IN THE SUPERIOR COURT

OF DEKALB COUNTY GEORGIA

ANTHONY S. TRICOLI, Plaintiff, vs. ROB WATTS; RON CARRUTH; JIM RASMUS; MARK GERSPACHER; SHELETHA CHAMPION; HENRY HUCKABY; JOHN FUCHKO; STEVE WRIGLEY; BEN TARBUTTON; THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA; SAM OLENS, THE ATTORNEY GENERAL OF GEORGIA; and ROBIN JENKINS Defendants.

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CIVIL ACTION NO. 14-CV-4911

JURY TRIAL DEMANDED

PLAINTIFF’S  REPLY  TO  DEFENDANTS’  MOTION  TO  DISMISS    

 

Comes now Plaintiff Dr. Anthony Tricoli and files this reply to

Defendants’ Motion to Dismiss and Brief in Support (Defendants’ Brief) of

the motion to dismiss Plaintiff’s Georgia RICO action, and shows the Court

as follows:

Introduction

The Georgia RICO statute was specifically enacted, in part, to prevent

government agencies from being controlled and conducted as a criminal

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enterprise. In fact, the Georgia RICO Act explicitly includes governmental

entities engaged in criminal activity in the statutory definition of the criminal

enterprises the law is intended to eradicate. OCGA § 16-14-3(6).1 In the

RICO Act, the Georgia Legislature also identified the exact criminal acts it

wanted to keep out of state government, specifically listing by code section

the indictable offenses that fall under the jurisdiction of the statute. OCGA §

16-14-3(9)(A). The RICO Act prohibits any person, association or entity,

however affiliated, whether in government or outside of government, from

committing a pattern of criminal offenses for the common purpose of

injuring another person the way Tricoli was directly, intentionally, and

premeditatedly harmed by Defendants’ criminal fraud. OCGA § 16-14-4.

Defendants’ criminal offenses include, for example, OCGA § 16-10-

20,2 offenses that stand out prominently in the Complaint in the form of

systematic, knowingly false reports on the budget of Georgia Perimeter

College (GPC), a state agency under the University System of Georgia and

                                                                                                               1  OCGA 16-14-3(6) "Enterprise" means any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.  2  OCGA 16-10-20. False statements and writings, concealment of facts, and fraudulent documents in matters within jurisdiction of state or political subdivisions: “A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.  

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governed by the Board of Regents, as advised by the Attorney General of

Georgia. The Defendants used their positions of public trust, not only to

protect their own personal interests, but also to harm Plaintiff Anthony

Tricoli, in a direct fashion, to deprive him of his position, salary, benefits

and pension, as well as the very means of earning a livelihood. OCGA § 16-

14-2(b). Because the Defendants manipulated the public’s business,

diverting it from the service of the citizens and taxpayers of Georgia, for the

nefarious purpose of harming Plaintiff Tricoli, instead, the RICO statute

specifically authorizes him to bring a civil action against them. OCGA §§

16-14-3(6), 16-14-4(a-c) & 16-14-6(c).

Since the Attorney General largely ignores the allegations and RICO

causes of action actually named in the Complaint, no one would ever know

from reading Defendants’ Brief that Plaintiff brings this action under OCGA

§16-14-1 et seq. (Georgia RICO), as well as OCGA § 51-6-1&2 (fraudulent

inducement). The Georgia RICO claims are, of course, brought under the

RICO statute--not under the Georgia Tort Claims Act (GTCA), contrary to

the Attorney General’s totally off-base arguments that go on for twenty out

of twenty-two pages. Thus the vast majority of Defendants’ Brief spent

discussing the GTCA is irrelevant to this action. Plaintiff’s Georgia RICO

claims are not for tortious conduct governed by the GTCA, as the Attorney

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General seeks to misrepresent in Defendants’ Brief in order to claim

