Vollrath v. Collins, S00A0279.

• Decision Date: 10 June 2000
• Docket Number: No. S00A0279.,S00A0279.
• Citation: 272 Ga. 601,533 S.E.2d 57
• Parties: VOLLRATH v. COLLINS et al.
• Court: Georgia Supreme Court

533 S.E.2d 57

272 Ga. 601

VOLLRATH v. COLLINS et al.

No. S00A0279.

Supreme Court of Georgia.

June 10, 2000.

Meadows, Ichter & Trigg, Michael J. Bowers, T. Joshua R. Archer, Merrick D. Bernstein, Atlanta, for appellant.

John P. Tucker, Jr., Blue Ridge, Hollberg & Weaver, George M. Weaver, Atlanta, Doss & Doss, Oliver H. Doss, Jr., Blue Ridge, for appellees.

CARLEY, Justice.

In January of 1999, the three members of the Board of Commissioners of Fannin County unanimously voted to retain Lynn Doss in the position of county attorney. Cline Bowers, who is the former Chairman of the Board of Commissioners, subsequently asserted that he alone had the authority to employ and discharge the County Attorney, and he sought to dismiss Ms. Doss. Commissioners Randy Collins and Yvonne McNelley opposed this move, contending that they too had a vote in the selection and retention of the county's legal representative. Seeking judicial approval of his unilateral authority in the matter, Bowers brought suit for declaratory judgment and injunctive relief and issuance of a writ of mandamus. After conducting a hearing, the trial court denied the claims for mandamus and for an interlocutory injunction. Although Bowers filed this appeal, he subsequently left office, and Dr. Richard Vollrath succeeded him as Chairman of the Board of Commissioners.

1. The Commissioners have moved to dismiss this appeal, asserting that it became moot once Bowers left his post as chairman. Chairman Vollrath opposes the motion to dismiss, and he has filed a motion to substitute himself for Bowers as the appellant.

The issue in this case is not whether Bowers, as an individual, was authorized to serve as chairman of the Board of Commissioners. Compare Bruce v. Maxwell, 270 Ga. 883, 515 S.E.2d 149 (1999). The controversy relates to the actual chairmanship itself, rather than to any particular occupant thereof. The dispositive question is whether whoever serves as the chairman has the sole authority over the employment of the county attorney, and need not share that power with the other two commissioners. Thus, this appeal is not rendered moot by the departure of Bowers from his position. See Collins v. Lombard Corp., 270 Ga. 120, 122(1), 508 S.E.2d 653 (1998). Chairman Vollrath has succeeded to the office formerly held by Bowers and, in that official capacity, he has determined that he will not withdraw the appeal, but wishes to pursue it. Therefore, Chairman Vollrath's motion to become the substituted appellant in this case is granted, and the Commissioners' motion to dismiss the appeal is denied.

2. Under the terms of Ga. L. 1975, p. 2814 et seq., neither Chairman Vollrath alone nor the three commissioners together are granted express specific authority to determine who shall serve as the county attorney. The Commissioners maintain that, in the absence of such a provision in the local act, the power to fill that position is conferred implicitly upon the collective members of the Board by virtue of their authority over the county's financial matters. See Templeman v. Jeffries, 172 Ga. 895, 159 S.E. 248 (1931). However, the power to make hiring decisions for a county can rest upon the grant of general, as well as specific, authority. See Krieger v. Walton County Bd. of Commrs., 269 Ga. 678, 682(4), 506 S.E.2d 366 (1998). Thus, the failure of the local act to make a specific grant of authority to employ a county attorney is dispositive only if the statute also fails to provide Chairman Vollrath with the general authority to make that determination. In this regard, the enactment provides, in relevant part, that

the Chairman shall have the exclusive power and authority to appoint, remove and fix the compensation of, within budgetary provisions ... which may now or hereafter be established by the Board of Commissioners of Fannin County, all employees and officials of the County, except as to ... elected officers and employees under their supervision and control.

(Emphasis supplied.) Ga. L. 1975, pp. 2814, 2822, § 12. Clearly, this provision constitutes the general grant to Chairman Vollrath of sole authority to discharge Ms. Doss and to name her replacement, unless she is a county employee who is under the common supervision and control of all three of the elected commissioners. See Krieger v. Walton County Bd. of Commrs., supra at 682(4), 506 S.E.2d 366 (chairman has general authority over employment of all county employees, except those whose hiring the local act specified as within the control of the board).

The concept of supervision and control connotes the relationship of master and servant. "A master is one who employs another to perform services and who controls or has the right to control the physical conduct of the person employed in the performance of those services. [Cit.]" Farmer v. Ryder Truck Lines, 245 Ga. 734, 737, fn. 2, 266 S.E.2d 922 (1980). No county attorney is engaged to act as the servant of the board of commissioners. Rather the county attorney serves as the legal representative and agent of the county, and the members of the board are clients rather than supervisors who control the manner in which counsel performs in that legal capacity. "The engagement of counsel does not create the relation of master and servant. [Cit.] A lawyer is employed, not hired. The employment carries with it duties and obligations apart from serving the client. He represents the client." Claxton v. Johnson County, 194 Ga. 43, 48, 20 S.E.2d 606 (1942). See also Sams v. Olah, 225 Ga. 497, 506(8), 169 S.E.2d 790 (1969). "An attorney at law acts as an agent for his client/principal. [Cit.]" Newell...