Opinion

GRAVITT Et Al. v. OLENS

333 Ga. App. 484
774 S.E.2d 263

Court: Court of Appeals of Georgia
Filed: Jul 23, 2015
Status: Published
On the bench: Andrews, Miller, Branch, Divisions
Cited by: 1 cases
Authority: More cited than 34.8%

“OCGA § 50-14-6 applies only to natural persons[,]” not to any “artificial entity.”

How later courts described this case

“OCGA § 50-14-6 applies only to natural persons[,]” not to any “artificial entity.”

Written by the judges who cited it.

The opinion

SECOND DIVISION

ANDREWS, P. J.,

MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 16, 2015

In the Court of Appeals of Georgia

A15A0348. GRAVITT et al. v. OLENS.

ANDREWS, Presiding Judge.

Samuel S. Olens, Attorney General of the State of Georgia, brought a civil

action in the Forsyth County Superior Court pursuant to OCGA § 50-14-5 of the

Open Meetings Act (OMA) (OCGA § 50-14-1 et seq.) seeking to enforce the OMA.

The action against the City of Cumming and the City’s Mayor, H. Ford Gravitt,

individually,1 alleged negligent violations of the OMA by refusal to allow a member

of the public to attend and videotape a meeting of the City Council, and sought the

imposition of civil penalties and the award of attorney fees pursuant to the OMA. The

The action also named Gravitt as a defendant in his official capacity as Mayor

of the City. The suit against Gravitt in his official capacity as the City’s Mayor

asserted an action against the City. Cameron v. Lang, 274 Ga. 122, 126 (549 SE2d

341) (2001).

trial court: (1) denied the defendants’ motion to dismiss the action on the basis of

sovereign and official immunity, and (2) granted summary judgment in favor of the

Attorney General, ruling that the defendants violated the OMA, and imposing civil

penalties and attorney fees against the defendants pursuant to the OMA. The City and

Gravitt appeal. For the following reasons, we affirm in part, reverse in part, and

remand.

On April 17, 2012, Mayor Gravitt convened a scheduled meeting of the

Cumming City Council, and a member of the public, Nydia Tisdale, was in attendance

at the meeting with a camera she was using to videotape the meeting. After the

meeting was convened, it is undisputed that Gravitt announced that videotaping the

meeting was prohibited, and, at Gravitt’s direction, the City’s Chief of Police

removed Tisdale’s camera, and the tripod on which it was mounted, from the meeting

area and prevented Tisdale from videotaping the meeting with the camera. According

to Gravitt, he did not order that Tisdale be removed from the meeting, and she was

not removed from the meeting. A City police officer testified that, at the Mayor’s

direction, the camera and tripod were moved to the rear of the meeting area, at which

point Tisdale left the meeting and appeared to make a cell phone call, and that Tisdale

then returned to the meeting and started using a different handheld video camera to

record the meeting. The officer said that, without further direction from Gravitt, he

approached Tisdale and reminded her that the Mayor had asked her not to record the

meeting, but that he took no action to stop Tisdale from recording the meeting with

the second camera, and that she appeared to continue recording. The City’s Chief of

Police stated that Tisdale initially resisted the removal of her video camera and tripod

by shouting at the Mayor, and that, because of this resistance, he asked her to step

outside the meeting so he could explain the removal to her without disturbing the

meeting. According to the Chief of Police, when he moved Tisdale’s camera to the

rear of the room, Tisdale ceased her resistance; that he no longer felt it was necessary

at that point to explain the removal to Tisdale outside the meeting; that no one

physically touched Tisdale; and that neither he nor anyone else required that Tisdale

leave the meeting. Tisdale provided an affidavit in which she testified that Mayor

Gravitt ignored her protests that his order to remove her video camera violated the

OMA; that the Chief of Police and his deputy “then forcibly and physically removed

both me and my video camera from the auditorium’s meeting area” while Gravitt

watched and made no attempt to stop the officers. Tisdale further stated in her

affidavit that,

after being forcibly removed from the meeting, I was able to return and

observed the remainder of the meeting . . . [but while doing so] I

attempted to photograph and take short film clips (without sound) of the

meeting using [another] camera. I did so from the front row of the

meeting auditorium and in direct view of Mayor Gravitt as he continued

to conduct the meeting. Yet, I was ordered to stop this recording before

the meeting ended by [a City police officer]. Mayor Gravitt observed

this order, but did not insist that I be permitted to continue recording the

meeting on my camera.

