2020 Georgia Code
Title 45 - Public Officers and Employees
Chapter 6 - Powers and Duties Generally
§ 45-6-5. Source of Powers of Public Officers Generally; Estoppel

Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.

(Civil Code 1895, § 268; Civil Code 1910, § 303; Code 1933, § 89-903.)

- Liability of public agents on public contracts, § 10-6-88.

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For annual survey on local government law, see 61 Mercer L. Rev. 255 (2009).

ANALYSIS

• General Consideration
• Powers of Public Officers
• Estoppel

Teachers' retirement system is public body to which O.C.G.A. § 45-6-5 applies. Tate v. Teachers' Retirement Sys., 257 Ga. 365, 359 S.E.2d 649 (1987).

- A municipality cannot be held liable upon an implied contract for the value of any benefits received by it under a contract made with one of its officials when the municipality is expressly forbidden to make such a contract; such a contract, being void, cannot be ratified by an acceptance or use by the municipality of the benefits furnished thereunder. Caldwell v. City of Rome, 44 Ga. App. 665, 162 S.E. 829 (1932).

- The title acquired by a city at a tax sale is the same as that any individual would have obtained; that is, it obtains title subject to the lien of the special assessment. It is authorized to convey no better title than it holds. It may not by merely reselling the property divest the lien of the assessment; for to allow this would provide a method for vitiating the provision making this lien "coequal" with the lien of other taxes. Steele v. City of Waycross, 190 Ga. 816, 10 S.E.2d 867 (1940).

- Trial court erred in denying a property owner's motion for summary judgment in a county breach of contract action because a settlement agreement between the parties was enforceable; the county attorney had authority to make the settlement offer on behalf of the county board, and while a vote in a public meeting was a required formality to effectuate the purchase, the board's failure to complete that formality when voting in the public meeting could not destroy an already existing settlement agreement. Old Peachtree Partners, LLC v. Gwinnett County, 315 Ga. App. 342, 726 S.E.2d 437 (2012).

- Appellate court erred by holding that an environmental engineering company could recover against a city on the company's quantum meruit claim because quantum meruit was not an available remedy against the city since the claim was based on a municipal contract that was ultra vires as the contract was never approved by city council. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 743 S.E.2d 381 (2013).

Cited in Anchor Duck Mills v. Maddox, 171 Ga. 495, 156 S.E. 192 (1930); Maddox v. Highway Iron Prods. Co., 172 Ga. 131, 157 S.E. 269 (1931); Harrison v. Southern Ry., 44 Ga. App. 49, 160 S.E. 656 (1931); Barber v. Robinson, 178 Ga. 721, 174 S.E. 344 (1934); State Revenue Comm'n v. NABISCO, 179 Ga. 90, 175 S.E. 368 (1934); Carter v. Johnson, 186 Ga. 167, 197 S.E. 258 (1938); City of Jefferson v. Holder, 195 Ga. 346, 24 S.E.2d 187 (1943); Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947); Southern Ry. v. Wages, 203 Ga. 502, 47 S.E.2d 501 (1948); Bagwell v. Cash, 207 Ga. 222, 60 S.E.2d 628 (1950); Northington v. Candler, 211 Ga. 410, 86 S.E.2d 325 (1955); Staub v. City of Baxley, 91 Ga. App. 650, 86 S.E.2d 712 (1955); Hunter v. City of Atlanta, 212 Ga. 179, 91 S.E.2d 338 (1956); McCallum v. Almand, 213 Ga. 701, 100 S.E.2d 924 (1957); Board of Comm'rs v. Clay, 214 Ga. 70, 102 S.E.2d 575 (1958); Laurens County v. Keen, 214 Ga. 32, 102 S.E.2d 697 (1958); Russell v. City of Rome, 98 Ga. App. 653, 106 S.E.2d 339 (1958); Atlantic Co. v. Moseley, 215 Ga. 530, 111 S.E.2d 239 (1959); Peek v. City of Albany, 101 Ga. App. 564, 114 S.E.2d 451 (1960); Day v. Kelley, 218 Ga. 688, 130 S.E.2d 206 (1963); Gruber v. Fulton County, 111 Ga. App. 71, 140 S.E.2d 552 (1965); City of Jonesboro v. Shaw-Lightcap, Inc., 112 Ga. App. 890, 147 S.E.2d 65 (1966); Sutton v. City of Cordele, 230 Ga. 681, 198 S.E.2d 856 (1973); Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973); Stone Mt. Scenic R.R. v. Stone Mt. Mem. Ass'n, 230 Ga. 800, 199 S.E.2d 216 (1973); Mousetrap of Atlanta, Inc. v. Blackmon, 129 Ga. App. 805, 201 S.E.2d 330 (1973); Tift v. Tift County Bd. of Tax Assessors, 234 Ga. 155, 215 S.E.2d 3 (1975); Johnson v. Caldwell, 148 Ga. App. 617, 251 S.E.2d 837 (1979); City of Atlanta v. Bull, 161 Ga. App. 648, 288 S.E.2d 335 (1982); Corey Outdoor Adv., Inc. v. Board of Zoning Adjustments, 254 Ga. 221, 327 S.E.2d 178 (1985); Exposition Enters., Inc. v. George L. Smith II Ga. World Congress Ctr. Auth., 177 Ga. App. 211, 338 S.E.2d 726 (1985); Jones v. Ward, 201 Ga. App. 757, 412 S.E.2d 576 (1991); Hibbs v. City of Riverdale, 227 Ga. App. 889, 490 S.E.2d 436 (1997); McDilda v. Board of Comm'rs, 230 Ga. App. 530, 497 S.E.2d 25 (1998); Miller v. Clayton County, 271 Ga. 135, 518 S.E.2d 402 (1999); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11th Cir. 2002); Kaplan v. City of Sandy Springs, 286 Ga. 559, 690 S.E.2d 395 (2010); West v. Dooly County Sch. Dist., 316 Ga. App. 330, 729 S.E.2d 469 (2012).