sovereign immunity protection,3 but for a pattern of criminal activity the

Georgia Legislature lists as predicate acts in the RICO statute. OCGA §16-

14-3(9)(A); Complaint ¶94. These listed predicate acts, alleged in the

Complaint, are not merely tortious conduct but criminal offenses prohibited

by the U.S. and Georgia Criminal Codes: knowingly false reports by and to

state agencies,4 wire fraud,5 mail fraud,6 evidence tampering,7 influencing

witnesses,8 and extortion.9 The RICO Act authorizes a civil action for any

person injured by this specifically-defined criminal conduct—against any

person conducting this criminal enterprise, which explicitly includes

“governmental entities.” OCGA 16-14-6(c) & 16-14-3(6).10

                                                                                                               3 The Court should take notice at the outset of the inherent self-interest in the Attorney General making this self-serving argument on behalf of himself and the conflict of interest in making it for his co-defendants 4 OCGA § 16-10-20, false report to state. OCGA § 16-14-3(9)(A)(xv); Complaint ¶¶196-97. 5 USC § 1961 & 1343, wire fraud. OCGA § 16-14-3(9)(A)(xxix); Complaint ¶¶198-201. 6 18 USC § 1961 & 1341, mail fraud. OCGA § 16-14-3(9)(A)(xxix); Complaint ¶¶202-203. 7 OCGA § 16-10-94, tampering with evidence. OCGA § 16-14-3(9)(A)(xvi); Complaint ¶¶ 204-07. 8 OCGA § 16-10-93, Influencing witnesses 16-14-3(9)(A)(xiv); Complaint ¶ 208. 9 18 USC § 1961(1)(A) & OCGA 16-18-16, 45-11-5, & 16-14-3(9)(B), Extortion, OCGA 16-14-3(9)(A)(xxix); Complaint ¶¶209-11. 10 The Complaint does not yet include claims that these predicate acts were part of a conspiracy of theft by deception, pending discovery regarding the $9 million that remains unaccounted for in the overspending Defendants claimed occurred at GPC in order to effect Plaintiff’s ouster as President. At the time of Tricoli’s ouster, the Attorney General announced an investigation into the missing $9 million but no results have ever been released. The knowingly false reports released to the media that Plaintiff was responsible for it were violations of OCGA §§ 16-10-20 & 16-10-94, as well as USC § 1961 & 1343.  

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In particular, the Complaint alleges that Defendants knowingly

falsified budget reports at Georgia Perimeter College and repeatedly

presented that knowingly false information in official reports to then-

President Tricoli (as Defendants, in the Board of Regents Special Report,

admit occurred. Complaint ¶¶13, 75, 79, 108, 159, 177). These criminal

offenses were committed with the specific intent of using the resulting

engineered budget crisis to destroy Plaintiff’s career and livelihood by

removing him from the presidency of Georgia Perimeter College (GPC) and

torpedoing his efforts to obtain another job—causing him direct, dire,

concrete, and permanent economic harm--far above and beyond any mere

loss of reputation, contrary to the Attorney General’s pervasive attempts to

trivialize the harm.

The Attorney General also tries to minimize the criminal conduct by

asserting that all the crimes of knowing and willful misreporting in

connection with the GPC budget are immunized by a provision of the GTCA

addressing negligence in accounting and finance matters. However, the

fiscal shenanigans addressed by Plaintiff’s Complaint involve $9 million in

missing money that has never been accounted for. Yet, according to the

Attorney General’s preposterous attempt to apply tort doctrine to criminal

acts, state officials would be immune from suit even if it were discovered

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that they embezzled the missing $9 million--under a tort exception meant to

apply to negligent accounting. This is only one of many absurd results of

attempting to misapply tort immunity to criminal violations.

The Attorney General’s position is clearly contradicted, moreover, by

the previous civil RICO action against former Georgia Labor Commissioner

Sam Caldwell for just such criminal violations related to state accounting

and financing matters. Caldwell v. State, 321 SE 2d 704, 253 Ga. 400

(1984). That civil RICO action against 15 state employees and State

Department of Labor Commissioner Caldwell, who was charged while he

held state office with “maintaining control of the Department through a

pattern of racketeering activity,” sought civil forfeiture for a pattern of

RICO predicate acts identical to those alleged by Plaintiff in the instant case:

false reports to a state agency, false swearing, and extortion, and also

included theft by deception, with respect to funds collected from Georgia

Department of Labor employees. Id. 321 SE2d at 705-06.