It is undisputed that the OMA provided for the City Council meeting to be

“open to the public”; that “[t]he public at all times shall be afforded access to

meetings declared open to the public”; and that “[v]isual and sound recording during

open meetings shall be permitted.” OCGA § 50-14-1 (a), (b), (c). The OMA further

provided pursuant to OCGA § 50-14-5 (a) that

[t]he superior courts of this state shall have jurisdiction to enforce

compliance with the provisions of this chapter . . . [and that,] [i]n

addition to any action that may be brought by any person, firm,

corporation, or other entity, the Attorney General shall have authority to

bring enforcement actions, either civil or criminal, in his or her

discretion as may be appropriate to enforce compliance with this

chapter.

Pursuant to this authority, Attorney General Olens brought the present civil

enforcement action against the City of Cumming and Mayor Gravitt, individually,

alleging that the defendants violated the OMA by prohibiting Tisdale from

videotaping the City Council meeting and by removing Tisdale from the meeting. The

enforcement action sought the imposition of civil penalties for negligent violation of

the terms of the OMA (OCGA § 50-14-6) as well as the award of attorney fees on the

basis that the actions taken in violation of the OMA were without substantial

justification. OCGA § 50-14-5 (b).

1. We find no merit to the City’s contention that it was entitled to assert

sovereign immunity to bar the OMA enforcement action brought by the Attorney

General on behalf of the State of Georgia.

“Sovereign immunity applies to municipalities, unless the General Assembly

waives it by law. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX.” Godfrey v. Ga.

Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (719 SE2d 412) (2011); City of

Atlanta v. Mitcham, 296 Ga. 576, 577 (769 SE2d 320) (2015); CSX Transp., Inc. v.

City of Garden City, 277 Ga. 248, 249 (588 SE2d 688) (2003) (“[T]he legislature has

the authority to enact a law that specifically waives a municipality’s sovereign

immunity.”). For example, in the context of tort liability, OCGA § 36-33-1 (a)

provides a narrow waiver of a municipality’s sovereign immunity by the purchase of

liability insurance.2 CSX Transp., 277 Ga. at 249-250; Godfrey, 290 Ga. at 214.

A “municipal corporation shall not waive its immunity by the purchase of

liability insurance, except as provided in Code Section 33-24-51 or 36-92-2 or unless

the policy of insurance issued covers an occurrence for which the defense of

Moreover, OCGA § 36-33-1 (b) also provides a limited waiver of sovereign immunity

as follows: “Municipal corporations shall not be liable for failure to perform or for

errors in performing their legislative or judicial powers. For neglect to perform or

improper or unskillful performance of their ministerial duties, they shall be liable.”

As currently set forth in OCGA § 36-33-1 (b), “[t]his provision has for more than a

century been interpreted to mean that municipal corporations are immune from

liability for acts taken in performance of a governmental function but may be liable

for the negligent performance of their ministerial duties.” Mitcham, 296 Ga. at 577-

578. Because the acts at issue in this case were taken in the course of conducting a

City Council meeting, they were acts of a public nature taken in the performance of

a governmental function, and, in the absence of a specific waiver of immunity, the

City would ordinarily be entitled to assert the bar of sovereign immunity.

Nevertheless, we find that, because the City derives its sovereign immunity from the

State, the City had no immunity that it could assert to bar an OMA enforcement

action brought by the State.

sovereign immunity is available, and then only to the extent of the limits of such

insurance policy.” OCGA § 36-33-1 (a).

As a municipal corporation, the City of Cumming “is a political subdivision of

the State, and is a public corporation, having for its object the administration of a

portion of the power of government delegated to it [by the State] for such purpose.”

