IN THE SUPERIOR COURT OF FULT ffill-,f-!H++N..:.+:¥-0-.-F-t--iC_ E__, STATE OF GEORGIA

SEP 2 4 2014 MARANDA JERNIGAN ANDREWS, et al.,

Plaintiffs, DEPUTY CLERK SUPERIOR COURT FULTON COUNT Y. GA CIVIL ACTIO- - -----_,

v. FILE NO.: 2012CV223498

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.

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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, 250-51

(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.

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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 300-9 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 1943. 1943 Ga. L., p. 97 1. 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."

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• 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).

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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 390-92.

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

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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 merit-

based 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 affidavits3 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.,

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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 300-1 dictates salary ranges are to be based upon a

"County-wide classification and compensation study." PR 200-1 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 300-1

and PR 200-1 . Therefore, a classification system based on market studies -

186 Ga. App. 851, 852 (1988) ("It is axiomatic that "conclusory allegations by way of an affidavit . . . will not be sufficient to avoid summary judgment.")

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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 300-1 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 200-1 and PR 3 00-1 and

undermines the civil service system under which the County purports to

operate.

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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 300-9 to justify the market study and subsequent

selective implementation of Schedule B to some - but not all -

Classifications, the County is misguided. PR 3 00-9 must be read in

conjunction with PR 200-1 and PR 300-1. Therefore, if the County wishes

to apply market differentials to its employees' salaries - as PR 300-9

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

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Personnel Board and, ultimately, to the BOC. However, PR 200-1 's last two

sentences must be harmonized with the intent of the Personnel Regulations,

which is articulated at the beginning of PR 200-1. 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 200-1. 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 200-1 '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

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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 300-1 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

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."

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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

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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 3 03 03 to determine Plaintiffs'

damages and other remedies, as well as to hear Plaintiffs' motion for

sanctions and fees.

-f h..

SO ORDERED, this the ~ q day of September, 2014.

COPIES TO:

Lee Parks [lparks@pcwlawfirm.com]

fair.-, k_ Z~L Judge ~lly Lee Ellerbe Superior Comt of Fulton County

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]

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