Georgia’s Whistleblower Statute Constitutes Express Waiver of Sovereign Immunity

The Georgia Court of Appeals recently found that the cause of action for relief set forth in the Georgia Whistleblower Act unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver.  Fulton County v. Colon, Nos. A12A0529, A12A0530, 2012 WL 2866410, at *1 (Ga. Ct. App. July 13, 2012).  The court noted that “where a legislative act creates a right of action against the state which can result in a money judgment against the state treasury, and the state otherwise would have enjoyed sovereign immunity from the cause of action, the legislative act must be considered a waiver of the state’s sovereign immunity to the extent of the right of action—or the legislative act would have no meaning.”  Id. at *2 (citing Williamson v. Dept. of Human Res., 258 Ga. App. 113, 115 (2002)).  Thus, in Colon, to the extent that the plaintiffs/appellees asserted causes of action under O.C.G.A. §45-1-4, Fulton County’s sovereign immunity was waived.  Id.  Colon also addresses subsection (b) of the statute which provides that a public employer “may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.”  Id. at *2-4 (discussing O.C.G.A. §45-1-4 (b)).  Applying subsection (b), the court found that it acts as a limit on whistleblower protection in that “where the complaint about fraud, waste, and abuse is made to a public employer defined under OCGA § 45–1–4(a)(4) as a state-funded local governmental entity, whistle-blower protection is limited to a complaint related to a state-funded program or operation under the jurisdiction of the public employer.”

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.


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