Smith v. Lott

• Decision Date: 16 July 2012
• Docket Number: No. A12A0494.,A12A0494.
• Citation: 317 Ga.App. 37,730 S.E.2d 663
• Parties: SMITH v. LOTT.
• Court: Georgia Court of Appeals

317 Ga.App. 37

730 S.E.2d 663

SMITH

v.LOTT.

No. A12A0494.

Court of Appeals of Georgia.

July 16, 2012.

Moorman Pieschel, Christopher G. Moorman, Atlanta, for Appellant.

Gardner, Willis, Sweat & Handelman, Donald A. Sweat, Albany, for Appellee.

PHIPPS, Presiding Judge.

After being terminated from employment, Shirley Smith, the former finance director of the City of Albany, filed a lawsuit against Alfred Lott, Albany's city manager, in Lott's personal capacity. In her complaint, Smith asserted claims for defamation, intentional infliction of emotional distress, and tortious interference with business/employment opportunities. Lott moved for summary judgment, and the trial court granted it, finding that suit against Lott was barred by his official immunity.

Smith appeals, contending that Lott was not entitled to official immunity because Lott made some statements with "actual malice" and some statements while he was not acting within the scope of his duties. We see no merit to these claims, and we affirm.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.¹

"The question of whether a government official is entitled to qualified immunity is a question of law for the court to decide."²

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.³

"A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed."⁴

In her complaint Smith asserted that

[w]hen Lott became City Manager, he endeavored to terminate certain City employees in order to replace them with individuals hand-picked by Lott. In removing Smith from her position, Lott wanted the public to perceive that Smith lacked integrity, credibility, and ethics in order to make Smith's termination appear reasonable and justified. As part of his smear campaign, Lott wrote letters, made public comments, and otherwise published remarks and criticisms about Smith that were misleading and/or false and which Lott knew would be further publicized in the media.

The trial court's order and judgment on Lott's motion for summary judgment states that a hearing on the motion was conducted and that the court "considered the full record and all submissions and arguments of counsel," in rendering its decision. The trial court stated:

It is undisputed in this case that Smith, as the Director of the Finance Department of the City of Albany, was a department head directly accountable to City Manager Lott. Therefore, all disciplinary actions, and Smith's ultimate termination from employment, were matters left entirely to the discretion of Lott, under both the City Charter of the City of Albany and its personnel ordinance.

Smith does not contest the trial court's statement. According to the index to the appellate record, the record before this court does not contain a transcript of the hearing on Lott's motion for summary judgment or a reasonable substitute therefor, and Smith did not request that the clerk of the trial court transmit to this court a copy of the hearing transcript and any evidence attached thereto. We do not know what arguments and/or stipulations the parties made at the hearing. Thus we will assume in this case that the trial court was correct in stating that there was no dispute regarding Smith's accountability and Lott's discretion in disciplinary matters.⁵

Smith set forth in her appellate brief, as well as in her trial court brief in response to Lott's motion for summary judgment, the circumstances surrounding four incidents from which Lott's alleged defamatory remarks originated.

Business trip. Smith asserts that Lott "began his [smear] campaign by defaming [her] for attending a ... business trip authorized by the prior acting City Manager." She claims that upon her return from an annual business conference in Montreal, Canada, which she had attended for many years, Lott improperly "sanctioned her in a ‘Disciplinary Action’ personnel document" on the ground that her absence was unauthorized.

Smith claims that during an "open/public portion of a City Commission meeting," Lott commented that her attendance at the conference was an "intentional[ ] attempt[ ] to circumvent ... policies of the City," that she had "violat(ed) standards of conduct for Albany Department Heads," and that her demonstrated behavior could "only be characterized as negligent, disingenuous and the epitome of bad judgment."

Smith asserts that although Lott claimed that he did not know about her plans to attend the conference beforehand, "[i]t is clear, though, that Lott knew about Smith's intention to travel to the conference before it occurred...." Smith claims that Lott knew because his administrative assistant, who traveled with Smith on the trip, testified that "when Lott came on board," she had "mentioned the fact that [she traveled with Smith] from time to time to [the] conferences," she told Lott that the next conference was going to be in Montreal, and Lott had joked with her to " brush up on her French."

But Smith deposed that she did not inform Lott that she was going on the business trip. And the record shows that although Smith obtained written authorization from the prior acting city manager to attend the conference, she did not request that the authorization be filed with the city manager's office. And Lott's administrative assistant deposed that although she had mentioned to Lott that she sometimes traveled with Smith to the conference, in this instance, she did not tell Lott with whom she might travel to the conference, and Lott did not ask; the trip was a personal one for the assistant.

Therefore, concluding that Smith's absence was unauthorized, Lott disciplined Smith by issuing a Disciplinary Action report which was placed in Smith's personnel file and copied to Smith; and by suspending Smith for four days without pay. Smith then filed a written response to the disciplinary report, and it was also placed in her personnel file. Through an Open Records Act request, a local newspaper obtained the documents, and excerpts from the documents appeared in its papers.

Investigation of finance department. Smith asserts that "Lott next undertook to attack [her] by conducting a sham ‘needs analysis' investigation of the Finance Department." Smith claims that "[a]t Lott's direction," the individual Lott hired to conduct an investigation of the department "caused the report to": (1) accuse Smith of having "directed her employees to break the law by directing her employees to pick up her children from school or other personal tasks during working hours"; and (2) conclude that Smith's actions were considered a crime known as "theft of services."

But the record shows that employees and former employees of the finance department reported to Lott their concerns about Smith's lack of preparedness for an upcoming audit; Smith's lack of effort to replace the department's accounts payable manager; and Smith's unfair treatment of some staff members.

As a result of the reports, Lott engaged the services of an individual ("assessor") to conduct a management assessment of the finance department. Some of the objectives of the assessment were to assess the leadership climate of the finance department, assess the department's readiness and preparedness for an upcoming audit, investigate the reasons behind employees leaving the department, investigate allegations of retaliation and vindictiveness by Smith, investigate allegations of favoritism toward certain employees by Smith, assess the department's ability to manage accounts payable and receivable, and make a written review of the assessment.

Pursuant to that engagement, in August 2006, the assessor interviewed employees of the finance department. During those interviews, some employees reported that Smith had required them to pick up her children from school and to perform other personal tasks, errands, and favors for Smith and her children during normal work hours and in city-furnished vehicles; the assessor deposed that she relayed this information to Lott. Lott deposed that he consulted the city attorney regarding Smith's use of employees for personal matters and her use of city-furnished vehicles for personal errands, and that the city attorney told him that Smith's conduct constituted the crime of theft of services. The assessor deposed that Lott mentioned the term "theft of services" to her during one of her briefings to him.

The assessor included in her written report that Smith "directed her employees to break the law by directing [them] to pick up her children from school or [perform] other personal tasks during work hours. This is considered ‘Theft of Service.’ "

The City of Albany's police department later conducted an investigation of the allegations against Smith for her use of city vehicles and employees to perform personal tasks, errands, and favors; after conferring with the district attorney's office, "it was determined that there [was] not enough evidence to pursue a criminal charge to a successful conviction."⁶

Lott's termination of Smith. Smith asserts that when she met with Lott and he told her that her employment with the city would be terminated unless she resigned, Lott "further...