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Official Opinion 96-15

Official Opinion 96-15

August 16, 1996
To: 

The Adjutant General
Department of Defense

Re: 

Referral of a complaint of possible fraud, waste, or other abuse in the programs of a public employer for investigation is not, in and of itself, a prohibited disclosure of the identity of the complainant; if the investigation determines that the complaint was made with knowledge of its falsity, or with reckless disregard for the possibility that it was false, the complainant may be subject to disciplinary action.

You have recently requested my opinion regarding the application of O.C.G.A. § 45-1-4, Georgia's state "whistleblower" statute, to a situation which arose in the operations of the Georgia National Guard. Because resolution of these issues is necessarily fact-specific, a brief review of the background is in order.

In the summer of 1994, the Georgia National Guard was called upon to respond to a Declaration of Emergency issued by the Governor as a result of widespread flooding in South Georgia. Members of the Georgia National Guard were called into State Active Duty status to respond to the emergency.

An Army National Guard member was relieved of his duties and returned to his home station for failure to follow duties and insubordination. The member was informed that he would receive a letter of reprimand. Before the letter of reprimand was delivered, the member sent you a document making allegations of improper conduct by the relieving officer. That document was referred to the commanding General of the Georgia Army National

Guard for investigation, and referred by him to an investigator. Following the conclusion of that investigation, the investigating officer concluded that the allegations of misconduct were false and malicious, and that they were submitted solely because the member became aware of the relieving officer's intention to issue a letter of reprimand, in order to discredit that officer. The report was forwarded to the member's commanding officer, who issued a written letter of reprimand. For reasons not relevant to the issues which you have raised, the reprimand was not placed in the member's official records.

In your request, you have asked whether the events set forth above constitute a violation of O.C.G.A. § 45-1-4. Your request does not include a copy of the document submitted to you containing the allegations against the relieving officer; therefore, I am assuming for the purpose of this opinion that the document contained allegations of "fraud, waste, and abuse in or relating to [the] state programs and operations under the jurisdiction of [the Georgia National Guard]." O.C.G.A. § 45-1-4(b). Only these allegations trigger the provisions of the statute. Notwithstanding the unique status of the Georgia National Guard and its members, I am also assuming, without deciding, that the Georgia National Guard is a "public employer" and that the members of the Georgia National Guard are "public employees" to which the statute is applicable.

In your first query, you ask whether the referral to the commanding general, and his subsequent referral to an investigator, are disclosures of the identity of the complainant prohibited by O.C.G.A. § 45-1-4(c). It is my opinion that such communications are not a disclosure within the meaning of the statute. The statute expressly authorizes an agency to both "receive and investigate complaints." O.C.G.A. § 45-1-4(b). The statute does not expressly define "agency" as limited to the head of the agency, and that is not the customary and usual understanding of the term. Although there are no decisions directly interpreting O.C.G.A. § 45-1-4 in this regard, there are at least two opinions of the Georgia Court of Appeals that provide guidance.

In Williams v. Cook, 192 Ga. App. 811 (1989), the Court addressed the disclosure of an anonymous complaint about an employee to his supervisors in the chain of command and the personnel officer. When the complaint was asserted as a basis

for personnel action, the employee filed suit for libel and slander. The Court of Appeals, affirming the grant of summary judgment for the employer, held that: (1) communication from one corporate agent to another is not publication, or disclosure, at least in the legal sense; and (2) disclosure to those persons who have a need to know is privileged under O.C.G.A. § 51-5-7, absent a showing of actual malice. Williams, 192 Ga. App. at 811-12.

Similarly, in Partain v. Maddox, 131 Ga. App. 778, 784-85 (1974), the Court of Appeals held that communications relating to the affairs of the State Board of Pardons and Paroles from the governor to a board member, and then to an employee of the Board, were not actionable even in the face of apparent statutory prohibitions on disclosure.

Applying these cases to the situation which you have posited, I conclude that there has been no prohibited disclosure by the Department of Defense. All of the communications referenced by you were reasonably necessary intra-agency communications. The commanding General of the Army National Guard is the member's ultimate superior officer within that branch. By reason of his position, he must be informed of the situation. Williams, 192 Ga. App. at 812. The investigating officer obviously has a need to know. He cannot conduct a meaningful investigation without knowing the source of the allegations which he is reviewing. Thus, any disclosure to him is authorized and therefore privileged by law.

Finally, you have asked whether the issuance of a letter of reprimand, following a determination that the complaint "contains false and malicious allegations with the intent to discredit a senior officer . . . due to a letter of reprimand," constitutes a prohibited reprisal. Generally, a public employer is barred from retaliating against an employee who reports fraud, waste, or abuse in the agency's programs. O.C.G.A. § 45-1-4(d). However, there is an exception: when the complaint was made "with the knowledge that it was false or with willful disregard for its truth or falsity." Id. The Act shields good-faith reports, even when erroneous; it does not shield malicious conduct. Thus, in the situation which you have posited, disciplinary action would be authorized under the Act based upon the finding of the investigating officer, which I interpret to mean that the member submitted allegations known to be false solely due to the earlier proposed reprimand. Once

such a conclusion has been made, of course, disclosure to the member's commanding officer for consideration of possible disciplinary action would also then be necessary and unavoidable.

In sum, it is my official opinion that, assuming the applicability of O.C.G.A. § 45-1-4 to the Georgia National Guard, referral of a member's complaint of fraud, waste, or other abuse to his commanding general, and by that officer to an investigator, is not a prohibited disclosure by the agency, and that disciplinary action may be taken against a member who knowingly submits false reports.

Prepared by:

NEAL B. CHILDERS
Senior Assistant Attorney General