the early hours on the morning of June 23, 1945; (2) by driving your automobile at the same time and place under the influence of intoxicating liquors'--were supported by the evidence, and that 'the appellant is guilty of conduct unbecoming an officer as charged by the sheriff,' thereafter provide that the order of dismissal made by the sheriff be reduced to six-months' suspension?

The powers of the board are to be found and determined under the provisions of law creating a Fulton County Civil Service Board, and acts amendatory thereof. Section 18 of the act of 1943, Ga.L. 1943, p. 990, is as follows: 'Any appointing authority may dismiss a subordinate in the classified service for cause, upon filing with the Board copy of written notice furnished the employee to be removed, setting forth in detail the reasons for such action, before the effective date of such removal. The dismissed employee shall have an opportunnity to answer the charges in writing within ten (10) days, and to file with the board affidavits in support of such answer. All papers filed in the case shall be subject to inspection by the persons affected. Such action of the appointing authority shall be final, except the Board may reinstate an officer or employee so removed in case it appears after proper hearing that the removal was made for personal, political, or religious reasons and not justified. The Board may, after proper investigation of the circumstances surrounding the dismissal and the fairness thereof, approve the transfer or re-employment of the employee involved either to the same position, if approved by the appointing authority, or to a lower position as the board may direct. Provided, however, the board within thirty (30) days from any action removing, demoting, suspending, or accepting the resignation of any officer or employee may on its own motion, or on the motion of any party, reopen the case and vacate, modify or revise its former order so as to lessen, but not increase, the penalty imposed, but after the end of such thirty (30) days, the Board shall not have any authority to reopen such case for any cause.'

By an amendment approved March 6, 1945, Ga.L. 1945, p. 854, § 18 of the act of 1943, entitled 'Removal,' was amended by striking the words, 'if approved by the appointing authority,' in the 18th line of the section, and by adding § 18(a), as follows: 'Whenever an employee has been suspended, demoted, discharged, disciplined, or otherwise caused to suffer any loss in classification, grade or salary, such employee shall have the right of appeal to the Civil Service Board. This right may be exercised at any time within ten days from the date of such suspension, demotion, discharge or other disciplinary action by a request in...