§ 102-81. Defense of officers and employees and payment of claims and judgments.

(a)

Definitions. Unless the context otherwise requires, the definitions contained in this section govern the construction of this division:

Arises after June 1, 1998 means that this division is intended to apply to all claims and proceedings arising after June 1, 1998, unless prior to June 1, 1998, (1) the county attorney or his/her staff has entered an appearance as counsel of record for the employee in a proceeding or (2) the employee has requested a defense in writing and has been advised by the board or the county attorney in writing that he/she will be provided with a defense in a particular claim and/or proceeding.

Board means the board of Commissioners of Fulton County, Georgia.

Claim includes all claims presented against an employee prior to institution of a proceeding.

Employee means the members of the governing body of Fulton County, supervisors, employees, and other elected or appointed officers and their appointees and employees.

"No sum" is intended to exclude payment of any sum whatsoever including but not limited to compensatory damages, punitive damages, attorneys fees and costs.

Proceeding means any matter of a civil nature in or before any court or agency of this state or of any other state or of the United States.

(b)

Defense of employees. Whenever any claim is made or proceeding is brought against an employee, either against him asserting personal liability for damages or expenses arising out of the performance of his duties or in any way connected therewith, whether based on negligence, violation of contract rights, or violation of civil, constitutional, common law, or other statutory rights and including, professional disciplinary proceedings, whether federal, state, or local, Fulton County shall, upon his timely written request, provide for his defense unless otherwise limited by the terms of this division.

(c)

Grounds for refusal of defense.

(1)

The county shall refuse to provide for the defense of a claim or proceeding brought against an employee if it determines that:

a.

The act or omission did not arise out of and in the course of his employment;

b.

The employee acted or failed to act because of actual fraud, corruption, or actual malice on his part;

c.

Provision of a defense against the claim or proceeding would not be in the best interests of Fulton County;

d.

The proceeding is a criminal prosecution; provided, however, that a defense shall not be refused where the criminal prosecution is one for an alleged violation of the Georgia Open Records Act or Georgia Open Meetings Act, and it is determined that the charged employee, officer, or elected official has acted in good faith to comply with the subject Act and has substantially complied with all county policies relating to the subject Act, which determination shall be made by the board of commissioners;

e.

The request was not timely made;

f.

The claim arises out of an act or omission at a time when the employee was under the influence of drugs or intoxicants; or

g.

The act or omission giving rise to the claims was in direct disobedience of an order or instructions of a superior or in contravention of established county policy.

h.

The employee fails to cooperate in the defense of a claim or proceeding which arises after June 1, 1998.

(2)

The determinations required by this section shall be made by the board. For any claim or proceeding that arises after June 1, 1998, the board may refuse, at any time, prior to or after the approval or assumption of the defense, to provide for the defense of an employee if it is determined that any of the grounds for refusal set forth in this section exist.

(3)

Upon approval of the defense of a claim or proceeding against an employee, the board shall refer the matter to the county attorney for disposition. In the event two or more employees or groups of employees are involved, and the interest of one employee or group of employees conflicts with the interests of another employee or group of employees, the board shall specify which employee or group of employees shall be represented by the county attorney and shall authorize other employees or groups of employees to employ counsel at the expense of the county. However, the selection and compensation of such other counsel shall be subject to the prior approval by the board.

(d)

Payment of judgments; compromise and settlement of claims.

(1)

Where defense of a claim or proceeding against an employee is provided by this division, all final judgments awarded to courts of competent jurisdiction against the employee in proceedings to which this division applies or any amount payable under any settlement of such proceeding or of claims in accordance with this division shall be paid by the county as hereinafter provided. All compromises of claims or proceedings governed by this division shall be submitted to the board for its prior approval.

(2)

Notwithstanding the foregoing, payment of settlements, compromises, judgments and claims shall be limited as follows for any claim or proceeding which arises after June 1, 1998.

a.

No sum shall be paid on behalf of any employee who admits, in any sworn statement, administrative, judicial or other legal proceedings, to knowingly and intentionally violated state or federal law and/or the county's policies and procedures.

b.

Whenever there is a final determination by a court of competent jurisdiction that the officer or employee, with respect to the act or failure to act giving rise to the subject claim, acted or failed to act because of actual fraud, corruption, or actual malice, the officer or employee shall be required to reimburse the county any amounts paid in defense of the claim, and any amounts paid as a judgment, compromise, or settlement of such claim.

(e)

Exclusions. There is excluded further from the operation of this article any claim or proceeding as to which insurance is provided by Fulton County.

(f)

Construction of section. Nothing herein contained shall be deemed to constitute a waiver of any type of immunity afforded by law. Nothing herein contained shall be deemed to constitute the elected or appointed officials and their appointees and employees as employees of Fulton County except for purposes of this division.

(Code 1983, § 22-4-4; 95-0106, 1-18-95; 98-0723, 5-20-98; 99-0874, 6-16-99; 00-1533, 12-20-00)

State law reference

Defense and indemnification of governing body, O.C.G.A. § 45-9-20 et seq.