Spence v. Rowell, 213 Ga. 145, 148 (97 SE2d 350) (1957). A municipality “is held

to be a portion of the sovereign power of the State” (Penick v. Foster, 129 Ga. 217,

221 (58 SE 773) (1907)), and “in its public character acts as an agency of the State”

while exercising governmental functions within its jurisdiction. Hiers v. City of

Barwick, 262 Ga. 129, 131 (414 SE2d 647) (1992) (punctuation and citation omitted),

abrogation on other grounds recognized by City of Thomaston v. Bridges, 264 Ga. 4

(439 SE2d 906) (1994); Mitcham, 296 Ga. at 579 (while performing governmental

duties, municipal corporation exercises powers pertaining to its “delegated

sovereignty.”). Accordingly, “[t]he [sovereign] immunity of a municipality is

derivative from the State,” and may be asserted when the municipality “undertake[s]

to perform for the State duties which the State itself might perform, but which have

been delegated to the municipality.” Hiers, 262 Ga. at 131. Sovereign immunity as

applied to a municipality pursuant to the Georgia Constitution (Ga. Const. of 1983,

Art. IX, Sec. II, Par. IX) is not direct or inherent in the municipality, but derives from

the State’s delegated sovereignty. Hiers, 262 Ga. at 131; Mitcham, 296 Ga. at 579.

It follows that “it would be illogical to allow a municipality sued by the state to assert

its [sovereign] immunity against the very source of that immunity.” 18 McQuillin,

The Law of Municipal Corporations, § 53:71 (3d ed.); State v. City of Bowling Green,

313 NE2d 409, 411-412 (Ohio 1974) (because municipal immunity derives from the

state, and arises when performing governmental function as agent for the state, this

prevents municipality from asserting immunity when sued by the state); Bd. of Ed. of

Prince George’s County v. Town of Riverdale, 578 A2d 207, 210 (Md. App. 1990)

(same). In the present action, the Attorney General, acting on behalf of the State of

Georgia, brought a civil action against the City of Cumming to enforce the OMA. We

conclude that the City was not entitled to claim that the sovereign immunity it derived

from the State barred the State’s OMA enforcement action. This is not a judicially

created waiver of the City’s sovereign immunity under these circumstances –

sovereign immunity as applied under the Georgia Constitution may be waived only

by legislative act or by the Constitution itself. State Dept. of Corrections v.

Developers Surety & Indem. Co., 295 Ga. 741, 744 (763 SE2d 868) (2014). Rather,

we find as a matter of law that, because the City derives its sovereign immunity from

the State, and because the State’s own immunity cannot be asserted against the State,

the City had no immunity which could be asserted to bar the State’s enforcement

action.3 Although the trial court relied on other reasoning to find that the City’s

sovereign immunity did not bar the action, we affirm the court on this issue under the

right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369)

(2002). In denying the defendants’ motion to dismiss, and in granting summary

judgment in favor of the Attorney General, the trial court correctly ruled that

sovereign immunity did not bar the OMA enforcement action against the City.

2. Mayor Gravitt contends that the trial court erred by ruling that official

immunity did not bar the action brought against him in his individual capacity.

The doctrine of official immunity, also known as qualified

immunity, offers public officers and employees limited protection from

suit in their personal capacity. Qualified immunity protects individual

public agents from personal liability for discretionary actions taken

within the scope of their official authority, and done without wilfulness,

malice, or corruption. Under Georgia law, a public officer or employee

may be personally liable only for ministerial acts negligently performed

Even assuming that the City possessed sovereign immunity which it could

assert against the State, we find that this immunity was waived by the legislature’s

enactment of the OMA, which specifically gave the Attorney General the right to

bring the present enforcement action. OCGA § 50-14-5 (a); Colon v. Fulton County,

294 Ga. 93, 95-96 (751 SE2d 307) (2013) (finding waiver of sovereign immunity

where, by the enactment of the whistleblower statute at OCGA § 45-1-4, the

legislature specifically created a right of action, and entitlement to damages, against

a governmental entity that would have otherwise been barred by sovereign

immunity); Ga. Const of 1983, Art. IX, Sec. II, Par. IX (“The General Assembly may

waive the immunity of counties, municipalities, and school districts by law.”); CSX

Transp. Inc., 277 Ga. at 249.

or acts performed with malice or an intent to injure. The rationale for

this immunity is to preserve the public employee’s independence of

action without fear of lawsuits and to prevent a review of his or her

judgment in hindsight.

