GA Code § 37-2-10 (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|§ 37-2-10. Commissioner's Emergency Powers Upon Failure of Community Service Board to Establish and Administer Programs

  Notwithstanding any other provisions of the law, the commissioner with the concurrence of the Governor is authorized to establish and administer community programs on an emergency basis in the event one or more community service boards or their respective governing boards fail to assume responsibility for the establishment and implementation of an adequate range of disability services or to provide appropriate disability services as determined by the department or substantially breach their contracts with the department pursuant to this chapter.   Upon notification by a governing board of a community service board of an inability to provide an adequate range of disability services or to provide appropriate services, the commissioner, with concurrence of the Governor, may:   Assume responsibility for the administration and operation of all of the community programs operated by or through such board and, in which case, the programs shall become department programs; the department shall acquire the assets of the community service board; the community service board employees shall become employees of the department; and the governing board of the community service board shall be dissolved; or   Assume responsibility for the administration and operation of one or more of the community programs operated by or through such board, in which case, such program or programs shall become a department program or programs; the department shall acquire those assets of the community service board assigned to such program or programs; and the employees of such program or programs shall become employees of the department. Any community service board programs not transferred to the department shall continue to be operated by the governing board of the community service board and the employees for such programs shall remain community service board employees.       Notwithstanding any other provisions of the law, the commissioner with the concurrence of the Governor is authorized to appoint a manager or management team to manage and operate the programs and services of the community service board if the commissioner finds that the community service board:   Provides notice pursuant to Code Section 37-2-6.5 that the community service board intends to cease operations;   Intentionally, recklessly, or negligently failed to discharge its duties pursuant to a contract with the department;   Misused state or federal funds;   Engaged in a fraudulent act, transaction, practice, or course of business;   Endangered the life, safety, or health of a consumer served by the community service board;   Failed to keep fiscal records and maintain proper control over its assets;   Failed to respond to a substantial deficiency in a review or audit;   Otherwise substantially failed to comply with this chapter or the rules or standards of the department; or   No longer has the fiscal ability to continue to provide contracted services and, without the intervention of the department, continued provision of disability services or health services to consumers in the service area is in immediate jeopardy.     In order to carry out the provisions of paragraph (1) of this subsection, the commissioner shall give written notice to the governing board of the community service board regarding the appointment of a manager or management team and the circumstances on which the appointment is based. The governing board of the community service board shall be immediately suspended upon the appointment of a manager or management team by the commissioner. The commissioner may require the community service board to pay costs incurred by the manager or management team.   Subject to the determination of the commissioner, a manager or management team appointed pursuant to this subsection may:   Evaluate, redesign, modify, administer, supervise, or monitor a procedure, operation, or the management of the community service board;   Hire, supervise, discipline, reassign, or terminate the employment of an employee of the community service board;   Reallocate the resources and manage the assets of the community service board;   Require that a financial transaction, expenditure, or contract for goods and services be approved by the manager or management team;   Redesign, modify, or terminate a program or service of the community service board;   Direct the executive director, chief financial officer, or any other administrative or program manager, employee, or agent to take an action;   Exercise a power, duty, authority, or function of the community service board or its governing board as authorized by this chapter;   Recommend to the commissioner the removal of a member or members of the governing board of the community service board or the executive director of the community service board; and the provisions of any law to the contrary notwithstanding, the commissioner may remove such member or executive director from office. If the commissioner removes a member or members of the governing board of the community service board pursuant to this subparagraph, the member or members so removed shall be replaced pursuant to Code Section 37-2-6; and   Report at least monthly to the commissioner on actions taken.     A manager or management team appointed pursuant to this subsection may not use or dispose of any asset or funds contributed to the community service board by the governing authority of a county or municipal corporation without the approval of such governing authority.   A manager or management team appointed pursuant to this subsection shall be free from all liability, joint or several, for the manager or management team's acts, omissions, and conduct and for the acts, omissions, and conduct of their duly constituted agents in the administration of the community service board or its programs. The state shall indemnify and save them, and each of them, harmless from the effects and consequences of their acts, omissions, and conduct in their official capacity, except to the extent that such effects and consequences shall result from their own willful misconduct.   If a manager or management team is appointed pursuant to this Code section, the department may:   Upon a determination that the conditions that gave rise to the appointment of a manager or management team pursuant to this subsection have been met and that such manager or management team is no longer necessary, terminate the authority delegated to such manager or management team and restore authority to the governing board of the community service board to manage and operate the services and programs of the community service board; or   Operate and manage the programs of the community service board until such time as arrangements can be made to secure one or more alternate service providers to assume responsibility for the provision of services previously provided by the community service board. If this option is exercised, the department shall petition the appropriate superior court for appointment of a receiver pursuant to subsection (d) of Code Section 37-2-6.5.     Nothing in this subsection shall be construed to prohibit the department from canceling a contract with a community service board.      (Code 1933, § 88-610, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2006, p. 310, § 8/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2014, p. 309, § 8/SB 349; Ga. L. 2015, p. 385, § 7-2/HB 252.)   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.   Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."   Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.   Ga. L. 2010, p. 878, § 37(5)/HB 1387, which amended this Code section, purported to amend subparagraph (b)(5)(B), but actually amended subparagraph (c)(5)(B).   Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "   JUDICIAL DECISIONS   Board employee not department employee.    - Legislature did not intend for community service boards to be part of the Department of Human Resources (DHR) (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or its employees to be department employees under ordinary circumstances; thus, a suit claiming that DHR was liable for the alleged negligence of a board employee should have been dismissed. Dep't of Human Res. v. Crews, 278 Ga. App. 56, 628 S.E.2d 191 (2006).   State has power to punish boards.    - 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; it was noted that despite significant county controls, the state retained the power to punish CSB as provided in O.C.G.A. § 37-2-10(b), but the ability to punish represented the extent of state control and the creating statute, § 37-2-11.1(c)(1), clearly stated that CSB employees were not state employees regardless of any state control. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).   Sovereign immunity.    - 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).