GA Code § 36-1-21 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 1 - General Provisions|§ 36-1-21. Civil Service System for County Employees

  The governing authority of any county is authorized to provide by ordinance or resolution for the creation of a civil service system for employees of the county, other than elected officials or persons appointed to positions for specified terms.   Subsequent to the creation of a civil service system, the county governing authority which created the system may provide by ordinance or resolution that positions of employment within departments subject to the jurisdiction of elected county officers or subject to the jurisdiction of other commissions, boards, or bodies of the county shall be subject to and covered by the civil service system upon the written application of the elected county officer, commission, board, or body having the power of appointment, employment, or removal of employees of the officer, department, commission, board, or body. Once positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system.   A civil service system created pursuant to the authority of this Code section shall be administered in such manner and pursuant to such rules and regulations as may be provided for by resolution or ordinance of the county governing authority which created the system.     The powers granted to the governing authorities of counties by this Code section:   Shall not supersede or replace any power granted by any local constitutional amendment to the General Assembly to provide by law for a civil service or merit system for any county;   Shall not supersede or replace any law enacted by the General Assembly pursuant to the authority of a local constitutional amendment described in subparagraph (A) of this paragraph; and   Shall be in addition to any power granted by local constitutional amendment directly to the governing authority of any county to provide by ordinance or resolution for a civil service or merit system for such county.     As used in paragraph (1) of this subsection, the term "local constitutional amendment" means any constitutional amendment described in subparagraph (a) of Paragraph IV of Section I of Article XI of the Constitution of the State of Georgia which has been continued in force and effect pursuant to the authority of said subparagraph (a) of said cited constitutional provision and which has not been repealed pursuant to the authority of subparagraph (b) of said cited constitutional provision.       (Code 1981, §36-1-21, enacted by Ga. L. 1986, p. 764, § 1; Ga. L. 1988, p. 1627, § 1; Ga. L. 2001, p. 4, § 36.)   Code Commission notes.   - Ga. L. 1986, p. 764, § 1 and Ga. L. 1986, p. 1586, § 1 both enacted Code sections designated 36-1-21. The Code section enacted by the latter Act was redesignated as Code Section 36-1-22 [repealed] pursuant to Code Section 28-9-5.   Law reviews.   - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).   JUDICIAL DECISIONS   Motion to create system.    - Motion adopted by the board of county commissioners creating a county personnel system was a "resolution" within the meaning of O.C.G.A. § 36-1-21. Wayne County v. Herrin, 210 Ga. App. 747, 437 S.E.2d 793 (1993).   Inapplicable to system created by General Assembly.    - Because a county tax commissioner's employees were within the county's civil service system, the county was properly granted summary judgment as to that issue, and hence, the county's personnel director was authorized to refuse to implement raises to the employees as the commissioner sought; moreover, the commissioner's reliance on O.C.G.A. § 36-1-21 did not change the result, as that statute expressly applied only to civil service systems created by county governing authorities, and the civil service system at issue was created by the Georgia General Assembly. Ferdinand v. Bd. of Comm'rs, 281 Ga. 643, 641 S.E.2d 787 (2007).   Subsequent ordinance or resolution.    - After the governing body of a county has authorized, by ordinance or resolution, the creation of a civil service commission to cover county employees other than elected officials or persons appointed for a definite term, it may by subsequent ordinance or resolution provide that employees of the departments of elected officials or other county bodies may, by written application of the elected official or other department head, seek to be brought under the civil service commission as well. Burbridge v. Hensley, 194 Ga. App. 523, 391 S.E.2d 5, cert. denied, 194 Ga. App. 911, 391 S.E.2d 5 (1990).    Interim appointed sheriff's attempt, by letter to the county clerk, to have the sheriff's employees covered by the provisions of a civil service ordinance was invalid, since the county had not enacted a second ordinance or resolution pursuant to subsection (b) of O.C.G.A. § 36-1-21 providing that employees of elected officials could be made subject to the civil service system by written application of the elected official. Burbridge v. Hensley, 194 Ga. App. 523, 391 S.E.2d 5, cert. denied, 194 Ga. App. 911, 391 S.E.2d 5 (1990).    