*1 record does reflect the substance of the Carnes, discussions Duncan had with Gulla- Lafayette BROWN, Jr.,
horn, or At evidentiary hearing, Lusk. Plaintiff-Appellee, neither Carnes nor Gullahorn could remem- v. specifically ber they what discussed with Duncan. appeared never Lusk in the state GEORGIA DEPARTMENT OF court record and was deceased at the time REVENUE, al., Defendants, et evidentiary hearing. Duncan testi- fied at evidentiary hearing that none of Harry White, al., et these individuals discussed the nature of Defendants-Appellants. possible conflicts or their effect on his Instead, defense. he testified that both No. 88-8187. Lusk and merely Wilkes told him that he United States Appeals, Court of get could not lawyers better than Carnes Eleventh Circuit. Record, and Gullahorn. 2 at Vol. 102-07. testimony This directly was contradicted Aug. Wilkes. evidentiary At the hearing, Wilkes spoke testified that he with Duncan for
thirty forty-five minutes and discussed specifics of the conflict and poten-
tial effect on Duncan’s defense. Id. at
124-27. magistrate credited Wilkes’
testimony and determined that Duncan had
knowingly and intelligently waived his
right to conflict-free We counsel. must accept findings especially of facts when dependent on the credibility determinations
unless clearly are erroneous. Fed.R. 52(a) Civ.P. (“Findings fact, ..., shall
not be set unless clearly erroneous, aside regard
and due shall given oppor- to the
tunity of the trial judge court to the credi-
bility witnesses.”); Zant, see Amadeo v. 214, -, 1771, 1777, 100 (1988);
L.Ed.2d 249 Anderson Bessemer City, 573-74, U.S. L.Ed.2d 518 In the face of an
ambiguous state court record and the testi
mony at the evidentiary hearing, we cannot
say magistrate clearly errone in crediting
ous Wilkes’ version of the con Thus,
versation. we conclude that Duncan fully apprised of the nature of the
potential conflicts under which his attor
neys possible labored and the effect it
could have on his defense. Duncan there validly
fore waived his to conflict-free
counsel. We AFFIRM the district court
order petition denying the for writ of habe- corpus.
AFFIRMED. *2 Gen., Rutherford, Atty. Asst. L.
Susan Ga., Atlanta, defendants-appellants. Ga., Erlitz, Atlanta, Benjamin P. plaintiff-appellee. CLARK, TJOFLAT, and
Before *, Judges, and RYSKAMP Circuit Judge. Senior District CLARK, Judge: Circuit Agent Field a Tax Lafayette Brown was Department of Revenue. for the May he two weeks of During the first days several report to work for did not dis- On hospital. because he was received hospital, he charge from Department of Revenue letter from work was stating his absence from position. deemed an abandonment he had no told that Subsequently, he was in fed- filed suit rights. Mr. Brown appeal District for the Northern eral district court violated alleging his termination VII, Amendment, Title Fourteenth day After a bench one 42 U.S.C. § trial, granted the court the district namely a requested, relief he part of the Board. hearing the State before that decision. We The defendants 28 U.S.C. jurisdiction have find that Because we 1292(a)(1).1 * juris- (a) appeals shall Judge, the courts of Ryskamp, ... District Honorable Kenneth Florida, sitting by designa- appeals from: District of diction Southern (1) Interlocutory the district orders of tion. granting, ... the United States courts 1292(a)(1) states: 1. Section
plaintiff had interest in contin- Mr. hospital Brown until remained ued 11th, and that the Friday May defendants but had no other contact deprived him of that interest without due home,3 with his office. On his return *3 process, we affirm the district court. pursu- received a letter which stated that 12, ant to Rule 12.202 of the Rules and §
I.
Regulations
System,4
of the State Merit
he
was
deemed to have abandoned his
A. Facts
because he was
days
absent for five
with-
Lafayette Brown
worked for the
being
out
on leave. The letter did not
Department
September
of
from
Revenue
indicate whether Mr.
any right
Brown had
through May
He was a
1984.
classi-
to review of the
decision.
Brown testi-
employee
fied
the Georgia
covered
fied, however, that
receiving
after
the let-
Act,
O.C.G.A. 45-20-1
seq.
et
§
Joyce
ter he called
Kelly, the Personnel
30,
Monday,
April
On
Mr. Brown did
Director,
Smith,
who
him
directed
to John
report work,
to
but called in sick to his
the Director of
Services. According
Field
supervisor, Jacqueline Fitzgerald, stating
Brown,
to Mr.
