GA Code § 36-33-4 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 33 - Liability of Municipal Corporations for Acts or Omissions|§ 36-33-4. Personal Liability of Councilmembers and Other Municipal Officers

 Members of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.   (Civil Code 1895, § 752; Civil Code 1910, § 901; Code 1933, § 69-208.)   Cross references.   - False arrest, false imprisonment, and malicious prosecution, T. 51, C. 7.   Law reviews.   - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963). For article, "Georgia Local Government Officers: Rights for Their Wrongs," see 13 Ga. L. Rev. 747 (1979). For article discussing origin and construction of Georgia law of personal liability for municipal officials, see 14 Ga. L. Rev. 239 (1980). For article, "Individual Liability in Georgia Local Government Law: The Haunting Hiatus of Hennessy," see 40 Mercer L. Rev. 27 (1988). For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969).   JUDICIAL DECISIONS    There are two conditions for the liability of commissions under this section, namely for the defendants to have acted contrary to a nondiscretionary, ministerial duty, and to have acted with malice. City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 200 S.E.2d 262 (1973).    Effect of the provisions of former Code 1933, § 69-208 (see now O.C.G.A. § 36-33-4) was to create liability against municipal officers under such conditions when the officers commit a tort, which as provided in former Code 1933, § 105-101 (see now O.C.G.A. § 51-1-1) was the unlawful violation of a private legal right. Davis v. Johnson, 92 Ga. App. 858, 90 S.E.2d 426 (1955).   Malice defined.    - Malice may consist in a general disregard of the right consideration of mankind, directed by chance against the individual injured. Kitchens v. Jefferson County, 85 Ga. App. 902, 70 S.E.2d 527 (1952).   Special damages required    - When plaintiff city council member failed to plead special damages in action against city manager and mayor's secretary for invasion of privacy based on taping of plaintiff's phone conversation with mayor, plaintiff failed to establish that plaintiff was entitled to proceed under O.C.G.A. § 36-33-4. Kennedy v. Johnson, 205 Ga. App. 220, 421 S.E.2d 746, cert. denied, 205 Ga. App. 900, 421 S.E.2d 746 (1992).   General damages recoverable.    - Claim under O.C.G.A. § 36-33-4 is essentially a tort action, not one based on a regulatory restriction; thus, general as well as compensatory damages may be recovered. City of Buford v. Ward, 212 Ga. App. 752, 443 S.E.2d 279 (1994).   Claim based on actions taken without authority of law.    - Plaintiff businessman, who was refused a certificate of occupancy for a garden center based on the inadequacy of a deceleration/acceleration lane, proved a cause of action against city officials under O.C.G.A. § 36-33-4 since the policy regarding construction of the lane was not based on an ordinance setting forth guidelines or specific factors sufficient to apprise citizens of what to expect and, thus, actions taken pursuant to such policy were without authority of law; further, plaintiff's testimony that plaintiff expended $2,800 to extend the lane beyond the length required for DOT approval was sufficient to show special damages. City of Buford v. Ward, 212 Ga. App. 752, 443 S.E.2d 279 (1994).    Trial court erred in finding that a mayor was entitled to official immunity in city employees' action for wrongful termination because a question of fact remained as to whether the mayor acted without authority of law by failing to comply with the city's resolution requiring the mayor to get city council approval prior to any termination. Owens v. City of Greenville, 290 Ga. 557, 722 S.E.2d 755 (2012).   Immunity from liability.    - Public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by the official's omission; however, when an officer is invested with discretion and is empowered to exercise the officer's judgment in matters brought before the officer, the officer is sometimes called a quasi-judicial officer, and when so acting the officer is usually given immunity from liability to persons who may be injured as a result of an erroneous decision, provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption. McDay v. City of Atlanta, 204 Ga. App. 621, 420 S.E.2d 75, cert. denied, 204 Ga. App. 922, 420 S.E.2d 75 (1992).    Police officer's conduct in arresting plaintiff, while unprofessional, was not willful, fraudulent, corrupt, or malicious; therefore, the officer enjoyed limited immunity. Corporate Prop. Investors v. Milon, 249 Ga. App. 699, 549 S.E.2d 157 (2001).    City manager had official immunity in a defamation case under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) and O.C.G.A. § 36-33-4 since: (1) the city finance director did not show that a statement the city manager made to the media regarding the city manager's concerns in the city finance director's department was outside the scope of the city manager's authority; (2) the city manager did not disclose anything to the city finance director's prospective employer that the prospective employer did not obtain through a Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., request; and (3) there was no policy that prohibited the city manager from verbally responding in conjunction with the city manager's Open Records Act response. Smith v. Lott, 317 Ga. App. 37, 730 S.E.2d 663 (2012).    Appellate court erred by affirming the grant of the individual defendants' motion to dismiss in a personal injury suit involving a pedestrian falling at a high school because whether official immunity barred the action was a fact-specific inquiry that had not been definitively answered since limited discovery had been undertaken. Austin v. Clark, 294 Ga. 773, 755 S.E.2d 796 (2014).    