Ogletree v. Chester

• Decision Date: 16 August 1982
• Docket Number: No. 80-7928,80-7928
• Citation: 682 F.2d 1366
• Parties: Gary W. OGLETREE, Plaintiff-Appellee, v. L. O. CHESTER, Chief of Police, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1366

682 F.2d 1366

Gary W. OGLETREE, Plaintiff-Appellee, v. L. O. CHESTER, Chief of Police, etc., et al., Defendants-Appellants.

No. 80-7928.

United States Court of Appeals Eleventh Circuit.

Aug. 16, 1982.

Peter A. Schuller, David E. Betts, Atlanta, Ga., for defendants-appellants.

Guy E. Davis, Jr., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

The Chief of Police and the County Manager of Fulton County, Georgia, appeal the district court's decision holding that the appellee's dismissal from his position as a Fulton County police officer denied him his due process rights. We reverse, finding that the appellee had no property right to continued employment under Georgia law.

I

Appellee Gary W. Ogletree joined the Atlanta Police Department ("APD") in November 1971. While with the APD, he worked in the unincorporated area of Fulton County.

On April 4, 1975, the Board of Commissioners of Fulton County ("Commission") created a county police force by the enactment of Fulton County Code § 75-301, which became effective July 1, 1975. In order to staff the force, newly appointed Chief of Police L.O. Chester and County Manager Sam Brownlee met with members of the APD, including appellee Ogletree, and urged them to accept employment with Fulton County. The County Manager explained to the officers that the county intended to "make things as commensurate as possible for those officers that did transfer in terms of their compensation, in terms of their pensions and in terms of other job rights," transcript, vol. II, testimony of Sam Brownlee at 127-28, but that they would not initially be "classified employees" under the Fulton County Civil Service Act. Later, Ogletree received a copy of a memorandum, signed by Director of Police Services Herbert Jenkins, which stated: "The Rules and Regulations in the Fulton County Police Department will be the same as they are in the City of Atlanta, until such time as the County Police Department can write and publish new Fulton County Police Department Rules and Regulations."

Ogletree resigned from the APD and joined the Fulton County Police Department on July 1, 1975. After he joined, the department promulgated its own "Policies, Objectives, Rules, and Regulations" ("Regulations"). The Regulations were approved by the Commission on October 12, 1976.

On June 28, 1978, while off duty, Ogletree was involved in an incident which led to his dismissal. He brought suit, alleging that he had been denied due process of law because the termination procedures afforded him were constitutionally insufficient.

The district court agreed with Ogletree and ordered that the appellants pay his court costs and attorney's fees and reinstate him with back pay. The appellants do not contest the district court's holding that the termination procedures were constitutionally insufficient. Instead, they argue that the court erred in finding a constitutionally protected property interest and that the due process clause did not apply to Ogletree's termination.

II

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), established that a "person's interest in a benefit is a 'property' for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." Id. at 601, 92 S.Ct. at 2699. In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the court considered whether a police officer's employment status was a protected property interest, and its opinion reaffirmed the Sindermann language by stating that a "property interest ... can, of course, be created by ordinance, or by implied contract." Id. at 344, 96 S.Ct. at 2077. Bishop explained, however, that "the sufficiency of the claim of entitlement must be decided by reference to state law." Id.

The district court's analysis failed to look to state law as commanded by Bishop. We must therefore sift the court's reasoning through the filter of state law to determine whether Georgia recognizes an enforceable expectation of continued employment under the facts of this case. ¹ First, we shall examine the facts relied upon by the district court and ascertain what occurred here that could conceivably have given rise to a "mutually explicit understanding" between Ogletree and Fulton County.

Under the theory sustained by the district court, the oral representations by the County Manager and the Chief of Police (that job rights would be comparable to those provided by the APD) gave rise to an implied contract in effect at the time of Ogletree's dismissal. ² The court entered a finding of fact that Atlanta police officers faced with a disciplinary proceeding had the right to a hearing before an advisory administrative hearing panel, which made a recommendation to the Public Safety Commissioner, and the right to appeal an adverse decision by the Commissioner to the Civil Service Board, which would hold a de novo hearing. The court thus concluded that the "representations created a 'mutually explicit understanding' that plaintiff had a right to a job unless terminated for cause after a hearing in compliance with minimal due process requirements." Ogletree v. Chester, No. C78-2243A, slip op. at 7 (N.D.Ga. August 13, 1980).

