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2018 Georgia Code 45-9-21 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 45-9-21 Case Law from Google Scholar Amendments to OCGA 45-9-21

TITLE 45 PUBLIC OFFICERS AND EMPLOYEES

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

ARTICLE 2 MEMBERS OF GOVERNING BODIES OF MUNICIPALITIES, COUNTIES, AND OTHER PUBLIC BODIES

45-9-21. Defense of civil, criminal, or quasi-criminal actions in lieu of insurance.

  1. In lieu of obtaining the insurance or indemnity referred to in Code Section 45-9-20 or in addition thereto, such municipalities, counties, and other public bodies may, in their discretion, as a part of the compensation and terms of employment of members of the governing bodies of such municipalities, counties, and other public bodies, and of supervisors, administrators, employees, or other elected or appointed officers, adopt policies whereby the municipality, county, and other public body will undertake to defend all or specified civil, criminal, or quasi-criminal actions brought or maintained against members of the municipality, county, or other public body, or against supervisors, administrators, employees, or other elected or appointed municipal or county officers, arising out of the performance of their duties or in any way connected therewith, whether based upon negligence, violation of contract rights, or violation of civil, constitutional, common law, or statutory rights.
  2. The governing authority of a municipality, county, or other public body shall not be authorized to furnish a defense to any person charged with a criminal offense involving theft, embezzlement, or other like crime with respect to the property or money of or in which said governmental entity has an interest.
  3. Notwithstanding the provisions of subsection (b) of this Code section, the governing authority of a municipality, county, or other public body shall be authorized to reimburse any person charged with a criminal offense involving theft, embezzlement, or other like crime with respect to the property or money of or in which said governmental entity has an interest for all or a part of the cost of the defense of such person if such person is found not guilty of such crime or if the charges against such person are dismissed or nolle prossed.
  4. A municipality, county, or other public body may expend state, federal, and local funds to effectuate the provisions of this Code section, including, but not limited to, attorney's fees, court costs, deposition costs, witness fees and compensation, and all other like costs, expenses, and fees.
    1. As used in this subsection, the term "county officer" means the sheriff, the judge of the probate court, the clerk of the superior court, and the tax commissioner or tax collector and tax receiver of a county.
    2. In any civil case in which the county attorney has a conflict of interest which would ethically prevent the county attorney from representing both the county, the governing authority of the county, or another county officer or employee and the county officer, upon a determination by the chief judge of the superior court of the circuit in which the county is located that an ethical conflict exists, the county officer shall be authorized to employ individual legal counsel to represent such county officer in such matter. The governing authority of the county shall pay the reasonable fees of such individual counsel and all applicable court costs, deposition costs, witness fees and compensation, and all other like reasonable costs, expenses, and fees; provided, however, that such attorneys' fees shall be no more than the rate paid to the county attorney for similar representation or in accordance with a schedule of rates for outside counsel adopted by the governing authority, if any. Such fees and costs shall be authorized by the chief judge of the superior court of the circuit in which the county is located. This subsection shall not apply unless the governing authority of the county has first denied a written request by a county officer for counsel.

(Ga. L. 1974, p. 702, § 3; Ga. L. 1991, p. 1821, § 1; Ga. L. 1995, p. 1063, § 1.)

Law reviews.

- For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

O.C.G.A.

§ 45-9-21 constitutional. - O.C.G.A. § 45-9-21 on its face is not unconstitutional as being violative of the due process clause of either the federal Constitution or the Georgia Constitution. Horn v. City of Atlanta, 236 Ga. 247, 223 S.E.2d 647 (1976).

Legislative intent.

- It is the intent of O.C.G.A. §§ 45-9-20 through45-9-23, with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties, and to defend actions in which such damages are sought, in those instances in which a defense of sovereign or official immunity is unavailable. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

City not required to defend employees.

- O.C.G.A. § 45-9-21 does not "require" the city to defend any civil action against its employees, but merely permits it to do so, pursuant to an adopted policy, as a part of the compensation paid by the employer to the employee. Horn v. City of Atlanta, 236 Ga. 247, 223 S.E.2d 647 (1976).

Municipal court judges are not county officers.

- Municipal court judges are not "county officers" entitled to have the county pay attorney fees pursuant to O.C.G.A. § 45-9-21(e)(2). Ward v. City of Cairo, 276 Ga. 391, 583 S.E.2d 821 (2003).

Discretion in selecting what actions to defend.

