Gwinnett County v. Blaney

• Decision Date: 12 November 2002
• Docket Number: No. S02A0874, No. S02X0876.
• Citation: 275 Ga. 696,572 S.E.2d 553
• Court: Georgia Supreme Court
• Parties: GWINNETT COUNTY et al. v. BLANEY, Solicitor. Blaney, Solicitor, v. Gwinnett County et al.

572 S.E.2d 553

275 Ga. 696

GWINNETT COUNTY et al. v. BLANEY, Solicitor.

Blaney, Solicitor, v. Gwinnett County et al.

Nos. S02A0874, S02X0876.

Supreme Court of Georgia.

November 12, 2002.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, John H. Zwald, Buford, for appellants.

Davidson, Fuller & Sloan, Stephen P. Fuller, Duluth, for appellees. HINES, Justice.

This is an appeal and cross-appeal from rulings by the Superior Court of Gwinnett County on petitions for mandamus and for declaratory judgment filed by Gerald N. Blaney, Jr., in his official capacity as Solicitor of Gwinnett County; the petitions involve questions of Blaney's entitlement to a legal defense under a county indemnification plan adopted pursuant to OCGA § 45-9-21, and any obligation of Gwinnett County to pay fees for privately-retained counsel representing Blaney in a federal sexual discrimination lawsuit filed by a former employee. For the reasons which follow, we reverse in the main appeal and affirm in the cross-appeal.

Pursuant to OCGA § 45-9-21, Gwinnett County enacted an ordinance to establish an "Officer and Employee Defense and Indemnification Plan" ("Plan") to defend specified civil, criminal, or quasi-criminal actions brought or maintained against supervisors, administrators, employees, or other elected or appointed officers, arising out of the performance of their official duties.¹ Section 8 of the Plan, which provides for the exclusion of coverage and grounds for refusal of a defense and termination of coverage states:

(a) The county may refuse to provide for the defense of a claim or proceeding brought against any Plan Member if the County Attorney determines that:

(i) the act of omission did not arise out of and in the course of the Plan Member's employment by the County;

(ii) the Plan Member acted or failed to act because of actual or intentional misconduct, fraud, corruption, malice or in bad faith;

(iii) the proceeding against the Plan Member is a criminal prosecution;

(iv) the County is a plaintiff in the claim or proceeding brought against the Plan Member (v) the claim or proceeding against the Plan Member arises out of such Plan Member's intentional or knowing violation of a written policy of the Commission, a Department of the County Government, and/or the County Manager, where applicable;

(vi) the Plan Member acts or fails to act as a result of impaired judgment caused by the voluntary consumption of alcohol or by the voluntary illegal use of any controlled substance as defined by the laws of the State of Georgia[;]

(vii) the Plan Member acts or fails to act contrary to the advice of the County Attorney or the Risk Manager, except in an emergency situation or upon the existence of extenuating circumstances;

(viii) the Plan Member acts or fails to act in willful disregard of County policy, where applicable, or the specific instructions of the Plan Member's superiors;

(ix) the Plan Member fails to comply with any notice or cooperation requirement of Section 6 above;² or

(x) the defense of any such claim or proceeding by the County may create a conflict of interest between the County and the Plan Member.

On May 8, 1998, Blaney, individually and in his official capacity as Solicitor, and Gwinnett County were sued by an employee under the Family Medical Leave Act ("FMLA") in the United States District Court for the Northern District of Georgia. Pursuant to the Plan, the county defended and indemnified Blaney in the lawsuit, and the case was eventually settled with the county providing the settlement funds.

On June 1,1998, Worton, another employee in the Solicitor's office complained to the Human Resources Department about Blaney's suggestive language and conduct. A week later, Worton hand delivered to Blaney a copy of a letter she had prepared, as well as one addressed to Human Resources, detailing her complaints against Blaney.³ Blaney required Worton to make copies of the letter and pass it out to all 35 employees in the Solicitor's office. On June 8, 1998, the Chairman of the Gwinnett County Board of Commissioners sent Blaney a letter stating a need to speak with Blaney about recent allegations of improper behavior and the county's position regarding potential legal liability arising from such behavior.

