O.C.G.A. § 15-16-23 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION SHERIFF ’S LIABILITY FOR DEPUTY PRACTICE AND PROCEDURE General Consideration Deputy sheriffs are employees of sheriff, whom the sheriffs alone are entitled to appoint or discharge. Employees Retirement Sys. v. Lewis, 109 Ga. App. 476, 136 S.E.2d 518 (1964), overruled on other grounds, 240 Ga. 770, 243 S.E.2d 28 (1978). Ordinarily, deputy sheriffs are employees of the sheriff and subject to be discharged by the latter. Best v. State, 109 Ga. App. 553, 136 S.E.2d 496 (1964). Office under personnel system. - 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). If 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 their jobs, the sheriff was entitled to qualified immunity from the employees’ claim of wrongful termination from their jobs. Aspinwall v. Herrin, 879 F. Supp. 1227 (S.D. Ga. 1994). 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 O.C.G.A. § 36-1-21(b); if a sheriff had not complied

with such provision, deputies had no protected property interest in their 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). Duties of deputy sheriff. - Deputy sheriffs have no duties save alone duties of sheriff, which as the sheriff ’s deputy and the sheriff ’s agent the deputies are by law authorized to perform. Employees Retirement Sys. v. Lewis, 109 Ga. App. 476, 136 S.E.2d 518 (1964), overruled on other grounds, 240 Ga. 770, 243 S.E.2d 28 (1978). Deputy must obey directions of sheriff. - Deputy sheriff who is an employee of the sheriff in that the deputy must obey the directions of the sheriff as to matters pertaining to the proper discharge of the deputy’s official duties, and who may be employed or discharged by the sheriff, is still not an employee of the sheriff in the sense in which the word is usually used and according to the customary signification given the word. Johnson v. United States Fid. & Guar. Co., 93 Ga. App. 336, 91 S.E.2d 779 (1956). Authority of sheriff over deputy. - Deputy is the sheriff ’s employee only in the sense that the sheriff has the power to appoint and discharge the deputy, and is also vested with legal authority to direct and regulate the deputy’s conduct in reference to the discharge of the deputy’s official duties. Johnson v. United States Fid. & Guar. Co., 93 Ga. App. 336, 91 S.E.2d 779 (1956). Tenure of deputy. - Tenure in employment of a deputy jailer or deputy

sheriff is dependent not alone upon the will of the sheriff whose employee the deputy is and who may discharge the deputy when the deputy chooses, but also upon the reelection of the sheriff. Employees Retirement Sys. v. Lewis, 109 Ga. App. 476, 136 S.E.2d 518 (1964), overruled on other grounds, 240 Ga. 770, 243 S.E.2d 28 (1978). Deputy serves as agent of sheriff. - If the sheriff and deputy are both present and engaged in the performance of the duties of the sheriff ’s office, the former is in charge of the entire operation, and the deputy is the agent in effecting the proper discharge of such duties. Archer v. Aristocrat Ice Cream Co., 87 Ga. App. 567, 74 S.E.2d 470 (1953). Sheriff ’s office is not a legal entity capable of being sued. - County sheriff ’s office was not a proper defendant in plaintiff ’s injury action because the sheriff ’s office was not an entity capable of being sued under Fed. R. Civ. P. 17 in that the sheriff was a constitutionally created office under both Ga. Const. 1983, Art. IX, Sec. I, Para. III(a), and Fla. Const. Art. 8, Sec. 1, and employees acted in the name of the sheriff and not as an employee of the sheriff ’s office under O.C.G.A. § 15-16-23 and Fla. Stat. § 30.07. Harris v. Lawson, No. 7:08-CV-70 (HL), 2008 U.S. Dist. LEXIS 78808 (M.D. Ga. Aug. 27, 2008). Cited in Culpepper v. United States Fid. & Guar. Co., 199 Ga. 56, 33 S.E.2d 168 (1945); Smith v. Branch, 215 Ga. 744, 113 S.E.2d 445 (1960); Talley v. State, 129 Ga. App. 479, 199 S.E.2d 908 (1973); Vaughn v. State, 160 Ga. App. 283, 287 S.E.2d 277 (1981); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). Sheriff ’s Liability for Deputy Sheriff ’s liability for deputy’s performance of duties. - Sheriffs ‘‘are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties’’ and are liable on the sheriffs’ official bonds ‘‘for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers.’’ Board of Comm’rs v. Whittle, 180 Ga. 166, 178 S.E. 534 (1935). Bond from deputy. - Sheriff is required to take bond from the sheriff ’s