Mr. Smith told him there
that he was in the hospital because of
nothing
Record,
was
he
do.5
could
Vol.
possible kidney
Record,
stones.
Vol.
at
9th,
July
however,
at 54. On
Mr. Brown
150. He did not
return work until Fri-
wrote a letter
to the Merit
of Geor-
4th,
day, May
at which time
brought
he
gia and asked for review of the decision.
doctor’s note. Id. Because he
in pain,
was
Record,
Vol. Tab
Exhibit A.
In re-
however,
supervisor
allowed him to
sponse, he
stating
received a letter
that he
early.
leave
Id. at 48.
hаd no
to an appeal. Id. at Exhibit B.
Monday
7th,
On
morning, May
according
to Mr.
testimony,
Brown’s
pain
was
B.
History
Procedural
much worse and he took a taxi to the
hospital. When he
pay
fare,
could not
Mr. Brown filed suit in federal district
he was arrested
brought
and
to Atlanta
court alleging
of the
violations
Fourteenth
City Jail.
Id. He was detained overnight Amendment,
VII,
Title
and 42 U.S.C.
charges
theft,
on
brought Grady
but
1985. Mr. Brown named as
defendants
Hospital
Tuesday
morning.
Id. at
Department
Revenue,
He did not
supervisor,
contact
however,
Board,
State Personnel
Sys-
State Merit
until Wednesday morning,
9th,
May
tem,
be-
employees
and three
Depart-
cause he
groggy
was
pain
medication. ment of
Revenue
their individual and
time,
Id. at 90. At that
he informed Ms.
capacities:
White,
official
Harry
Gary Rob-
Fitzgerald that he
hospital
was
inson,
Jacqueline
Fitzgerald.6 Thus
did not
long
know how
he would be
began
there.2
long
procedural
tortuous
histo-
continuing, modifying, refusing or
thereof,
dissolv-
notification and аuthorization
within
ing injunctions ...
appointing
discretion
authority
of the
or
designee may
resigned
be deemed to have
2. Mr. Brown testified
explaining
that after
voluntarily
position.
from his
Fitzgerald,
Record,
to Ms.
3,
"Okay."
she said
Vol.
State
Record,
Regulations,
however,
Board Rules &
Fitzgerald,
at 50. Ms.
testified that
hung up
Vol.
immediately
Brown
for
testify,
supervisor,
Tab 20.
waiting
without
response.
151. She did
5. Mr.
Brown testified that “his comment
basical-
on instruction from her
ly
Grady
speaks
she
was the
verify
went
letter
itself. There
really
was there. She
but
nothing
patient,
say
told that he
anybody
was a
else X can
can
Record,
she did
say-"
not see him because he was in a
Vol.
at 51. Mr. Smith did
locked ward. Id. at 154.
testify
at trial.
charges
Record,
The theft
dropped.
were
Vol.
Jacqueline Fitzgerald
was Mr. Brown’s imme-
3 at 90.
supervisor. Gary
diate
Robinson was the Assist-
4. Rule 12.202
Regional
states:
Manager
ant
Department
of the
Harry
Revenue.
Abandonment
Any
Regional
Position.
White
Man-
ager.
duty
(5)
who is absent from
for five
consecu-
days
tive
equivalent,
work
proper
without
Storm, Pamela
Babush, Charles
to Richard
attempted
court
district
ry in which
Fowler,
Ron
and C.
Fuller,
Howard
W.
proper defendants
clarify both
sought recon-
also
Cheeley.
resolution
Because
claims.
substantive
De-
prior
clear
dismissal
sideration
appeal necessitates
the issues
in their
history,
procedural
of Revenue
partment
understanding of
hearing on
than
history in more detail
an oral
capacity. At
official
present
we
granted the
date,
court
the district
usual.
Record,
Vol.
to amend.
motion
1. The Parties
(1)
Therefore,
at trial were:
the defendants
*4
of the
six members
and the
Marcus Collins
summary judgment
and
answer
In their
capacity
in
official
Board
their
Eleventh
the
Personnel
motion,
raised
the defendants
Depart-
of the
(2)
employees
In an order
the six
and
as a defense.