- The phrase "in their discretion" indicates a legislative intent to give counties considerable latitude in determining what actions will be defended. A resolution of county commissioners to pay attorney fees in the defense of two "specified" cases against a sheriff is within the authority given under O.C.G.A. § 45-9-21. Haywood v. Hughes, 238 Ga. 668, 235 S.E.2d 2 (1977).

When a local ordinance provided defense and indemnification to county employees who were the subject of lawsuits, but such coverage could be terminated by the county attorney, there was no abuse of discretion found by the county attorney's termination of an employee's coverage since the employee gave inaccurate or false responses to interrogatories and deposition questions regarding a prior position that the employee held; pursuant to O.C.G.A. § 45-9-21(a), the county attorney's decision was based on a reasoned, articulated basis, the omission by the employee was deemed material, and it was determined that the information was deliberately withheld. Baker v. Gwinnett County, 267 Ga. App. 839, 600 S.E.2d 819 (2004).

Employment of counsel.

- A county governing authority has the implicit power to employ counsel for county officers. Stephenson v. Board of Comm'rs, 261 Ga. 399, 405 S.E.2d 488 (1991).

County governing authority's employment of counsel to represent a superior court clerk did not violate Ga. Const. 1983, Art. IX, Sec. II, Paras. I(c)(1) or (7), which preclude the authority from exercising any power in a manner affecting "any elective county office" or "any court or the personnel thereof." Stephenson v. Board of Comm'rs, 261 Ga. 399, 405 S.E.2d 488 (1991).

County's duty to pay attorney fees.

- When an official, acting in official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official's attorney fees. Haralson County v. Kimball, 243 Ga. App. 559, 533 S.E.2d 762 (2000).

Statutory law authorized local governments and other "public bodies" to adopt employment policies whereby the local government agreed to provide representation to the local government's employees if a conflict of interest existed and the matter did not involve property or money in which the governmental unit had an interest; since the sheriff was a local governmental unit employee who the trial court properly certified had a conflict of interest over the county commission's adoption of a budget that harmed the sheriff's department and that matter did not involve the government's property or money, the trial court properly ruled that the sheriff had a right to have counsel appointed for the sheriff, and have the sheriff's attorney's fees and expenses paid, on the sheriff's challenge to that budget. Bd. of Comm'rs v. Saba, 278 Ga. 176, 598 S.E.2d 437 (2004).

Cited in Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150, 223 S.E.2d 133 (1976); Nash v. Pierce, 238 Ga. App. 466, 519 S.E.2d 462 (1999); City of Stockbridge v. Stuart, 329 Ga. App. 323, 765 S.E.2d 16 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

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

C.J.S.

- 64A C.J.S., Municipal Corporations, § 2023.

ALR.

- Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436.

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 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 indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

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

Cases Citing O.C.G.A. § 45-9-21

Total Results: 7  |  Sort by: Relevance  |  Newest First

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Logue v. Wright, 392 S.E.2d 235 (Ga. 1990).

Cited 81 times | Published | Supreme Court of Georgia | Apr 20, 1990 | 260 Ga. 206

...Subparagraph (c) of that section specifically excludes counties and municipalities from the section. (3) OCGA § 45-9-20 allows counties to purchase liability insurance covering their employees as additional compensation but grants no authority to provide a self-insurance plan. (4) OCGA § 45-9-21 allows counties to provide a legal defense to employees for certain legal actions but again makes no mention of a self-insurance program or any waiver of sovereign immunity....
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Forsyth Cnty. v. Martin, 610 S.E.2d 512 (Ga. 2005).

Cited 53 times | Published | Supreme Court of Georgia | Mar 7, 2005 | 279 Ga. 215

...Yates, 265 Ga. 504(2), 458 S.E.2d 791 (1995), that a trial court may require a county to pay the reasonable attorney fees incurred by a successful county official who was not represented by the county attorney due to a conflict of interest. See also OCGA § 45-9-21(e)(1)....
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Boswell v. Bramlett, 549 S.E.2d 100 (Ga. 2001).