Attorney General Sam Olens, by contrast, now claims that

Commissioner Caldwell would be immune for the same criminal financial

manipulation under the GTCA’s ministerial accounting and finance

exception at OCGA 50-21-24(11). It begs the question why the Attorney

General is defending the admitted budget falsifications in which $9 million

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disappeared instead of investigating and prosecuting them. There is a big

difference, however, between the criminal manipulation addressed by the

RICO statute and the negligent bookkeeping errors contemplated in the

GTCA exception to tort liability, as the Georgia Supreme Court clearly

established in Caldwell.

The RICO Act specifically authorizes this civil action against the State.

The Georgia RICO Act specifically includes governmental entities in

the definition of RICO enterprises. OCGA 16-14-3(6). Thus an action can be

brought against “any person” who exercises control over a governmental

entity for purposes of a plan of criminal activity, just as the Plaintiff alleges

that Defendants usurped the machinery of state government and abused their

positions of power and public trust in order to perpetrate a concerted scheme

that consisted of multiple violations of the U.S. and Georgia Criminal

Codes, all directed at harming the Plaintiff by destroying his career and

livelihood, not only by publicly disgracing him but by taking away his

salary, position, and pension. OCGA § 16-14-4(a-c).

In addition, many of the offenses named as predicate acts by the

Georgia legislature are necessarily crimes that could only be by committed

by state government officers. Who can make a knowingly false material

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statement by a state agency, a criminal act under OCGA § 16-10-20, other

than a state government official? Most of the predicate acts alleged in this

action—intentional falsifications of the GPC budget by the GPC and Board

of Regents finance officials to the President of GPC in state-mandated

budget reports--were double-violations of OCGA § 16-10-20, because they

were knowing misrepresentations of material fact by a state agency, while at

the same time they were knowing misrepresentations of material fact to a

state agency. The Georgia RICO Act contains no exceptions to liability for

criminal predicate acts committed by state government officials. In fact, it

specifically authorizes a civil action for a pattern of criminal predicate acts

by “governmental entities.” OCGA 16-14-6(c), 16-14-9(A) & 16-14-3(6).

The Georgia General Assembly waived sovereign immunity in the

RICO statute when it specifically authorized a civil action--on the same

basis as criminal prosecutions--against “any person, including governmental

entities” operating as a RICO enterprise, through a pattern of specified

criminal acts, and provided for treble damages, forfeiture of RICO enterprise

assets, injunctive relief, and punitive damages. OCGA 16-14-6(c) (civil

action for treble damages and punitive damages); OCGA § 16-14-3(6)

(authorizing action against “any person…including governmental entities”);

State v. Dorsey, 615 SE2d 512 (Ga. 2005) (RICO action against DeKalb

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County Sheriff for perjury and false statements to a state agency); Caldwell

v. State, 321 SE2d 704, 705-07, 253 Ga. 400 (1984) (civil RICO action

upheld against State Labor Commissioner and 15 members of his staff for

running state government office through a pattern of criminal activity);

Colon v. Fulton County (Ga. 2013) (statutory language authorizing a suit

against governmental entities and officers must be given effect, with no

other specific language stating a waiver of sovereign immunity required).

There has never been the slightest inkling or suggestion since the

statute was enacted that government employees benefitted from any special

shield that protected them from accountability for their criminal actions

under Georgia RICO. If the Defendants in the instant action, like Sheriff

Dorsey and Commissioner Caldwell before them, can be indicted for a

pattern of crimes that are RICO predicate acts, they can also be subject to a

civil suit under RICO for the same conduct, as State Labor Commissioner

Caldwell was. OCGA § 16-14-6(c). If convicted in the criminal prosecution,

in fact, they are estopped from disputing the civil claims against them.

OCGA § 16-14-6(e)11; Cox v. Mayan Lagoon Estates Ltd., 734 SE2d 883,

889 (Ga. App. 2012) (civil plaintiff allowed to amend tort action to add civil

RICO claims after criminal RICO conviction of defendant). Thus a private

                                                                                                               11  “conviction in any criminal proceeding under this chapter shall estop the defendant in any subsequent civil action or proceeding as to all matters proved in the criminal proceeding.”  