Powers of Public Officers

"Unconferred power" refers to powers of municipality rather than officer.

- Except when the municipality's ability to exercise its governmental powers is itself threatened by the unauthorized action of a municipal officer, the term "unconferred power" as used in O.C.G.A. § 45-6-5 has traditionally been interpreted as referring to the powers of the municipality rather than the powers of the officer. Star Laundry, Inc. v. City of Warner Robins, 189 Ga. App. 839, 377 S.E.2d 709, rev'd on other grounds, 259 Ga. 348, 381 S.E.2d 38 (1989).

Persons dealing with a public officer must take notice of the extent of the officer's powers at their peril. Wood v. Puritan Chem. Co., 178 Ga. 229, 172 S.E. 557 (1934); Morris Plan Bank v. Simmons, 201 Ga. 157, 39 S.E.2d 166 (1946); Malcolm v. Webb, 211 Ga. 449, 86 S.E.2d 489 (1955); City of Calhoun v. Holland, 222 Ga. 817, 152 S.E.2d 752 (1966).

The trial court properly entered judgment n.o.v. against plaintiffs, golf professionals who alleged that they had an oral contract with a city to provide services on the city's golf courses, which contract was breached when the golf courses were leased to another, since the plaintiffs failed to show that the alleged contract was authorized. Cole v. City of Atlanta, 195 Ga. App. 67, 392 S.E.2d 283 (1990).

City attorneys are public officers within the meaning of O.C.G.A. § 45-6-5 and plaintiffs in an action against the city had a duty to apprise themselves of the attorneys' capacity to bind the city to a settlement contract; even though an express restriction on a city attorney's right to settle a cause of action, embodied in a municipal ordinance, was not communicated by the city or its attorney to plaintiffs, they were presumptively charged with knowledge of the ordinance. Black v. City of Atlanta, 61 F.3d 27 (11th Cir. 1995).

Trial court did not err in charging jury that the city attorney, as the city's agent, bound the city through the attorney's conduct, as the charge contained a correct statement of the law pursuant to O.C.G.A. § 45-6-5 and the city failed to point to a specific limitation on the city attorney's authority that would have required a different charge under the facts and theories of the case. City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (2001).

- The state is bound only by its laws, and everyone must take notice thereof and recognize that public administrative officers cannot change the laws. P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827, 240 S.E.2d 208 (1977); Roberts v. Tomlinson, Inc., 242 Ga. 804, 251 S.E.2d 543 (1979).

- While generally an allegation of agency is sufficient to withstand both general and special demurrer (now motion to dismiss), such is not true in cases involving the powers and duties of public officials when the agent is without authority of law to act. Ingalls Iron Works Co. v. City of Forest Park, 99 Ga. App. 706, 109 S.E.2d 835 (1959).