Cameron v. Lang, 274 Ga. 122, 123 (549 SE2d 341) (2001) (citations and

punctuation omitted). It follows that Gravitt was entitled to official immunity from

personal liability for the negligent performance of discretionary acts within the scope

of his authority as City Mayor; he may be personally liable if he negligently

performed a ministerial act, or acted with actual malice or an intent to injure. Id. at

125 (applying official or qualified immunity to city employees under the same

standards applied to county employees); see Ga. Const of 1983, Art I, Sec. II, Par. IX

(d) (applicable to counties). The Attorney General’s civil enforcement action did not

allege that Gravitt acted with actual malice or an intent to injure; rather, it sought the

imposition of civil penalties under OCGA § 50-14-64 on the basis that Gravitt

“[T]he natural and reasonable reading of OCGA § 50–14–6 is that the General

Assembly recognized that decisions to comply, or not, with the [OMA] are made by

individuals, or “persons,” who are held accountable by the provisions of that Code

section.” Lue v. Eady, 2015 WL 3655127 at *8 (Ga. June 15, 2015).

negligently violated the terms of the OMA.5 Accordingly, the issue is whether the

alleged negligent actions involved discretionary or ministerial action.

A ministerial act is commonly one that is simple, absolute, and

definite, arising under conditions admitted or proved to exist, and

requiring merely the execution of a specific duty. A discretionary act

calls for the exercise of personal deliberation and judgment, which in

turn entails examining the facts, reaching reasoned conclusions, and

acting on them in a way not specifically directed. Procedures or

instructions adequate to cause an act to become merely ministerial must

be so clear, definite and certain as merely to require the execution of a

relatively simple, specific duty.

Banks v. Happoldt, 271 Ga. App. 146, 149 (608 SE2d 741) (2004) (citations and

punctuation omitted). “The determination of whether an action is discretionary or

ministerial depends on the character of the specific actions complained of, not the

general nature of the job, and is to be made on a case-by-case basis.” Davis v.

Effingham County Bd. of Commrs., 328 Ga. App. 579, 584-585 (760 SE2d 9) (2014)

(citation and punctuation omitted). The mere fact that a complained-of act was simple

Even if Gravitt intended to do the acts at issue, to remove official immunity

based on actual malice or an intent to injure requires more than the intent to do an act

which caused an alleged injury. Kidd v. Coates, 271 Ga. 33 (518 SE2d 124) (1999).

“[I]n the context of official immunity, actual malice requires a deliberate intention to

do wrong” that is consistent with a “deliberate or premeditated design to inflict

injury.” Adams v. Hazelwood, 271 Ga. 414, 414-415 (520 SE2d 896) (1999)

(punctuation and citation omitted). Merely harboring ill will or having bad feelings

about the person at issue is not sufficient. Id. at 415. No evidence in the record shows

that Gravitt acted with actual malice or an intent to injure.

and definite does not make it ministerial; for an act to be ministerial, “it must be done

in the execution of a specific duty.” Roper v. Greenway, 294 Ga. 112, 114 (751 SE2d

351) (2013) (citation and punctuation omitted). For example, “[a] ministerial duty

may be established by evidence such as a written policy, an unwritten policy, a

supervisors’s specific directive, or a statute.” Id. at 114-115 (citations and

punctuation omitted). But “[p]rocedures or instructions [in a policy or a statutory

directive] adequate to cause an act to become merely ministerial must be so clear,

definite and certain as merely to require the execution of a relatively simple, specific

duty.” Id. at 115 (citation and punctuation omitted); Murphy v. Bajjani, 282 Ga. 197,

199 (647 SE2d 54) (2007).