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plaintiff aggrieved by the acts for which Dorsey and Caldwell were

convicted under the RICO statute could not only bring a civil action against

them, but such a plaintiff would automatically win the civil action--based on

the criminal convictions. OCGA § 16-14-6(e). The Attorney General has

pointed to nothing in the RICO statute, or any other statute, that would alter

this result of civil liability for criminal actions clearly mandated by the

Georgia Legislature—whether to shield the Attorney General himself or any

other state officer named as a Defendant in this action who participated in

the criminal scheme alleged in detail. In fact, the Attorney General does not

address the actual language of the RICO statute anywhere in Defendants’

Brief, an admission that Defendants have no response to the RICO statute’s

specific authorization of this civil suit against the “governmental entities” in

the instant action.

In addition to the unequivocal language of the statute itself, the

Georgia Supreme Court has already directly addressed Attorney General

Sam Olens’ argument that government agencies and officials are immune to

civil claims brought under the RICO Act for their criminal conduct—and

squarely rejected it. Here is how the Georgia Supreme Court refuted State

Labor Commissioner Caldwell’s argument, identical to the Attorney

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General’s in the instant action, that the Georgia General Assembly did not

intend for RICO to apply to state officials:

Defendant concedes that RICO would be applicable to a governmental entity if organized criminals gained control of it from without by bribery or like means. By urging that RICO was not intended to apply to an elective office holder seeking reelection, the defendant is urging, in effect, that RICO was not intended to apply where control of a governmental entity is gained or maintained from within. However, substituting the words "governmental entity" for "enterprise" in OCGA § 16-14-4(a), supra, it is a crime for any person, through a pattern of racketeering activity [i.e., by committing 2 or more similar or interrelated predicate offenses], to acquire or maintain control of any governmental entity. The language of the act is clear. Acquiring or maintaining control of a governmental entity by means of a pattern of racketeering activity constitutes a crime whether such control be obtained from without or within. [citations omitted]. By its express terms, the RICO act includes as a crime a reelection campaign by the holder of public office in which 2 or more similar or interrelated predicate offenses specified in the act are committed. The trial court did not err in overruling the defendant's motion to dismiss the complaint. Caldwell v. State, 321 SE2d at 707 (emphasis added).12

Also in light of the RICO action against Sheriff Dorsey, it is well

settled that RICO Act applies to governmental entities and officials, in a

civil suit on the same basis as a criminal prosecution, and that state officers

were never intended to fall into any privileged category of immune                                                                                                                12 The Court should take notice that this directly on-point authority, in which the Georgia Supreme Court explicitly rejects the Attorney General’s argument that state officials enjoy sovereign immunity from RICO actions, is mentioned nowhere in the Attorney General’s brief in support of his motion to dismiss, though the Caldwell case has been previously brought to the Attorney General’s attention in two pending RICO actions based on similar conduct by the Board of Regents and Attorney General, Benedek v. Adams 13EV016714D, and Benedek v. Olens, 2014-CV-246185.

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characters--and with good reason, considering the Gotham City mayhem that

could easily ensue if state officials, including those charged with

investigating and prosecuting criminal conduct, could feel free to conduct

criminal enterprises at Capitol Place, SW, withholding and falsifying

evidence at whim, under an assured safe harbor of immunity.

Defendants’ Brief—while ignoring the substance of the RICO statute

entirely—merely begs the question why the Attorney General is straining so

hard to defend against claims spawned by the continuing pattern of criminal

RICO predicate acts within his own office and the University System of

Georgia instead of prosecuting the perpetrators under the same law.

The Georgia RICO Act states a clear waiver of sovereign immunity

according to the Georgia Supreme Court.

The language of the Georgia RICO Act, as well as the corresponding

Georgia Criminal Code provisions of the listed predicate acts, clearly show

that the Legislature intended that RICO actions, whether civil or criminal,

could and should be directed at government officials misusing their office to

perpetrate a pattern of criminal activity. OCGA 16-14-3(6), 16-14-6(c&e),

OCGA § 16-10-20.

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The Georgia Supreme Court, in the most on-point pronouncement on

the very defense of sovereign immunity the Attorney General is attempting

to argue on behalf of himself and his criminal conspirator co-defendants,

made it crystal clear that such written provisions enacted by the Legislature

must be given effect, and not ignored or rendered meaningless. Colon v.

Fulton County (Ga. 2013) (courtesy copy attached as Exhibit 1).

