Gwinnett County v. Yates

• Decision Date: 30 May 1995
• Docket Number: S95X0136,Nos. S95A0135,s. S95A0135
• Citation: 265 Ga. 504,458 S.E.2d 791
• Parties: GWINNETT COUNTY et al. v. YATES, Clerk. YATES, Clerk v. GWINNETT COUNTY et al.
• Court: Georgia Supreme Court

Page 791

458 S.E.2d 791

265 Ga. 504

GWINNETT COUNTY et al. v. YATES, Clerk.

YATES, Clerk v. GWINNETT COUNTY et al.

Nos. S95A0135, S95X0136.

Supreme Court of Georgia.

May 30, 1995.

Reconsideration Denied June 30, 1995.

Caryl Brinson Sumner, Cty. Atty., John E. Underwood and William J. Linkous, III, Asst. Cty. Attys., Gwinnett County Dept. of Law, Lawrenceville, Richard A. Carothers, Lee W. Fitzpatrick, Boyce, Ekonomou & Atkinson, Duluth, for Gwinnett County.

Thomas C. Lawler, III, Rowe & Lawler, Duluth, H. Patterson Garner, Buford, for Gary R. Yates.

HUNT, Chief Justice.

This case presents the issue of whether the Clerk of the Gwinnett County Superior Court, is subject to the Gwinnett County Merit System. We hold that he is not.

In 1969, pursuant to constitutional authorization, the General Assembly adopted legislation creating the Gwinnett County Merit System. In December, 1992, Gary Yates, Clerk of the Superior Court of Gwinnett County, discharged a deputy clerk. The deputy clerk filed an appeal with the Merit Board, and an attorney from the Gwinnett County law department was appointed to represent Yates in that appeal. Yates requested that the county attorney assert in his defense that the Merit Board had no authority to infringe upon his rights and responsibilities as Clerk of the Superior Court. The county attorney disagreed with Yates's position and refused to assert that defense. Yates obtained private counsel and filed a declaratory judgment action seeking direction from the court as to whether deputy clerks of the Superior Court of Gwinnett County are subject to the county's merit system. Gwinnett County filed motions to join the deputy clerks as necessary parties and to dismiss Yates's petition on the ground that there was no actual controversy between the parties.

The court entered an order denying both motions but granted a certificate of immediate review; the Court of Appeals, however, denied Yates's application for interlocutory appeal. Subsequently, Yates filed a motion for attorney fees, and both parties filed motions for summary judgment. The superior court found that under Georgia law the power of a clerk of the superior court to choose, hire and discharge deputy clerks cannot be taken away from the duly elected clerk except by statute specifically taking that action; that the power of the clerk of the superior court to hire and discharge is not superseded by the county's merit system because that legislation does not specifically withdraw employment/discharge authority from the clerk; and that there was no basis for ordering the county to pay Yates's attorney fees because the case does not present a separation of powers dispute. The county appeals the denial of its motion for summary judgment, and Yates appeals that part of the order denying his request for attorney fees.

1. Our resolution of the principal issue in this case depends on whether Gwinnett County effectively brought employees of the Clerk of the Superior Court under the coverage of its merit system either through specific legislation passed pursuant to a constitutional amendment or by following the procedure set forth in OCGA § 36-1-21.

a. The Constitutional Amendment

In 1968, the General Assembly passed a constitutional amendment authorizing it to provide by law for a "Merit System for any or all present and future employees of Gwinnett County other than elected officials." ¹ Pursuant to the constitutional authorization, the General Assembly adopted legislation creating the Gwinnett County Merit System. ² Under the merit system act, employees in the classified service, which covered "all appointed offices and positions of trust or employment in the service of Gwinnett County, except those placed in the unclassified service" by the act, were included in the system. Though the language of both the constitutional amendment and the merit system act appears broad in its coverage of employees, an examination of similar legislation reveals that in legislation regarding merit systems, the General Assembly observed a distinction between employees of a county and employees of the elected officials of the county. ³ Given this distinction, the language employed in the constitutional amendment authorizing the creation of the Gwinnett County Merit System was insufficient to bring employees of the Clerk of the Superior Court within its coverage.

b. OCGA § 36-1-21.

