IN THE SUPERIOR COURT OF FULT ffill-,f-!h++n..:.+: -0-.-F-t--iC_ E, STATE OF GEORGIA. CIVIL ACTIO _, v. FILE NO.

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1 IN THE SUPERIOR COURT OF FULT ffill-,f-!h++n..:.+: -0-.-F-t--iC_ E, STATE OF GEORGIA MARANDA JERNIGAN SEP ANDREWS, et al., Plaintiffs, DEPUTY CLERK SUPERIOR COURT FULTON COUNT Y. GA CIVIL ACTIO _, v. FILE NO.: 2012CV FULTON COUNTY, GEORGIA, Defendant. ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT BACKGROUND Before the Court is Plaintiffs' Motion for Summary Judgment and the Response of Defendant Fulton County, Georgia (the "County") and Plaintiffs' Reply. Plaintiffs urge the Court to find the County is in breach of the Personnel Regulations and set this case for a final hearing on Plaintiffs' damages and other remedies. Upon consideration of the parties' summary judgment briefing and oral argument held on September 23, 2014, the Court makes the following findings of fact and conclusions of law. Page 1of14

2 STANDARD OF REVIEW Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. O.C.G.A. 9-l l-56(c); Lau's Corp. v. Haskins, 261 Ga. 491 (1991); Zeller v. Home Fed. Savings & Loan Ass'n, 220 Ga. App. 843 (1996); Rubin v. Cello Corp., 235 Ga. App. 250, (1998). Summary Judgment shall be awarded to the moving party if the pleadings, depositions, answers to inten-ogatories and admissions in the record, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lau's Corp., 261 Ga. at 491. ANALYSIS On May 23, 2014, this Court denied Defendant's Motion for Summary Judgment (the "Order"). Plaintiffs contend the Order compels summary judgment in their favor. Page 2of14

3 In the Order, the Court found: The Fulton County Personnel Director and Personnel Board enacted Fulton County's merit based civil service regime (the "Personnel Regulations" or the "PRs") pursuant to the Civil Service Act of 1982 (the "Act"). 1 Therefore, it has the force and effect of law. The Personnel Regulations fonn an employment contract between Plaintiff and the County.2 Nothing in PR 300-9, allowing enhanced pay for certain Classifications when the market compensation level exceeds the established salary rate by a minimum of 15%, addresses its application across depai1mental Classifications or permits the County to ignore PR 200-1, requiring a civil service regime in which the schedule of pay is applied equitably to all positions in the same Class. And nothing in PR pennits the Court to ignore PR 300-1, prohibiting payment of salary outside the established salary ranges without a new classification study. 1 Pursuant to a 1939 amendment to the Georgia Constitution, Georgia's General Assembly created Fulton County's civil service system in Ga. L., p Ferdinand v. Board of Comm'rs, 281 Ga. 643, 644 (2007) provides a history of the Act up to the 1982 revisions and states "[t]he 'classified service' to which th[e] Act applies shall comprise all tenured classes and positions in the Fulton County Merit System now existing," and that "[a]ll permanent employees in the classified service prior to the enactment of this Act shall retain their cun-ent status." Id. (punctuation and citation to authority omitted). 2 While the Order specifically cited Lord for this finding, at pages 3-10 of the Order, the Order also establishes other, independent grounds for this finding. Furthermore, the Court's June 12, 2013 Order denying Fulton County's Motion to Dismiss on sovereign immunity grounds relies on Alverson v. Employees' Retirement Sys. of Georgia, 272 Ga. App. 389 (2005) to find "the Act and the regulations enacted pursuant to the Act, including the Salary Compensation System, constitute part of Plaintiffs' contract of employment." Page 3of14

4 Beginning in 2005, the County implemented enhanced pay under Schedule B, based on market studies, arbitrarily and contrary to the purpose it was intended. Personnel Regulations Constitute An Employment Contract. Despite these findings, the County contends a genuine issue of material fact remains as to what constitutes the employment contract at issue here. In support of this argument, the County argues the Personnel Regulations do not contain the essential contract elements. This argument is unavailing. The cases relied on by the County are easily distinguishable. Jones v. Chatham County, 223 Ga. App. 455 (1996) is an employment termination case. There, the Court found violation of the personnel manual's termination procedures were not actionable under breach of contract, but only under procedural due process jurisprudence. The references to the unenforceability of the county's personnel manual in Jones are limited to what process is due in termination cases. Likewise, Farr v. Barnes Freight Lines, Inc., 97 Ga. App. 36 (1958) is inapplicable. The employment contract at issue there was between private parties. The same is true of the employment contract at issue in Laverson v. Macon Bibb County Hosp. Authority, 226 Ga. App. 761 (1997). Page 4of14