The defendants in Colon challenged a civil action under the Georgia

Whistleblower Act (GWA) on identical grounds of sovereign immunity,

stating—like the Attorney General in the instant case—that OCGA § 45-1-4

did not expressly and explicitly state a waiver of sovereign immunity. The

Georgia Supreme Court upheld the civil action against the government,

noting, “The Court of Appeals held that the cause of action set forth in

OCGA 45-1-4 unambiguously expressed a specific waiver of sovereign

immunity and the extent of such waiver, even though the statute does not

expressly state that sovereign immunity is waived.” See Fulton County v.

Colon, 316 Ga. App. 883, 885 (1) (730 SE2d 599) (2012). Colon, (Ga 2013)

(emphasis added).

The Supreme Court rejected the Attorney General’s argument that a

statute must contain “magic words,” explicitly stating that “sovereign

immunity is hereby waived,” when it is clear that the subject matter of the

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statute reaches within the halls of state government, as the RICO statute does

when it specifically addresses governmental entities that are co-opted for a

criminal scheme. Id.; OCGA 16-14-3(6).

As the Supreme Court stated in Colon, “Indeed, in order for the statute

to have any meaning at all here, it can only be interpreted as creating a

waiver of sovereign immunity….("Because the General Assembly is

presumed to intend something by passage of [an] act, we must construe its

provisions so as not to render it meaningless"). Colon, p. 7; Accord, Dover

v. State, 385 SE2d 417, 420-21, 192 Ga.App. 429 (GA. App. 1989)

(applying the “language of the statute must be given effect” rationale to the

Georgia RICO Act); Cox v. Mayan Lagoon Estates Ltd, 734 SE2d 883, 890

(Ga. App. 2012) (language of RICO statute equating civil RICO actions with

criminal prosecutions “require that the literal meaning of the words…must

be followed”).

By arguing that the RICO statute does not authorize a civil suit against

a governmental entity conducted as a RICO enterprise, contrary to the plain

language of he RICO Act, the Attorney General does indeed attempt to

“render it meaningless.” Colon, p. 7.

All that is required to state a waiver is an authorization for the civil

action, as at OCGA § 16-14-6(c). And all that is needed to state the extent of

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the waiver is a legislative enactment stating the extent of the damages

available. Id. (treble damages and punitive damages); Colon, 730 SE2d at

601 (sovereign immunity is waived “to the extent of the right of action”

enacted by the Legislature).

Similarly, the Fair Employment Practices Act (FEPA),13 which the

Attorney General misrepresents as posing a contrast to the RICO statute,

contains no “magic words” expressly stating that the statute waives

sovereign immunity, either. Yet courts have held it to waive sovereign

immunity because its subject matter involves governmental entities—just as

the RICO statute specifically addresses “governmental entities”—and it

expressly authorizes a civil action and provides a range of remedies, just as

the RICO statute does. Hughes v. Ga. Dept. of Corrections, 600 SE2d 383,

385-86, 267 Ga. App. 440, 442-43 (Ga. App. 2004).14 In fact, the RICO

statute is much more specific about the extent of the civil action it                                                                                                                13  OCGA  §  45-­‐19-­‐20  et  seq.  14  The  Court  should  pay  particular  attention  to  the  Attorney  General’s  misrepresentations  regarding  the  holding  in  Hughes.  This  Georgia  Whistleblower  Act  (GWA)  case  was  decided  before  the  GWA  had  a  specific  damages  provision.  Thus  Hughes  held  that  there  was  no  GWA  waiver  of  sovereign  immunity,  therefore  barring  damages  against  the  state—and  the  Georgia  Court  of  Appeals  did  so  by  comparing  the  GWA  to  FEPA,  which  did  have  a  damages  provision.    Once  the  GWA  was  amended  to  include  a  damages  provision—just  as  the  RICO  statute  does  at  OCGA  16-­‐14-­‐6(c)-­‐-­‐then  courts  had  no  problem  holding  that  the  GWA,  like  FEPA,  specifically  waived  sovereign  immunity  for  damages  against  the  state.  Pattee  v.  Ga.  Ports  Auth.,  477  F.  Supp.2d  1253,  1269  (S.D.  Ga.  2006).  In  short,  the  RICO  statute  has  exactly  what  is  needed  for  a  waiver  of  sovereign  immunity,  according  to  Hughes,  entirely  consistent  with  the  GWA  and  FEPA—contrary  to  the  Attorney  General’s  complete  misrepresentation  of  the  case  law  and  statutory  authority  on  this  point.  