Though Gwinnett County did not effect merit system coverage of the employees of elected officials through constitutional authorization, those employees could, nevertheless, be included in the merit system by statute. The power of the General Assembly to authorize by general law the creation of county civil service systems was made part of the 1983 Georgia Constitution. Art. IX, § 1, Para. IV, which preserves the distinction between county employees and the employees of elected officials, provides that the General Assembly may authorize the establishment of civil service systems by county governments "covering county employees or county employees and employees of elected county officials." The legislature again preserved this distinction between county employees and employees of elected county officials with the passage in 1986 of OCGA § 36-1-21. That statute provides that

[s]ubsequent to the creation of a civil service system, the county governing authority which created the system may provide by ordinance or resolution that positions of employment within departments subject to the jurisdiction of elected county officers or subject to the jurisdiction of other commissions, boards, or bodies of the county shall be subject to and covered by the civil service system upon written application of the elected county officer, commission, board, or body having the power of appointment, employment, or removal of employees of the officer, department, commission, board, or body. Once positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system. (emphasis added)

OCGA § 36-1-21(b). In short, the foregoing mandates that even if a county creates a merit system for employees of the county, the system does not cover the employees of elected officials until the elected official has sought coverage for his employees by "written application" and the county governing authority has passed an appropriate ordinance or resolution. ⁴

Finally, we note that Art. 9, § 2, Para. I(c) of the Georgia Constitution dealing with home rule for counties states that the power granted to counties does not extend to:

(1) Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority.

(7) Action affecting any court or the personnel thereof.

Reading this paragraph in harmony with OCGA § 36-1-21 and in light of the central issue in this appeal, we interpret this to mean that a county merit board can take no action affecting the clerk of the superior court and his employees unless, pursuant to OCGA § 36-1-21(b), the clerk of the superior court has asked that his office be subject to the merit system and the county has provided for such coverage through an appropriate resolution or ordinance.

Nothing in the original legislation authorizing the creation of the Gwinnett County Merit System specifically provided that employees of elected officials would be covered by the system along with the employees of the county. Likewise, it does not appear that, subsequent to the passage of OCGA § 36-1-21, the superior court clerk requested that his employees be covered by the merit system, ⁵ or that the Gwinnett County governing authority provided for such coverage by ordinance or resolution. Accordingly, we are compelled to hold that the Clerk of the Superior Court of Gwinnett County is not subject to the Gwinnett County Merit System. ⁶

2. Yates appeals the trial court's decision that there was no basis for ordering Gwinnett County to pay his attorney fees. Yates was forced to hire private counsel after an attorney for the county refused to argue his position that he was not subject to the county merit board. We hold that where, as here, an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official's attorney fees. This is not because of any bad faith or improper conduct on the part of the local government, in this case, the county. Rather, attorney fees in this instance are simply an expense of government operation. A local government may, as the county in this case could have, retain independent counsel for the official. However, having chosen not to do so, and because Yates was successful on his legal claim that his office was not subject to the Gwinnett County Merit System, the county must pay Yates' reasonable attorney fees. ⁷ Our holding in Stephenson v. Board of Commissioners, 261 Ga. 399, 405 S.E.2d 488 (1991), that a clerk of the superior court does not have authority to retain counsel for the clerk's office because that authority rests only in the county governing authority, does not apply here, where the county would not retain counsel to assert the legal position on which the clerk prevailed.

Accordingly, we remand this case to the trial court for an assessment of attorney fees in favor of Yates and against Gwinnett County, in accordance with this opinion. ⁸

3. The remaining enumerations of error regarding joinder and failure to state an actual controversy are without merit.

Judgment in Case No. S95A0135 affirmed; judgment in Case No. S95X0136 reversed and remanded.

All the Justices concur, except BENHAM, P.J.,...