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Baker v. Gwinnett County6/15/2004
Michael Baker brought this action for breach of contract against Gwinnett County. He alleged that the county wrongfully terminated his coverage under a local ordinance authorizing defense and indemnification of employees named in lawsuits alleging liability based on actions taken in the performance of the employees' official duties. The trial court granted summary judgment to the county and denied Baker's motion to amend his complaint. In Case Number A04A0048, Baker appeals, raising several enumerations of error, most of which focus on the trial court's conclusion that the county attorney did not abuse her discretion in terminating Baker's coverage. We find no error, and we affirm. In Case Number A04A0049, the county appeals, arguing that the trial court erred in concluding that Baker was covered under the terms of the ordinance. In light of our holding in A04A0048, we need not reach this issue.
In late 1996, Robin Davis filed a lawsuit against the Gwinnett County Board of Commissioners, the Gwinnett County Sheriff, and certain employees of the Sheriff's Department, including appellant Michael Baker. Among a number of other claims, Davis alleged sexual harassment and sexual discrimination. The Gwinnett County Law Department undertook representation of all defendants pursuant to a local ordinance providing a defense and indemnification plan for Gwinnett County officers and employees (the "Plan"). The Plan provides that after the county attorney assumes the defense of a claim or proceeding, a Plan member's coverage may be terminated "at any time prior to trial or settlement, only if the County Attorney determines that . . . the Plan Member refuses to comply with any requirement of Section 6." Section 6 (e) of the Plan requires a member to "cooperate fully with the County Attorney" and to assist "with the conduct of the litigation." Senior Assistant County Attorney Scott Fuller served as the primary attorney, although county attorney Karen Gilpen Thomas and deputy county attorney Melinda Wells also served as attorneys of record.
The record shows that Davis directed interrogatories to Baker, one of which required him to list his past employment and to provide specific information concerning each job. In his response, Baker noted that he had "held many jobs and many positions" and "that there may have been jobs or positions not included in this response" which he was "unable to recall at the present time." Baker then provided the names of 12 previous positions he had held since 1956, along with approximate dates and short descriptions of the jobs.
Before preparing the final interrogatory responses on Baker's behalf, Fuller sent them to Baker and asked him to review them thoroughly. Baker and Fuller met to discuss the responses. Fuller prepared a draft of the responses, which he sent to Baker along with a letter asking Baker to review all documents "very careful to ensure that the response to each question is accurate." (Emphasis in original.) He further noted that this was "very important due to the fact that should your testimony be given in District Court, this will be your response." It is undisputed that Baker omitted his prior employment as an officer with the Boynton Beach, Florida Police Department from his responses.
During Baker's subsequent deposition in the Davis litigation, when asked if he ever worked for the City of Boynton Beach Police Department, Baker immediately answered affirmatively and stated that he had worked there 363 or 364 days. He stated that he did not complete his one-year probationary period. Opposing counsel inquired of Baker as to why he had not completed the probationary period, and he answered that he was "trying to recall. My version? Th
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