Amendment
order”),
and
their official
(“the
in both
5,
March
Revenue
ment
March
dated
judgment for
summary
capacity.
granted
individual
the court
Sys-
Revenue, the Merit
Department
the
defendants
Board,7
the
and
three
tems
claims
2. The
Amend-
Eleventh
capacity on
official
their
by
plaintiff
the
were
asserted
The claims
sought
plaintiff
Since the
grounds.
ment
history. The
subject to a confused
also
the
relief,
held
court
the
compensatory
Four-
of the
alleged violations
complaint
suit
the
barred
Amendment
Eleventh
VII,
and
Amendment, Title
teenth
the state
because
these defendants
against
voluntarily
plaintiff
1985. The
U.S.C.
Record,
interest.
party
the real
was
claims
latter
two
the
dismissed
granted
also
1,
court
Vol.
Tab
case
of the
The substance
5 order.
March
complaint
the
to amend
motion
plaintiffs
violated
that the dismissal
was
defendants,
therefore
employees
all
three new
to add
process as
due
procedural
and
in their indi-
substantive
of Revenue
Department
of the
March 5
In the
Kelly,
equal protection.
Joyce
as
well
capacities:
official
vidual and
was no
held there
order,
Then in
the district court
Smith.8
and John
Fred White
the
(“the July
7 or-
7,
created
July
order dated
sum-
therefore dismissed
also ordered
Act
der”),
court
and
the district
due
procedural
Amendment
Eleventh
and
substantive
mary judgment
both the
new defendants
the
three
then asked
the
court
grounds for
claims. The
process
for the
Recognizing
capacity.
of whether
question
their official
to brief the
parties
sought
also
Hospital
the
first
time
State School
Pennhurst
relief,
the
900,
injunctive
prospective
89,
Halderman,
465 U.S.
Amendment
that the Eleventh
court held
suit
(1984),
the federal
barred
L.Ed.2d
against
the Personnel
suit
did
bar
alleged that
merely
complaint
because
inso-
of Revenue
Department
Board
law.
violated state
officials had
Record,
relief.
sought equitable
as it
far
23,
course
1,
In the
Record,
Tab
at 8.
Vol.
1,
Vol. Tab
issue, the
considering the Pennhurst
prior
its
dismis-
court reconsidered
1987,
district
plain-
September
Finally, on
process
due
claim
procedural
of the
com-
sal
sought leave to amend
again
tiff
to trial
proceed
the case to
allowed
agencies
deleting the state
plaint
protec-
equal
process and
due
procedural
Col-
substituting Marcus
defendants
September
On
grounds.
tion
Department
lins,
of the
the Commissioner
dismissing
holding
its
also reversed
court
capacity and
in his official
Revenue
claims.
substantive
Personnel
of the State
six members
Landrum, Record,
Tab 38.
Vol.
capacity: Susan
in their official
Kelly
of Personnel
Joyce
a Director
explicitly
asserted
had not
7. The defendants
Fred White
Department of Revenue.
on behalf
Amendment defense
Eleventh
for Field Services
Director
Assistant
Record,
at 5.
Vol. Tab
Board.
Services
of Field
the Director
Smith was
John
Department.
for the
trial,
At the conclusion of the bench
the individual members of
Per-
district court
against
dismissed the claims
sonnеl Board in their
capacity.10
official
Department
Revenue
appellants
argue that the amendment
their
capacity, except
individual
for John
proper
was not
under Federal Rule of Civil
Although
Smith.9
the court
him
found
re-
15(c)11
Procedure
because the substituted
sponsible
termination,
for the
the court de- defendants had no notice of the suit and did
termined that he
qualified
was entitled to
not know that
mistake,
absent
immunity. The court also held that
the would have been named as defendants.
State Personnel Board members had violat-
appellants
support
seek
argu-
for their
plaintiffs
ed the
rights by failing
grant
ment in
Fortune,
Schiavone v.
him a hearing. The court therefore or-
Whenever
claim
or defense asserted in the
12.The Court
language
15(c)
read
of Rule
pleadings
conduct,
amended
arose out of the
required
which
parties
notice to the
"within
new
transaction, or occurrence set forth ...
period provided
the
action,”
by law
commencing
original pleading,
the amendment
relates
to refer to the statute of limitations.
original
back to the
pleading.
