Crowell v. City of Eastman

Benham, Judge. In October 1983, the city manager of the City of Eastman appointed Crowell chief of police. There was no written contract of employment. Crowell was given a City of Eastman employee handbook which contained personnel policies and procedures adopted by the city council as an ordinance in 1978. The personnel policy ordinance provides that dismissals of employees may be appealed in writing to the city council. The ordinance also provides that department heads, a category which includes the chief of police, are not automatically included in the personnel policies, and that their conditions of employment are to be established on an individual basis by the city manager. Section 34 of the Eastman city charter (Ga. Laws 1979, pp. 4538, 4619) gives the city manager the sole authority to appoint a chief of police and the right to fire or suspend any employee when, in the city manager’s judgment, the interest of the city demands it. Appeal to or interference by the city council is specifically prohibited. In January 1985, the city manager dismissed Crowell, his stated reason being that the interest of the city demanded it. Crowell appeared before the city council to request a hearing on whether or not he was properly dismissed, but his request was denied. It is apparent from the record that Crowell had been denied a hearing on the issue of the propriety of his dismissal. Although the chairman of the city council did testify that a decision had not been made and that the council was waiting for guidance from the court, the decision which had not been made was whether the firing was proper. The council had clearly ruled, according to the chairman’s testimony, that it had no authority to interfere with the city manager’s personnel decisions regarding Crowell. Thus, the city council had already acted on Crow-ell’s request for a hearing by refusing it. Subsequent to Crowell’s dismissal and the city council’s decision [490] that it had no authority in the matter, the city council and the city manager joined as petitioners for declaratory judgment. In the petition, which named Crowell as defendant, the petitioners sought a resolution of the apparent conflict between the city charter and the ordinance, and a declaration that the actions they had taken had not violated any of Crowell’s rights. The only other relief sought was an injunction maintaining the status quo and an order requiring Crowell to establish any claims he had for deprivation of constitutional rights. No order was entered with regard to the equitable relief sought, but the trial court entered an order granting the other relief sought. In Case No. 72993, Crowell argues that the trial court erred in finding the present case an appropriate one for declaratory relief, that the trial court erred in assuming subject matter jurisdiction over the determination of whether his constitutional rights had been violated, and that the trial court erred in making a factual determination concerning his asserted property right in employment by the City of Eastman. In Case No. 72994, the petitioners below take issue with the trial court’s resolution of the conflict between the city charter and the ordinance. 1. As noted above, the city manager had already dismissed Crow-ell and the city council had already decided that it could not interfere in the matter before the declaratory judgment action was commenced. Therefore, they “do not show any need for guidance and protection from uncertainty and insecurity with respect to the propriety of their future acts [concerning Crowell]. Thus, they are not faced with any dilemma as to what course they should pursue. Instead, they seek confirmation and approval of what they have done in the past, as to rights which have already accrued. In this situation, declaratory judgment is not an available remedy. [Cits.]” Farmers Union Warehouse v. Bird, 224 Ga. 842, 844 (165 SE2d 148) (1968). In his answer, appellant raised the defense that the petition failed to state a claim upon which relief could be granted. The allegations of the complaint, taken together with the testimony of the chairman of the city council at the trial of this case, establish that defense by showing that, as to Crowell, all the rights of the parties had already accrued, all the action to be taken had been taken. Thus, appellant’s first enumeration of error is meritorious: the trial court erred in ruling that this case is one which is appropriate for declaratory judgment. Since the judgment must be reversed on the ground stated, Crow-ell’s remaining enumerations of error need not be considered. 2. In light of our holding in Division 1, the cross appeal is moot. There may be some remaining disagreement between the city council and the city manager concerning the locus of power in the City of Eastman, but that controversy is not properly before this court and [491] we expressly decline to make any finding or holding with regard thereto. Judgment reversed in Case No. 72993. Appeal dismissed in Case No. 72994. Birdsong, C. J., Deen, P. J., McMurray, P. J., and Banke, P. J., concur. Carley, Sognier, Pope, and Beasley, JJ., dissent.