FULTON COUNTY, GEORGIA v. ANDREWS Et Al.

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
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 11, 2015
In the Court of Appeals of Georgia
A15A0712. FULTON COUNTY, GEORGIA v. ANDREWS et al.
MCMILLIAN, Judge.
Appellees are current or former attorneys employed with the Office of the
Public Defender, Atlanta Judicial Circuit (the “Public Defenders”) who filed suit
against Fulton County, Georgia (the “County”), alleging breach of contract and
violation of county laws. In their petition, the Public Defenders assert that, pursuant
to the Civil Service Act of 1982 (the “Civil Service Act”), they are entitled to the
same compensation given to attorneys assigned to the Office of the County Attorney
(the “County Attorneys”). They allege, however, that the County increased the salary
of the County Attorneys, creating an unlawful pay disparity between the two groups
of attorneys. Following discovery, both parties filed motions for summary judgment.
The trial court denied the County’s motion and granted the Public Defenders’ motion.
The County appeals, asserting that the trial court erred in concluding that (1) Fulton
County personnel regulations constitute the parties’ employment contract, as opposed
to the “offer letters” received by the Public Defenders and (2) the County violated the
personnel regulations by paying the Public Defenders less than other attorneys.
Finding no error, we affirm.
“In reviewing a trial court’s ruling on a motion for summary judgment, we
conduct a de novo review to determine whether the undisputed facts warrant
judgment as a matter of law. OCGA § 9-11-56.” (Citation omitted.) Wright v. IC
Enterprises, 330 Ga. App. 303, 303 (765 SE2d 484) (2014). And, “[t]he opposing
party should be given the benefit of all reasonable doubt, and the court should
construe the evidence and all inferences and conclusions arising therefrom most
favorably toward the party opposing the motion.” (Citation and punctuation omitted.)
Id.So viewed, the record shows that pursuant to a 1939 amendment to the Georgia
Constitution, the General Assembly enacted a civil service merit system for Fulton
County. Ga. L. 1943, p. 971. In 1982, the General Assembly passed a law revising the
Fulton County civil service system, the express purpose of which was to establish “a
high quality merit system of personnel administration based upon accepted merit
2
principles and recognized methods governing the appointment, promotion, transfer,
layoff, removal, discipline, and well-being of employees who are governed by this
Act, and for related personnel actions associated with Fulton County employment.”
Ga. L. 1982, pp. 4896-4897, § 1. Consequently, pursuant to the Civil Service Act, the
County implemented a comprehensive set of “Personnel Regulations” that are vested
with the “force and effect of law”1 to create a civil service merit system wherein the
County’s Personnel Director must develop a “Position Classification Plan” for all
positions “based upon similarity of duties performed and responsibilities assumed so
that comparable qualifications may reasonably be required for and the same schedule
of pay may be equitably applied to all positions in the same class.” PR 200-1.
Relevant to the Public Defenders’ claims, PR 300-9 provides that the County’s
Personnel Board and Board of Commissioners “shall establish minimum and
maximum salary rates for all employees of Fulton County whose classes and positions
are established on salary ranges (Classified and Unclassified).” In addition, PR 300-1
mandates that “[n]o employee shall be paid at a salary rate lower than the minimum
or higher than the maximum of the salary range approved and established for the class
in which currently serving, unless dictated by a [c]ounty-wide classification and
1
Ga. L. 1982, p. 4896, § 3; PR 100-1 (1).
3
compensation study which has been approved by the Personnel Board and Board of
Commissioners.”
In 1995, the County hired Fox Lawson, a private consulting firm, to perform
a county-wide study to ensure the development of an appropriate, neutral
classification and compensation system. Fox Lawson completed its study in 1997 and
proposed a comprehensive pay plan that assigned each County employee to one of
approximately 600 job classifications (the “Fox Lawson study”). It also proposed the
equitable range of pay for each job classification, using the “Decision Band Method”
ranking system (“DBM”).2 The Board of Commissioners adopted Fox Lawson’s
proposed classification and compensation structure in June 1997. Under this
structure, the County classified the Public Defenders within the same job
classification and DBM pay grade as the County Attorneys. Thus, for example, entry
level attorneys in both groups were classified as “606022 Attorney, Staff” and
assigned a pay grade of “C42.”3
2
The DBM determination is based on several criteria, including the difficulty
of work performed by members of the classification, the complexity of the work
performed, and the supervisory responsibilities and decision making authority of the
classification members.
