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Brown v. Dorsey11/14/2005
oyee of the county commission." The sheriff's duties include those that "necessarily appertain to his office, such as the power to make arrests, to maintain the peace and to enforce the law." Although the county commission sets the sheriff's budget, the commissioners "may not dictate to the sheriff how that budget will be spent in the exercise of his duties." In addition, deputy sheriffs are deemed employees of the sheriff, not the county, and the county cannot be held vicariously liable for the negligence of the sheriff's deputies. The sheriff alone has the power to hire and fire his deputies and jailors. Further, only the Governor is authorized to suspend a Georgia sheriff. We therefore conclude, as did the Eleventh Circuit in Grech, that the Constitution has made the sheriff independent from the County, notwithstanding the designation of the sheriff as a "county officer."
Nevertheless, the question of whether the sheriff has final policymaking authority for the County for § 1983 purposes must be examined in light of the particular function at issue. We thus re-examine the allegations in the complaint. Mrs. Brown asserts that Dorsey was the final policymaker for the county in matters concerning the use of deadly force by sheriff's department personnel, the direction and control of deputies and jailors, and the direction, control, and use of sheriff's department materials, equipment and resources. But, as noted above, the County has no control over the sheriff's department personnel, including its deputies and jailors. Therefore, the County cannot be held liable under § 1983 for Dorsey's use of those personnel in connection with his heinous plot to kill Derwin Brown. Finally, even though the County commission approves the sheriff's budget, and the sheriff has the duty to preserve county property from injury or waste, the county cannot control how the sheriff spends the budget. In the absence of the ability to control the funds after they have been allocated, the County cannot be held liable for the sheriff's use of departmental resources to commit a § 1983 violation. It follows that the trial court did not err in dismissing the County as a party to Mrs. Brown's action for the reason that Dorsey was not a final policymaker for the County when he used departmental personnel and resources to kill her husband.
2. Although not specifically enumerated as error, we address for reasons of judicial economy the trial court's ruling that Mrs. Brown failed to identify either an officially promulgated county policy or an unofficial custom or practice binding the County for Dorsey's actions in the murder of Brown.
In Monell, the United States Supreme Court held that local governments may be held liable for unconstitutional actions of their employees under § 1983 if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." "But a municipality cannot be held liable solely because it employs a tortfeasor. In other words, there is no respondeat superior liability under § 1983; rather, a plaintiff must point to some official policy or custom which resulted in the injury." Mrs. Brown has alleged in her amended complaint that the officially adopted and promulgated County policy, pursuant to which Dorsey's unconstitutional acts occurred, was his policy of maintaining himself in office by eliminating his competition. If we were writing on a blank slate, we would hold that one ad hoc decision does not equal a policy, because a policy by definition is a rule applicable to all similar situations, i. e., "a governing principle or plan." To be sure, a single application of an unconst
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