GA Code § 37-2-11.1 (2021)
2021 Georgia Code|Title 37 - Mental Health|Chapter 2 - Administration of Mental Health, Developmental Disabilities, Addictive Diseases, and Other Disability Services|Article 1 - General Provisions|§ 37-2-11.1. Venue in Actions Against Community Service Board; Representation by Attorney General; Immunity; Use of Legal Counsel; Authority for Indemnification, Defense, and Insurance

  Venue for the purpose of any action against a community service board shall be the county in which the principal office of the community service board is located. For purposes of this Code section, "principal office" shall be defined as the facility which houses the executive director or other such top administrator for the community service board.   In any legal proceeding, a regional planning board or the regional office shall be considered a unit of the department and shall be afforded the assistance of legal counsel from the Attorney General.     The community service boards shall be public bodies but shall not be considered agencies of the state or any specific county or municipality. Such community service boards are public agencies in their own right and shall have the same immunity as provided for counties. No county shall be liable for any action, error, or omission of a community service board. Notwithstanding any provisions of law to the contrary, and regardless of any provisions of law which grant employees of the community service boards benefits under programs operated by the state or which deem them to be state employees only for purposes of those benefits, employees of the community service boards shall not be employees of the state but shall be employees of the community service boards and, further, the state shall not be liable for any action, error, or omission of such employees.   A community service board may employ or contract for legal counsel to assist in performing its duties and shall be authorized to appoint legal counsel to represent the community service board and its employees. The community service board may exercise any authority granted in Article 2 of Chapter 9 of Title 45, relating to the indemnification, defense, and insuring of members and employees of public bodies.       (Code 1981, §37-2-11.1, enacted by Ga. L. 1988, p. 1761, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 7; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228.)   Editor's notes.   - Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "   Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.   Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.   Law reviews.   - For article, "Torts," see 53 Mercer L. Rev. 441 (2001). For note, "Youngblood v. Gwinnett Rockdale Newton Community Service Board: The Sovereign Immunity of State Agencies Under the Georgia Constitution and the Georgia Tort Claims Act," see 53 Mercer L. Rev. 967 (2002).   JUDICIAL DECISIONS   Constitutionality.    - Because community service boards are agencies or departments of the state, accordingly, the legislature acted unconstitutionally when the legislature ignored Ga. Const. 1983, Art. I, Sec. II, Par. IX(e) and the express terms of the Georgia Tort Claims Act by enacting O.C.G.A. § 37-2-11.1(c)(1) so as to denominate these newly-created state agencies or departments as unclassified public entities to be accorded the same immunity as counties. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).   Issue as to employee's status for immunity.    - When, in a personal injury action against an employee of a community service board as an individual, there was a factual issue as to the employment status, if it was decided that the employee was not a state employee but was a board employee at the time of the collision, then it was necessary to resolve whether the employee's actions arose from the use of a motor vehicle covered by an insurance policy. Horton v. Whitaker, 238 Ga. App. 312, 518 S.E.2d 712 (1999).   Entitlement to immunity.    - Community service board and county mental retardation center were provided immunity pursuant to O.C.G.A. § 37-2-11.1(c)(2). Washington v. Department of Human Resources, 241 Ga. App. 319, 526 S.E.2d 354 (1999).    Employees of a county mental retardation center were not entitled to official immunity for ministerial acts performed in connection with their official duties. Washington v. Department of Human Resources, 241 Ga. App. 319, 526 S.E.2d 354 (1999).    Considering the public purpose for which the board was created, a community service board is a "state department or agency" entitled to raise the defense of sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Par. IX. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).    Community service board (CSB) was not entitled to Eleventh Amendment immunity against a former employee's Americans with Disabilities Act claims because: (1) for the purpose of litigation, the Georgia General Assembly, in O.C.G.A. § 37-2-11.1(c)(1) defined a CSB as being akin to a county, which was not an arm of the state entitled to immunity; and (2) when it came to debt and liability, a CSB was autonomous pursuant to O.C.G.A. § 37-2-6(a); although other factors cut in favor of CSB entitlement to Eleventh Amendment immunity, including the state's exercise of some control over a CSB pursuant to O.C.G.A. § 37-2-10(b) and a CSB partial state funding, such factors were afforded less weight by the court. Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).    Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).   OPINIONS OF THE ATTORNEY GENERAL   Representation of community board by legislator attorney.    - There is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1. 1995 Op. Att'y Gen. No. U95-26.