- Misrepresentations by a public officer as to that officer's powers and as to questions of law generally do not give rise to an action for fraud. Garrison v. Department of Transp., 240 Ga. 840, 242 S.E.2d 615 (1978).

County administrator incorrectly advised a former county employee that the employee would start receiving retirement benefits in nine years. As the administrator disregarded and deviated from the terms of the county retirement plan, rather than simply making a mistake during an otherwise authorized action under the plan, the administrator engaged in an ultra vires action that could not support the employee's promissory estoppel claim under O.C.G.A. § 13-3-44(a). Mullis v. Bibb County, 294 Ga. App. 721, 669 S.E.2d 716 (2008).

- A power conferred by a legislative Act, which act violates the Constitution, is an "unconferred power" within the meaning of O.C.G.A. § 45-6-5. Richmond County v. Pierce, 234 Ga. 274, 215 S.E.2d 665 (1975).

- The county board cannot, in the absence of statutory authority, make a lease of any part of the county property used or useful for county purposes. Killian v. Cherokee County, 169 Ga. 313, 150 S.E. 158 (1929).

- Company listed as a "potential subcontractor" in a bid on a contract with a city could not reasonably rely on city officials' assertions that the city could, on the basis of the listing, compel the general contractor to enter into the subcontract with the company, since city officials cannot establish a duty on the part of the city when none exists by law. Southeast Grading, Inc. v. City of Atlanta, 172 Ga. App. 798, 324 S.E.2d 776 (1984).

- A public sector attorney's authority, like that of any other public officer, is defined and prescribed by law, including municipal ordinances; thus, a city and police officers who had entered a settlement agreement executed by city attorneys on their behalf were not estopped from challenging the agreement on the basis that a city ordinance restricted the apparent authority of the attorneys to execute the agreement, even though the ordinance was not specifically communicated to the opposing party. City of Atlanta v. Black, 265 Ga. 425, 457 S.E.2d 551 (1995).

- Although a county attorney did not have plenary authority over a matter involving a property owner's erection of a sign that exceeded the zoning height limitations and should have sought the approval of the County Board of Commissioners prior to entering into a consent order with respect to the dispute, the county was bound by the order after the attorney asserted that the attorney had the power and authority to enter the order and it was in the interests of public policy. Although O.C.G.A. § 45-6-5 does not confer plenary settlement authority over a public sector attorney, the attorney's actions in the circumstances justified the imposition of the attorney's actions on the county. DeKalb County v. DRS Invs., Inc., 260 Ga. App. 225, 581 S.E.2d 573 (2003).

- Actions of individual city officials who are not empowered to act on behalf of the city cannot be relied upon by others to commit the government's resources, regardless of good intentions; thus, to the extent that Walston & Assoc. v. City of Atlanta, 224 Ga. App. at 484 (1997); City of Dallas v. White, 182 Ga. App. at 783 (1987); and City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. at 47 (1982), stand for the proposition that quantum meruit recovery is allowed under such circumstances, those cases are overruled. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 743 S.E.2d 381 (2013).

- Even if a state department employee manual given to all employees did purport to establish procedural protections for employees, its promulgation was beyond the authority of the director of the department and could not bind the city. Sykes v. City of Atlanta, 235 Ga. App. 345, 509 S.E.2d 395 (1998).

The public is not estopped by the unauthorized acts of its agents. County Comm'rs v. O'Neal, 38 Ga. App. 158, 142 S.E. 914 (1928).

Public is not estopped by any subsequent acts of the board of commissioners in recognizing an old line between two districts as the correct dividing line, had the district lines been changed in compliance with the requirements of law. Camp v. Trapp, 209 Ga. 298, 71 S.E.2d 534 (1952).

State cannot be estopped by the unauthorized actions of the state's agents or officials, be those actions negligent or intentional in character. P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827, 240 S.E.2d 208 (1977).

Since the transfer of a prisoner was not made pursuant to any order of court, being the result of some informal arrangement between the state and federal officers, it is immaterial that the state officers may have acted improperly in this matter, since the state would not be bound by the act of such officers in releasing the prisoner without authority of law and the case is the same as though the prisoner had escaped from the custody of the state officers. Jordan v. State, 41 Ga. App. 779, 154 S.E. 725 (1930).

When a state agent or official mistakenly paid medicaid benefits to a nursing home which had previously been given official notice by the state that medicaid participation benefits would be discontinued, the state was not estopped from recovering those benefits erroneously paid. Department of Pub. Health v. Perry, 123 Ga. App. 816, 182 S.E.2d 493 (1971).