An amendment
106
S.Ct.
Time,
B.
but Time’s
Pennhurst
complaint on
original
because Time was
agent refused service
appеllants’
argument
second
a defendant. Since service of
not named
the Eleventh
Amendment barred the
complaint
attempted
original
ordering
district court from
the Personnel
the statute of limitations had
after
until
hearing. They
Board members to hold a
held the
fourth
expired,
Court
argue
Pennhurst State School
met.
Id. at 30.
requirement
not been
Halderman,
Hospital
465 U.S.
at 2385.
(1984),
S.Ct.
79 L.Ed.2d
the Elev
distinguishable
pre-
on that
This case is
enth Amendment
bars
federal court
Personnel Board was
point.
cise
ordering
comply
the state to
with state law.
complaint
original
within
served with
This
long
issue need not detain us
for the
period.13 In this
of limitations
the statute
appellants
holding
misconstrue the
case,
find that
on the Personnel
we
service
presented
and the claim
in this
Pennhurst
entity
was sufficient notice
Board as
plaintiff alleged
case. Since the
a violation
sued
their offi-
the individual members
Constitution,
of the federal
Pennhurst
complaint was
Amending the
capacity.
сial
Pennhurst,
apply.
does
the Su
the Eleventh
necessary
comply
preme
reversed
Third
Court
Circuit’s
Young, 209
parte
Amendment. See Ex
holding
conditions at
institution
a state
L.Ed.
S.Ct.
U.S.
mentally
for the
violated state
retarded
(1908) (although Eleventh Amendment
law.
79 L.Ed.2d
*6
state,
not bar suit
against
it does
bars suit
67
The court
a federal
held “that
capacity).
in official
against state official
against
suit
the basis of
state officials on
party
Personnel Board had been
Since the
law
the
Amend
state
contravenes
Eleventh
case,
prejudice from
there
no
the
sought
ment
when—as here—the relief
naming the Board
the late amendment
impact directly
state
ordered has an
on the
members were sued
members. Since the
117, 104
The
itself.”
S.Ct. at 917.
Id.
they
only
could
capacity,
as-
their official
exception
the
to the
Court reasoned that
agen-
the state
sert defenses available to
Eleventh Amendment established
Ex
cies,
any personal
The Attor-
defenses.
parte
justified by
“need to
Young was
General,
repre-
who
law
ney
supremacy
law.”
promote the
of federal
state
in their official
sents all
officials sued
105-06,
When
Id. at
to a hearing. in his (b) because subsection states article is not intended “[t]his to create a Record, 3, at (emphasis added). Vol. property interest job, but rather to Since granted the relief was as а matter of only procedure create per- under which process, federal due is Pennhurst no bar. manent status employees can be dismissed or otherwise affected.” According to the C. Procedural Due Process appellants property interests are “created The central issue on and ... law,” defined ... whether the letter from the Personnel express disclaimer ends the inquiry. Board informing Mr. Brown that he had no argues that the Georgia Su right to hearing procedural violated preme opinion Court’s Stephen Clark & process. The pro Fourteenth Amendment *7 Board, son v. State 548, Personnel 252 Ga. against tects deprivation liberty prop of or (1984), 314 658 interprets S.E.2d the statute erty process without due of law. Board of property create a Clark, interest. In Regents Roth, State Colleges v. 408 U.S. of facing issue the Court was whether the 564, 571-72, 2701, 92 2706, S.Ct. 33 L.Ed.2d declassification positions of certain violated (1972). 548 The first question is whether the Georgia prohibition Constitution’s on Mr. Brown had a сonstitutionally protected “impairing laws obligations of con property interest employm continued I, I, Art. VII, tracts.” Sec. Para. 1976 ent.15 doWe not need to address the Constitution of Georgia. The Court con question, second namely process what is cluded that “to say that the Merit due, because the only issue is the Act does not create a constitutionally pro propriety any hearing of rather than the tected contract between system the merit type of hearing necessary. members and the state would overlook the Supreme recognized Court has that purposes obvious of the Act itself.” Id. at “property protected interests by procedural 550, 314 S.E.2d at the Act Because due extend well beyond actual own- creates a constitutionally protected con ership estate, of chattels, real money.” tract, the Court position held that when a is 571-572, Id. at 92 S.Ct. at Roth, 2706. In declassified, emplоyees are entitled to the Court stated: the protections of the Merit Systems Act Property interests ... are by not created they before are demoted. Id. Although the Constitution. they Rather cre- are the Court was not faced with question ated their and dimensions are defined of whether there a property interest, existing rules or understandings that its reasoning significance is of to such an stem an independent from source such as analysis because represents it the most re state law—rules or understandings that interpretation cent Systems Merit 15. Mr. any has alleged deprivation Brown liberty.
