Department of Community Affairs
A Regional Development Center is not authorized, pursuant to O.C.G.A. ¿ 45-9-21, to pay one of its employee's attorney's fees which were incurred prior to the commencement of a civil, criminal, or quasi-criminal action against the employee arising out of the performance of the employee's duties.
This is in response to your request for my official opinion concerning whether O.C.G.A. § 45-9-21 authorizes a public body, such as a Regional Development Center, to pay the attorney's fees of one of its employees when the fees were incurred, prior to the filing of a formal civil or criminal action, in connection with an investigation arising out of the performance of the employee's duties.
Pursuant to an adopted policy, "O.C.G.A. § 45-9-21 allows counties [municipalities and other public bodies] to provide a legal defense to employees for certain legal actions." Logue v. Wright, 260 Ga. 206, 209 (1990). Specifically, O.C.G.A. § 45-9-21(a) permits, but does not require, a public body to adopt policies whereby it "will undertake to defend all or specified civil, criminal, or quasi-criminal actions brought or maintained against" employees of the public body, among others, "arising out of the performance of their duties or in any way connected therewith." O.C.G.A. § 45-9-21(a). However, a public body is "not authorized to furnish a defense to any person charged with a criminal offense involving theft, embezzlement, or other like crime with respect to the property or money of or in which said governmental entity has an interest," O.C.G.A. § 45-9-21(b), unless "such person is found not guilty of such crime or if the charges against such person are dismissed or nolle prossed." O.C.G.A. § 45-9-21(c).
Thus, subject to the foregoing exception, by its terms, O.C.G.A. § 45-9-21 authorizes a public body to undertake the defense of one of its employees in connection with certain "civil, criminal, or quasi-criminal actions brought or maintained against" the employee "arising out of the performance of [his] duties or in any way connected therewith." The terms "action" and "brought or maintained" are legal terms which should be given the meaning attached to them in the legal profession. O.C.G.A. § 1-3-1(b).
Black's Law Dictionary (6th ed. 1990) provides the following relevant definitions. The term "action" "in its usual legal sense means a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law." Id. at 28. The term "brought" is defined as "the past tense of 'bring'." Id. at 194. "To 'bring' an action or suit has a settled customary meaning at law, and refers to the initiation of legal proceedings in a suit." Id. at 192. The term "maintained" is defined as "commenced and continued." Id. at 953.
A civil action commences with the filing of a complaint with a court. O.C.G.A. § 9-11-3. A criminal action commences at the "initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Phillips v. State, 204 Ga. App. 698, 700 (1992) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).
In light of the foregoing, it is my official opinion that O.C.G.A. § 45-9-21 does not authorize a public body to pay one of its employees' attorney's fees, which were incurred prior to the commencement of a civil, criminal, or quasi-criminal action against the employee arising out of the performance of the employee's duties.
WILLIAM C. JOY
Senior Assistant Attorney General