5 The County's attempt to p01iray the Personnel Regulations as lacking in contract essentials fails to appreciate that Georgia case law recognizes Fulton County's civil service regime, created by the Legislature pursuant to the Act, as a legally enforceable employment contract. The Personnel Regulations are not, as the County urges, "simply generic guidelines for the entire County and not specified for one particular employee or one particular set of employees." In attempting to reduce the Personnel Regulations to "generic guidelines" the County disregards the plain language of PR 100-1, giving them the "force and effect of law, as delegated to Fulton County by the Georgia State Legislature in the Civil Service Act." Furthermore, the County ignores the Alverson holding that beneficiaries of a statute or ordinance establishing a retirement plan for government employees have an enforceable employment contract. Alverson, 272 Ga. App. at Likewise, Ferdinand, 281 Ga. at 645 holds the Fulton County Tax Commissioner could not raise his employees' salaries because his employees were subject to Fulton County's civil service system, the same system which is at issue here. The County's brief opposing summary judgment incorporates the exhibits submitted with its prior brief opposing summary judgment, which exceeded the Court's page limitation. Included in these exhibits are what the Page 5of14

6 County characterizes as "offer letters." These "offer letters" are from the Administrative Coordinator of Office of the Public Defender to each of the Plaintiffs, confirming their employment acceptance, start date and starting salary. At oral argument, the County urges the Court to find these "offer letters" complete the "entire" employment contract by specifically setting the Plaintiffs' salary. In the first place, the Court finds disingenuous the County's characterization of these letters as "offers" of employment. By their plain language, they are confirmations that employment has been accepted. Moreover, the "offer letters" cannot undue what the General Assembly did when it created the County's civil service system as a meritbased employment regime in which skills and responsibilities are to be compensated equitably and without favoritism. The County Breached the Personnel Regulations. The County also contends a material question of fact exists as to whether the County breached the Personnel Regulations. The Court is unpersuaded by the County's affidavits 3 attempting to justify the salary 3 Both the Affidavit of Robert Brandes and Affidavit of Valerie Handley contain a number of inadmissible conclusory statements, in paiiicular, unsupported opinions that Public Defenders do not perform the same duties and job functions as County Attorneys. The Court disregards these self-serving comments, as it must. Collins v. West American Ins. Co., Page 6of14

7 disparities between County Attorneys vis a vis Public Defenders, based upon the County's Schedule B Salary Compensation Chait ("Schedule B"). It is undisputed that Schedule B is based upon a market study, comparing County employee salaries with salaries of employees outside the County system. However, PR dictates salary ranges are to be based upon a "County-wide classification and compensation study." PR requires the classifications and compensation be based on "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." In other words, the County's merit-based employment regime demands an internal comparison of duties and responsibilities among County employees across department lines and a comparable salary allocation for comparable skills and responsibilities. The Fox-Lawson Salary Compensation Study, establishing the Classification and Compensation System under which County employees are to be paid (the "Fox-Lawson Classifications" or the "Classifications"), is the only County-wide study to date meeting the requirements of PR and PR Therefore, a classification system based on market studies Ga. App. 851, 852 (1988) ("It is axiomatic that "conclusory allegations by way of an affidavit... will not be sufficient to avoid summary judgment.") Page 7of14

8 even if it was fairly implemented (and, in the Order, the Court found Schedule B was not) - is a breach of the Personnel Regulations. The County attempts to legitimize Schedule B by references to a "study" ordered by the Personnel Board, which Tesulted in "certain professionals [being] removed from the DBM [decision band method] salary range and placed on a new salary range chart independent of the DBM ranges." The County suggests that its personnel directors, Robert Brandes and Valerie Handley, have the authority to depart from the Fox-Lawson Classifications and re-determine the job functions of the Public Defenders vis a vis the County Attorneys. However, PR requires the job functions of County employees be systematically classified across depaiimental lines to avoid favoring the employees of one depatiment over another. This approach was the method used in the Fox-Lawson Classification. To substitute the judgment made under the direction of County employees, purportedly based on the employment market, for an independent professional study, classifying employment positions by skills and responsibilities, disregards the mandates of PR and PR and undermines the civil service system under which the County purports to operate. Page 8of14

9 The Court finds unpersuasive the County's reliance on the fact that the market "study" resulting in Schedule B was authorized by the County Personnel Board and approved by the Personnel Director, Personnel Board and Fulton County Board of Commissioners (the "BOC"). To the extent the County was relying on PR to justify the market study and subsequent selective implementation of Schedule B to some - but not all - Classifications, the County is misguided. PR must be read in conjunction with PR and PR Therefore, if the County wishes to apply market differentials to its employees' salaries - as PR permits - these salary enhancements may not be selectively applied. Rather, they must be applied like Fox-Lawson Classifications, across Department lines. At oral argument, the County directed the Court's attention to the last two sentences of PR 200-1, which provide as follows: The Personnel Board may amend or revise the classes in the plan. The Personnel Board may amend or revise the Position Classification Plan in whole or in part at any time based on recommendations from Appointing Authorities and/or Personnel Director. The County contends this portion of the Personnel Regulations gives the County license to implement Schedule B, based on recommendations from Appointing Authorities and the Personnel Director, up the chain to the Page 9of14

