MacKenzie v. Snow, Civ. A. No. C87-1315A.

• Citation: 675 F. Supp. 1333
• Decision Date: 19 November 1987
• Docket Number: Civ. A. No. C87-1315A.
• Parties: Michael R. MacKENZIE, Plaintiff, v. Wayne SNOW, Jr., Individually and as Chairman of the State Board of Pardons and Paroles; E.W. Linthicum, Jr., Individually and as Director of Central Operations of the State Board of Pardons and Paroles; Honorable Joe Frank Harris, Governor of the State of Georgia, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

675 F. Supp. 1333

Michael R. MacKENZIE, Plaintiff, v. Wayne SNOW, Jr., Individually and as Chairman of the State Board of Pardons and Paroles; E.W. Linthicum, Jr., Individually and as Director of Central Operations of the State Board of Pardons and Paroles; Honorable Joe Frank Harris, Governor of the State of Georgia, Defendants.

Civ. A. No. C87-1315A.

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

November 19, 1987.

Lee Sexton, Sexton Turner & Moody, Jonesboro, Ga., for plaintiff.

Wayne Preston Yancey, Office of State Atty. Gen., Atlanta, Ga., for defendants.

ORDER

ROBERT H. HALL, District Judge.

Plaintiff was elected to positions on the Executive Committee of the Rockdale County Democratic Party and the Executive Committee of the State Democratic Party. Because of holding these posts, plaintiff was fired from his position as a Parole Review Officer of the Georgia Board of Pardons and Paroles. Plaintiff brought this action for declaratory and injunctive relief contending that the termination violated his constitutional rights of due process and equal protection under the Fourteenth Amendment and challenging the operative state statute and personnel regulations under which he was terminated as violating his constitutionally protected rights of political speech and association in violation of the First and Fourteenth Amendments. Currently before this court are the parties' crossmotions for summary judgment.

FACTS

Both parties agree that there exists no genuine issue of material fact and that the court may resolve the issues raised as a matter of law.

Plaintiff Michael R. MacKenzie was employed by the Georgia State Board of Pardons and Paroles as a Parole Review Officer until his discharge effective May 26, 1987. Plaintiff's position with the Board was classified under the Georgia State Merit System of Personnel Administration. The Georgia State Personnel Board promulgates rules and regulations that govern the duties, rights and conduct of state employees and employers whose positions are within the jurisdiction of the Georgia State Merit System.

In early June 1986, plaintiff sought the advice of the Board Personnel Manager, Mr. Robert Allison regarding plaintiff's desire to run for local level Democratic Party Office. Mr. Allison sought clarification from the State Merit System about apparent conflicts between Ga.Off'l Code Ann. § 45-10-70 and Ga.Off'l Code Ann. § 42-9-15 and certain rules and regulations of the State Personnel Board dealing with employee's political activity.

Ga.Off'l Code Ann. § 42-9-15 states:

No member of the board or full-time employee thereof, during his service upon or under the board, shall engage in any other business or profession or hold any other public office; nor shall he serve as a representative of any political party or any executive committee or other governing body thereof, or as an executive officer or employee of any political committee, organization, or association; nor shall he be engaged on the behalf of any candidate for public office in the solicitation of votes or otherwise become a candidate for public office, without resigning from the board or from employment by the board. (Ga.L.1943, p. 185, § 10.)

Ga.Off'l Code Ann. § 45-10-70 states:

No rules or regulations of any state agency, department, or authority shall prohibit nonelective officers or employees of this state from offering for or holding any elective or appointive office of a political subdivision of this state or any elective or appointive office of a political party or political organization of this state, provided that the office is not full time and does not conflict with the performance of the official duties of the person as a state employee. (Code 1981, § 45-10-70, enacted by Ga.L.1985, p. 427, § 1.)

In September 1986, Allison advised plaintiff that his activities appeared to be in a "gray area" and that perhaps plaintiff should decide against running. However, plaintiff contends that Allison indicated that no adverse personnel action would be forthcoming against the plaintiff. Plaintiff advised Allison that he had discussed the legislative intent of section 45-10-70 with its author, Georgia State Senator Culver Kidd and Mr. Dale Knesel, a State Merit System executive. Plaintiff contends that none of these officials discouraged him from running for these posts. On December 6, 1986, plaintiff ran for and was elected to the Executive Committee of the Democratic Party of Georgia.

