Martin v. City of College Park , 342 Ga. App. 289 ( 2017 )

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J, and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 21, 2017
In the Court of Appeals of Georgia
A17A0032. MARTIN v. CITY OF COLLEGE PARK. DO-002
DOYLE, Chief Judge.
In a suit alleging violations of the Georgia Open Meetings Act (“OMA”),1
Chawanda Martin appeals from the grant of summary judgment to the City of College
Park. Martin contends that the trial court erred by ruling that her suit was not filed in
accordance with the time limits prescribed in the act at OCGA § 50-14-1 (b) (2) and
by granting summary judgment because there was evidence that the City Council
made interim employment appointments without a public vote. For the reasons that
follow, we affirm in part, reverse in part, and remand the case.
On appeal from the grant of summary judgment, we construe the
evidence most favorably towards the nonmoving party, who is given the
1
OCGA § 50-14-1 et seq.
benefit of all reasonable doubts and possible inferences. The party
opposing summary judgment is not required to produce evidence
demanding judgment for it, but is only required to present evidence that
raises a genuine issue of material fact. Our review of the grant or denial
of a motion for summary judgment is de novo.2
So viewed, the record shows that Martin was hired by the City as a firefighter
in September 2008.3 In 2011, Martin was disciplined for certain alleged misconduct
during her job, and on July 30, 2012, she was terminated by then-interim Fire Chief
Wade Elmore for additional alleged misconduct occurring in 2012. Pursuant to the
2
(Punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, P.C.,
298 Ga. 75, 82 (3) (779 SE2d 334) (2015), quoting Johnson v. Omondi, 294 Ga. 74,
75 (751 SE2d 288) (2013).
3
As an initial matter, we note that neither party fully complied with Court of
Appeals Rule 25 (c) (2) (iii), which requires that references to the record be indicated
by specific record citations. When record citations have been provided, in many
instances the citations are to a deposition generally or do not accurately correspond
to the appellate record. Further, certain factual assertions in the City’s brief are
supported with reference to global citations to the answer or the trial court’s order.
“[F]actual assertions in briefs not supported by evidence of record cannot be
considered on appellate review[,] and . . . pleadings unsupported by evidence [in the
record] do not raise factual issues that prevent granting of a motion for summary
judgment.” (Citation omitted.) Strickland v. Dekalb Hosp. Auth., 197 Ga. App. 63,
65-66 (2) (a) (397 SE2d 576) (1990). It is not the role of the Court of Appeals to cull
the record on behalf of a party, and a lack of proper citations greatly hinders our
consideration of the issues on appeal. Nevertheless, we have endeavored to review
the merits of Martin’s appeal.
2
City’s grievance procedure, Martin appealed her termination to the interim City
Manager, Richard Chess, who affirmed the decision. Despite having the opportunity
to do so, Martin did not appeal the City Manager’s decision to the Mayor or City
Council.4
Instead, Martin filed an open records request with the City, seeking information
outlining the process by which certain interim officials were appointed by the City.
Martin’s request focused on the appointments of interim Fire Chief Elmore, interim
City Manager Chess, interim City Manager Hugh Austin, and interim Human
Resources Director Christa Gilbert. Martin ultimately was able to obtain meeting
minutes showing that these interim appointments apparently occurred, but they were
not done pursuant to a vote by the City Council at an open meeting.
On October 2, 2012, Martin sued the City, Chess, Elmore, and City
Councilmen Ambrose Clay, Joe Carn, Tracey Wyatt, and Charles Phillips, Sr. The
complaint alleged that the interim appointments were made in violation of the OMA,
4
According to the City’s grievance procedure, the City Manager’s decision on
a grievance is final, subject only to an appeal to the Mayor and the City Council.
Further, the “[f]ailure, at any time during the grievance procedure, to submit a
grievance to the next step within the time limit, acts as an acceptance of the decision
at that step.” Martin’s failure to exhaust her administrative remedies may preclude her
ability to obtain the employment-related relief she seeks, but we need not decide that
issue as it will be before the trial court in the first instance on remand.
3
so the interim officials lacked authority to take adverse employment action against
Martin. Martin sought reinstatement, expungement of her personnel record, attorney
fees and expenses of litigation, a writ of quo warranto, and the imposition of civil
penalties against the City Council members. The defendants answered and, following
discovery, moved for summary judgment. The trial court granted the motion on the
grounds that Martin failed to file her suit within the time prescribed by the OMA, and
that Martin had failed to adduce any evidence of unlawful votes. Martin now
appeals.5
1. First we must determine if Martin’s claims are time-barred. Based on the
undisputed evidence, all of Martin’s claims are time-barred except as to interim City
Manager Chess.
We begin with the relevant statutory language. OCGA § 50-14-1 (b) provides,
in part:
(1) Except as otherwise provided by law, all meetings shall be
open to the public. All votes at any meeting shall be taken in public after
5
This court initially transferred Martin’s appeal to the Supreme Court of
Georgia, which transferred the case back to this Court, noting that Martin had
abandoned her writ of quo warranto claim that the trial court had dismissed as moot,
appealing only on legal (not equitable) grounds under the OMA.
4
due notice of the meeting and compliance with the posting and agenda
requirements of this chapter.
