Smith v. City of East Point

• Decision Date: 18 November 1988
• Docket Number: No. 73757,73757
• Parties: SMITH v. CITY OF EAST POINT et al.
• Court: Georgia Court of Appeals

Page 215

376 S.E.2d 215

189 Ga.App. 454

SMITH v. CITY OF EAST POINT et al.

No. 73757.

Court of Appeals of Georgia.

Nov. 18, 1988.

Rehearing Denied Dec. 5, 1988.

Certiorari Denied Jan. 6, 1989.

Scott Walters, Jr., East Point, for appellant.

James A. Eidson, East Point, James W. Kytle, Atlanta, for appellees.

McMURRAY, Presiding Judge.

In City of East Point v. Smith, 258 Ga. 111, 365 S.E.2d 432, the Supreme Court held that the city's urinalysis testing in this case was reasonable under our State constitution. In so holding, the Supreme Court reversed our decision in Smith v. City of East Point, 183 Ga.App. 659, 359 S.E.2d 692. We had held that Smith's constitutional rights were violated by an unreasonable search and seizure of his urine and that, therefore, Smith was discharged by the city without just cause. Id. at 662, 359 S.E.2d 692. In view of the Supreme Court's reversal of our decision, we must now examine the remaining enumerations of error set forth by Smith. Held:

1. The Personnel Board of Appeals which affirmed Smith's termination, was composed of the mayor and four senior councilmen. Via motion to dismiss filed with the board, Smith challenged the composition of that body. In this regard, he pointed out that the city charter called for five members of the board--an attorney and four qualified electors of the city. Ga.L.1972, pp. 2151, 2209. Smith's jurisdictional challenge was rejected by the board and the superior court.

In our previous consideration of this case, we implicitly rejected Smith's jurisdictional challenge and reached the merits of the urinalysis issue. Since we reversed the superior court on the ground that the urinalysis testing was unconstitutional, we saw no need to address the jurisdictional challenge explicitly. ¹ In view of the Supreme Court's reversal of our decision, we now address Smith's jurisdictional challenge explicitly.

At the outset, we note that on certiorari, the Supreme Court did not consider the jurisdictional challenge raised by Smith even though it ruled against Smith on the urinalysis issue. Thus, it would appear that the Supreme Court, too, rejected Smith's jurisdictional challenge without discussion.

In 1972 the City of East Point's charter was amended by the General Assembly. The amended charter provided for the appointment of a Personnel Board of Appeals to hear and decide cases of employees who were discharged or otherwise disciplined. The board was to consist of five members. At least one member of the board was to be an attorney. The remaining members of the board were to be qualified electors of the city. Ga.L.1972, pp. 2151, 2209.

Five years later, via ordinance, the membership of the board was changed. See OCGA § 36-35-3. Pursuant to the ordinance, the Personnel Board of Appeals was to consist of the mayor and four senior councilmen. The ordinance was adopted on November 21, 1977. It was not to take effect, however, until the "adoption of a home rule charter amendment correcting and clarifying certain portions of the City Charter ..."

In 1979 a home rule charter amendment was adopted. Ga.L.1979, p. 4803. It made various changes in the charter. It did not, however, speak to the composition of the Personnel Board of Appeals.

Smith takes the position that the 1972 charter amendment was never rescinded by the city council or the General Assembly. In this regard, he argues that the 1977 ordinance never took effect because an anticipated home rule charter amendment mirroring the ordinance was never enacted. We disagree.

The 1977 ordinance provided that it was not to become effective until the adoption of the home rule charter amendment. It did not require the adoption of any specific amendment with regard to the makeup of the Personnel Board of Appeals. It was simply to go into effect when a home rule charter amendment was adopted. That was done in 1979. It follows that the board which affirmed Smith's termination was composed properly of the mayor and four senior councilmen pursuant to the 1977 ordinance and that the board was not without jurisdiction to entertain Smith's appeal.

2. The initial notice of termination informed Smith that he was being discharged for conduct unbecoming his position. Smith requested more facts. Accordingly, Smith's attorney was furnished with an amended notice informing him that "he did use a controlled substance identified as THC (marijuana)." And he was furnished "copies of all scientific reports ... in the possession, custody, or control of the City of East Point." Thereafter, Smith's appeal was heard by the Personnel Board of Appeals.

Smith moved to dismiss the proceeding on the ground that the original notice of termination was insufficient. The motion was overruled by the board and the superior court affirmed.

Smith asserts the superior court erred in affirming the decision of the board because the initial notice of termination did not set forth the reason for Smith's discharge with specificity. This assertion is without merit.

