2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 9 - Insuring and Indemnification of Public Officers and Employees
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.
5. 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.)

- 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).

- 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).

- 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" 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).

- 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).

- 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).

- 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.

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

- 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.