The state is not estopped by the unauthorized acts of its agents, whether those acts are negligent or intentional in nature. Ben Hill County Bd. of Educ. v. Davis, 270 Ga. 452, 510 S.E.2d 826 (1999).

Because a mayor lacked authority to unilaterally bind the town to a contract with the contractor, any contract based on an authorization from the mayor was unauthorized; this foreclosed the contractor from asserting estoppel against the town. Griffin Bros., Inc. v. Town of Alto, 280 Ga. App. 176, 633 S.E.2d 589 (2006).

- No officer, agent, or employee of the state or the Highway Department is authorized to erroneously represent the state's ownership of land and bind the state by such misrepresentation. Waller v. State Hwy. Dep't, 218 Ga. 605, 129 S.E.2d 772 (1963).

State is not estopped by statements made by the state veterinarian when the statements are not made in the exercise of any legal authority. Gill v. Cox, 163 Ga. 618, 137 S.E. 40 (1927).

A county could not be estopped by the unauthorized actions of the human resources director in entering into an alleged settlement agreement pertaining to the termination of a police officer. Maner v. Chatham County, 246 Ga. App. 265, 540 S.E.2d 248 (2000).

City was not estopped from exercising eminent domain powers on the basis of unauthorized statements of its agent to purchasers of city property about the city's intentions regarding condemnation. City of Marietta v. Edwards, 271 Ga. 349, 519 S.E.2d 217 (1999).

State can only be estopped from asserting her right to her own property by legislative enactment or resolution. Standard Oil Co. v. State Revenue Comm'n, 179 Ga. 371, 176 S.E. 1 (1934); Waller v. State Hwy. Dep't, 218 Ga. 605, 129 S.E.2d 772 (1963); P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827, 240 S.E.2d 208 (1977).

A governing authority may not be estopped regarding an ultra vires act. City of Warner Robins v. Rushing, 259 Ga. 348, 381 S.E.2d 38 (1989).

City was not estopped from relying on a provision of the city charter authorizing nonrenewal of the term of the chief of police, even though the city had not abided by all the terms of its charter in the past. City of Buchanan v. Pope, 222 Ga. App. 716, 476 S.E.2d 53 (1996).

In a case involving the performance of insurance consulting services pursuant to an oral agreement with city officers who did not have authority to make the agreement, the unauthorized nature of the contract precluded the consultants from asserting estoppel against the city. Walston & Assocs. v. City of Atlanta, 224 Ga. App. 482, 480 S.E.2d 917 (1997).

- City's failure to finalize the city's annexation of county roads by adopting an ordinance, preparing a survey, and filing the annexation with the Georgia Secretary of State were errors of omission, not ultra vires actions contrary to former O.C.G.A. §§ 36-36-1 and36-36-2 (see now O.C.G.A. §§ 36-36-20 and36-36-21) which the city had no power to take. Therefore, O.C.G.A. § 45-6-5 did not preclude the city from contending that the county was estopped from challenging the annexation by the county's failure to object to the annexation for 20 years. City of Holly Springs v. Cherokee County, 299 Ga. App. 451, 682 S.E.2d 644 (2009).

Detrimental reliance, which is a necessary element of any claim of equitable estoppel, is not a factor when estoppel cannot be applied as a matter of law. City of Warner Robins v. Rushing, 259 Ga. 348, 381 S.E.2d 38 (1989).

Employees retirement system was estopped from denying benefits as established prior to a judge's retirement because the judge had relied upon the system's calculation of benefits prior to the time of submitting the judge's resignation and the calculated benefits were paid to the judge for a period of time after retirement. Quillian v. Employees' Retirement Sys., 259 Ga. 253, 379 S.E.2d 515 (1989).

- City was not estopped from recovering the difference between the amount charged customers for water and sewer services under an unauthorized agreement with the mayor, and the amount required by a new rate ordinance. City of Warner Robins v. Rushing, 259 Ga. 348, 381 S.E.2d 38 (1989).

A voluntary payment of taxes returned in the wrong county is not a ground to estop the proper county from collecting the tax on that property wherein the personalty is used in business. Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1, 102 S.E.2d 547 (1958).

