This suit arises from the termination of appellee/cross-appellant, William A. Farmer, as the County Administrator of Effingham County. Following his termination, Mr. Farmer brought suit averring violation of his rights to procedural due process, a state law breach of contract claim, and state law slander claims against two of the individual commissioners.
In Case No. A97A2240, appellants/cross-appellees Board of Commissioners of Effingham County et al. appeal from the order of the superior court granting partial summary judgment to appellee Farmer on his federal due process claim (42 USC § 1983), specifically from its holding that Farmer’s procedural due process rights were violated between June 7, 1994 and July 25,1994, and from the denial of appellants’ motion for summary judgment on Farmer’s due process claim. In Case No. A97A2241, cross-appellant Farmer appeals from the order granting cross-appellees’ (Board and individual Commissioner’s) motion for summary judgment in part and denying cross-appellant’s motion for summary judgment in part; specifically cross-appellant Farmer appeals from the grant of summary judgment in behalf of cross-appellees as to the slander claims and as to the Board’s lack of liability for his termination subsequent to July 25, 1994. Held:
Case No. A97A2240
1. Appellants contend the trial court erred in granting partial summary judgment to appellee Farmer and denying summary judgment to appellants on the federal procedural due process claim brought pursuant to 42 USC § 1983. We agree.
The parties are in agreement that appellee Farmer was vested with a property interest in continued employment, under Georgia law, because his employment status could only be terminated for cause.
Jones v. Chatham County,
Appellee Farmer was employed as county administrator for Effingham County, Georgia, from June 8, 1993 until June 7, 1994 (the date his employment was terminated). This termination was accomplished notwithstanding the advice of the assistant county attorney to give appellee three days’ oral or written notice of termination.
On June 7, 1994, the Board of Commissioners passed a motion to abolish the position of county administrator, effective in 30 days, however, this motion was rescinded and a motion was spontaneously made and passed to terminate Farmer’s employment as county administrator. In response, Farmer stated that he considered the action inappropriate and did not desire to comment further. A motion was then made and passed to give Farmer 30-days’ salary.
On June 16, 1994, the Board voted to uphold Farmer’s termination. Subsequently, the county attorney sent Farmer a notice of final disciplinary action listing five reasons for the termination. The notice confirmed Farmer’s termination effective June 7, 1994, and informed him of his right to appeal to the Board pursuant to the personnel policy. On June 20, 1994, Farmer filed notice of appeal. On July 11, 1994, the Board met in special session to hear Farmer’s appeal. Farmer was accorded a public hearing and the opportunity to present witnesses and other evidence. At Farmer’s request, the Board then met in executive session to discuss the charge that Farmer was unable to communicate effectively with other county officials. The Board took the matter under advisement. On July 25, 1994, the Board reaffirmed in writing its decision to terminate Farmer.
The type of § 1983 claim here at issue is a claim brought for a violation of procedural due process. See generally
McKinney v. Pate,
However, in adjudicating procedural due process violation claims, “the existence of state remedies
is
relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest
without due process of law.” Zinermon v. Burch,
Procedural due process generally requires some type of hearing and some type of notice before termination of employment.
Zinermon,
supra at 127. In some situations, however, such as those where quick action by the State is necessary or where it is otherwise impractical to provide any pre-deprivation process, due process is satisfied where the State’s procedures provide for a post-deprivation hearing, or provide a common-law tort remedy for erroneous deprivation.
Zinermon,
supra at 128. Pre-deprivation hearings are not required, for example, where the deprivation suffered is the result of a random and unauthorized act by a State employee, as in these cases, the deprivation is “not a result of some established state procedure and the State cannot predict precisely when the loss will occur.” Id. at 129. In this case, the deprivation appellee sustained was the result of a random, unauthorized act by the Board. A random, unauthorized action can result from negligent or intentional acts by individual government officials, so long as the officials are not “acting pursuant to any established state procedure.”