Also, the Human Resources Department received two anonymous letters complaining of Blaney's ongoing personal relationship with Gallamore, a subordinate in Blaney's office; the letters noted the adverse and negative effect Blaney's conduct was having on the Solicitor's office. Blaney received a June 8, 1998 memorandum from the Director of the Human Resources Department concerning the allegations made by Worton and those in the two anonymous letters.

Blaney also received and read a June 8, 1998 letter from the then-acting county attorney, Thomas, advising Blaney about the terms and conditions of the Plan and directing him to the behavior specified in the Plan which would exclude coverage. This letter further stated that the Law Department was aware of the Worton matter and the two anonymous letters.⁴ It then reminded Blaney about the prohibitions of county policy and the employee protections afforded under the Gwinnett County Merit System; it ended by advising Blaney that certain adverse acts by him would result in his loss of legal coverage under the Plan and that "any act by you which is willfully contrary to the County's Human Resources or County Administrator Policies, the County's Merit Rules, County Attorney advice or other willful policy violation may result in the denial of coverage to you under the Plan."

On June 19, 1998, Blaney met with the Director and Assistant Director of the Human Resources Department and Blaney denied having an ongoing relationship with subordinate Gallamore. When asked specifically whether he was having an affair with a subordinate, Blaney responded, "[W]hat if I am," "You'd tell me that I was an idiot," and "I would not expect to be represented by the County if I did something that stupid." Approximately 40 minutes after this initial meeting ended, Blaney returned to meet with the two men, this time with Gallamore. At this second meeting, Blaney admitted the affair and both he and Gallamore stated that they had no intention of terminating their relationship.

Acting county attorney Thomas wrote Blaney a second letter on June 23, 1998, referencing the June 8, 1998 letter and its contents and further stating,

Since that time, it has come to my attention that you have admitted to maintaining and continuing to maintain an inappropriate personal relationship with a subordinate. You have been warned by the County's Human Resources Director that such a relationship is contrary to County policy and you have admitted the fact that this relationship has had and is having an adverse effect on your staff. You have been reminded that this relationship and associated personal conduct may subject you and the County to liability under state and federal employment law and other authority. You have not, however, taken the necessary steps to correct this situation. In addition, the failure on your part to resolve the complaints of other employees continues to subject the County to liability for retaliation, emotional distress, and other claims which may arise from your actions.

Thomas concluded that under the outlined circumstances, it was her opinion that Blaney had intentionally, knowingly, and willfully violated and continued to violate county policy and Thomas's advice as county attorney. Thomas stated that accordingly, Blaney was not entitled to coverage under the Plan "for any claim of retaliation, discrimination or any similar allegation of unfair employment practices under federal or state law or merit system regulations asserted from June 9, 1998 forward" by Worton, Gallamore, or any other employee of the Solicitor's office, Gwinnett County, or the office of any other independent elected official or constitutional officer.⁵ The letter ended with the statement that there was a "complete withdrawal of coverage" for the outlined claims, and that in the event that Blaney was served with a grievance or complaint making any of the outlined claims, it would be Blaney's obligation to obtain counsel at his own expense; the county would not satisfy any judgment against Blaney or pay any settlement to which Blaney might consent. Blaney went to see the county attorney, but only to question who had made the decision that he would not be covered under the Plan.

On June 9, 1999, Worton and her husband filed a 12-count complaint against Gwinnett County and Blaney, individually, and in his capacity as Solicitor in the United States District Court for the Northern District of Georgia. The suit alleged, inter alia, Blaney's violations of 42 USC § 1983 by sexual discrimination, harassment, and retaliation. On June 28, 1999, Blaney wrote a letter to the Gwinnett County Board of Commissioners regarding several personnel and litigation matters, and in the letter he requested coverage under the Plan for the Worton suit. The following day, the county attorney responded by letter that the Board would not be able to meet and act upon Blaney's request for Plan coverage prior to the date that Blaney had indicated an answer in the Worton suit was due; the letter reiterated the county's position that Blaney was not eligible for defense and/or indemnification in the Worton litigation. Blaney retained private counsel. At some point in the representation, Blaney attempted to hire his retained attorney for a position in the Solicitor's office, so that the attorney might work on Blaney's defense in the Worton suit, but the attorney refused.

From July 1999 until May 2000, Blaney submitted check requests in the amount of $14,146.11 to Gwinnett County's Financial Services Department for the payment of his attorney fees and other litigation expenses related to the Worton...