Courthouse Shooting Victims' Suits Hinge on Issue of Sheriff's Employment

Who — if anyone — employs Fulton County Sheriff Myron Freeman? The answer may depend on who wants to sue him.

Lawyers representing families of the three people murdered at the Fulton County Courthouse last March have offered three different answers to Freeman’s employment question. Each answer is an attempt to get his or her case past Georgia’s workers’ compensation law, which bars suits against employers for on-the-job damages suffered by employees.In the suit against Freeman and other deputies, lawyers for the widow of slain Judge Rowland W. Barnes assert that Freeman was a Fulton County employee.The attorneys representing the family of court reporter Julie Ann Brandau last week sued a similar list of defendants but said the sheriff was an employee of the state of Georgia.An attorney representing the widow of Fulton sheriff’s deputy Hoyt Teasley said the sheriff was neither an employee nor an employer of anyone.”Elected officials are not employees or employers under Georgia law,” said James E. Voyles, who represents the deputy’s widow, Deborah Teasley. “So, we believe the sheriff would not come under any exemption in [Georgia's workers' compensation law].”Determining the employer relationships will prove to be vital in the cases. For instance, Claudia Barnes, widow of the slain Fulton judge, could recover millions in a suit. But under the workers’ compensation system, she would receive a maximum of $125,000 and funeral expenses of $7,200.The Fulton County government, the sheriff’s department and the Board of Commissioners are not named in the Barnes case, but the county has agreed to cover the legal costs of Freeman and the eight current and former sheriff’s employees who have been named as individual defendants.In the event Barnes’ widow prevails in her suit, her attorneys say they believe the county would be obligated to cover the judgment.A spokeswoman for the sheriff referred questions to the Fulton County Attorney’s Office. County Attorney Overtis Hicks Brantley could not be reached for comment.Voyles, who has not yet filed suit but has warned Fulton officials that one is imminent, cited two opinions by Georgia’s attorney general to back his argument.A 1971 opinion by AG Arthur Bolton, No. 71-29, states that “an elected state official is not an employer, nor is he, in most instances an employee.” A 1980 opinion of Bolton’s, No. 80-71, states that because superior court judges are elected officials, they — along with other elected officials, including sheriffs — are not covered by the state’s workers’ compensation law.”It applies to all elected officials,” Voyles said. “Therefore, they are outside the protection of the workers’ compensation exclusivity law.”In addition to Voyles, the other attorneys representing the Teasley estate are Lynn H. Whatley of East Point and Pamela S. Stephenson of Atlanta.Lawyers representing the Brandau estate filed suit against Freeman and others on Thursday in DeKalb State Court. The complaint states that Freeman did not work for Fulton County because his “functions and office are under the purview of the state.” Brandau v. Freeman, No. 06-A-44542-6 (DeKalb St. Ct., filed Jan. 26, 2006).The Brandau estate is represented by Jeffrey R. Harris, Darren W. Penn and Stephen G. Lowry of Harris Penn & Lowry, as well as Andrew M. Scherffius III and Tamara McDowell Ayres of Scherffius, Ballard, Still and Ayres.In another move to get past workers’ compensation rules, the Brandau attorneys say that at the time of her death, she was an independent contractor and not a Fulton County employee.”Rates for serving as a court reporter on civil matters were set by the court reporter and paid by one or more of the parties in the civil suit,” the complaint said.CITING 11TH CIRCUITThe lawyers representing Claudia Barnes took an opposite tack, saying Freeman must be considered a county employee — for purposes of workers’ compensation law.”Our suit is not barred … because Judge Barnes and the defendants were not co-employees of the same employer for workers’ comp purposes,” said R. Adams Malone, who represents Barnes along with his father, Thomas W. Malone and Atlanta attorney G. Brian Spears.A hearing on the workers’ compensation issue in the Barnes case has been scheduled for Feb. 1 before DeKalb State Court Judge J. Antonio DelCampo.The lawyers representing the sheriff — Brantley and assistant county attorneys R. David Ware, Rolesia B. Dancy and Sandreea L. Woods — argued in their motion to dismiss that the exclusive avenue of remedy available to the judge’s widow is the state’s workers’ compensation system.Fulton Superior Court judges receive $111,245 in annual salary from the state government and an extra $30,600 a year from the county.Contending therefore that their clients have the same employment status as the slain judge, the county attorneys cited O.C.G.A. �34-9-11, which states that the Georgia Workers’ Compensation Act offers the sole avenue of relief when the estate of a deceased employee seeks legal action against “employees of the same employer.”In a 2003 case, Manders v. Lee, 338 F.3d 1304, the 11th U.S. Circuit Court of Appeals decided that Georgia’s county sheriffs are state actors entitled to immunity from civil rights suits. Last month the Georgia Court of Appeals followed the 11th Circuit decision in rejecting an argument by the widow of slain DeKalb County Sheriff-elect Derwin Brown.But R. Adams Malone noted that Manders had been brought under 42 U.S.C. �1983.”When a case has been brought against a sheriff for that U.S. code section, the courts have found that sheriffs can be considered state officers,” he said. “But that has nothing to do with workers’ compensation.”