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authorizes, and provides an even more detailed list of remedies ranging from

treble compensatory and punitive damages to injunctive relief and forfeiture.

OCGA §16-14-6(a-e).

Moreover, the very cases cited by the Attorney General—as well as

other on-point cases the Attorney General does not mention—expressly

reject the Attorney General’s argument that the GTCA provides the

exclusive waiver for sovereign immunity. Defendants’ Brief, p. 2-3 (THE

SOVEREIGN IMMUNITY OF A STATE ENTITY IS WAIVED ONLY

AS SET FORTH IN THE GEORGIA TORT CLAIMS ACT); contra,

Colon, 294 Ga at 93; Tuttle v. Bd. of Regents (Ga. App. 2014) (“the right of

action provided in the Georgia Whistleblower Act is a waiver of Georgia's

sovereign immunity that is separate and independent of the waiver in the

Georgia Tort Claims Act”); Pattee v. Georgia Ports Authority, 477

F.Supp.2d 1253, 1269 (S.D. Ga., 2006). Pattee, another case misrepresented

by the Attorney General15 to claim it stands for the diametrically opposite

proposition, explicitly states:

Defendants claim that because the Georgia Tort Claims Act constitutes the exclusive waiver of Georgia's sovereign immunity, the State is immune from suit under the GWA. The Court rejects these arguments. "The right of action provided in the [GWA] is a waiver of

                                                                                                               15  Defendants’  Brief  misrepresents  the  holding  of  Pattee  at,  p.  19  

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the State's sovereign immunity independent of the waiver in the Georgia Tort Claims Act...." Pattee, 477 F.Supp2d at 1269.

Contrary to the Attorney General’s blatant misrepresentations, the

findings that GWA and FEPA waive sovereign immunity actually support a

finding that Georgia RICO also waives sovereign immunity. See Exhibit 2,

text of OCGA 45-1-4 (no specific reference to sovereign immunity issue,

civil action authorized in less detail than in RICO statute).16

Avoiding the RICO statute, and avoiding the cases that discuss what is

needed for a waiver of sovereign immunity—that is the only way the

Attorney General can contradict the clear precedents establishing a waiver of

sovereign immunity under the RICO statute.

 The Attorney General ignores the tort / crime distinction

The Attorney General goes on for 22 pages in Defendants’

Brief completely ignoring the language of the RICO statute under which this

action is brought, the criminal nature of the claims, and the main Supreme

                                                                                                               16  Ironically,  the  Attorney  General,  “out  of  an  abundance  of  caution,”  addresses  whistleblower  claims  in  Defendants’  Brief,  even  though  Plaintiff  did  not  bring  a  whistleblower  claim.  Defendants’  Brief,  p.  21.  At  the  same  time,  Defendants’  Brief,  out  of  a  true  abundance  of  “caution,”  never  mentions  Colon,  the  main  whistleblower  authority  the  rejects  Defendants’  sovereign  immunity  arguments.  And,  of  course,  the  icing  on  the  irony  is  that  the  Attorney  General  likewise  never  examines  the  first  word  of  the  RICO  statute,  under  which  Plaintiff  did  bring  the  bulk  of  his  claims,  in  particular  the  language  of  the  RICO  statute  including  “governmental  entities”  in  the  definition  of  a  RICO  enterprise.  OCGA  16-­‐14-­‐3(6).    

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Court authority on waiver of sovereign immunity. At the same time, the

Attorney General drones on for most of that Brief about the GTCA, which

addresses tort liability—not the civil liability for criminal conduct addressed

by the RICO statute and alleged in the Complaint.17 Instead of discussing the

RICO statute, the Attorney General cites a string of tort cases that have

nothing to do with the claims in the instant action, ignoring the obvious

proposition that torts and crimes do not have the same elements, or the same

penalties, and are not equivalent. OCGA §16-14-5(a) (RICO violation is a

felony punishable by 5-20 years in prison).

Accordingly, the Attorney General does not cite a single RICO case,

much less a RICO case in which the GTCA was referenced to determine

whether there was a waiver of sovereign immunity for a pattern of criminal

RICO predicate acts. The GTCA simply has no bearing on whether a waiver

of sovereign immunity is stated under other statutes that specifically

authorize a civil action for other reasons, such as the GWA (retaliation for

whistleblowing), FEPA (race and gender discrimination), or RICO

(enterprise controlled and conducted via a pattern of criminal predicate acts).

