A plaintiff sued the Housing Authority of the City of Douglas (the “Housing Authority”) and its employee, asserting claims of negligence and vicarious liability after a traffic accident left the plaintiff injured when his vehicle and a city vehicle collided. At issue was whether the Housing Authority is an instrumentality, department, or agency of the State.
The plaintiff and the Housing Authority driver were in Savannah in September 2019 when the Housing Authority vehicle, which was registered to the City of Douglas, collided with the plaintiff’s car. He sued the Housing Authority, alleging that he’d been seriously injured. The Housing Authority answered and moved for summary judgment. The trial court granted the motion without a hearing, finding that the Housing Authority was “an arm of the state” pursuant to Ga. Const. Art. I, Sec. II, Para. IX entitled to sovereign immunity and that it hadn’t waived that immunity.
What is Sovereign Immunity?
Sovereign immunity was initially incorporated into the Georgia Constitution in 1974. The current version provides that
Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they’ve waived their immunity from suit. In addition to the State’s departments and agencies, sovereign immunity applies to state instrumentalities. Although the state Constitution doesn’t define the “departments and agencies” of the State, and the state’s judicial understanding of “state instrumentalities” has shifted over time, sovereign immunity in those contexts has been applied to a lottery corporation, the Georgia Ports Authority, a charter school corporation, a multi-county community service board, and a single-county building authority, among others. Thus, the question before the Court of Appeals was whether a city housing authority is a State agency, department, or instrumentality.
The Decision of the Court of Appeals
Judge Ken Hodges wrote that to determine the issue, the Supreme Court examined primarily two factors: the legislation creating the entity and the public purposes for which it was created. But the Supreme Court also referenced the entity’s geographic scope. An earlier case, the Supreme Court concluded that a ports authority was entitled to sovereign immunity because it was a State administrative unit responsible for the State’s docks. In a 2001 decision, the Supreme Court found that a community service board was entitled to sovereign immunity as a “state department or agency.” The Supreme Court examined “the law creating and defining community service boards” and the “public purpose” such boards serve by providing mental health care and services to Georgia citizens. The Court also examined the board’s geographic service area – “multi-county” – and noted that it was “publicly funded” but did not address what entity provided the funding.
Georgia courts have examined the legislation creating the entity and the public purposes of the entity. As part of that analysis and in determining whether an entity was, “indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality,” courts have also examined the following:
- Whether an entity’s governance and reporting were local or statewide;
- The geographic area in which it served the public; and
- Its economics in terms of how, variously, its funding, its income-generation, and/or its debts and liabilities might impact the state.
Other Georgia decisions examined how an entity was insured and the connections its employees had or did not have – for example, by participating in the State Merit System – with the State.
The Legislation Creating the Entity and the Public Purposes for Which it was Created
In 1937, the General Assembly passed the Housing Authorities Law, O.C.G.A. § 8-3-1 et seq. The General Assembly provided that a housing authority “shall constitute a body corporate and politic…” The General Assembly recognized that throughout the State, there were “unsanitary and unsafe” dwelling accommodations in which persons of low income were forced to reside because of a shortage of safe, clean, uncrowded and affordable housing and necessitating “excessive and disproportionate expenditures of public funds” for crime prevention, public health and safety, and fire and accident protection. Clearing out unsafe housing and building safe housing were “public uses and purposes for which public money may be spent.”
The Housing Authorities Law, which is essentially enabling legislation, provides that housing authorities may not transact business and have no legal power absent the invocation of local authority. Housing authorities cannot exercise their power “until or unless the governing body of the city or the county . . . shall declare… [a] need for an authority to function in such city or county.” The “governing body” of a housing authority is, in the case of a municipality, that city’s council, commission, board of aldermen or other legislative city body. Housing authority commissioners are appointed by the mayor. The commissioners or other local governing body determine whether it is advisable for the housing authority to exercise any power of eminent domain. Housing authorities must file annual reports of their activities with, in the case of a city housing authority such as the one at issue here, the city clerk or similar city officer.
Although individual housing authorities exist throughout the State, like their management and governance, a housing authority’s area of operation is, by statute, localized, the judge opined. A city housing authority operates within its own city boundaries or it may, via resolution, operate within the territorial boundaries of another city. Its construction and management of its properties is likewise localized. O.C.G.A. § 8-3-7 provides that a housing authority’s projects are subject to the local zoning, sanitation, and building laws or ordinances where it is situated. Because the property upon which housing authorities operates is deemed “public property used for essential public and governmental purposes,” in general, it is exempt from city and State taxation.
Here, the City of Douglas created its housing authority in 1950. Its mission is “to provide safe, decent, and sanitary housing for Coffee County and our surrounding [c]ommunities.” The authority is led by a local board of commissioners, who must be residents of Douglas and who are confirmed by the local council. The Board provides leadership and advocacy, sets housing policies, governs the “local housing agency,” adopts the Housing Authority’s operating budget, “operates within the law and according to [U. S. Department of Housing and Urban Development] regulations,” approves decisions about its programs, and authorizes the actions of the Housing Authority’s executive director and designees. The website states that the Housing Authority will provide “wise stewardship of public funds,” but there is nothing in the record as to the source of its public funding or who bears responsibility for its liabilities and debts. Nor does the Housing Authority point us to information regarding whether its employees participate in the State Merit System or retirement programs. As a result, the Housing Authority pointed to nothing indicating it is indelibly intertwined with the State through these factors.
Is The Housing Authority an Instrumentality, Department, or Agency of the State?
Judge Hodges noted that the Georgia Supreme Court said, “the dictionary defines the word ‘agency’ as ‘a department or other administrative unit of government.'” The judge found it clear that the State, through its enabling legislation views housing authorities’ purpose in general as benefitting the low-income citizens of the State and saving money in terms of public safety and crime prevention.
This housing authority, however, wasn’t created by the State, although State law enabled its creation. It was created by a local entity and is governed primarily, if not wholly, by local authorities.
The Housing Authority, given its local operation, functional purpose, and governance, doesn’t as an entity, fulfill a purpose of serving citizens of the State – rather, its purpose is to serve the citizens of the City of Douglas, Coffee County, and nearby environs, Judge Hodges concluded.
Here, it also wasn’t entirely clear how the Housing Authority was insured or whether any insurance was linked to the State, and there was no evidence that its employees were connected to the State via the merit system, their retirement plans, or any other rules affecting State workers.
While the Housing Authorities Law certainly has the statewide purpose of creating local authorities to benefit citizens with affordable, safe housing and to reduce public safety expenditures, the Housing Authority itself, in terms of its purpose, function, and management, isn’t “indelibly intertwined” with the State, Judge Hodges concluded. Rather, it was created by the City of Douglas, to benefit, according to its website, citizens in a localized area. There was no evidence that its employees were part of the State Merit System or employment rules applicable to State workers, and the Housing Authority itself is governed by local authorities. The record didn’t show the source of the Housing Authority’s funding or what entity is responsible for its debts and liabilities or whether those financial aspects are intertwined with the State. Further, the Housing Authority provided no evidence indicating that a judgment against the Housing Authority would require the State to appropriate funds to satisfy that obligation. Moreover, it’s well-settled that a fundamental and primary purpose of sovereign immunity “is the protection of state funds.” As such, it appeared that the Housing Authority wasn’t intertwined with State funds.
As a result, the trial court erred in granting the Housing Authority’s motion for summary judgment. The judgment was reversed. Files v. Hous. Auth. of Douglas, 2023 Ga. App. LEXIS 326 (Ga. App. June 27, 2023).
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