Ferdinand v. Fulton Cnty.

358 Ga.App. 453

855 S.E.2d 678

FERDINAND

v.FULTON COUNTY.

A20A1548

Court of Appeals of Georgia.

February 22, 2021

Ken Jarrard, Cumming, for Appellant.

Dominique Annida Martinez, Atlanta, Parise M. Prins-Hooker, for Appellee.

Hodges, Judge.

This appeal arises from a declaratory judgment action brought by Arthur E. Ferdinand, in his capacity as the Fulton County Tax Commissioner, after Fulton County thwarted Ferdinand's attempt to give several of his employees a bonus which was not commensurate with the pay schedules of the Fulton County civil service system. Specifically, Ferdinand sought a declaration that unclassified employees in his office are not subject to the Fulton County Civil Service Act, as amended in 2013, such that he can unilaterally control their compensation within the boundaries of his office's budget. The trial court ruled against Ferdinand, and for the following reasons, we affirm the trial court's judgment.

We start by recognizing that

[t]he purpose of the Declaratory Judgment Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; it is to be liberally construed and administered. Under the Declaratory Judgment Act, the superior court is authorized to enter a declaratory judgment upon petition therefor in cases of actual controversy, and to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.

(Citations and punctuation omitted.) Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Assn. , 306 Ga. App. 794, 798 (1), 702 S.E.2d 910 (2010). The parties here have stipulated to the pertinent facts, and "[t]his Court reviews de novo issues of law decided by the trial court." ALR Oglethorpe, LLC v. Fidelity Nat. Title Ins. Co. , 352 Ga. App. 363, 364 (1), 834 S.E.2d 866 (2019).

To understand this dispute, we must first discuss the history of Fulton County's civil service system as it has evolved over the years. Throughout its history, the civil service system has divided employees between two classes of service: classified and unclassified. As the civil service system has been amended over time, the rights afforded to members of the unclassified service have expanded, though have remained less significant than the rights afforded to members of the classified service. Additionally, the obligations owed by the county to members of the unclassified service have expanded. Although the scope of employees in the classified service remained fairly stable throughout most of the civil service system's history, in 2013 the General Assembly froze its membership, which will have the continuing effect of shrinking the size of the classified service over time. With this framework in mind, we turn to relevant amendments to the civil service system since its inception in 1943. Our review of the totality of the present Fulton County civil service system, as opposed to simply looking at phrases in isolation and out of context, leads us to the conclusion that it covers employees in the unclassified service.

The 1943 Act

"Pursuant to a 1939 amendment to the Georgia Constitution ("the 1939 Amendment"), the Georgia General Assembly enacted a law in 1943 creating a civil service and/or merit system for Fulton County. 1943 Ga. L., p. 971 ("the 1943 Act")." Ferdinand v. Bd. of Commrs. of Fulton County , 281 Ga. 643, 644 (1), 641 S.E.2d 787 (2007) (" Ferdinand I "). Relevantly, the 1943 Act provided that its purpose included establishing to which "employees the provisions of this Act shall be applicable" and "for the classification and qualification of employees[.]" 1943 Ga. L., p. 971. The 1943 Act defined the "Classified Service" as "all offices and positions of trust and employment in the service of Fulton County except those placed in the unclassified service by this Act, and those covered by other Civil Service Acts enacted heretofore." Id. at p. 973. It further specified that the "Classified Service shall include all other public officers and employees in the employ of ... the office of the ... Tax Collector, Tax Receiver ..."¹ Id. at p. 980. The 1943 Act makes little mention of the unclassified service, except to define specific positions which are unclassified and to provide for a process by which unclassified employees could opt-in to the classified service. See generally id.

The 1982 Act

"Pursuant to its authority under the 1939 Amendment, which was continued in force and effect by Art. VII, Sec. X, Par. I of the Georgia Constitution of 1945 and by Art. XIII, Sec. I, Par. II of the Georgia Constitution of 1976, the General Assembly passed a 1982 law that revised the Fulton County civil service system. 1982 Ga. L., p. 4896 ("the 1982 Act")." Ferdinand I , 281 Ga. at 644 (1), 641 S.E.2d 787. The 1982 Act identified its purpose, in part, as being "[t]o completely and exhaustively revise, supersede, consolidate and replace all of the law and amendments thereto pertaining to the Fulton County Personnel Board and the Fulton County Merit System of Personnel Administration (Civil Service)[.]" 1982 Ga. L., p. 4896.