Trial court properly granted summary judgment to the mayor and the council member defendants based on governmental liability because the remedies provided under O.C.G.A. § 36-33-4 could not be judicially grafted onto the Whistleblower Act, O.C.G.A. § 45-1-4, which does not mention that code section, nor provides for individual liability. Rintoul v. Tolbert, 341 Ga. App. 688, 802 S.E.2d 56 (2017).   Individual not liable if sued in official capacity.    - Notwithstanding the provisions of O.C.G.A. § 36-33-4, a drinking water commissioner could not be held personally liable for requiring a water customer to extend a water main because the commissioner was not sued in the commissioner's individual capacity. The city could be held liable for the commissioner's actions because, although the actions were unauthorized, the actions were within the scope of the commissioner's employment. City of Atlanta v. Harbor Grove Apts., LLC, 308 Ga. App. 57, 706 S.E.2d 722 (2011).    Merely styling a suit against a public officer as one brought against the officer personally does not deprive the officer of any immunity to which the officer might otherwise be entitled for the officer's official acts. McDay v. City of Atlanta, 204 Ga. App. 621, 420 S.E.2d 75, cert. denied, 204 Ga. App. 922, 420 S.E.2d 75 (1992).   Evidence insufficient to lift immunity.    - Trial court correctly granted summary judgment in favor of police chief when the record was devoid of any conduct by the chief which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii; therefore the plaintiff was not allowed to recover for the plaintiff's spouse's suicide while in police custody. McDay v. City of Atlanta, 204 Ga. App. 621, 420 S.E.2d 75, cert. denied, 204 Ga. App. 922, 420 S.E.2d 75 (1992).    Evidence did not support plaintiff's claim of conspiracy against the plaintiff by municipal officials based upon the city's issuance of citations for an electrical code violation and for having a derelict car on the plaintiff's premises. Brown v. City of Chamblee, 211 Ga. App. 45, 438 S.E.2d 396 (1993).    Trial court properly granted summary judgment to police officer on the arrested individual's claims against the officer arising out of the individual's arrest for criminal trespass as the officer was performing a discretionary duty at the time of the arrest and no showing was made that the officer acted maliciously or with an intent to injure; accordingly, the officer was entitled to official immunity from liability. Reese v. City of Atlanta, 261 Ga. App. 761, 583 S.E.2d 584 (2003).    It is a jury question as to whether acts of a city manager in breaching a contract to perform a ministerial duty falls within provisions of O.C.G.A. § 36-33-4. City of Douglas v. Johnson, 157 Ga. App. 618, 278 S.E.2d 160 (1981).   Nonliability for abatement of nuisance.    - When the council of a municipal corporation, in the exercise of the municipality's police powers, and after due notice, declare a building to be a nuisance, and require the building to be torn down, the council would not be liable as individuals to the owner for damages, unless the council acted maliciously, oppressively, corruptly, or without authority of law. Pruden v. Love, 67 Ga. 190 (1881).   Claim of nuisance created by failure to maintain and repair sewer lines.    - Plaintiff's assertion that the failure of the city to properly maintain and identify the repairs needed on the sewer lines was a nuisance did not give rise to a right of action in nuisance as to plaintiffs. Rea v. Bunce, 179 Ga. App. 628, 347 S.E.2d 676 (1986), cert. denied and appeal dismissed, 484 U.S. 998, 108 S. Ct. 685, 98 L. Ed. 2d 638 (1988).   Applicability to council member presiding in police court.    - This section has no application to acts of a member of a town council when the member is presiding in a police court. Calhoun v. Little, 106 Ga. 336, 32 S.E. 86 (1898).   Revocation of permit.    - Provisions of this section as to oppressive, malicious, corrupt, and unlawful acts could not be applied to the acts of a mayor when the petition did not allege that the mayor by force, threats, or any means whatsoever prevented the plaintiff from conducting plaintiff's business or exercising the privilege and license, or canceled or revoked the permit, and only alleged that the mayor notified the plaintiff to the effect that the plaintiff's permit was void and that the plaintiff could not operate an abattoir. Davis v. Johnson, 92 Ga. App. 858, 90 S.E.2d 426 (1955).    Cited in Foster v. Crowder, 117 Ga. App. 568, 161 S.E.2d 364 (1968); Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972); Copeland v. Young, 133 Ga. App. 54, 209 S.E.2d 719 (1974); Wilson v. Strange, 235 Ga. 156, 219 S.E.2d 88 (1975); Pitts v. City of Macon, 134 Ga. App. 467, 214 S.E.2d 720 (1975); Knight v. Troup County Bd. of Educ., 144 Ga. App. 634, 242 S.E.2d 263 (1978); Gaskins v. Hand, 219 Ga. App. 823, 466 S.E.2d 688 (1996); Oglethorpe Dev. Group, Inc. v. Coleman, 271 Ga. 173, 516 S.E.2d 531 (1999).   RESEARCH REFERENCES   Am. Jur. 2d.   - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 133, 243 et seq. 63C Am. Jur. 2d, Public Officers and Employees, §§ 295, 330.   ALR.    - Personal liability of public official for personal injury on highway, 40 A.L.R. 39; 57 A.L.R. 1037.    Personal liability of municipal officer or employee for negligence in performance of duty, 40 A.L.R. 1358; 53 A.L.R. 381.    Liability of municipal officers for diversion of money from one fund to another, 96 A.L.R. 664.   Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R.2d 646; 81 A.L.R.4th 1031.   Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death, 60 A.L.R.2d 873.   Civil liability of school officials for malicious prosecution, 66 A.L.R.2d 749.   Liability for personal injury or damage from operation of fire department vehicle, 82 A.L.R.2d 312.