The court found that the memorandum from the Director of Police Services confirmed the job rights suggested by the oral representations, but that is not correct. The memo did indicate that standards and procedures established by Atlanta's Rules and Regulations would apply until superseded by Fulton's Regulations. However, according to trial testimony, those hearing and appeal rights which the district court found to have been held by Atlanta police officers resulted not from the Atlanta Police Department's Rules and Regulations, but from additional guarantees provided by the City of Atlanta (by charter or by ordinance). Transcript, vol. 3, testimony of Clinton Chaffin at 193.

Fulton's Regulations, the court found, did not establish a property interest because they were "not explicit enough concerning conduct and disciplinary procedures to fall squarely within the holding" of Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980) (finding that city regulations established a protected property interest because they created a reasonable expectation of continued employment absent noncompliance with a specified reason for dismissal). Ogletree v. Chester, slip op. at 7. Insofar as the Regulations were consistent with the oral representations, however, the court believed that they supported the existence of a mutually explicit understanding. Id. That conclusion, too, must be erroneous. The Regulations do not purport to define the scope of termination procedures to be provided, nor do they establish that dismissal may only be for cause. See note 8 infra. Consequently, they lend no significant support to the implications of the oral representations made to Ogletree.

We assume that any job rights established by the oral representations would exist after the issuance of the Regulations (i.e., that the representations could create rights in addition to those found in the Regulations.) We thus conclude that the mutually explicit understanding found by the district court represented an implied contract which could have been based only upon the oral representations made to Ogletree. The sufficiency of this theory of entitlement must be evaluated by reference to state law.

III

In Georgia, "(g)enerally, one in public employment has no vested right to such employment ³ ...." Barnes v. Mendonsa 110 Ga.App. 464, 465, 138 S.E.2d 914, 915 (1964). Unless the employment arrangement is modified by additional contractual or statutory provisions, the "power to hire carries with it the implied power to fire." Richmond County v. Jackson, 234 Ga. 717, 719, 218 S.E.2d 11, 12 (1975); see Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975). The right to continued employment may arise where there is a guarantee of employment for a fixed term, ⁴ see Lentz v. City Council, 48 Ga.App. 555, 556, 173 S.E. 406 (1934), or where the employment allows termination only for cause, Brownlee v. Williams, 233 Ga. at 551, 212 S.E.2d at 362 (construing Civil Service Act of Fulton County). To resolve whether this additional right may arise from oral representations, ⁵ we turn to principles of contract law. See Jago v. Van Curen, --- U.S. ----, ----, 102 S.Ct. 31, 34, 70 L.Ed.2d 13 (1981).

Under Georgia law, any contract entered into with other persons in behalf of a county must be in writing and spread on the official minutes of the Commission. Ga.Code Ann. § 23-1701. Where that procedure is not followed, there is no enforceable agreement.

In Murray County v. Pickering, 42 Ga.App. 739, 157 S.E. 343 (1931), the court applied a predecessor of § 23-1701 to hold that an alleged contract between an attorney and a county was unenforceable. The court wrote:

A mere oral agreement is unenforceable even though it be embodied or recited in a resolution decided by the county commissioners and entered on the minutes. Thus, a resolution that a named attorney "is hereby employed" to represent the county in a certain cause, upon terms and conditions therein stipulated, is insufficient, without more, to constitute a binding contract between the county and such attorney, although the resolution is entered upon the minutes and the attorney signifies his acceptance of the employment by tendering performance.

Id. at 739, 157 S.E.2d 343. See also, e.g., Graham v. Beacham, 189 Ga. 304, 5 S.E.2d 775 (1939) (action by deputy warden of convicts to compel by mandamus the payment of salary).

The strict view reflected in Pickering was followed more recently in Hatcher v. Hancock County Commissioners, 239 Ga. 229, 236...