1025 at issue will regulations and the statute purpose of held that the Act.16 Court clear. in make this conclusion service a career establish the Act personnel administration government Law Case therefore Id. statute on merit. based posi- Sindermann, classification systematic a In both Roth creates nonten- “reasonable merit brought procedural tions based on professors ured employee” competent security for the reap- were not process claims when permanent status providing In Sinder- positions. pointed to their except in accordance mann, fired may not be person’s interest held Court “[a] Id. rules. ‘property for due in a benefit is a interest’ if rules process purposes there are such ini law These two sources understandings sup- mutually explicit whether as to confusion tially create claim entitlement benefit port his a constitutional Act creates hearing.” may invoke at a 408 and that he On closer interest. property protected ly 601, at 2699. The Court 92 S.Ct. U.S. however, apparent look, it becomes provision providing a held that contractual dispositive of is statutory disclaimer only discharged employee would be that an Supreme cases the issue. The legitimate a entitlement cause creatеs the exist reveal that this court Court cause. absent to continued a matter property interest of a ence Roth, negated language of such In the lack depends law that constitutional federal since the finding a a Memphis of state interpretation law. nothing point to else —stat- plaintiff could Craft, 436 v. Division Light, Gas & Water gave him law —that ute or common L.Ed.2d 30 1, 9, 56 98 U.S. S.Ct. employment. continued legitimate claim to matter of as a specifically, More Roth, n. S.Ct. at 578 & U.S. at is created property interest law federal Sindermann, n. In 2710 & 16. only employee can public whenever an im- assert did determines “for State law fired cause.” reem- that he would be plied guarantee termina employee is particular whether Texas explained that ployed. The Court explicit An only cause. will or ble at guar- whether determine such law would or rules or common provision contractual Sindermann, U.S. antee existed. issue. understandings dеtermine at 2700 n. n. Sindermann, Perry v. U.S. Wood, Bishop n. 33 L.Ed.2d 2700 & n. *8 Wood, (1976), Supreme 2074, Bishop 684 v. (1972); 426 U.S. 48 L.Ed.2d see
570
in
police officer
2074, 2078,
that a
L.Ed.2d
determined
341, 345,
48
Court
96 S.Ct.
a
Marion,
did
Carolina
not
Public
North
v.
(1976);
Hatcher
684
of
job.
1546,
in his
The Court
property interest
Orphanage, 809
F.2d
Education &
Chester,
sufficiency of
claim of
“the
Cir.1987);
noted that
Ogletree v.
(11th
1551
by reference
Cir.1982);
be decided
(11th
entitlement must
Wink
1366, 1370
682 F.2d
344,
at 2077
law.” Id.
at
96
DeKalb,
411,
S.Ct.
F.2d
414 to state
v. County
648
ler
of
omitted).
Newman,
deter-
(footnote
First
Court
Cir.1981);
F.2d
v.
(5th
614
Glenn
rec-
law
case,
Carolina
did
Cir.1980).17
since mined that North
467,
(5th
In
471
in
cause” contracts
implied “for
Act,
by
ognize
interpreted
the Merit
required an
rather
public employment, but
& Ste
Supreme
in
Clark
Court
continued
guarantee of
regula
explicit contractual
phenson, the Personnel Board
345,
at 2077.
at
Id.
dismissal,
employment.
we find
require
tions
cause
the ordi-
looked at
therefore
interest in
Court
property
had a
police
governing
law and
nance
analysis
An
of the case
job.
binding precedent all of the decisions
statutory
added to the
disclaimer was
prior
down
1979 Ga.Laws 783.
Fifth
handed
statute in 1979.
former
Circuit
30,
September
at
1981. Id.
close of business
Prichard,
City
officers
found
police
clining to
provided that a
officer
follow this line
case law.
ordinance
Wof
“
pleasure
position
Hosp.,
at the will and
v.
