Fulton County v. Colon
316 Ga. App. 883
Ga. Ct. App.2012Background
- Colon and Warren sued Fulton County under OCGA § 45-1-4 (whistleblower statute) for retaliation after disclosing fraud, waste, and abuse by County employees.
- Actions were consolidated for appeal from orders denying dismissal under OCGA § 9-11-12(b)(1) and for judgment on the pleadings.
- County invoked sovereign immunity to dismiss, arguing lack of subject matter jurisdiction.
- Court held OCGA § 45-1-4 constitutes a waiver of sovereign immunity to the extent the disclosures concern state programs or operations under the County’s jurisdiction.
- Statutory history shows 1993, 2005, and 2007 amendments expanding coverage to local/government entities receiving state funds, while limiting protection to state-programs/operations.
- Court remanded to determine, as a factual matter, whether the disclosed violations related to a state-funded program or operation under the County’s jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 45-1-4 waive sovereign immunity for Fulton County? | Colon/Warren claim waiver by statute. | County argues no waiver absent express language. | Waiver exists to the extent of state-funded programs/operations under the County. |
| Is protection limited by whether disclosures relate to state programs and operations under County jurisdiction? | Disclosures to County about fraud/waste/abuse qualify. | Protection too broad; must relate to state programs/operations under County. | Protection limited to state-funded programs/operations under County jurisdiction; remand for factual determination. |
| Should the case be resolved on pleadings given the interpretation of § 45-1-4? | Suits constitute whistleblower claims under § 45-1-4. | Motions on pleadings should dismiss if no waiver or proper pleading. | Remand for reconsideration consistent with statutory interpretation. |
| Does Warren, as a high-level employee, lack protection under § 45-1-4? | All public employees protected when retaliated against for disclosures. | High-level status may restrict protection. | No basis to exclude Warren from protection; protection extends to disclosures. |
| Is the trial court required to address the § 9-11-12(b)(1) sovereign immunity issue as framed? | Waiver of immunity governs subject matter jurisdiction. | Immunity issue misframed on pleadings. | Vacate and remand for proper factual determination of waiver. |
Key Cases Cited
- Williamson v. Dept. of Human Resources, 258 Ga. App. 113 (2002) (waiver by statute when monetary relief is possible under agency action)
- Weaver, 272 Ga. 289 (2000) (statutory interpretation of § 45-1-4 prior scope)
- Caldon v. Bd. of Regents &c. of Ga., 311 Ga. App. 155 (2011) (interpretation of whistleblower protections under § 45-1-4)