Smith v. City of East Point

Beasley, Judge,

concurring specially.

We cannot reach the issue decided by the majority because of a procedural impediment of fundamental significance. The Personnel Board of Appeals which affirmed the termination of the fire inspector/marshal was improperly constituted.

Appellant raised this question of jurisdiction at the earliest opportunity, by motion to dismiss filed with the board after the employee’s request for review was set for hearing. The motion, which was based on this and a number of other grounds which are still pressed, was denied by the board and it affirmed the termination, the effective date of which had been held in abeyance until that action had been taken. The question was raised again in the superior court and is pursued here, as one of the grounds upon which appellant rests his sole enumeration of error, that the superior court erred in affirming the board’s decision. Even if jurisdiction had not been so diligently challenged, we would have to address it, as the jurisdiction of a body whose acts are challenged may be raised at any time. It is a threshold matter. See Williams v. Kaylor, 218 Ga. 576, 581 (129 SE2d 791) (1963).

The board was composed of the mayor, who presided and ruled on all motions, and the senior councilman from each of the four wards, meaning the councilman who had served more of his current term than had any other councilman from that ward. The appellees have admitted that this differs from what was prescribed in the 1972 charter amendment. It calls for five members appointed by the city council, one to be an attorney who shall preside and make all rulings on legal questions, and four to be qualified electors of the city. All are to serve for one year and be compensated as provided in ordinance by the city council. Ga. L. 1972, pp. 2151, 2208, Secs. 140, 141, 143. The authority of the board is found in Section 139. These provisions of the statute were made a part of the city code, sections 4-217 through 4-221.

The saving factor, argues the appellees, is that the charter was amended by law in 1979 to accommodate a 1977 ordinance setting the composition as actually used in this case, the effective date of which ordinance was expressly delayed until the charter was amended.

The problem with this proposition is that the 1979 charter amendment did not change the 1972-specified composition or other features of the board. The ordinance which envisioned a different *664board provided: “The repealer (of all other ordinances in conflict) . . . shall not apply to any personnel actions or disciplinary actions that may arise after adoption of this ordinance but before adoption of a home rule charter amendment correcting and clarifying certain portions of the City Charter . . . Any personnel disciplinary action arising between the period of time of adoption of this ordinance and the period of time of adoption of the proposed home rule amendment of the Charter, shall proceed under the provisions and procedures set forth in the City Code as it existed prior to adoption of this ordinance.”

The charter amendment in 1979 did not “correct and clarify” the portions of the charter which dealt with the personnel board of appeals, its authority, its membership, its compensation, its secretary, or the conduct of its hearings. These comprised Sections 139 to 143 of the charter. It is true that the 1979 charter amendment stated that one of its purposes was “to authorize and provide for adoption of ordinances and rules and regulations pertaining to the administration of personnel and employees of the City of East Point; . . .” Ga. L. 1979, p. 4803. That it certainly did, setting up two classifications of employees, a department of administrative services, a non-discriminatory hiring policy, and making other employee-related changes.

But nowhere does it change the personnel board authority, composition, jurisdiction, compensation, record-keeping, or conduct of hearings. The legislative act achieves amendment of the charter “by striking the following sections of the East Point City Charter and inserting in lieu thereof new sections as follows: . . .” Ga. L. 1979, p. 4803, Sec. 1. The only reference with respect to appeals from disciplinary action is the substituted Sections 56 and 57 of the Charter. Section 56 provides for an appeal “following the procedures set forth in the personnel rules, regulations and ordinances pertaining to same by filing a written request for a hearing with the time frames and procedures set forth in said rules and regulations.” The new Section 57 is simply “Reserved.” Ga. L. 1979 at 4808.

These two changes in Sections 56 and 57 of the 1972 act are part of Section 1 of the 1979 act, which starts out by proposing changes in the charter “especially” as amended by acts in 1974, which had amended Sections 56 and 57, and 1965. No mention is made of the 1972 act which provided for the personnel board of appeals. In addition, the title of the 1979 act does not refer to the 1972 act either, even though it expressly identifies other acts it seeks to amend, including the act of 1974 which amended Sections 56 and 57. The point is that nowhere, in either the 1974 act or the 1979 act, were changes made in Sections 139 through 143, nor are they or their subject matter mentioned in the two related sections, that is, Sections 56 and 57. They all simply dovetail.

*665Decided June 24, 1987 Rehearing denied July 14, 1987

State legislative control over municipal corporations extends to the amendment of charters. Spence v. Rowell, 213 Ga. 145 (97 SE2d 350) (1957). In amending its charter, a municipality must comply with the procedure prescribed by the organic law authorizing such amendment, and construction and validity is tried by the same rules and standards as those applicable to other legislative enactments. Rhyne, Charles S., The Law of Local Government Operations, § 3.6, p. 54. Georgia recognizes that in determining the meaning of ordinances, too, the court must be guided by recognized rules of statutory construction. Underwood v. Atlanta & West Point R. Co., 105 Ga. App. 340, 346 (124 SE2d 758) (1962). That case was modified in Atlanta & West Point R. Co. v. Underwood, 218 Ga. 193 (126 SE 785) (1962), but the principle for which it is cited here was applied and reinforced by the Georgia Supreme Court. Id. at 196. An ordinance has the force of law. Bearden v. City of Madison, 73 Ga. 184 (1) (1884); Maner v. Dykes, 183 Ga. 118, 120 (187 SE 699) (1936). It cannot, of course, supersede an act of the General Assembly. City of Atlanta v. Myers, 240 Ga. 261 (240 SE2d 60) (1977).

It is true that a municipal corporation may amend its charter by ordinances, via certain specified methods. OCGA § 36-35-3. Here it elected to do so by anticipating a legislated charter amendment which would, by the terms of the ordinance, give life to the new ordinance. That has not yet been done. Even if the city intended to substitute new provisions regarding the personnel board of review, it clearly did not do so. Repeals by implication are not favored. Morris v. City Council of Augusta, 201 Ga. 666, 672 (2) (40 SE2d 710) (1946). Nor is there any repugnancy between the 1972 charter amendment, the 1977 ordinance, and the 1979 charter amendment so as to call into play the “later enactment” rule of construction. Evans v. Evans, 242 Ga. 57, 58 (247 SE2d 857) (1978).

Although we must look to the purpose and intent of the legislature and construe the law to implement that intent, Wilson v. Bd. of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980), the intent urged by appellees cannot be wrested from the 1979 charter amendment. For all we know, the ordinance passed in 1977, which looked to future legislation for effectiveness, lost favor in the city by the time the 1979 charter amendment was proposed.

The judgment of the superior court, consequently, should be reversed because of the lack of the board’s authority to act, which nullified all of the proceedings before it.

*666Scott Walters, Jr., for appellant. James A. Eidson, James W. Kytle, for appellees.