In December 1986, after plaintiff's election, defendant Linthicum, Director of Central Operations for the State Board of Pardons and Paroles, requested plaintiff to provide the Board with the description and duties of his new post. Plaintiff contends that he was unable to comply with this request until April 1987. In the interim, plaintiff contends that Senator Kidd advised him that the revised rules of the State Personnel Board would permit plaintiff to serve in his elective office.

In January 1987, defendant Snow, Chairman of the State Board of Pardons and Paroles, advised plaintiff that he would seek the opinion of the Georgia State Attorney General as to plaintiff's eligibility to hold these posts concurrently with his job with the Board. The Attorney General issued his opinion to defendant Snow in April 1987.

Based on the Attorney General's opinion, defendant Linthicum proposed plaintiff's termination. Plaintiff failed to resign his political posts within the time allowed by the proposed termination, and therefore, defendant Linthicum in a letter dated May 8, 1986, proposed that plaintiff forfeit his position with the State Board of Pardons and Paroles. Defendant Snow afforded plaintiff an opportunity to respond to the proposed action and plaintiff personally appeared before defendant Linthicum on May 8, 1987 and further responded by letter dated May 12, 1987, to defendant Snow. After considering the response and the proposed action, defendant Snow issued a letter dated May 19, 1987 terminating plaintiff's employment with the Board effective May 26, 1987.

Defendant Snow's letter of May 19, 1987 enumerates the following grounds for the termination and closely tracks the opinion letter of the Attorney General:

Misconduct in that since on or about April 29, 1987, after you received a copy of the Attorney General's opinion (Re: Employees of the State Board of Pardons and Paroles Who Engage in Political Activity in Violation of O.C.G.A. § 42-9-15 can be terminated from their Positions with the Board, dated April 23, 1987) you continued to occupy your positions with a political party and you failed to resign your position with the Board as required by the law.

Insubordination in that in or about December 1986 you were requested to provide the agency with a list of your duties and responsibilities with the Democratic party so that it could be determined whether those duties were in violation of the Rules of the State Personnel Board. You failed to provide the requested information.

Insubordination in that on May 7, 1987 you were given a written directive to resign your positions with a political party no later than May 8, 1987, and you were further directed to provide acceptable proof that you had done so no later than 4:00 P.M. on May 8, 1987. The proof was to also confirm that you were no longer participating in any political activity that is in violation of the law or the Rules. You failed to comply and furthermore stated that you would not resign your positions.

These charges are each sufficient to justify your dismissal. You are hereby dismissed in accordance with Rule 15 of the Rules and Regulations of the State Personnel Board, effective at the close of business on May 26, 1987.

I have also reviewed Mr. Linthicum's proposal that your employment be terminated through the forfeiture of your position under the provisions of paragraphs 12.205.2 and 12.206.1 of the Rules and Regulations of the State Personnel Board. The forfeiture is brought about as a result of your engagement in political activity in violation of O.C.G.A. 42-9-15 and paragraph 3.501.1 of the Rules of the State Personnel Board, and is supported by the following specific:

By your own admission you are a member of both the State and County Executive Committees of the Democratic party. For you to hold such offices is in violation of O.C.G.A. 42-9-15 which specifically prohibits your holding such offices while being a full time employee of the Board. By engaging in political activity in violation of O.C.G.A. 42-9-15 you are in violation of paragraph 3.501.1 of the Rules and Regulations of the State Personnel Board and are subject to forfeiture of your position as provided in paragraph 3.506 of those rules.

The foregoing charge is sufficient to warrant the forfeiture of your position. Therefore, it is my final determination that your employment with the State Board of Pardons and Paroles is terminated through the forfeiture of your position effective May 26, 1987. Furthermore, your termination is deemed a voluntary forfeiture of your position in accordance with paragraph 12.205.2 of the Rules of the State Personnel Board.

The court held a hearing on June 19, 1987 on plaintiff's motion for a temporary restraining order seeking to secure reinstatement of plaintiff to his position. The court in its order of that date denied plaintiff's motion and suggested that the parties file crossmotions for summary judgment.

DISCUSSION

Plaintiff contends that defendants violated his rights of due process and equal protection protected in the Fourteenth Amendment by (1) selectively enforcing Ga. Off'l Code Ann. § 42-9-15 as to plaintiff, (2) enforcing section 42-9-15 given the existence of Ga.Off'l Code Ann. § 45-10-70 which plaintiff contends repeals the former statute, and (3) terminating plaintiff in an arbitrary and capricious manner where plaintiff contends the Rules and Regulations of the State Personnel Board, Section 42-9-15 and ...