3
More senior attorneys in both groups were progressively classified as
“606024 Attorney, Senior” with a “C43” pay grade, “606026 Attorney, Supervising”
4
As part of the compensation structure adopted by the County, “[m]arket
premiums” or salary differentials (“premium pay”) could be applied to the salary rate
for a particular classification when the average market compensation level, including
the private sector, exceeded the County’s established salary rate by 15% or more.4
Beginning in 1997, the County applied premium pay raises to the County Attorneys5
that were substantially more than those given to other attorneys within the same
classification, including the Public Defenders.6 Thus, a pay differential between the
County Attorneys and the Public Defenders was established and carried forward year
after year.
In April 2005, pursuant to a request by the Board of Commissioners, the
County’s Personnel Director reviewed the County’s use of premium pay and
with a “C51” pay grade, and “606027 Attorney, Managing” with a “D63” pay grade.
4
In pertinent part, PR 300-9 provides: “Market premiums or differentials may
be applied to the salary rates for certain classifications when the market compensation
level exceeds the established salary rate by a minimum of fifteen percent (15%).”
5
These premium pay raises ranged from a 36% supplement for staff attorneys
to a 70% supplement for supervising attorneys.
6
The public defenders were awarded premium pay ranging from 0% for staff
attorneys to 29% for managing attorneys. The County’s judicial assistants, also within
the same classification, were awarded no premium pay.
5
recommended a “divestiture plan” designed to eliminate premium pay within the
County’s classification and compensation system. As part of its divestiture plan, the
County placed certain employees, including the County Attorneys and most positions
within the Public Defender’s Office, on a new salary range called “Schedule B.”7
However, the salary ranges within Schedule B included the previous premium pay
granted to each group of attorneys, thereby perpetuating the pay differential between
the County Attorneys and the Public Defenders.8 In January 2012, the Public
Defenders filed a grievance through the County’s civil service grievance procedure,
alleging this pay disparity and seeking back pay and a prospective pay adjustment.
In response, the County informed the Public Defenders that they would not be
permitted to pursue their claims through the grievance process, and the Public
Defenders subsequently filed their action in the Superior Court of Fulton County. In
granting the Public Defenders’ motion for summary judgment, the trial court found
that the County’s Personnel Regulations formed an employment contract between the
7
Because the staff attorneys with the Public Defender’s Office had not been
receiving any premium pay, they were not included on Schedule B.
8
This was done despite the Personnel Director’s determination that the market
disparity for the position of staff attorney with the County Attorneys had fallen to 2%,
well below the 15% threshold for premium pay designation.
6
County and the Public Defenders and that nothing in PR 300-9, which provides for
premium pay to a classification under certain market conditions, permits the County
to ignore the requirements of PR 300-1 that prohibit the County from paying its
employees outside the established salary ranges without a new, county-wide
classification study.
1. The County asserts that, in granting summary judgment to the Public
Defenders, the trial court erred by concluding that the County’s Personnel
Regulations “constitute the entire employment agreement” between the County and
the Public Defenders. The County maintains that the Personnel Regulations are not
specific enough to constitute an employment contract and that only the “offer letters”
sent to each Public Defender set forth the terms of employment that should be
enforced.
However, nowhere in its order does the trial court conclude that the Personnel
Regulations make up the “entire” contract or employment agreement between the
parties. Rather, the trial court correctly rejected the County’s argument that the terms
of the letters supersede the Personnel Regulations, which the County maintains are
“but one aspect of the parties’ employment agreement.” Under the Civil Service Act,
the Personnel Regulations, including the requirement that “the same schedule of pay
7
. . . be equitably applied to all positions in the same class,”9 have the full force and
effect of law. Ga. L. 1982, p. 4896, § 3; PR 100-1 (1). It is well established that a
statute establishing a retirement plan for government employees becomes a part of an
employee’s contract of employment. DeKalb County School District v. Gold, 318 Ga.