- The compensation of some other person or persons for comparable injuries on the same county property, or the purchase of insurance for such purposes, does not create a cause of action in a plaintiff suing a city in a tort action. The defendant city would not be estopped by such unauthorized waiver of the sovereign immunity of the county. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).

- When a public officer can be held accountable for acting under an unconstitutional law, such officer should be able to challenge its constitutional validity, and should not be estopped to do so. Richmond County v. Pierce, 234 Ga. 274, 215 S.E.2d 665 (1975).

- Board's action in rescinding a retired officer's prior credited service was not a recalculation, but an annulment of an entitlement that had no legal basis and was thus proper. The retired officer's entitlement to the prior service credit never vested, so the board lacked any power which was expressly conferred by law to award the pension based on that prior service, and the retired officer was not entitled to relief under the doctrine of estoppel. Dukes v. Board of Trs. for the Police Officers Pension Fund, 280 Ga. 550, 629 S.E.2d 240 (2006).

- Failure of the Board of Tax Assessors to disallow claim for exemption until applicant had paid the amount of taxes otherwise due, did not relieve the applicant from paying taxes on the amount finally disallowed as an exemption, the exemption being claimed for the years 1941 and 1942 and approved by the tax receiver, but disallowed by the tax assessors in 1943; the taxing authorities were not estopped by such delay. Harper v. Davis, 197 Ga. 762, 30 S.E.2d 481 (1944).

OPINIONS OF THE ATTORNEY GENERAL

Powers limited to those defined by law.

- Rule that the powers of public boards and officers are limited to those defined by law is of especial force when the action in question is a disbursement of public funds. 1971 Op. Att'y Gen. No. 71-9; 1979 Op. Att'y Gen. No. 79-73; 1991 Op. Att'y Gen. No. 92-1.

Rule that the powers of public boards and officers are limited to those defined by law is of especial force when the action in question is a disbursement of public funds. 1991 Op. Att'y Gen. No. 92-1.

A Regional Development Center has only such powers as are conferred upon it by the legislature, either expressly or by necessary implication. 1991 Op. Att'y Gen. No. 92-1.

- An appropriate starting point for any discussion of whether or not a public board or officer in Georgia is legally authorized to take a given action is the observation that the powers of public boards and officers are limited in this state to those defined by law, a rule which is of especial force when the questioned power relates to an expenditure of public funds; it has been said to justify such an expenditure there must be a provision of law clearly providing for or authorizing the expenditure. 1977 Op. Att'y Gen. No. 77-46.

- Any purported absolution of a superintendent by a school board after a superintendent has expended public funds entrusted to the superintendent's care in a manner not authorized by law would almost certainly be held by the courts to be a nullity. 1971 Op. Att'y Gen. No. 71-12.

- A state official should have some direct legislative authority before entering upon a long term lease of state property. 1945-47 Op. Att'y Gen. p. 11.

Absent legislative authority, the Commissioner of Agriculture may not lease right-of-way through a farmers market to a railroad. 1945-47 Op. Att'y Gen. p. 11.

- A county school board is not authorized to acquire land for the purpose of general construction and subsequent resale of the improved property. 1974 Op. Att'y Gen. No. 74-126.

- Under this section, a tax collector, by accepting a check in less than the amount of taxes due by the taxpayer, is not estopped from collecting the balance. 1945-47 Op. Att'y Gen. p. 552.

- The Insurance Commissioner does not have the authority to accept payment of taxes for a five-year period and sign a binding agreement that this amount satisfies all claims by the state against the insurer. 1969 Op. Att'y Gen. No. 69-396.

Sales of sand removed from realty in ordinary course of business were subject to sales tax and the fact that an agent of the Revenue Department previously advised the seller that such sales were not taxable did not estop the commissioner from asserting rights of the state to the tax due. 1962 Op. Att'y Gen. p. 545.

RESEARCH REFERENCES

ALR.

- Validity of statute or ordinance vesting discretion in public officials without prescribing a rule of action, 12 A.L.R. 1435; 54 A.L.R. 1104; 92 A.L.R. 400.

Malice as ground of attack on or relief from acts or regulations of public officers in exercise of discretionary powers, 57 A.L.R. 208.

Custom or usage as enlarging statutory powers of public officer or excusing performance of his duties in a manner other than that prescribed by statute, 65 A.L.R. 811.

Applicability of doctrine of estoppel against government and its governmental agencies, 1 A.L.R.2d 338.

Estoppel of state or local government in tax matters, 21 A.L.R.4th 573.