‘held
Glenn Brunswick Memorial
ford
”
345,
(11th
2078
city.’
Cir.1989).
at
96 S.Ct. at
Wofford,
Id.
F.2d
In
864
117
(citation omitted).
Although
ordinance
Group
this court read
v.
Garmon Health
require
“fairly
face
be read” to
its
could
Atlanta,
183
359
Ga.App.
cause,18
contrary
to the
Court deferred
(Ga.App.1987),
450
that un
S.E.2d
to hold
law
dis
interpretation of
state
law,
personnel policies
der
internal
course,
“who, of
sits in North
trict court
employee
cannot transform an at will
into a
many
practiced
there for
Carolina and
law
Garmon,
employee.
tenured
the Geor
emphasized that
years.”
Id.
Court
gia
Appeals
employee
Court of
that an
held
law
factor
that state
the determinative
hospital
wrong
of a
did not have a suit for
19
police employees as “at
classified
will.”
hospital did not
termination because the
ful
dispute
Bishop,
Since
there has been no
comply
personnel
rules. The Garmon
employee
if
property
that an
has a
interest
Court determined
suit for
that to allow a
may only
be dismissed for cause. See wrongful
termination would “transform
v.
Cleveland Board
Education
Louder
plaintiff]
employee
from an at-will
into
[the
mill,
hospital
one under
in viola-
contract
(1985); Memphis Light,
L.Ed.2d
cf.
tion O.C.G.A. 34-7-1.” Id. at
Water,
at
Gas &
436 U.S. at
S.Ct.
S.E.2d
and Garmon do
Wofford
(Tennessee
had property
residents
not control
this case for two reasons.
utility
interest
continued
service because First,
conceded
Garmon
public
permit
utility
law does not
“[s]tate
employee;
that she was an at will
she did
”);
to terminate servicе ‘at will’
v.
Goss
argue
personnel policy
had
565, 573-74,
Lopez, 419
U.S.
employee.
made her a tenured
735-36,
(1975)(students
The appellants argue that this letter mere
ly states that an appeal
possible
is not
On Monday
morning, May
1984, appel-
under the
rule
abandonment
but does not
lee became
ill
seriously
report
did not
rule out the possibility of
for work. From Tuesday, May thrоugh
provision,
catchall
Rule 14.212.
When Friday, May
appellee was in
hospi-
against
background
considered
tal.
On Wednesday, May
appellee tele-
dealings
Brown’s
Department
phoned
supervisor,
Jacqueline Fitzger-
Revenue officials immediately after his dis
Appellee
ald.
stated,
testified that he
missal, however, we think Mr.
“Jackie,
Brown was
Lafayette.
I
Grady
am in
reasonable to read this letter
preclude
Hospital.
I don’t
exactly
know
long
how
any appeals.
In light
facts,
of these
we
I’m going
here,
to be
but I will
back
cannot conclude that
waived
you,
touch with
keep you
I’ll
abreast
argue
lants
gets
that Mr.
hearing
Brown
no
Hatcher,
See
donment.
(ques-
air his doned his voluntarily because he aban- tion of whether courts would consider job. If we allowed such circular issue; transfer "demotion” issue is reasoning claim, to bar Mr. Brown's we would statutory whether the legit- scheme creates a allow the state to heаring obviate need for a entitlement). imate claim of *11 merely by characterizing a dismissal as an aban- appellee that he would Kelly told position. is,” Fitzger- that and situation what the on Smith, the Di- Mr. speak to John no have made Appellee “Okay.” replied, ald appellee When Field Services. rector of while Fitzgerald to contact attempts other clarify him to asked Smith and contacted hospitalized. he was termination, re- Smith for reason re- specifically appellee did not Because spoke letter thought the sponded he that during his conversation leave sick quest appellee inform itself; did not Smith took supervisors her Fitzgerald, with appeal his termi- right to he had a that reported appellee had position that Georgia Personnel State to the nation May 7. Under week of during the work Board.2 Regulations Rules and follow- 9, 1984, sent the July appellee On conduct System, such Merit Stаte Hearing Theus, Chief Reese ing letter to Ga.Comp.R. & resignation. See deemed Personnel Board) Officer r. 12.202 (State Personnel Regs. Board: came appellee when Accordingly, Theus; discovered hospital, he Mr. Dear home from ter- had he been informing him that as my position letter discharged from I was termination letter minated. The of Reve- Department Agent for the Tax follows: as and stated May This action was dated May nue on warning and with- advance Brown: taken without Dear Mr. review. departmental out a of Mr. John recommendation At I’m Divi- that recently Field Service informed Smith, been I have Director through rights your employ- review sion, advise that to certain is to entitled this Georgia. Based close effective Merit terminated ment is information, formally re- I’m May upon this of business ap- my right of questing information with accordance taken in This action system. merit peal thru and the Rules [sic] 12.202 of Rule Section System— of the State Regulаtions of Position.