10 Personnel Board and, ultimately, to the BOC. However, PR 's last two sentences must be harmonized with the intent of the Personnel Regulations, which is articulated at the beginning of PR There the Personnel Director is charged with designing, preparing, maintaining and revising a Position Classification Plan "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 While County officials may revise the Classifications, the compensation afforded each Classification must remain consistent with a merit-based civil service system. Thus, the County's arbitrary decision to treat the same Classifications differently across Departments, in reliance on PR 's last two sentences and on PR 300-9, eviscerates the merit-based civil service system created by the General Assembly. The County attributes the salary disparity between the County Attorneys and Public Defenders to Public Defender Appointing Authority Vernon Pitts' failure to request premium pay for Public Defender staff attorneys. This argument, like the County's other arguments, ignores the merit-based civil service environment in which the County operates. Neither Mr. Pitts nor the BOC has authority to con-ect market differentials for Page 10of14

11 County employees' salaries without applying the market premiums to all employees in the same Classification. Nor is it relevant that Public Defender staff attorneys are paid on par with state Public Defenders. PR mandates County employees be paid based on classifications "dictated by a County-wide classification and compensation study which has been approved by the Personnel Board of Board of Commissioners." The one and only such classification study meeting this criteria is the Fox-Lawson Classifications. Neither Mr. Pitts nor the BOC is empowered to depart from the Classifications established by Fox-Lawson, without another comparable classification study. "Home Rule" Is Inapplicable. The law does not support applying legislative deference to the BOC's decision to compensate its employees based on market rates, as the County urges. The County's "Home Rule" argument ignores the legal foundation for the BOC's authority. In the Order, the Court found Ga. Const. Art. 9, 2, if l(a) and Ga. Const. Art. 9, 1, ifl (the "Home Rule Constitutional Provisions") are not applicable to the BOC's authority because the Personnel Regulations were enacted by the General Assembly pursuant to the Act. Ga. Const. Art. 9, 2, ifl(c) provides: Page 11 ofl4

12 The power granted to counties in subparagraphs (a) and (b) above shall not be construed to extend to the following matters or any other matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law or the subject of local acts of the General Assembly to the extent that the enactment of such local acts is otherwise permitted under this Constitution[.] Ferdinand, 281 Ga. at 644 explains the Act was created by general law enacted by the General Assembly. Thus, by its own terms, the Home Rule Constitutional Provision does not give the BOC authority to trump the Fox- Lawson Classifications by classifications based on market studies or by the Public Defender Office's "offer letters." 4 The County's Remaining Arguments Are Meritless. In 2005, the County made a decision to depart from the Personnel Regulations by paying County Att01neys "Premium Pay." In 2007, the County purportedly relied on market surveys to substitute "Schedule B" for Premium Pay. Based on these decisions, the salaries of County Attorneys departed from the Fox-Lawson Classifications. As a result, since 2005, the County has favored the County Attorneys over other County Employees in the same Classification. In the Court's view, Plaintiffs are not "simply upset" and "dissatisfied" with their salaries, with no right to complain, as the 4 As previously stated, the Court declines to accept the County's characterizations of these letters as constituting legally binding "offers." Page 12of14

13 County attempts to portray them. Instead, they are participants m a dysfunctional civil service system. The only way to remedy the historical inequities existing since 2005 is to retroactively compensate the Public Defenders comparably to the County Attorneys. Accordingly, the Comt finds the County's standing arguments immaterial and meritless. Likewise, the County's mitigation argument has no merit. The County offers no alternative by which Plaintiffs can mitigate their damages other than this lawsuit. Moreover, in the Order, the Comt found the Plaintiffs claims are timely pursuant to Willis v. City of Atlanta, 265 Ga. App. 640, 644 (2004) (each paycheck constitutes a continuing violation), rendering the County's Statute of Limitations argument inapplicable. In the Order, the Court also dismissed the County's "gratuities" argument on grounds that the Public Defenders are not seeking "extra compensation" for services already provided. Instead, the Public Defenders are seeking equitable compensation commensurate with the compensation paid to County Attorneys in the same Fox-Lawson Classification. For all these reasons, the County's "mitigation" argument is also baseless. CONCLUSIONS OF LAW Therefore, for the reasons explained above, the Court GRANTS Plaintiffs Motion for Summary Judgment, finding the County is in breach Page 13of14

14 of the Personnel Regulations, and sets this case for a final hearing on October 2, 2014 at 10:00 a.m., in Courtroom 8B, Fulton County Courthouse, 185 Central A venue, Atlanta, GA to determine Plaintiffs' damages and other remedies, as well as to hear Plaintiffs' motion for sanctions and fees. COPIES TO: -f h.. SO ORDERED, this the ~ q day of September, fair.-, k_ Z~L Judge ~ lly Lee Ellerbe Superior Comt of Fulton County Lee Parks [lparks@pcwlawfirm.com] David Walbe1t [dwalbert@pcwlawfirm.com] Larry Chesin [Ichesin@pcwlawfirm.com] David Ware [ david.ware@fultoncountyga.gov] Kaye Woodard Burwell [kaye.burwell@fultoncountyga.gov] Diana L. Freeman [ diana.freeman@fultoncountyga.gov] Lanna R. Hill [lanna.hill@fultoncountyga.gov] Page 14of14