The 1982 Act identifies in Section 3 the "[p]owers, duties, and responsibilities of the personnel board" of the county. 1982 Ga. L., p. 4898. Among those is a duty "[t]o submit appropriate recommendations to the county manager and the board of commissioners concerning new or revised position classifications, salary ranges, salary rates and schedules, compensation plans, and other similar documents, policies, and procedures relating to the business of the board[.]" Id. at 4899.

With regard to the definition of the classified service, Section 6 of the 1982 Act provided that "the ‘classified service’ to which this Act applies shall comprise all tenured classes and positions in the Fulton County Merit System now existing or that may hereafter be established except for those specifically designated as being in the ‘unclassified service’ ..." Id. at p. 4902.

Although the 1943 Act made little mention of the unclassified service, those employees are mentioned more in the 1982 Act, which identified several new purposes, including "to provide for the certification of payrolls." 1982 Ga. L., p. 4896. To that end, Section 5 of the 1982 Act identified as a duty of the county personnel director to "check and certify all payrolls and exceptions relating to the pay of all Fulton County employees ..." (Emphasis supplied.) Id. at p. 4902. Section 8 further provided that "[p]ayment shall not be made to any classified or unclassified employee unless the payroll bears the certification of the personnel director or his authorized agent ... in accordance with the provisions of this Act ..." (Emphasis supplied.)

Id. at p. 4904. Specifically, the certification must be "a single omnibus certificate prepared covering the payrolls for each department and all employees therein " and it must state that the personnel director "certif[ies] that the records of the personnel department indicate that the employees listed on this payroll were appointed within the provisions of the Civil Service Act ; that the positions listed were approved by the county manager and board of commissioners; and that the salaries are in accordance with the pay schedule and compensation plan. " (Emphasis supplied.) Id. at pp. 4904-4905.

Section 9 of the 1982 Act provides for penalties and appeals. It identifies certain appeal rights available to employees in the classified service. As for the unclassified service, it provides that they "do not have the right to appeal disciplinary actions taken against them to the personnel board, but such employees may file grievances through supervisory channels." 1982 Ga. L., p. 4906.

The 1994 Act

In 1994, the General Assembly amended the Fulton County civil service system again (the "1994 Act"). It added a new section, Section 15, which provided whistleblower protections for both classified and unclassified employees. 1994 Ga. L., p. 4838. These provisions helped protect the identity of whistleblowers and shielded them from retaliation. Id. at pp. 4838-4840. It further provided that "[a]ny action taken in violation of [the subsection preventing retaliation against a whistleblower] shall give the county employee a right to have such action set aside by the personnel board after a hearing." Id. at p. 4840.

The 1995 Act

The Fulton County civil service system was amended yet again in 1995 (the "1995 Act"). Among the amendments made in 1995 were changes to the grievance procedures for both classified and unclassified employees under Section 9. After outlining the appeal rights provided to classified employees following an adverse employment action, the 1995 Act provides that

[a]ll other employees do not have the right to appeal disciplinary actions taken against them to the personnel board, but such employees may file grievances through supervisory channels. The ability to file a grievance in no way gives any employee a property interest in employment. A grievance cannot be construed to convert any demotion, suspension without pay, dismissal, or other disciplinary action taken for cause under the disciplinary provisions of the personnel regulations. Detailed procedures for the conduct of an appeal to the personnel board shall be set forth in the personnel regulations as provided by this Act. In the event that a terminated employee's liberty interest is violated, such employee shall be provided with a name-clearing hearing. The personnel board shall conduct name-clearing hearings for terminated permanent classified employees. The grievance review committee shall conduct name-clearing hearings for all other terminated employees. Detailed procedures for the

...