As set forth in OCGA § 50-14-1 (c), “[t]he public at all times shall be afforded

access to meetings declared open to the public pursuant to [the OMA, and] [v]isual

and sound recording during open meetings shall be permitted.” We conclude that the

actions mandated by this statutory directive are ministerial because it is “so clear,

definite and certain as merely to require the execution of a relatively simple, specific

duty” in accordance with the OMA. See Roper, 294 Ga. at 115. Moreover, “it is

reasonable to expect appellants in the proper performance of their duties to possess

sufficient knowledge of the [OMA] so as to enable them to recognize [and comply

with these OMA directives].” Hicks v. McGee, 289 Ga. 573, 577, n. 8 (713 SE2d 841)

(2011). Accordingly, to the extent Gravitt took action which negligently violated the

above directives, his actions were ministerial, and he was not entitled to official

immunity. In denying the defendants’ motion to dismiss, and in granting summary

judgment in favor of the Attorney General, the trial court correctly ruled that official

immunity did not bar the OMA enforcement action brought against Mayor Gravitt,

individually.

3. The City of Cumming claims that the trial court erred in finding that the City

is a “person” subject to imposition of civil penalties pursuant to OCGA § 50-14-6.

The trial court assessed civil penalties against the City pursuant to OCGA § 50-

14-6 of the OMA, which provides that:

Any person knowingly and willfully conducting or participating in a

meeting in violation of this chapter shall be guilty of a misdemeanor and

upon conviction shall be punished by a fine not to exceed $1,000.00.

Alternatively, a civil penalty may be imposed by the court in any civil

action brought pursuant to this chapter against any person who

negligently violates the terms of this chapter in an amount not to exceed

$1,000.00 for the first violation. A civil penalty or criminal fine not to

exceed $2,500.00 per violation may be imposed for each additional

violation that the violator commits within a 12 month period from the

date that the first penalty or fine was imposed. It shall be a defense to

any criminal action under this Code section that a person has acted in

good faith in his or her actions.

It is undisputed that the City of Cumming is a type of corporation – a municipal

corporation. Thus, the issue is whether the trial court correctly interpreted the term

“person” in the statute to include the City as a municipal corporation.

In the interpretation of all statutes, the courts shall look diligently for the

intention of the General Assembly. OCGA § 1-3-1(a). Legislative intent

is determined from consideration of the entire statute; thus we consider

a statutory provision not in isolation, but in the context of the other

statutory provisions of which it is a part.

Abdel-Samed v. Dailey, 294 Ga. 758, 763 (755 SE2d 805) (2014). The Attorney

General argues that the trial court correctly found that the term “person” in OCGA §

50-14-6 includes the City of Cumming as a municipal corporation because: (1)

OCGA § 1-2-1 provides that “[t]here are two classes of persons: natural and artificial

[and that ] [c]orporations are artificial persons . . .” and (2) OCGA § 1-3-3 (14)

provides that, “[a]s used in this Code or in any other law of this state, the term . . .

‘[p]erson’ includes a corporation.” But “[a] corporation is not impliedly within a

statutory provision applicable to persons, if it is not within the purpose and intent of

such provision, or if an attempt to exclude it otherwise appears.” Georgia R. Bank &

Trust Co. v. Liberty Nat. Bank & Trust Co., 180 Ga. 4, 12 (177 SE 803) (1934).

When other provisions of the OMA are considered, it is clear that the

Legislature did not intend for the term “person” in OCGA § 50-14-6 to include a

municipal or any other kind of corporation. The OMA does not define the term

“person.” Under OCGA § 50-14-1 (a) (1), the OMA defines the term “agency” as

follows:

(a) As used in this chapter, the term:

(1) “Agency” means:

(A) Every state department, agency, board, bureau, office,

commission, public corporation, and authority;

(B) Every county, municipal corporation, school district, or other

political subdivision of this state;

authority, or similar body of each such county, municipal corporation,

or other political subdivision of the state;

(D) Every city, county, regional, or other authority established

pursuant to the laws of this state; and

(E) Any nonprofit organization to which there is a direct

allocation of tax funds made by the governing body of any agency as

defined in this paragraph which constitutes more than 33 1/3 percent of

the funds from all sources of such organization; provided, however, that

this subparagraph shall not include hospitals, nursing homes, dispensers

of pharmaceutical products, or any other type organization, person, or

firm furnishing medical or health services to a citizen for which they

receive reimbursement from the state whether directly or indirectly; nor

shall this term include a subagency or affiliate of such a nonprofit

organization from or through which the allocation of tax funds is made.

