On July 29, 2003, appellee Dougherty County Sheriff Jamil Saba filed a petition for mandamus absolute and a complaint for a temporary restraining order and injunctive relief in the Superior Court of Dougherty County after he was notified that appellants, members of the Board of Commissioners of Dougherty County, had adopted a county budget that discontinued funding for specified jobs within the sheriff’s department.1 The same day, the sheriff also filed a petition pursuant to OCGA § 45-9-21e for appointment of an attorney to represent him and for payment of attorney fees. The chief judge of the Dougherty Judicial Circuit immediately granted the sheriff’s petition for authorization to hire an attorney and ordered the county to pay “all reasonable attorney’s fees and all reasonable costs and expenses enumerated in OCGA § 45-9-21e2.” On September 25, the trial court2 granted mandamus absolute, enjoined the Board from removing any funds from the Sheriff’s proposed budget since they “have not properly considered the budget requests,” and directed the Board of Commissioners “to consider the Sheriff’s budget request and properly exercise its discretion in so doing.” Case S04A0358 is the Board’s direct appeal from the trial court’s order granting mandamus and injunctive relief, and Case S04A0588 is the Board’s granted interlocutory appeal of the trial court’s order authorizing the Sheriff to retain counsel and requiring Dougherty County to pay reasonable attorney fees, costs, and expenses incurred by the Sheriff in prosecuting the legal action.3 1. In his petition for mandamus absolute, the Sheriff cited his authority under OCGA §to appoint deputies and contended the Board’s refusal to fund his office for the services of Criminal Investigations, Identification Technician and Patrol was an impermissible attempt to terminate six of the Sheriff’s deputies, an impermissible instruction to the Sheriff as to which deputies he might hire and fire, and constituted an abuse of the Board’s discretion. After a hearing, the trial court issued its order concluding the Board had improperly considered the Sheriff’s budgetary request based on the court’s determinations that the Board had “no control over the law enforcement power of the office of sheriff” and that the Board impermissibly had attempted to dictate to a constitutional officer how to operate his office by refusing to fund specific positions in the Sheriff’s Department.
The sheriff is an elected constitutional county officer and not an employee of the county commission. 1983 Ga. Const., Art. IX, Sec. I, Para. IIIa; Bd. Commrs Randolph County v. Wilson , 260 Ga. 482 396 SE2d 903 1990. Nonetheless, as a county officer, the sheriff’s budget and accounts are subject to the authority of the county commission, which can amend or change estimates of required expenditures presented by the county officer. Id. The county commission has the power to cut the budget of an elected constitutional county officer Chaffin v. Calhoun , 262 Ga. 202 415 SE2d 906 1992; Randolph County v. Wilson , supra, but the county commission’s changes to the budget submitted by the elected constitutional county officer may be judicially reviewed for abuse of discretion. Griffies v. Coweta County , 272 Ga. 506 1 530 SE2d 718 2000. The focus of that judicial review is whether the county commission fulfilled its duty “to adopt a budget making reasonable and adequate provision for the personnel and equipment necessary to enable the sheriff to perform his duties of enforcing the law and preserving the peace.” Chaffin v. Calhoun , supra, 262 Ga. at 203. A county commission which adopts a budget that does not provide any funds to the sheriff for law enforcement purposes has abused its discretion. Wolfe v. Huff , 233 Ga. 162, 164 210 SE2d 699 1974. Once a county commission adopts a budget for an elected constitutional county officer, the decision how to spend the funds allocated to that office falls “solely to the constitutional officer in the exercise of his/her duties” and the county commission “may not dictate to the elected constitutional county officer how the budget will be spent. . . .” Griffies v. Coweta County , supra, 272 Ga. 506 1 . See also Boswell v. Bramlett , 274 Ga. 50 2 549 SE2d 100 2001.
