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By Ben Mathis and Bill Buechner
The Eleventh Circuit has issued an unpublished decision holding that a Georgia sheriff is not entitled to Eleventh Amendment immunity with respect to 42 U.S.C. § 1983 claims arising out of his termination decisions. In Keene v. Prine, Docket No. 11-13274 (11th Cir. May 15, 2012), the court held that the sheriff was not acting as an “arm of the state” when he terminated three employees.
1. Analysis by Court
Applying the test set forth in Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003) (en banc), the court weighed the following factors: (1) how state law defines a sheriff’s office; (2) what degree of control the state maintains over a sheriff’s office in making personnel decisions; (3) where a sheriff’s office derives its personnel funding; and (4) who is responsible for covering judgments entered against a sheriff’s office.
Concerning the first factor, the court determined that state law defines a sheriff’s office as primarily a state entity that performs primarily state functions. Regarding the second factor, the court noted that, although the governor has the statutory authority to investigate and suspend sheriffs for misconduct in the performance of his duties, the sheriffs are largely independent from the state when making personnel decisions. Concerning the third factor, the court concluded that a sheriff’s office is primarily funded by the county in which it is located rather than by the state.
Regarding the fourth factor, which is typically regarded as the most important factor, the court noted that the state is not obligated to pay judgments entered against a sheriff’s office. The court observed that any such judgment would have to be paid out of the sheriff’s office’s own general budget, which is primarily funded by the county in which it is located. The court explained that, although state funds might also be implicated in a budgetary shortfall caused by an adverse judgment, it would be the responsibility of the county commission to provide additional funds and the responsibility of the county’s voters to replace the sheriff. Thus, weighing these four factors together, the court concluded that the sheriff was not entitled to Eleventh Amendment immunity with respect to his termination decisions.
2. Significance of Decision and Uncertainty Following Decision
The Keene decision is important because it clearly precludes a county from automatically being dismissed from a § 1983 claim based upon Eleventh Amendment immunity. However, the decision does not address the issue of whether a county is automatically considered a joint employer with a sheriff for purposes of a Title VII claim or even a joint employer for purposes of a § 1983 claim. Arguably, the Keene decision stands only for the proposition that a county may not be dismissed solely on the basis of Eleventh Amendment immunity but still may be a proper party because it is an “employer” or “joint employer” in an employment claim. The decision does not squarely address this issue, although its language provides some support for the proposition that a county may be sued as the employer of someone who works in a sheriff’s office. Whether or not the Eleventh Circuit will extend the Keene rationale to a county that exercises so little control over a sheriff’s office that it should not be considered an “employer” remains to be seen.
The Keene decision may not yet be final as the County could ask for enbanc review by the full Eleventh Circuit. In the meantime, because the Keenedecision is unpublished, it is not binding authority.
It still may be cited as persuasive authority and may signal how the Eleventh Circuit would assess a Georgia sheriff’s assertion of Eleventh Amendment immunity arising out of a termination decision in future cases. Furthermore, if the analysis set forth in Keene is adopted in future cases, Georgia sheriffs likely would not be able to assert Eleventh Amendment immunity with respect to other personnel decisions, such as hiring, promotion and demotion decisions.
For more information, contact Ben Mathis at 770.818.1402 or[email protected] or Bill Buechner at 770.818.1420 or[email protected].