Zinermon,
supra at 130. There existed no way for the State or County to predict the events leading to the maverick termination action that occurred in this case and, in this particular instance, to provide for a meaningful hearing procedure that would preclude such type of deprivation action. The Commissioners’ action was random and unauthorized as opposed to action resulting from adherence to established governmental procedure. In this context, the individual Commissioner’s ability to foresee the deprivation is of no consequence; the proper inquiry is whether the state is in a position to provide for predeprivation process, under the attendant situation (id. at 130), and we find it was not. Thus, an adequate post-deprivation remedy would provide the requisite procedural due process in this situation thereby precluding the ripening of a procedural due process violation. Id.; compare
Bell v. City of Demopolis, Ala.,
The policy pertaining to notice of proposed disciplinary action pertinently provides for a mandatory three-day oral or written notice *822 of the proposed disciplinary action; the right to respond orally, in writing, or both, to the pending charges to the reviewing officials; and additional investigation may be conducted by the reviewing official. If the adverse personnel action continues, the policy provides for notice of final disciplinary action and an appeal procedure. Under this procedure the reviewing authority issues final notice of determination of final action which includes, inter alia, notice of final disciplinary action to be taken; the specific charges or reasons for the adverse action; the effective date on which final action is taken; advice to the employee of right to request a hearing, within ten working days after the effective date, before the Board of Commissioners, or to a committee appointed by them, by filing a written appeal; advice to employee as to his right to be present and to have a representative present at the hearing, to present testimonial and documentary evidence, and to cross-examine persons testifying against him. This procedure is facially adequate to provide Farmer with the requisite procedural due process, that is, adequate notice and opportunity for some form of hearing providing an opportunity to be heard. See generally Zinermon, supra at 127; Shaw, supra at 1581 (6) & (8) (these safeguards are all that is required to provide adequate procedural due process, as the Fourteenth Amendment Due Process Clause is not a guarantee against incorrect or ill-advised personnel decisions).
Pretermitting whether Farmer was denied a meaningful pre-termination hearing before an unbiased reviewing authority is whether his failure to follow existing state judicial review remedies prevents his claim of a procedural due process violation from becoming actionable. We hold that it does. A procedural due process right violation is not shown unless and until the State fails to provide due process. Zinermon, supra at 123; Merritt v. Brantley, 936 FSupp. 988, 991 (S.D. Ga.) (flaw is not the failure to exhaust but the failure to show absence of an adequate state remedy). The burden is on the plaintiff to plead and prove that the State did not provide him with an adequate post-deprivation remedy. Merritt, supra at 991.
OCGA § 5-4-1 (a) pertinently provides: “The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers,” except in certain cases not here applicable. The trial court, however, erroneously concluded that certiorari would not lie in this case, because the Commission implemented the personnel policy in such a way that Farmer did not receive a hearing before a disinterested adjudicator. “In determining whether a writ of certiorari is the appropriate method of review we must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers”; the particular function performed at the hearing must be evaluated.
Mack II, Inc. v.
*823
City of Atlanta,
2. In view of our holding in Division 1, above, the individual defendants were entitled to summary judgment as to the § 1983 claims.
Additionally, the trial court erred in denying the individual defendants’ motion for summary judgment on grounds of qualified immunity. “In all but the most exceptional cases, qualified immunity protects government officials performing discretionary functions from the burdens of civil trials and from liability for damages. [Cit.] Public officials are entitled to qualified immunity from ‘liability for civil damages insofar as their conduct does not violate
clearly established
statutory or constitutional rights of which a reasonable person would have known.’ [Cit.] Therefore, in order to succeed, the plaintiff in a civil rights [§ 1983] action has the burden of proving that a reasonable public official could not have believed that his or her actions
*824
were lawful in light of clearly established, law. [Cit.]” (Emphasis supplied.)
Harris v. Bd. of Ed. &c.,
Case No. A97A2241
3. In view of our holding in Division 1, above, cross-appellant’s first enumeration of error is without merit. Cross-appellees/appellants were entitled to a grant of summary judgment as to cross-appellant’s § 1983 claim for wrongful termination.
4. The trial court did not err by granting Commissioner Allen’s and DeLong’s motion for summary judgment as to cross-appellant’s slander claims. The statements attributed to the two commissioners “were not defamatory because they were expressions of opinion concerning plaintiff’s professional abilities.”
Fuhrman v. Eds Nanston, Inc.,
Judgment affirmed in Case No. A97A2241. Judgments affirmed in part and reversed in part in Case No. A97A2240.