Cited 26 times | Published | Supreme Court of Georgia | Jul 2, 2001 | 274 Ga. 50, 2001 Fulton County D. Rep. 2059

...In this case and in the two cited cases, a majority of this Court has ignored the fact that the General Assembly has provided by statute for the representation of county officers whose representation by the county attorney would constitute a conflict of interest. OCGA § 45-9-21(e)(2) establishes a process by which the chief judge of the superior court of the circuit in which the county is located, upon application, determines that an ethical conflict exists, clearing the way for the county officer to hire counsel at the county's expense....
...cts with the expressed will of our legislature. Were it not for the county's agreement to pay Boswell's attorney fees, the result would necessarily be different had this Court given proper deference to the statutory scheme. The last sentence of OCGA § 45-9-21(e)(2) sets a condition precedent to submission of the issue to the chief judge and to a determination that hiring outside counsel is appropriate: "This subsection shall not apply unless the governing authority of the county has first denied a written request by a county officer for counsel." Id....
...at 508-509, 458 S.E.2d 791. Accord Griffies, 272 Ga. at 509, 530 S.E.2d 718. [15] Yates, 265 Ga. at 508-509, 458 S.E.2d 791. [16] Griffies, 272 Ga. at 509, 530 S.E.2d 718. [17] Griffies, 272 Ga. at 509, 530 S.E.2d 718; Yates, 265 Ga. at 508-509, 458 S.E.2d 791. Compare OCGA § 45-9-21, which sets forth provisions that apply when a local government is defending a local official in an action filed against the official.
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Bd. of Com'rs of Dougherty Cnty. v. Saba, 598 S.E.2d 437 (Ga. 2004).

Cited 18 times | Published | Supreme Court of Georgia | May 24, 2004 | 278 Ga. 176, 2004 Fulton County D. Rep. 1706

...hat appellants, members of the Board of Commissioners of Dougherty County, had adopted a county budget that discontinued funding for specified jobs within the sheriff's department. [1] The same day, the sheriff also filed a petition pursuant to OCGA § 45-9-21(e) for appointment of an attorney to represent him and for payment of attorney fees....
...The chief judge of the Dougherty Judicial Circuit immediately granted the sheriff's petition for authorization to hire an attorney and ordered the county to pay "all reasonable attorney's fees and all reasonable costs and expenses enumerated in OCGA § 45-9-21(e)(2)." On September 25, the trial court [2] granted mandamus absolute, enjoined the Board from removing any funds from the Sheriff's proposed budget since they "have not properly considered the budget requests," and directed the Board of...
...mbers of the governing body who were facing criminal, civil, or quasi-criminal actions arising out of the performance of their duties, so long as criminal charges did not involve property or money in which the governmental unit had an interest. OCGA § 45-9-21 (a), (b), and (d)....
...overnment attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position...." Forty days earlier, on April 20, the General Assembly's amendment of OCGA § 45-9-21 was approved....
...The legislatively-created method is limited in coverage to the statutorily-designated elected constitutional county officers (see Ward v. City of Cairo, 276 Ga. 391(5), 583 S.E.2d 821 (2003)) who are involved "[i]n any civil case in which the county attorney has a conflict of interest" OCGA § 45-9-21(e)(2) that prevents the attorney from representing the county and the county officer....
...In the case at bar, the Sheriff employed the statutory method to request authorization to hire an attorney and for county payment of reasonable attorney fees, and the chief judge of the superior court determined an ethical conflict existed. The Board contends OCGA § 45-9-21(e)(2) is not available to award attorney fees to a county officer who is the plaintiff in a suit that presents the county attorney with an ethical conflict in representing the county officer, because OCGA § 45-9-21 was intended to protect public officers and employees from liability for damages arising from the performance of their duties....
...y under Gwinnett County v. Yates and its requirement that the county officer succeed on the merits in order to have the county pay the officer's reasonable attorney fees. Accordingly, the Board concludes, the trial court erred when it relied on OCGA § 45-9-21(e)(2) to order the county to pay the Sheriff's attorney fees, and erred under Gwinnett County v. Yates when it ordered payment of the Sheriff's attorney fees prior to the conclusion of the litigation. We address first the Board's contention that OCGA § 45-9-21(e)(2), a 1995 amendment to § 45-9-21, is not applicable when the county officer seeking its coverage is the plaintiff in a lawsuit that presents the county attorney with an ethical conflict....
...unicipalities, counties, and other public bodies are authorized to reimburse certain criminal defendants for "all or part of the cost of the defense" if the defendant is acquitted or nol prossed). Subsection (e), however, enacted 21 years after OCGA § 45-9-21, distinguishes itself from the other subsections of OCGA § 45-9-21....
...Accordingly, we affirm the order of the chief judge of the Dougherty Judicial Circuit which granted the Sheriff's petition for authorization to hire an attorney and ordered Dougherty County to pay all reasonable attorney fees and costs and expenses set forth in OCGA § 45-9-21(e)(2). In light of our holding concerning the applicability of OCGA § 45-9-21(e)(2) to the case at bar, we need not address the Board's contention that the issuance of the attorney fee order prior to the conclusion of the litigation was not appropriate under Gwinnett County v....
...ial in a mandamus action should a question of fact be raised by the application and answer, and the statutory timing requirement for such a trial provided in OCGA § 9-6-27. [5] Ga. L.1974, p. 702, § 3. [6] In 1991, subsection (c) was added to OCGA § 45-9-21, authorizing local governments to reimburse a criminally-charged person covered by the statute for all or part of the person's defense costs should the person be acquitted or the charges dismissed or nol prossed. Ga. L.1991, p. 1821, § 1. [7] OCGA § 45-9-21(e)(2) provides: "In any civil case in which the county attorney has a conflict of interest which would ethically prevent the county attorney from representing both the county, the governing authority of the county, or another county office...
...This subsection shall not apply unless the governing authority of the county has first denied a written request by the county officer for counsel. [8] In a footnote in Boswell v. Bramlett, supra, 274 Ga. at 53, 549 S.E.2d 100, this Court, without discussion, described OCGA § 45-9-21 as applying when a local government is defending a local official in an action filed against the official. Closer scrutiny of § 45-9-21 shows the footnote to be accurate with regard to subsections (a)-(c), but not as to subsection (e).
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Stephenson v. Bd. of Commissioners, 405 S.E.2d 488 (Ga. 1991).