                                                                                                               17 For example, according to OCGA 50-21-21(a), “it is declared to be the public policy of this state that the state shall only be liable in tort actions within the limitations of this article and in accordance with the fair and uniform principles established in this article.” Emphasis supplied. By its own terms, the GTCA limits its application to tort actions. The GTCA has no application in determining whether sovereign immunity is waived in other statutes, such as the Georgia Whistleblower Act, FEPA, or Georgia RICO.

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While the Attorney General cannot seem to tell the difference between

torts and crimes, for purposes of alleging a RICO predicate act, the courts

have had no such trouble making the distinction. The Georgia Court of

Appeals observed the obvious when it stated, for example, “The elements of

the civil cause of action for fraud are different from the elements of the

felony offense of Theft by Deception.” Avery v. Chrysler Motors Corp., 448

S.E.2d 737, 738 214 Ga.App. 602 (Ga. App., 1994) (tort breach of duty and

criminal violations not equivalent).

Nonetheless, in addressing claims pled with great specificity under the

RICO statute, the Attorney General, throughout Defendants’ Brief, indulges

the fiction that these are tort claims governed by the GTCA. The Attorney

General then proceeds, for pages and pages, to purport to knock that straw

man down with tort case after irrelevant tort case. Tootle v Cartee, 634 SE2d

90, 92, 280 Ga. App. 428, 429 (Ga. App. 2006) at n.13 (notwithstanding tort

immunity, officer could be liable for the same conduct on a different legal

theory with different elements); accord, Hardin v. Phillips, 547 SE2d 565,

569, 249 Ga. App. 541, 545 (Ga. App. 2001) (claim barred only for alternate

tort theory with identical elements to tort listed in GTCA exceptions); Board

of Public Safety v. Jordan, 556 S.E.2d 837, 252 Ga. App. 577 (Ga. App.,

2001) (alleging tort claim only for emotional stress by plaintiff who admitted

  20  

he was properly terminated); Sommers Oil Co. v. Georgia Dep't of

Agriculture, 305 Ga.App. 330, 699 S.E.2d 537 (Ga. App., 2010) (alleged

negligent supervision of inspectors)18; Howard v. Miller, 476 SE2d 636,

639, 222 Ga. App. 868 (Ga. App. 1996) (analysis restricted to tort claims, as

"[The State Tort Claims Act] constitutes the exclusive remedy for any tort

committed by a state officer or employee.)19; Compare Dorsey, 615 SE2d at

519 (no merger of RICO claims with causes of action requiring proof of

different elements—assault claims allowed under RICO that would be

barred by GTCA tort exception); Compare Avery v. Chrysler Motors Corp.,

                                                                                                               18  This  was  a  case  in  which  there  was  a  pattern  of  criminal  collusion  by  state  inspectors,  which  would  have  been  the  proper  subject  of  a  RICO  action,  but  that  was  never  pled  by  the  plaintiff  or  considered  by  the  court.  19  Here  is  the  complete  list  of  tort  cases  cited  in  Defendants’  Brief,  all  of  which  have  no  bearing  on  the  RICO  statute:  Lewis v. Department of Human Resources, 255 Ga. App. 805, 567 S.E.2d 65 (Ga. App., 2002) (negligence for placing patient in scalding water); Mattox v. Bailey, 472 S.E.2d 130, 131 221 Ga.App. 546 (Ga. App., 1996) (battery claim dismissed under assault exception in GTCA, but court held that notwithstanding that exception a claim could lie under a non-tort theory); Christensen v. State, 464 S.E.2d 14, 219 Ga.App. 10 (Ga. App., 1995) (claim that negligent supervision allowed a rape by a third party); Georgia Military College v. Santamorena, 514 S.E.2d 82, 237 Ga.App. 58 (Ga. App., 1999); (negligence claim against school for rape by fellow student); Rhoden v. Department of Public Safety, 473 S.E.2d 537, 221 Ga.App. 844, 845-46 (Ga. App., 1996) (negligence claim against off-duty police officers for failing to interfere with improper arrest); Department of Transp. v. Bishop, 453 S.E.2d 478, 216 Ga.App. 57 (Ga. App., 1994) (negligence in construction of wall barred by GTCA licensing exception); Southerland v. Georgia Dept. of Corrections, 666 S.E.2d 383, 293 Ga.App. 56 (Ga. App., 2008) (negligence claim against prison when inmate killed by cellmate); Ardizonne v. DHR, 575 S.E.2d 738, 258 Ga. App. 858 (Ga. App., 2002) (negligence claim against hospital for releasing mental patient); Murray v. Georgia Dept. of Transp., 644 S.E.2d 290, 284 Ga. App. 263 (Ga. App., 2007) (negligence claim for licensing stop signal); In re Carter, 653 S.E.2d 860, 288 Ga.App. 276 (Ga. App., 2007) (negligence claim when mother received no notice of child’s condition despite repeated attempts to reach her).  