Abandonment Sincerely yours, Jr. Lafayette Brown
/s/
please feel
questions,
you
If
Jr.
Lafayette Brown
me.
to call
free
letter,
responded
Theus
receiving this
Upon
Sincerely,
12, 1984 as follows:
July
Kelly
Joyce J.
/s/
Mr. Brown:
Dear
Kelly
Joyce J.
received
July
1984 was
letter
Your
Administrator
phone conversation
In the
today.
you
that
had
James, you indicated
letter,
appel-
receiving Shortly after
your
notice of
dismissed without
been
her
Kelly
told
telephoned
and
lee
However,
the letter
appeal.
right of
going on
what was
did not understand
Kelly shows
Ms.
May
said he had abandoned
why her letter
conversation,
you
about
Q.
tell us
Could
the conversation
Fitzgerald remembers
Ms.
said,
was said?
what
differently.
She testified
what
couldn’t understand
reported
just
him
“Jackie,
calling
A. I
told
I
in.
I haven't
I’m
saying I
why
ap-
his letter
Grady Hospital,"
going on
days,
I’m in
two
my position.
hung up
phone
she
before
pellee
abandoned
then
speaks
basically was the letter
respond.
comment
chance to
His
nothing
really
else I can
itself. There is
[appellee’s]
say,
un-
it.
anybody
and that’s
majority
say
that "the
states
can
you
anything
about
testimony
say
that John
Q.
established
Mr. Smith
contradicted
Did
appeal
rights?
he had no
him to believe
appeal
Smith led
mischaracterizes
rights.”
at 4030. This
Ante
A. No.
trial,
appel-
testimony
intentionally
as
Thus,
which was
appellee’s
mislead
Smith did
simply
lee,
implies,
opinion
but
majority
follows:
appellee of
to advise
take the initiative
failed to
you
Q.
talk to John Smith?
Did
rights.
Briefly.
A.
*12
you
separated
provisions
were
under
for
Property interests,
course,
are not
pro-
Abandonment of Position. This rule
created
the Constitution. Rather they
vides that if you
your
are absent from
are created and their dimensions are de-
days
for five consecutive work
with-
by existing
fined
rules or understandings
approval
your
out notice to
super-
that stem from
independent
source
visor, you may
separated.
There is no
such as state
law—rulеs
under-
provision
appeal
separation
standings that
certain
secure
benefits
separation
Rule
if
12.202 the
is done in
and that support claims of entitlement to
is,
accordance with the Rule and there
those benefits.
therefore,
requirement
no
of notice of
Regents
Board
Colleges
State
appeal.
Roth,
564, 577,
attempt
Your
appeal
to
this matter is
(1972).