Cited 14 times | Published | Supreme Court of Georgia | Jul 3, 1991 | 261 Ga. 399

...I(a, b) and Para. 3, or under statutory law, see OCGA § 36-5-22.1. However, a county governing authority has the power to undertake to defend its employees and its elected or appointed officers in litigation arising out of the performance of their duties. OCGA § 45-9-21....
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Ward v. City of Cairo, 583 S.E.2d 821 (Ga. 2003).

Cited 9 times | Published | Supreme Court of Georgia | Mar 27, 2003 | 276 Ga. 391, 2003 Fulton County D. Rep. 1102

...t reversion or impairment). Because CCC's rights and duties under the contracts vested in BI as its successor corporation, there was no assignment of the contracts. 5. Ward claims that he was entitled to payment of his attorney fees pursuant to OCGA § 45-9-21(e)(2) (governing authority shall pay county official's attorney fees when county attorney is unable to represent him due to a conflict of interest)....
...504, 458 S.E.2d 791 (1995). Judgment affirmed. All the Justices concur. NOTES [1] Ward was defeated in the August 2002 election. [2] OCGA §§ 15-22-1 to 15-22-8 were repealed by Ga. Laws 1983, p. 884, § 7-1, effective June 30, 1983. [3] Pursuant to OCGA § 45-9-21(e)(1), "county officer" includes the sheriff, the judge of the probate court, the clerk of the superior court, and the tax commissioner or tax collector and tax receiver of a county.
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Gwinnett Cnty. v. Blaney, 572 S.E.2d 553 (Ga. 2002).

Cited 8 times | Published | Supreme Court of Georgia | Nov 12, 2002 | 275 Ga. 696

...or declaratory judgment filed by Gerald N. Blaney, Jr., in his official capacity as Solicitor of Gwinnett County; the petitions involve questions of Blaney's entitlement to a legal defense under a county indemnification plan adopted pursuant to OCGA § 45-9-21, and any obligation of Gwinnett County to pay fees for privately-retained counsel representing Blaney in a federal sexual discrimination lawsuit filed by a former employee. For the reasons which follow, we reverse in the main appeal and affirm in the cross-appeal. Pursuant to OCGA § 45-9-21, Gwinnett County enacted an ordinance to establish an "Officer and Employee Defense and Indemnification Plan" ("Plan") to defend specified civil, criminal, or quasi-criminal actions brought or maintained against supervisors, administrators...
...because it is not the appropriate vehicle to review the discretionary decision of a public official, in this case, that of the county attorney. We agree that Blaney's petition for declaratory judgment was not authorized. Certainly, pursuant to OCGA § 45-9-21, the county governing authority is empowered to undertake to defend its employees and its elected or appointed officers in litigation arising out of the performance of their duties, as has been done here by the adoption of the defense and indemnification plan....