It is well-settled that an employee is entitled to be furnished with specific reasons for his discharge. See Scott v. Undercofler, 108 Ga.App. 460, 133 S.E.2d 444. The notice should be sufficient enough to enable the employee to prepare any defense the employee may have to the charge. See Schaffer v. State Bd. of Veterinary Medicine, 143 Ga.App. 68, 69, 237 S.E.2d 510. If, however, the initial notice is insufficient, it can be amended to set forth the grounds of discharge specifically. Schaefer v. Clark, 112 Ga.App. 806, 146 S.E.2d 318.

" 'The key to pleading in the administrative process is adequate opportunity to prepare. When an original notice or pleading is inadequate, it is normally supplemented by informal communication, by formal amendment, by a bill of particulars, by prehearing conferences, or by ample continuances at the hearing. And the question on review is not the adequacy of the original notice or pleading but is the fairness of the whole procedure.' Davis on Administrative Law (1951) § 80, pp. 279-290." Schaefer v. Clark, 112 Ga.App. 806, 808, 146 S.E.2d 318, supra.

Although the original notice of discharge furnished to Smith was insufficient, the notice was amended by facts enabling Smith to prepare a defense and to meet the issues involved in the case. Accordingly, we find no error with regard to the insufficiency of the original notice.

3. Smith contends the results of the urinalysis were inadmissible because the chain of custody was not proven sufficiently. We disagree.

It was demonstrated with reasonable certainty that the urine sample taken from Smith was the sample which was tested and that there was no tampering or substitution. Mutcherson v. State, 179 Ga.App. 114, 345 S.E.2d 661. It follows that the results of the urinalysis were admitted properly. Any doubt about the identity or purity of the sample went to its weight, not its admissibility. Mutcherson v. State, supra; Fowler v. State, 179 Ga.App. 492, 494(4), 347 S.E.2d 322.

The contention is also made that the urinalysis results were inadmissible because the person who conducted the tests did not testify. This contention also fails. The test results were duly admitted as business records. An expert witness, the director of the laboratory at which the tests were conducted, testified that the results were indicative of marijuana use. It was not necessary to offer the testimony of the person who conducted the tests in order to lay a foundation for admitting the results. Wilson v. Childers, 174 Ga.App. 179, 181(4), 329 S.E.2d 503; McCall v. Parker, 177 Ga.App. 774, 341 S.E.2d 303; Tillman & Deal Farm Supply v. Deal, 146 Ga.App. 232, 234, 246 S.E.2d 138. See Venenga v. State, 163 Ga.App. 161, 293 S.E.2d 553.

Equally without merit is the contention that the test results were inadmissible because two of the three tests which were conducted proved negative for marijuana. The negative test results bore upon the weight, not the admissibility, or the positive test result evidence.

4. The charter of the City of East Point provides, in part: "All officers and employees of said city shall be subject to discharge or removal from their connection with the city for drunkenness, dishonesty, failure to perform their duties, immoral or indecent conduct, or oppressive or abusive use of official position or power, or other conduct unbecoming their station, office or position." Ga.L.1972, pp. 2151, 2187, 2188. Given this provision, it cannot be said that Smith's discharge constituted excessive punishment.

5. Smith's constitutional privilege against self-incrimination was not violated by the taking of the urine sample. Raines v. White, 248 Ga. 406, 284 S.E.2d 7; Welch v. State, 254 Ga. 603, 606(3), 331 S.E.2d 573.

6. It is argued that the taking of the urine sample violated Art. I, Sec. I, Par. X of the Const. of the State of Ga. In this regard, the contention is made that the taking of the urine sample constituted an ex post facto law, retroactive law, or a law impairing the obligation of contract.

We find no violation of the cited constitutional provision. Simply put, the taking of the urine sample was not a legislative enactment.

JUDGMENT AFFIRMED.

BIRDSONG, C.J., BANKE, P.J., and SOGNIER and POPE, JJ., concur.

DEEN, P.J., concurs and also concurs specially.

CARLEY, BENHAM and BEASLEY, JJ., dissent.

DEEN, Presiding Judge, concurring specially.

Were this court now deciding this case for the first time with a clean slate, I would concur with the opinions and outcomes advocated by Presiding Judge McMurray in Smith v. City of East Point, 183 Ga.App. 659, 359 S.E.2d 692 (1987); Justice Smith in City of East Point v. Smith, 258 Ga. 111, 114, 365 S.E.2d 432 (1988); and Judge Ward in Murphy v. McClendon, (Civil Action No. 1: 86 cv-364-HTW, decided April 8, 1988). (Justice Smith's comparison of automobile drivers with armed policemen could be extended to suggest that such testing of all taxpayers, students...