deputy, and for failure to discharge the sheriff ’s duty in this respect the sheriff may be held liable, even after the sheriff ’s retirement from office, by any person who has been injured. Maryland Cas. Co. v. Smith, 56 Ga. App. 154, 192 S.E. 449 (1937). Liability of sheriff, deputy, and sureties on bond. - Liability of the sureties to bond given by deputy sheriff are commensurate with sheriffs. Wallace v. Holly, 13 Ga. 389, 58 Am. Dec. 518 (1853). While the sheriff and the sheriff ’s sureties were liable on their bond, under former Civil Code 1910, § 4906 (see now O.C.G.A. § 15-16-5), for acts of the deputy, the deputy and the deputy’s sureties were in turn liable on their bond either to the sheriff or to the litigants. Cochran v. Whitworth, 21 Ga. App. 406, 94 S.E. 609 (1917). Correctness of bond and solvency of surety. - It is the sheriff ’s responsibility to see as to correctness of deputy’s bond and solvency of surety for the bond is not made payable to the sheriff ’s successor in office but to the sheriff alone, and upon a breach of that bond the sheriff, as obligee, may maintain suit on the instrument in the sheriff ’s own name, even though prior to the bringing of the suit the sheriff may have gone out of office. Maryland Cas. Co. v. Smith, 56 Ga. App. 157, 192 S.E. 449 (1937). Sheriff is not personally liable for negligent acts of the deputy which acts are in no way connected with the performance of the deputy’s official duties. Gay v. Healan, 88 Ga. App. 533, 77 S.E.2d 47 (1953). Liability to be based only on official acts. - Acts deemed not to be official cannot form a basis for imposition of liability on the bonding company. Thompson v. Spikes, 663 F. Supp. 627 (S.D. Ga. 1987). Deputy sheriff cannot be ruled under former Code 1868, § 3883 (see now O.C.G.A. § 15-13-9) if deputy has accounted to sheriff. Varner v. Wootten, 38 Ga. 575 (1869). Liability of sheriff for training. - County had no 42 U.S.C. § 1983 liability for the sheriff ’s law enforcement policies

Sheriff ’s Liability for Deputy (Cont’d) and conduct regarding warrant information on database systems or the training and supervision of the sheriff ’s employees in that regard; under Georgia law, the sheriff ’s function was to enforce laws and keep the peace on behalf of the state. Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003). Practice and Procedure Validity of entry of service made by deputy. - Entry of service upon a bill of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50) made and signed by a deputy sheriff is valid. Jones v. Rountree, 96 Ga. 230, 23 S.E. 311 (1895). Service of process by deputy. - Deputy sheriff cannot serve process of city court, unless legally appointed deputy thereof. United States Motor Co. v. Baughman Auto. Co., 16 Ga. App. 783, 86 S.E. 464 (1915). Contract impeding sheriff ’s responsibility to public is unenforceable. - To the extent that a deputy sheriff ’s employment contract may impede the sheriff ’s responsibility to the public, the contract is unenforceable by the employee as being against public policy. Hewatt v. Bonner, 142 Ga. App. 442, 236 S.E.2d 111 (1977). County liability for sheriff ’s actions. - Though it is true that a county could not be held liable solely on a theory of respondeat superior for the actions of its sheriff, the county could be liable un-