Resolution of the board of county commissioners that allowed elected county officials to bring portions of employment within their department into the personnel system complied with the dictates of O.C.G.A. § 36-1-21. Wayne County v. Herrin, 210 Ga. App. 747, 437 S.E.2d 793 (1993).   Appointment and discharge of deputies.    - Once positions in a sheriff's office have been made subject to a personnel or civil service system, a sheriff's authority to appoint deputies pursuant to O.C.G.A. § 15-16-23 is limited to vacancies created by the removal of employees in the manner provided under the applicable personnel or civil service system or vacancies created when employees resign or retire. Wayne County v. Herrin, 210 Ga. App. 747, 437 S.E.2d 793 (1993).    Since the county created a personnel system applicable to the sheriff's department, a newly elected sheriff's termination of current employees without affording the employees due process rights in connection with the employees' dismissal and the sheriff's hiring of employees to replace the dismissed employees was improper. Wayne County v. Herrin, 210 Ga. App. 747, 437 S.E.2d 793 (1993).   Since it was not clearly established at the time in question that a sheriff was bound by a county merit system and that employees of the sheriff had a property interest in the employees' jobs, the sheriff was entitled to qualified immunity from the employees' claim of wrongful termination from the employee's jobs. Aspinwall v. Herrin, 879 F. Supp. 1227 (S.D. Ga. 1994).   Deputy sheriffs in a county that had not adopted a civil service program were employees at will and lacked a property interest in the deputies' employment. Zimmerman v. Cherokee County, 925 F. Supp. 777 (N.D. Ga. 1995).    Under O.C.G.A. § 15-16-23, sheriffs have absolute discretion in the hiring and firing of deputies and the only process by which this discretion may be limited is through adoption of a civil service system in compliance with subsection (b) of O.C.G.A. § 36-1-21; when a sheriff had not complied with such provision, deputies had no protected property interest in the deputies' positions. Brett v. Jefferson County, 925 F. Supp. 786 (S.D. Ga. 1996), aff'd in part and vacated in part, 123 F.3d 1429 (11th Cir. 1997).   Because sheriff had failed to satisfy statutory requirements for placing deputies under a civil service program, the deputies were at-will employees with no protected property interest in continued employment. Brett v. Jefferson County, 123 F.3d 1429 (11th Cir. 1997).   Political patronage of sheriff deputies.   - Deputy sheriff's First Amendment political patronage claim failed because political loyalty was an appropriate requirement for the position of deputy sheriff as Georgia deputies had the same powers and duties as the sheriff; the civil service system, which prohibited the sheriff from making employment decisions on the basis of political affiliation, did not modify the duties of the sheriff's deputies and therefore had no effect on the First Amendment claim. Ezell v. Wynn, 802 F.3d 1217 (11th Cir. 2015).   Termination of employee.    - Employee who was hired by a county solicitor general under O.C.G.A. § 15-18-71 was not an employee of the county, and the solicitor general did not bring the employee into the county's civil service system under O.C.G.A. § 36-1-21(b). Therefore, the employee lacked a protected property interest in the job and could be terminated without cause and without a hearing. Thomas v. Lee, 286 Ga. 860, 691 S.E.2d 845 (2010).   Court clerk not subject to county merit system.    - County merit board can take no action affecting the clerk of the superior court and the clerk's employees unless the clerk of the superior court has asked that the clerk's office be subject to the merit system and the county has provided for such coverage through an appropriate resolution or ordinance. Gwinnett County v. Yates, 265 Ga. 504, 458 S.E.2d 791 (1995).    Clerk of the Superior Court of Gwinnett County is not subject to the Gwinnett County Merit System. Gwinnett County v. Yates, 265 Ga. 504, 458 S.E.2d 791 (1995).   No vested interest in continued employment shown.    - In a racial discrimination suit, the trial court properly denied mandamus relief to the former employee because the former employee failed to show that the employer had a clear legal duty to maintain the former employee as an employee and there was no evidence showing that the former employee was ever a merit system employee with a vested interest in continued employment with the tax commissioner. Cochran v. Kendrick, 297 Ga. 655, 778 S.E.2d 1 (2015).    Cited in Floyd v. Chaffin, 201 Ga. App. 597, 411 S.E.2d 570 (1991); Epps v. Watson, F.3d (M.D. Ga. May 25, 2006).   RESEARCH REFERENCES   5B Am. Jur. Pleading and Practice Forms, Civil Service, § 2.