App. 633, 642 (2) (734 SE2d 466) (2012) (the statute becomes part of the
employment contract and is compensation for services rendered, and an amendment
to the statute to reduce or eliminate employee benefits would violate our state
constitution’s impairment clause); Alverson v. Employees’ Retirement System of
Georgia, 272 Ga. App. 389, 391-392 (1) (b) (613 SE2d 119) (2005) (state employees
were parties to a written contract established by statute in effect when they performed
services and contributed toward their retirement benefits). And we see no reason why
a statute establishing a merit-based compensation structure and regulations
promulgated thereunder should be treated any differently than a statute establishing
a retirement plan. See Clark v. State Personnel Board, 252 Ga. 548, 550 (2) (a) (314
SE2d 658) (1984) (holding that the state Merit System Act “create[s] a
constitutionally protected contract between the merit system members and the state”);
Fulton County v. Lord, 323 Ga. App. 384, 389 (1) (746 SE2d 188) (2013) (finding
9
PR 200-1.
8
the judicial assistants’ claim for back pay pursuant to Fulton County’s personnel
regulations sounds in contract).
Moreover, pretermitting whether the “offer letters” included terms in
contradiction with the Personnel Regulations,10 the County was without authority to
override the Personnel Regulations by creating its own terms in an “offer letter” to
certain of its employees. See DeClue v. City of Clayton, 246 Ga. App. 487, 491 (2)
(540 SE2d 675) (2000) (“A constitutional act of the legislature has been found to be
the equivalent of a contract and the rights created thereby may not be impaired by
subsequent legislation.”). PR 100-1 (2), entitled “General Purpose,” provides that the
Personnel Regulations shall be the sole and exclusive instrument
governing personnel administration, personnel transactions, and
procedures within Fulton County, unless otherwise mandated by law.
Departmental standard operating procedures in conflict with these
10
The trial court found that these letters were simply “confirmations that
employment has been accepted.” And the record shows that virtually each letter opens
with “Welcome to the Office of the Public Defender. Pursuant to your acceptance of
Mr. Pitts’ offer of employment . . . I am writing to confirm your start date . . . and to
advise you of the following.” The letter then informs the employee of his or her
starting salary and the salary range for the position. For example, staff attorneys were
notified that their salary range was “C42,” thereby specifically referring to the
classification and compensation system established pursuant to the same Personnel
Regulations that expressly prohibit compensating members of a classification below
or above their salary range.
9
Personnel Regulations are not allowed; to the extent such a conflict
exists, these regulations shall apply. (Emphasis supplied.)
And, as we have noted, PR 300-1 expressly mandates that “[n]o employee shall be
paid at a salary rate lower than the minimum or higher than the maximum of the
salary range approved and established for the class in which currently serving . . .”
Accordingly, the County had no authority to unilaterally create a pay disparity
between the County Attorneys and the Public Defenders except as outlined in the
Personnel Regulations, and “a contract which is void because it is made without
authority cannot be ratified.” Clark v. Head, 272 Ga. 104, 106 (3) (526 SE2d 859)
(2000).
We likewise reject the County’s contention that the Public Defenders cannot
establish a breach of contract claim because they are relying on the County Attorneys’
contracts to which they were neither parties nor intended beneficiaries. To the
contrary, the Personnel Regulations clearly establish a minimum and maximum salary
rate for “all employees” and provide that “[no] employee shall be paid” outside his
or her designated salary range. (Emphasis supplied.) And PR 200-1, in mandating the
creation of “an appropriate Position Classification Plan for all on-range positions .
. . based upon similarity of duties performed and responsibilities assumed,” is
10
designed to ensure “that comparable qualifications may reasonably be required for
and the same schedule of pay may be equitably applied to all positions in the same
class.” (Emphasis supplied.)
Thus, by awarding a higher percentage of premium pay to the County
Attorneys, who are members of the same classification as the Public Defenders, and
by perpetuating that pay disparity through the creation of Schedule B, the County has
breached its contractual obligations to the Public Defenders under the Personnel
Regulations. To find otherwise would completely undermine the purpose of a merit-
based civil service system. See Wayne County v. Herrin, 210 Ga. App. 747, 752-753
(3) (437 SE2d 793) (1993) (“civil service systems rest on the principles of a merit
system rather than (not in addition to) a spoils system”).
2. The County also asserts that the trial court erred in concluding that the
County violated the Personnel Regulations. The County first claims that OCGA § 36-
1-21 vests the County with authority to compensate the Public Defenders and the
County Attorneys as it sees fit under “home rule.”11 However, OCGA § 36-1-21 is
11
OCGA § 36-1-21 (a) provides that “[t]he governing authority of any county
is authorized to provide by ordinance or resolution for the creation of a civil service
system for employees of the county, other than elected officials or persons appointed
to positions for specified terms.” And OCGA § 36-1-21 (c) provides that “[a] civil
service system created pursuant to the authority of this Code section shall be
11
inapplicable where a civil service system is created by the General Assembly, as was
the County’s. See Ferdinand v. Bd. of Commissioners of Fulton County, 281 Ga. 643,
645, n. 4 (641 SE2d 787) (2007).
