In these consolidated cases, Maria Colon and Gwendolyn Warren filed separate lawsuits against their employer, Fulton County, pursuant to Georgia’s whistleblower statute, OCGA § 45-1-4. Colon and Warren alleged that they were retaliated against after they jointly disclosed to their supervisors and refused to cover up that County employees were violating laws, rules, and regulations, thereby fraudulently wasting and abusing County funds and public money. The County moved to dismiss the actions based on sovereign immunity and moved for judgment on the pleadings, arguing that Colon’s and Warren’s retaliation claims under OCGA § 45-1-4 could not lie against the County because their complaints did not relate to a “state program or operation.” See OCGA § 45-1-4 b “A public employer may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer”. The trial court denied both motions.
On appeal, the Court of Appeals held that the cause of action set forth in OCGA § 45-1-4 unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver, even though the statute does not expressly state that sovereign immunity is waived. See Fulton County v. Colon, 316 Ga. App. 883, 885 1 730 SE2d 599 2012. However, the Court of Appeals nevertheless vacated the trial court’s order denying the County’s motion to dismiss, finding that the trial court erred in its determination that Colon and Warren had stated claims under OCGA § 45-1-4 d.1 Id. at 889 3. Specifically, the Court of Appeals concluded that, although § 45-1-4 d talks solely in terms of preventing retaliation against a public employee for “disclosing a violation of or noncompliance with a law, rule, or regulation,” the legislature did not intend for subsection d to be read alone. Instead, subsection d was to be read in conjunction with the language of subsection b. When reading these subsections together, the Court of Appeals determined that subsection b was intended to limit the statute’s reach so that it only provides protection to the extent that a public employee’s complaints relate to “state programs or operations” under the public employer’s jurisdiction. See generally id. at 2. The Court of Appeals then turned its attention to what was meant by “state programs or operations” under the facts of this case and held that where an employer qualifies as a “public employer” under the statute only because it received funds from the state a situation it found to be undisputed by the parties in this case, the statute provides protection from retaliation only if the employee’s complaints related to a “state-funded program or operation under the jurisdiction of the public employer.” Id. at 889 2. It then stated that state programs or operations under a county’s jurisdiction are those that are “funded at least in part by the state but need not be of state origin.” Id. Thus, the Court of Appeals remanded the case to the trial court for a determination of whether Colon’s and Warren’s complaints related to a state-funded program or operation under Fulton County’s jurisdiction.