further assistance in this matter. ment, appellee prove must then Sincerely, deprived officials him of right process without due of law. Because I /s/ Reese E. Theus appellee believe that test, to meet fails this E. Reese Theus I respectfully dissent. State Board Personnel Executive & Hearing Chief Officer A. As a result of correspondence, appel- Rule 12.202 of the Georgia State Person- lee filed suit the United States District nel provides Board as follows: Court for the Northern Georgia District of Abandonment of Any employ- Position. December seeking injunctive ee who is absent duty (5) from for five relief damages process under the due workdays consecutive or equivalent, clause of the fourteenth amendment to the proper without notification and authori- United States Constitution and various fed- thereof, zation within the discretion of eral statutes. See U.S.C. §§ the appointing authority, may be deemed 1985(3), (1982). and 2000e After the dis- resigned voluntarily from em- trict court protracted resolved a series of ployment. motions to parties dismiss various Ga.Comp.R. (State Regs. & claims, appellee’s suit was to a narrowed Board) r. 12.202 This rule allows claim under section that the Personnel promptly terminate Merit System had who up work, fail to show and to fill denied him due of law. A bench positions abandoned quickly so as to assure ensued, trial following which the district orderly continued administration of court found that the members оf the Geor- government. employee’s Because the ter- gia State Personnel Board “wrongfully mination is deemed a “voluntary separa- failed to grant inform and to [appellee] the 12.202, tion” under Rule has right appeal termination on May no System’s State Merit 1984.” Accordingly, the district court or- as if decision it were an adverse action. dered the Board to afford a hear- See, e.g., Ga.Comp.R. (State Regs. Per- ing concerning his ap- termination. This Board) sonnel (1987) r. (appeal 14.205 peal followed. dismissal). employee, however, can appeal such voluntary separation under
II. Rule 14.211. provides That rule as follows: To establish a claim under pro- the Purported Other Violations of the Rules cess clause of the amendment, fourteenth Regulations. prohibited Unless appellee first must establish that he had provisions of Par. 14.111 [relating to property interest employment claims of discrimination], a Deрartment of Revenue. The person who feels that there has been a Supreme Court has noted that: violation of the regulations rules and *13 adopted dismissing a procedure adversely law which Merit employ- employee from status permanent appeal to rights person’s affects adversely affecting ment otherwise provision under this for relief Board employment status compensation or his else- not covered right is appeal if the minimum, include, as a shall regulations. and rules in these where provide must appointing authority thirty within appeal must filed employee with reasons status permanent the occurrence (30) days calendar after file opportunity an for the action and alleged violation. of hearing which request a an and (State Personnel Regs. Ga.Comp.R. & either board may be held before added). (1987) (emphasis Board) 14.211 r. hearing of officers. one its a appellee Thus, provide did the Rules 45-20-8(b) (Supp.1988). Ann. Ga.Code could have secured by method which of termi- appellee’s letter fact that termination; his of review administrative appellate him the nation to inform of failed however, this to invoke failed appellee, way in no de- to him claim, procedures available Appellee’s timely in manner. right a “opportunity to file an prived of this him was denied therefore, that he is not only right he was the appeal” this that he was rather appeal, but right to —and state law.3 had under appellate of his right to notice denied claim deficient I find rights. such III. respects. three ap- in this case reveals that The record in this case place, the record the first In altogether in an superiors acted pellee’s like all that appellee, establishes manner, advantage ap- of taking deplorable given a System, was adopting unnecessar- pellee’s and an illnеss regulations govern- copy of the rules rules re- interpretation of the ily legalistic first he was employment when ing his request for sick constitutes garding what of had actual notice Appellee hired. thus courts, however, have federal him. leave. The available appellate mechanisms comply state officials power no to order not received appellee if had But even State law. See Pennhurst with state notice, appellee I not do believe actual Halderman, 465 U.S. Hosp. v. School process due claim under the have a would 900, 911, L.Ed.2d 67 The Rules of the State Personnel clause. I find no violation Because record, pub- public are a matter by the United right secured regular intervals updated lished Constitution, accordingly re- I would States Compilation of the Rules the Official ordering court’s decision verse the district Georgia. Such Regulations of State grant Personnel Board process clause the due notice sufficient: concerning his termi- hearing appellee a not, itself, require that does nation. rights appellate his advise in a letter termination. nothing in the Geor-
Finally, I note that appellee a gives Act
gia Merit protected interest in such
constitutionally Act states as follows: That
notice.
case,
rights.
that Theus'
we note
alleged
facts
his
Appellee has
do the
—nor
date,
the letter’s
inaccurate: as of
superiors deliberately
letter
demonstrate —that
right
appeal.
him,
appellee
fact had no
appellee
prevent
time-
so as to
misled
appellee's
superiors,
ly filing
appeal.
appellant
discussion of
misled
See
If
had been
Although
estop
testimony
supra
appellant might
the State from
at trial
at note
seek to
period
thirty-day
Hearing
raising
as a
Theus' letter to
limitations
Chief
Officer
reasons,
appeal,
policy
courts
letter
defense. For
that he had no
stated
only
estoppel
thirty-day
generally
in the most
long
allow such
written
limitations
was
period prescribed
after
See, e.g., Eagle v.
expired
exceptional
circumstances.
Rule 14.212
Sullivan,
(11th Cir.1989).
prompt appellee to