Thus, OCGA § 50-14-1 defines the term “agency” to include municipal and public

corporations and numerous other artificial entities (and regulates the meetings of

every agency subject to the OMA), but the statute does not include the term “person”

in the definition of “agency.” To accept the argument that OCGA § 1-3-3 (14)

compels the conclusion that the term “person” in OCGA § 50-14-6 includes a

municipal or other corporation would construe the OMA to apply the criminal fines

and civil penalties in OCGA § 50-14-6 to corporations (as persons), but not to the

other non-corporate artificial entities included by OCGA § 50-14-1 (a) (1) in the

definition of “agency.” Nothing in the OMA supports this interpretation. To the

contrary, various sections of the OMA show that the term “person” in OCGA § 50-

14-6 refers to a natural person or individual and was not intended to include

corporations or any other artificial entity. With respect to criminal enforcement

actions, OCGA § 50-14-6 sets forth a defense where “a person has acted in good faith

in his or her actions.” (emphasis supplied). This plainly uses the term “person” to

refer to a natural person or individual. The OMA elsewhere distinguishes between

“persons” and the artificial entities included in the definition of “agency.” Subsection

(a) of OCGA § 50-14-5 provides with respect to jurisdiction to enforce the OMA that:

“In addition to any action that may be brought by any person, firm, corporation, or

other entity, the Attorney General shall have authority to bring enforcement actions.

. . .” And subsection (c) of OCGA § 50-14-5 specifically distinguishes the term

“person” from artificial entities defined in “agency” by providing that: “Any agency

or person who provides access to information in good faith reliance on the

requirements of this chapter shall not be liable in any action on account of having

provided access to such information.”

It follows that, if the Legislature had intended for corporations and other

artificial entities included in the definition of “agency” to be subject to the fine and

penalty provisions of OCGA § 50-14-6, it would have done so by specifically making

“any agency” subject to those provisions. Because OCGA § 50-14-6 subjects “any

person” to its provisions, and does not specifically subject “any agency” to its

provisions, we find that OCGA § 50-14-6 applies only to natural persons. The trial

court erred by finding that the City of Cumming is a “person” subject to imposition

of civil penalties pursuant to OCGA § 50-14-6. To the extent the trial court assessed

civil penalties against the City pursuant to OCGA § 50-14-6, the court’s summary

judgment order is reversed.

4. On the present record, we agree that a question of fact remains precluding

summary judgment on the issue of whether Tisdale was removed from the meeting

at the direction of Mayor Gravitt. In granting the Attorney General’s motion for

summary judgment, the trial court ruled that the defendants negligently violated the

OMA provisions requiring that the City Council meeting be open to the public, and

that the public be afforded access to the meeting, when “they wrongfully removed

[Tisdale] from the meeting. . . .” As set forth above, sworn testimony from Gravitt and

City police on this issue conflicted with sworn testimony given by Tisdale. “To

prevail at summary judgment under OCGA § 9-11-56, the moving party must

demonstrate that there is no genuine issue of material fact and that the undisputed

facts, viewed in the light most favorable to the nonmoving party, warrant judgment

as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga, 491, 491

(405 SE2d 474) (1991). Construing the record in favor of the defendants, we

conclude that a disputed factual issue remains on whether Tisdale was removed from

the meeting at the direction of Mayor Gravitt. Id. The trial court’s grant of summary

judgment in favor of the Attorney General on this alleged violation, and the use of

this violation as a basis for imposition of a civil penalty, is reversed.

5. Mayor Gravitt, individually, contends that the trial court erred by assessing

civil penalties against him in excess of those permitted under OCGA § 50-14-6.

Under OCGA § 50-14-6,

[a]ny person knowingly and willfully conducting or participating in a