der 42 U.S.C. § 1983 for the sheriff ’s actions in depriving the sheriff ’s employees of their constitutional rights since the sheriff was the final authority responsible for establishing government policy. Johnson v. Ballard, 644 F. Supp. 333 (N.D. Ga. 1986). In a wrongful death action, a county was not liable under 42 U.S.C. § 1983 for the acts of a sheriff because the county had no control over the sheriff ’s personnel or policy decisions and the sheriff was not an employee of the county commission but rather was an elected, constitutional officer subject to the charge of the Georgia General Assembly. Brown v. Dorsey, 276 Ga. App. 851, 625 S.E.2d 16 (2005). Policies underlying bond requirement. - Twin public policies recognized by the requirement that bonds be obtained by sheriffs and their deputies are: (1) the county law enforcement officer should be held liable for tortious activity, even when connected with the officer’s official duties; and (2) the officer should be required to obtain insurance lest the officer’s liability should be rendered meaningless by the officer’s poverty. Thompson v. Spikes, 663 F. Supp. 627 (S.D. Ga. 1987). No joinder of suit on bond and tort action. - Because suit on a bond is considered an action in contractu, it cannot be joined with a tort action against a bonded official individually, and recovery in a contract action on a bond is limited to the applicable bond coverage. Thompson v. Spikes, 663 F. Supp. 627 (S.D. Ga. 1987).

OPINIONS OF THE ATTORNEY GENERAL Office of ‘‘special deputy sheriff’’ exists only in counties affected by this section, and any person holding oneself out as a ‘‘special deputy sheriff’’ in any other county either has no legal standing or is an actual deputy sheriff appointed under the provisions of this section. 1975 Op. Att’y Gen. No. 75-64. Deputies employed by sheriff are employees of sheriff, not the county governing authority, and the sheriff alone is entitled to appoint and discharge the deputies. 1975 Op. Att’y Gen. No. U75-37.

Lack of oath or bond does not render acts under color of office invalid. - Failure of a deputy to take the required oath does not render the deputy’s acts taken under color of office to be invalid, inasmuch as notwithstanding the deficiency, the deputy is still a ‘‘de facto officer’’; the same rule applies if the deficiency is a failure to furnish bond. 1965-66 Op. Att’y Gen. No. 66-211. Appointment of chief of police as deputy. - Sheriff may appoint chief of police of city within county as deputy

sheriff for purpose of serving process in a suit unless there is something in the terms under which the chief of police was employed prohibiting the chief from accepting other employment. 1962 Op. Att’y Gen. p. 81. Night watchman for state sanatorium should be deputized by the sheriffs of the two counties in which the property is located in order to have the power to arrest for offenses committed thereon. 1945-47 Op. Att’y Gen. p. 539. Performance by deputies of acts which may lawfully be performed by sheriff. - Regularly appointed deputy sheriff and persons lawfully performing the duties incumbent upon a posse comitatus may perform such acts as may lawfully be performed by a sheriff. 1969 Op. Att’y Gen. No. 69-75. Regularly appointed deputy sheriff may perform such acts as may lawfully be performed by sheriff. 1969 Op. Att’y Gen. No. 69-131.

Special deputy sheriff is authorized to investigate collection of taxes. 1969 Op. Att’y Gen. No. 69-131. Members of emergency squads. - Police intelligence unit should provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which the members intend to operate. 1969 Op. Att’y Gen. No. 69-473. Multi-government emergency squads may combat common disaster, civil disorder, riot, and other emergency situations. 1969 Op. Att’y Gen. No. 69-473. Prohibitions of § 45-2-2 inapplicable to deputy sheriffs and deputy coroners. - Since both deputy sheriffs and deputy coroners are appointed under O.C.G.A. § 15-16-23 rather than elected, neither is a county officer within the meaning of O.C.G.A. § 45-2-2, and the statute’s prohibition against holding more than one county office does not apply. 1981 Op. Att’y Gen. No. U81-6.

RESEARCH REFERENCES Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, §§ 13, 14. C.J.S. - 80 C.J.S., Sheriffs and Constables, § 20 et seq.

ALR. - Liability of police officer or his bond for injuries or death of third persons resulting from operation of motor vehicle by subordinate, 15 ALR3d 1189.