Lovell v. Floyd County

• Decision Date: 31 March 1989
• Docket Number: Civ. A. No. 4:85-cv-211-HLM.
• Citation: 710 F. Supp. 1364
• Parties: Edward H. LOVELL, Plaintiff, v. FLOYD COUNTY, a county corporation; Edward E. Perkins, in his capacity as Chairman of the Floyd County Board of Tax Assessors and individually; John Horace Anthony, in his capacity as member of the Floyd County Board of Tax Assessors and individually; Robert Lewis Fricks, in his capacity as member of the Floyd County Board of Tax Assessors and individually; General L. Sutton, Polly Clemmons, David B. McCorkle, Ronnie L. Simmons and Henderson Spivey, in their capacities as members of the Floyd County Merit Board, Defendants.
• Court: U.S. District Court — Northern District of Georgia

710 F. Supp. 1364

Edward H. LOVELL, Plaintiff, v. FLOYD COUNTY, a county corporation; Edward E. Perkins, in his capacity as Chairman of the Floyd County Board of Tax Assessors and individually; John Horace Anthony, in his capacity as member of the Floyd County Board of Tax Assessors and individually; Robert Lewis Fricks, in his capacity as member of the Floyd County Board of Tax Assessors and individually; General L. Sutton, Polly Clemmons, David B. McCorkle, Ronnie L. Simmons and Henderson Spivey, in their capacities as members of the Floyd County Merit Board, Defendants.

Civ. A. No. 4:85-cv-211-HLM.

United States District Court, N.D. Georgia, Rome Division.

March 31, 1989.

COPYRIGHT MATERIAL OMITTED

David G. Archer, Archer & Howell, Cartersville, Ga., for plaintiff.

C. King Askew, J. Anderson Davis, Brinson Askew & Berry, Jerry Lee Minge, Minge & Foss, Rome, Ga., for defendants.

ORDER

HAROLD L. MURPHY, District Judge.

Edward H. Lovell filed this civil rights action claiming his constitutional rights were violated when he was terminated from his position as a tax appraiser for Floyd County. The defendants are Floyd County, the members of the Floyd County Board of Tax Assessors in their individual and official capacities, and the members of the Floyd County Merit Board in their official capacities. Presently before the Court are motions for summary judgment filed by all the defendants, a cross-motion for partial summary judgment filed by Lovell, and motions by the defendants to strike various portions of evidence presented by Lovell in support of his motion for partial summary judgment.

The basic facts relevant to the motions before the Court are as follows. In August, 1983, Lovell was terminated by the Floyd County Board of Tax Assessors from his position as Chief Tax Appraiser for Floyd County. The Board of Tax Assessors provided several reasons for their decision, including that Lovell harassed a subordinate and allowed a non-Floyd County employee to take a course at the County's expense. Lovell contends that the actual reason for his dismissal was public outcry, chiefly from large corporations, about his system of appraising personalty called "trending." Lovell appealed his dismissal to the Floyd County Merit Board. After conducting a hearing, the Merit Board found Lovell was not covered by the merit system and dismissed his appeal.

Lovell contends that the following constitutional deprivations occurred: (1) he had a "property interest" in continued employment and was terminated for reasons other than cause, in violation of his substantive due process rights, and was terminated without a pre-termination hearing, in violation of his procedural due process rights; (2) his "liberty interest" was infringed because he was not given a hearing to clear his name after the charges were disseminated to the public; and (3) his first amendment rights were violated because he was fired due to public speeches he gave in support of trending. He seeks backpay, reinstatement to his position with full restoration of benefits, and damages.

The Summary Judgment Standard

The court's sole function on a motion for summary judgment is to determine whether there is a genuine issue for trial. Fed.R. Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The standard is essentially the same as the directed verdict standard: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

The moving party bears the initial burden of identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). When the nonmoving party will have the burden of proof at trial on a dispositive issue, the nonmoving party must go beyond the pleadings and present evidence showing a genuine triable issue. Id. at 324, 106 S.Ct. at 2553. The evidence presented need not be admissible at trial, but must be depositions, answers to interrogatories, admissions on file, and/or affidavits. Id.; see Fed.R.Civ.P. 56(c).

The substantive law identifies which facts are "material." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The Court will identify the relevant substantive law along with its discussion of the specific claims.

