Johnson v. Barrett, 65775

• Decision Date: 20 April 1983
• Docket Number: No. 65775,65775
• Citation: 304 S.E.2d 478,166 Ga.App. 353
• Parties: JOHNSON et al. v. BARRETT et al.
• Court: Georgia Court of Appeals

Page 478

304 S.E.2d 478

166 Ga.App. 353

JOHNSON et al. v. BARRETT et al.

No. 65775.

Court of Appeals of Georgia.

April 20, 1983.

John H. Moore, Y. Kevin Williams, Marietta, for appellants.

Irma B. Glover, Marietta, for appellees.

BIRDSONG, Judge.

Dismissal for lack of jurisdiction. In February 1978, the Commissioners of Cobb County caused to be promoted a policeman named Clark from the grade of sergeant to major with assignment to the commissioners' office. The appointing authority (the Director of Public Safety) promoted Clark to major under then existing civil service regulations authorizing non-competitive appointments and promotions and notified the civil service board of that action. In 1980, the non-competitive promotion authority was deleted from civil service regulations. In 1981, the board of commissioners apparently became aware that their action directing the abolition of a sergeant's position in the office of the county commissioners and substitution therefor of a major's position was not reflected in the appropriate commission meeting minutes. Therefore, the minutes were amended in 1981 nunc pro tunc to reflect that the order and action of the commission meeting in February 1978, created the position of major in their office. Two other civil service employees of the Department of Public Safety of Cobb County then filed letters with the Cobb County Civil Service Board complaining that by the promotion of Clark from grade of sergeant to major under non-competitive provisions, they (one a sergeant and the other a captain) had been denied any opportunity for consideration for the promotion to a higher grade.

The civil service board held a hearing on these "appeals" and found the promotion of Clark to be not in accordance with civil service regulations and ordered the promotion to be vacated and set aside. The county commissioners concluded that the civil service board exceeded its jurisdiction and declined to take any action adversely affecting Clark. The civil service board brought this declaratory judgment action and sought a mandamus seeking to ascertain the propriety of their jurisdiction and requiring the reduction in rank of Clark. The civil service board sought summary judgment against the board of commissioners and the commissioners moved to dismiss the complaint for declaratory judgment on the ground that the board had exceeded its jurisdiction in considering the letters of the two dissatisfied employees as an "appeal" within the cognizance of the civil service board. The trial court granted the commissioners' motion to dismiss holding that the matter considered was not within the jurisdiction of the board. Held:

There are several facets to the arguments and counter-arguments presented by the appellant board and appellee commissioners. However, both sides are in agreement that the decisive issue is whether the Board exceeded its jurisdiction in considering the letters of the two employees as cognizable appeals.

Moving directly to a consideration of that issue, we find the following: The powers and duties of the Cobb County Civil Service Board stem from the enabling legislation creating the administrative agency. See Ga.L.1964, p. 2502, Act No. 733. Section 2-4-6(2) of the Cobb County Code enacted pursuant to the above cited Act, provides the civil service board is empowered: "To conduct hearings and render decisions on charges preferred against persons employed in the several departments and offices included in said civil service system and to hear appeals from any employee who claims to have been improperly dismissed." (Emphasis supplied.) An examination of the purposes contained in the Cobb County Civil Service System Act reveals that it enabled the Cobb County Civil Service Board "to provide for appeals to the Board under the Civil Service System for grievances." Ga.L.1964, p. 2502. See Moore v. Robinson, 206 Ga. 27, 40, 55 S.E.2d 711 and Harper v. Green, 112 Ga.App. 748, 750, 146 S.E.2d 132 which permit the examination of the preamble of a statute to help in determining legislative intent. Our attention also has been invited to Section 14.101 of the Rules and Regulations of the Cobb County Civil...