(2) Any resolution, rule, regulation, ordinance, or other official
action of an agency adopted, taken, or made at a meeting which is not
open to the public as required by this chapter shall not be binding. Any
action contesting a resolution, rule, regulation, ordinance, or other
formal action of an agency based on an alleged violation of this
provision shall be commenced within 90 days of the date such contested
action was taken or, if the meeting was held in a manner not permitted
by law, within 90 days from the date the party alleging the violation
knew or should have known about the alleged violation so long as such
date is not more than six months after the date the contested action was
taken.
OCGA § 50-14-3 (b) provides that certain meetings may be held in executive
session, i.e., “lawfully closed to the public.”6 Those meetings include:
Meetings when discussing or deliberating upon the appointment,
employment, compensation, [or] hiring, . . . of a public officer or
employee or interviewing applicants for the position of the executive
head of an agency. . . . The vote on any matter covered by this paragraph
shall be taken in public and minutes of the meeting as provided in this
chapter shall be made available. Meetings by an agency to discuss or
6
OCGA § 50-14-1 (a) (2).
5
take action on the filling of a vacancy in the membership of the agency
itself shall at all times be open to the public as provided in this chapter.7
Thus, except when discussing filling a vacancy on the City Council itself, discussion
and deliberation regarding hiring decisions may be done in a closed executive
session, but voting on hiring decisions must be done in a public meeting.8
With respect to interim officials Austin, Gilbert, and Elmore, the record is
undisputed that each was appointed more than 90 days prior to the date Martin filed
her suit, October 4, 2012 — the last of these appointments (interim Fire Chief
Elmore) occurring in June 2012 at the latest.9 Martin was required to file suit within
ninety days of these appointments and did not do so. Therefore, as to these interim
appointments, Martin’s complaint was untimely.
Martin argues that she is entitled to 90 days from the date she knew or should
have known of the unlawful appointments, but according to the statutory language in
OCGA § 50-14-1 (b) (2), the “knew or should have known” phrase only applies “if
7
(Emphasis supplied.) OCGA § 50-14-3 (b) (2).
8
See id.
9
Ninety days prior to October 5, 2012, stretches back to July 6, 2012.
6
the meeting was held in a manner not permitted by law.”10 The executive session
meetings in this case were not unlawful because they were limited to personnel
discussions, and there is no evidence that any voting took place. Therefore, in the
absence of any evidence of unlawful meetings, Martin was required to file suit within
90 days of the contested interim appointments themselves.
With respect to interim City Manager Chess, the record contains the testimony
of Mayor Longino that Chess “came on in August of — 16th of 2012,” “that [Austin]
gave his notice and was gone at the end of July, and [Chess] came on in the first of
August.”11 According to this account, Chess’s appointment was fewer that 90 days
prior to the October 4, 2012 date of Martin’s action, and the trial court erred by
concluding as a matter of law that it was time-barred under OCGA § 50-14-1 (b).
2. Having determined that Martin’s claim against Chess is not time-barred, we
must decide whether the trial court erred by holding that Martin did not meet her
burden on summary judgment because she failed to put forth evidence of any
10
(Emphasis supplied.)
11
It is unclear why the dates of employment are at issue in this case, as a simple
perusal of one’s pay stub should indicate the first day of employment. Further, Chess
averred that he served as the interim City Manager in August of 2012, though he did
not refer to a specific start date.
7
unlawful votes. By the trial court’s logic, all official action taken with no meeting and
no vote is outside the purview of the OMA. This would frustrate entirely the purpose
of the OMA,12 and we decline to interpret OCGA § 50-14-1 (b) in such a way.13
Because there is undisputed evidence that the City failed to hold any public votes on
Chess’s interim position, it was error for the trial court to grant summary judgment
on this record.
As set forth above, the unambiguous language of the statute requires a public
vote on any matter covered by the paragraph, which includes meetings when voting
on the appointment or employment of a public officer or employee.14 The statute does
not differentiate or exempt “interim” appointments from its reach.
Here, the evidence was that no vote was ever taken. Mayor Longino testified
that the mayor made the challenged appointments according to “consensus,” and no
12
See Mtg. Alliance Corp. v. Pickens County, 294 Ga. 212, 218 (2) (751 SE2d
51) (2013) (“The law requires the commission to hold meetings that are open to the
public whenever any ‘official business, policy, or public matter’ of the county is
‘formulated, presented, discussed, or voted upon’ . . . .”).
13
See Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (3) (405 SE2d 655)
(1991) (“[T]he Open Meetings Act must be broadly construed to effect its purposes
of protecting the public and individuals from closed-door meetings.”).
14
OCGA § 50-14-3 (b) (2).
8
votes were ever held to fill these interim appointments. Thus, the trial court erred by
holding that Martin could not demonstrate a violation of the OMA.
3. In light of our ruling in Divisions 1 and 2, Martin has demonstrated a legal
and evidentiary basis to survive summary judgment as to an OMA violation with
respect to the appointment of interim City Manager Chess. The superior courts have
jurisdiction to enforce compliance with the OMA, including the power to grant
injunctive or other equitable relief, award attorneys fees, and impose a civil penalty
not to exceed $1,000.00 for the first violation.15 Accordingly, we remand for a
determination of the appropriateness, if any, of a civil penalty as authorized under
OCGA § 50-14-6 and/or any other relief as pleaded by Martin.
4. To the extent not otherwise addressed, Martin’s remaining enumerations are
moot.
Judgment affirmed in part and reversed in part; case remanded with direction.
Miller, P. J., and Reese, J., concur.
15
OCGA §§ 50-14-5; 50-14-6.
9