TITLE 45 PUBLIC OFFICERS AND EMPLOYEES

Section 9. Insuring and Indemnification of Public Officers and Employees, 45-9-1 through 45-9-110.

ARTICLE 1 STATE OFFICERS AND EMPLOYEES

45-9-1. General provisions.

In addition to any other compensation which may be paid to an officer, official, or employee of any agency, board, bureau, commission, department, or authority of the executive, judicial, or legislative branch of government of this state, each such agency, board, bureau, commission, department, or authority is authorized, in its discretion, to purchase policies of liability insurance or contracts of indemnity or to formulate sound programs of self-insurance utilizing funds available to such agency, board, bureau, commission, department, or authority, insuring or indemnifying such officers, officials, or employees to the extent that they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith. Such policies of liability insurance, contracts of indemnity, or programs of self-insurance may also provide for reimbursement to an officer, official, or employee of any agency, board, bureau, commission, department, or authority of this state for reasonable legal fees and other expenses incurred in the successful defense of any criminal proceeding, including, but not limited to, any criminal cause of action, suit, investigation, subpoena, warrant, request for documentation or property, or threat of such action whether formal or informal where such action arises out of the performance of his or her official duties. In addition, in the case of an officer, official, or employee who is required to maintain a professional license, such reimbursement may also be provided for legal fees and other expenses so incurred in the successful defense of a charge arising out of the performance of his or her official duties in proceedings before a professional licensing board, disciplinary board or commission, or other similar body. Legal fees and other expenses shall be subject to adjustment by and the approval of the Attorney General.
Such agencies, boards, bureaus, commissions, departments, or authorities may expend federal and state or other available funds for such purposes. The amount of such insurance or indemnity shall also be in the discretion of such agency, board, bureau, commission, department, or authority.
For the purpose of this article, the term "agency" shall specifically include, but shall not be limited to, public retirement systems of state-wide application established by the laws of this state, but shall not include counties or municipalities; provided, however, that the employees of community service boards, county departments of health, and county departments of family and children services as well as the members of the boards of said departments shall be considered to be state employees or officials for the purpose of this article. In order to facilitate the administration of liability coverage or other insurance coverages provided the community service boards, the Department of Behavioral Health and Developmental Disabilities shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of family and children services, the Department of Human Services shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of health, the Department of Public Health shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services.

(Ga. L. 1977, p. 1051, § 1; Ga. L. 1979, p. 674, § 1; Ga. L. 1981, p. 1383, § 1; Ga. L. 1987, p. 993, § 1; Ga. L. 1994, p. 1717, § 3; Ga. L. 2008, p. 230, § 1/SB 175; Ga. L. 2009, p. 453, § 1-49/HB 228; Ga. L. 2011, p. 99, § 85/HB 24; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981). For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For annual survey of local government law, see 43 Mercer L. Rev. 317 (1991). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Scope of O.C.G.A. § 45-9-1. - O.C.G.A. § 45-9-1 only authorizes the purchase of liability insurance or formulation of plans of self-insurance to insure public officers or employees of the agency, board, bureau, commission, department, or authority of the state to the extent that they are not immune from liability. The statute does not authorize the purchase of insurance by an agency specifically for the agency as the entity enjoys immunity from suit unless the immunity has been waived. Davis v. State, 211 Ga. App. 285, 439 S.E.2d 40 (1993).

O.C.G.A. § 45-9-1 only authorizes the purchase of liability insurance covering agency officers, officials, and employees, and not for the agency itself. Donaldson v. DOT, 212 Ga. App. 240, 441 S.E.2d 473 (1994).

O.C.G.A. § 45-9-1(d) does not prohibit discovery by a tort plaintiff of liability insurance policies purchased by a government agency for its employees. Pate v. Caballero, 253 Ga. 787, 325 S.E.2d 375 (1985).

Self-insurance plans.

- Under O.C.G.A. § 45-9-1, and O.C.G.A. §§ 45-9-20 and45-9-21, dealing with liability insurance for government employees and officials, only state self-insurance plans constitute a waiver of sovereign immunity. There is no statutory provision for a county to set up a self-insurance plan. Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990); Pizza Hut of Am., Inc. v. Hood, 198 Ga. App. 112, 400 S.E.2d 657 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 657 (1991).

County hospital authority is not authorized to establish a self-insurance fund. Hospital Auth. v. Litterilla, 199 Ga. App. 345, 404 S.E.2d 796 (1991).

Cited in Kurtz v. Williams, 188 Ga. App. 14, 371 S.E.2d 878 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Scope of probation supervisors' liability.

- Notwithstanding the waiver of sovereign immunity to the extent of any liability insurance provided, the potential liability of probation supervisors supervising court-ordered community service by probationers (a discretionary function as opposed to a ministerial duty) is only for conduct which is willful, wanton, or outside the scope of authority of the supervisor. 1983 Op. Att'y Gen. No. 83-18.

Payment of attorney's fees prior to action not authorized.

- O.C.G.A. § 45-9-1 does not authorize a public body to pay one of its employees' attorney's fees, which were incurred prior to the commencement of a civil, criminal, or quasi-criminal action against the employee arising out of the performance of the employee's duties. 1995 Op. Att'y Gen. No. 95-38.

RESEARCH REFERENCES

Am. Jur. 2d.

- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 186, 187.

ALR.

- Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438.

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties, 71 A.L.R.3d 6.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

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