Likewise misplaced is the County’s argument that requiring it to pay the Public
Defenders in the same range as the County Attorneys would violate the Gratuities
Clause of the Georgia Constitution, which prevents the General Assembly from
granting “extra compensation to any public officer . . . after the service has been
rendered.” Ga. Const. Art. III, Sec. VI, Para. VI (a). The County’s position is based
on a false premise because the Public Defenders are not seeking “extra
compensation.” They are seeking the compensation they were legally entitled to under
the Personnel Regulations in force at the time they performed their services. See City
of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 353 (4) (765 SE2d 33) (2014)
(remand unnecessary for consideration of constitutional issue because argument was
based on a false premise).
And finally, the County’s assertion that its decision to compensate the Public
Defenders “differently” from the County Attorneys is not unusual or unreasonable,
administered in such manner and pursuant to such rules and regulations as may be
provided for by resolution or ordinance of the county governing authority which
created the system.”
12
as purportedly evidenced by the different salaries paid to judges in Georgia, has no
merit. Unlike the varying salaries for different judicial offices, which are expressly
determined by statute,12 the Public Defenders and County Attorneys are within the
same employment classification under the County’s civil service system as
implemented by the Personnel Regulations. And pursuant to its own regulations, both
groups of attorneys are to be compensated within the same salary range.
Therefore, in order to pay the County Attorneys outside the maximum salary
range established for their classification, the County is only authorized to do so under
PR 300-1 if it is “dictated by a [c]ounty-wide classification and compensation study
which has been approved by the Personnel Board and Board of Commissioners.” The
County claims to have conducted a “salary survey” in 2005 to assess the County’s use
of premium pay and which led to the creation of Schedule B, but there is no evidence
in the record that the County ever conducted a full county-wide classification and
compensation study following the 1997 Fox Lawson study.
Instead, in 2005 as part of its premium pay divestiture plan, the County merely
surveyed 56 jurisdictions and private entities, and only with respect to the 35 job
12
See, e.g., OCGA §§ 45-7-4; 47-8-62; 15-10-23.
13
classifications that were then receiving premium pay.13 This survey resulted in new
titles assigned to the positions included in Schedule B and the separation of the
County Attorneys and the Public Defenders. For example, the previous position of
“Attorney, Managing” split and became “B-Attorney, Managing (County Attorney)”
and “B-Attorney, Managing (Public Defender).”14 However, Paris Brown, the
County’s assistant Personnel Director at the time, admitted that this change was not
a reclassification, but instead simply a “title change.” He also confirmed that the title
change did not mean that the complexity or difficulty of the work performed had
changed. And, as the trial court noted, the Personnel Regulations requirement that
salary ranges be based on a county-wide classification and compensation study
“demands an internal comparison of duties and responsibilities among County
employees across department lines and a comparable salary allocation for comparable
skills and responsibilities.” Thus, if the County desired to apply a market differential
13
Again, staff attorneys with the Public Defender’s office were not included
because they were not receiving any premium pay.
14
The two groups of attorneys originally retained identical title codes, with the
managing attorneys both still coded as “606027.” The title codes for the two groups
of attorneys later changed in 2007, but Robert Brandes, the County’s Personnel
Director at the time, again characterized this change as simply a change in title code,
not a reclassification.
14
to its employees’ salaries, as permitted by PR 300-9, the differential must be applied
to the classification as a whole, not to certain departments within the classification.
The County may be correct that “sufficient difference exists among the
functions, focus and budgets of its various [legal] departments to warrant different
pay scales for attorneys in those departments.” And the County is certainly permitted
to amend its classification and compensation plan. However, in doing so, it must
follow the requirements of the Personnel Regulations. It did not do so here, and the
trial court did not err in granting summary judgment to the Public Defenders. See,
e.g., Gold, 318 Ga. App. at 642 (2); Duggan v. Leslie, 281 Ga. App. 894, 896 (637
SE2d 428) (2006) (finding county board of commissioners chose an invalid method
when it attempted to pass a resolution changing its personnel manual).
Judgment affirmed. Barnes, P. J., and Ray, J., concur.
15