Motion for Summary Judgment Filed by Members of the Floyd County Merit Board

Defendants Sutton, Clemmons, McCorkle, Simmons, and Spivey argue they are entitled to judicial immunity for the actions they took as members of the Floyd County Merit Board, specifically for their finding that Lovell was not covered by the merit system. Lovell concedes that the action of these defendants are cloaked with judicial immunity, but argues the immunity does not extend to his request for injunctive relief in the form of reinstatement to his position. The defendants reply that they lack authority to reinstate Lovell.

Under Georgia law, the board of tax assessors of the county has the authority to hire and terminate tax appraisers. Spell v. Blalock, 243 Ga. 459, 461, 254 S.E.2d 842 (1979); Richmond County v. Jackson, 234 Ga. 717, 719, 218 S.E.2d 11 (1975). Logically, the board of tax assessors, and not the merit board, also has the authority to reinstate a tax appraiser. Because Lovell states that the only relief he seeks against the merit board members is reinstatement to his position as tax appraiser and the members cannot reinstate him, summary judgment in favor of these defendants is warranted.

Motion for Summary Judgment by Floyd County and Members of the Floyd County Board of Tax Assessors and Lovell's Cross-Motion for Partial Summary Judgment

Floyd County and the members of the Floyd County Board of Tax Assessors¹ argue that Lovell was an "at will" employee and therefore did not have a property interest in his position; that Lovell's liberty interest was not infringed and, in any event, that he had an opportunity to clear his name and therefore was not deprived of a liberty interest; and that Lovell's termination did not infringe his first amendment rights. Defendants emphasize that their decision to terminate Lovell was not based on his speeches supporting trending.

Lovell responds that he had a constitutionally protected property interest in his continued employment, and that he was deprived of that interest without due process. He claims he further that his liberty interest was violated because he was not afforded a name clearing hearing. Lastly, he disputes Defendants' claim that he was not terminated in retaliation for exercising his right to freedom of speech. He moves for partial summary judgment that Defendants violated his rights to substantive and procedural due process, his liberty interest right, and his right to freedom of speech under the First Amendment.²

A. Property Interest

"The due process clause provides that the rights to life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures." Hatcher v. Board of Pub. Educ. and Orphanage for Bibb County, 809 F.2d 1546, 1549 (11th Cir.1987).

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. at 1549, quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). "Once it is determined that a property right exists, the next question is `what process is due?'" Id., citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

A person's entitlement to continued employment, therefore, "is a constitutionally protectable property interest if there are `rules or mutually explicit understandings that support his claim.'" Barnett v. Hous. Auth. of Atlanta, 707 F.2d 1571, 1576 (11th Cir.1983), citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed. 2d 684 (1976) and White v. Mississippi State Oil and Gas Board, 650 F.2d 540, 541 (5th Cir. Unit A May 1981). A court must look to state law to determine the

legitimacy of a claim to continued employment. Bishop, 426 U.S. at 344, 96 S.Ct. at 2077, 48 L.Ed.2d at 690; see also Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982). Under Georgia law, a property interest arises whenever the public employee can be terminated only for cause. Brownlee v. Williams, 233 Ga. 548, 551, 212 S.E.2d 359, 362 (Ga. 1975); see also Ogletree v. Chester, 682 F.2d 1366, 1370 (11th Cir.1982); Glenn v. Newman, 614 F.2d 467, 471 (5th Cir.1980).

Barnett, 707 F.2d at 1576. The threshold issue in the instant case, therefore, is whether there were "rules or mutually explicit understandings" between the parties that Lovell could be terminated only for cause. If such rules or understandings existed, then Lovell had a property interest, and the inquiry would be whether Lovell's termination deprived him of his property in violation of substantive and procedural due process.

1. Did Lovell have a "Property Interest" in Continued Employment?

The Floyd County Merit System Act provides that a permanent employee can be dismissed for cause only. The purpose is "to prevent the hiring and firing of individuals based purely on the political whim of those who may be in power." Floyd County Bd. of Commissioners v. Floyd County Merit System Bd., 246 Ga. 44, 268 S.E.2d 651 (Ga.1980). Therefore, if Lovell is a merit employee under the express terms of the Act, then he could be dismissed for cause only, and any "mutually explicit understandings" of the parties would be irrelevant to whether Lovell had a property...