Parker v. Jefferson County Commission
| Decision Date | 06 May 1977 |
| Citation | 347 So.2d 1321 |
| Parties | Horace PARKER v. JEFFERSON COUNTY COMMISSION et al. SC 2271. |
| Court | Alabama Supreme Court |
L. Drew Redden and William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
Edwin A. Strickland, Birmingham, for Jefferson County Commission and its members.
James F. Reddoch, Jr., of Starnes, Starnes & Reddoch, Birmingham, for United States Fidelity & Guaranty Co.
This is the second time this Court has considered an appeal involving the appellant, Horace Parker.
Plaintiff-appellant, Horace Parker, after getting this Court to reverse his impeachment conviction, Parker v. State, 333 So.2d 806 (Ala.1976), sought to have the trial court declare that he was the lawful treasurer of Jefferson County; that United States Fidelity & Guaranty Company be ordered to reinstate his bond; and that Jefferson County be ordered to pay his back pay and allowances from September 14, 1974 (date of his impeachment conviction), to date. He also asked for costs to be taxed against the defendants and that the court award him a reasonable attorney's fee. The circuit court denied him any relief. He appealed.
1. Can Parker contest his right to office within an action for pay and allowances rather than by quo warranto?
2. Was the bond properly cancelled and can USF&G be required to reinstate the bond?
3. Was there a "vacancy" in the office?
4. Is Parker entitled to any pay and allowances as treasurer of Jefferson County during the pendency of the appeal of his impeachment conviction or from the date of the reversal of that conviction?
5. Is Parker entitled to attorney's fees?
Horace Parker was elected to the office of treasurer of Jefferson County in the general election held November 7, 1972. He took office on January 15, 1973. He timely filed the statutorily required bond of $400,000 with the Jefferson County Commission. The bond commenced January 15, 1973, and was to terminate on January 15, 1977.
On September 14, 1974, following an impeachment trial by jury in the Circuit Court of the Tenth Judicial Circuit, Parker was removed from office as treasurer of Jefferson County. A copy of the judgment of the court was served upon the president of the Jefferson County Commission. Parker filed notice of appeal to this Court immediately following his conviction.
Parker was paid as treasurer through September 14, 1974, but has not received any further pay from Jefferson County since that time.
On September 19, 1974, Mr. E. H. Gamble, the Comptroller of Jefferson County, wrote to USF&G advising them to cancel the bond on "former County Treasurer Horace Parker, Bond No. 06-0170-39-73, effective at the close of business September 14, 1974." After receipt of the letter, USF&G forwarded to Mr. Gamble its form of notice of cancellation, bearing the date of September 24, 1974, to be executed by Jefferson County.
By resolution of October 1, 1974, the County cancelled Horace Parker's bond with USF&G, effective September 14, 1974, and authorized the execution of the cancellation. The notice of cancellation was executed for Jefferson County by W. Cooper Green, then president of the Jefferson County Commission, and was returned to USF&G and received by it on October 15, 1974. Neither the County nor USF&G served a copy of the notice of cancellation on Horace Parker.
Pursuant to the notice from the County, USF&G cancelled Parker's bond as of September 14, 1974, and on October 16, 1974, refunded the balance of the premium in the amount of $4,634 to the Geralds Agency which had paid the original premium on the bond. Parker was notified orally by Bobby Timmons, the insurance broker who had arranged for the bond, that the bond had been cancelled. The balance of the insurance premium was not paid to Jefferson County until May 26, 1976.
By resolution of September 17, 1974, the Jefferson County Commission, citing as authority § 31, Tit. 12, Code of Alabama 1940, appointed Mrs. Geneva Phillips Moore as County Treasurer of Jefferson County, Alabama. Mrs. Moore's appointment was contingent upon the Personnel Director of Jefferson County approving a leave of absence for her from her civil service position of Assistant Treasurer of Jefferson County. The Personnel Director ultimately approved successive 120 day leaves of absence for Mrs. Moore. While serving in that position, Jefferson County paid to her an amount equal to that payable by law to the Treasurer of Jefferson County.
On September 17, 1974, a bond was issued in the amount of $400,000 covering Mrs. Moore as Treasurer of Jefferson County. The bond has been in effect since Mrs. Moore's appointment as a result of successive extensions. Jefferson County has caused the bond to extend to January 15, 1977.
On May 14, 1976, this court reversed the impeachment conviction of the Circuit Court. The State of Alabama's Application for Rehearing was overruled on July 2, 1976, and the certificate of judgment was issued by this Court on July 2, 1976.
Within a week following the reversal of the Circuit Court Judgment by the Supreme Court, Parker called Tom Gloor, a county commissioner, and advised him that he intended to return as treasurer of Jefferson County. After an oral request by his attorney to USF&G to advise him of the reason that the bond was allegedly cancelled failed to get any response, on July 21, 1976, he, by and through his attorney, wrote USF&G advising them that he considered the bond still to be in effect and asked that they take the necessary steps to reinstate the bond. No response was received from USF&G.
On August 4, 1976, in a meeting between the Jefferson County Commissioners and Parker's attorney, his attorney orally demanded payment of the salary and allowances due him during the pendency of his appeal and to date. The Commissioners advised Parker's attorney that before Parker would be qualified to assume office, he would have to properly file an official bond in the amount of $400,000, as USF&G had asserted that his former bond had been cancelled and that it was no longer liable as surety. By letter of August 12, 1976, Parker's attorney advised Commissioner Gloor of his intent to reassume the office of treasurer of Jefferson County and demanded payment of all salary and allowances due him during the pendency of his appeal.
On August 16, 1976, Parker's attorney delivered to the Jefferson County Commission a "Notice of Reassumption of Office." By letter of September 2, 1976, Jefferson County Commission President, Tom Gloor, notified Parker in writing that USF&G had refused to reinstate or reissue his bond. The notice further stated that before Parker could reassume the office of Jefferson County Treasurer, he must file a legally acceptable bond in the amount of $400,000 by September 9, 1976.
Parker did not file an additional bond, and by letter of September 28, 1976, Commissioner Gloor certified to the Jefferson County Commission that the fact that Parker had not furnished the bond abrogated any rights which he might have had to the office of treasurer of Jefferson County. On September 28, 1976, the Jefferson County Commission, by a resolution, took notice of the previous appointment of Mrs. Moore as Treasurer of Jefferson County, acknowledged that her appointment was still in effect, and noted that in its opinion, Parker had vacated any right to the office which he might have had.
On June 8, 1965, there went into effect United States Fidelity and Guaranty Company, Public Employees Blanket Bond, Bond No. 10355-08-1442-65. Subsequent to that time, two riders have been added to the bond. The bond has been in full force and effect since June 8, 1965. The last rider to the bond changed the name of the insured from W. A. Morgan, Treasurer, Jefferson County, Alabama. That rider was effective as of noon on January 20, 1973.
It has been stipulated by the parties that Parker has been within the week following the reversal of his conviction by this court, ready, willing and able to perform the duties of and to serve as the treasurer of Jefferson County, Alabama.
Was declaratory judgment and not quo warranto the appropriate vehicle for Parker to use in asserting his right to the office? Under the facts here, we think so. As we shall develop later, there was never a legal vacancy in the office of treasurer under the facts of this case. Most of the facts were stipulated. As we construe the pleadings, the controversy is between the County and Parker not Moore and Parker. Parker claims the County Commission has acted illegally. Controversies touching the legality of acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for a declaratory judgment. Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273 (1936). Furthermore, Title 7, § 167, Code, provides:
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Hornsby v. Sessions
...there sometimes arise situations in which two people receive pay for the same position for the same time, citing Parker v. Jefferson County Comm'n, 347 So.2d 1321 (Ala.1977). The defendants contend that § 6.15 of Amend. No. 328, providing that "[t]he term of office of each judge of a court ......