  21  

448 S.E.2d 737,739, 214 Ga.App. 602 (Ga. App., 1994) (distinguishing

elements of torts and criminal RICO predicate acts).

Meanwhile, the Attorney General, while quoting liberally from the

GTCA--irrelevant to any RICO analysis--never once addresses or analyzes

the language of the RICO statute itself or cites a single Georgia RICO case

to support his self-serving claim of sovereign immunity. Instead, he strings

together every red herring negligence case he can find, hoping they will

shine in the eyes and blind the Court to the real, relatively simple issue in

this case: Are government officials immune when they hijack government

agencies for purposes prohibited by the Georgia Criminal Code, in a pattern

of criminal activity defined by the Georgia RICO Act? The GTCA does not

speak to this issue, at all. The Georgia RICO statute emphatically answers:

No, state employees who abuse their position of public trust for prohibited,

criminal purposes are not immune. The Georgia Supreme Court has

seconded that motion in Dorsey and Caldwell.

The Financing Exception of the GTCA does not apply

The GTCA by its own terms applies to tort actions. It does not apply

to the indictable offenses addressed by the RICO Act. In arguing that the

  22  

financing exception of OCGA § 50-21-24(11) applies, the Attorney General

once again ignores this tort / crime distinction.

It is Georgia RICO, not the GTCA, that governs an action for

knowingly and willfully falsifying official GPC budget reports required by

GPC and Regents policy in violation of OCGA § 16-10-20 & 16-14-4. E.g.,

Complaint ¶¶ 4, 80. Criminal RICO predicate acts as serious as extortion are

never once mentioned by the Attorney General in an attempt to shoehorn

them into the GTCA, but despite all these re-shaping efforts by the Attorney

General, involving misrepresentations of material fact and law related to the

Complaint, the tort square peg does not fit into the criminal RICO round

hole.

Engaging in a pattern of RICO predicate acts, such as extortion and

falsification of official state agency budget reports in violation of OCGA 16-

10-20 is a felony punishable by 5 to 20 years in prison. OCGA § 16-14-5(a).

If, for the sake of argument, it were discovered that Defendants had the

missing $9 million in their possession, they would be faced with a fine for

three times that amount, or $27 million. OCGA § 16-14-5(b). To claim that

such penalties for a felony conviction could somehow be overridden by a

tort liability exception for a ministerial accounting duty is patently absurd.

  23  

Again and again, the Attorney General asks this Court to believe that

Defendants’ Tort Minnow can swallow a Felony Whale.

Even without considering the whereabouts of the missing $9 million,

the Attorney General’s claim that the knowing misrepresentation of the

budget numbers in state budget hearings, GPC executive committee

meetings, and official reports to the President’s Cabinet are absolved by the

GTCA exception for accounting errors directly contradicts OCGA § 16-10-

20. It is undisputed that there were two very different sets of books at GPC.

That did not occur by negligence or mistake. Those were knowing

misrepresentations, and therefore criminal offenses under OCGA § 16-10-

20, a RICO pattern of predicate acts under OCGA § 16-14-9(A), and

therefore a criminal offense giving rise to Tricoli’s private right of action

under OCGA § 16-14-6(c). By arguing that the criminal prohibition of

OCGA § 16-10-20 is cancelled out by the negligence exception of the

GTCA, the Attorney general is, as the Georgia Supreme Court observed in

Colon, attempting to “render [the Legislature’s enumeration of OCGA § 16-

10-20 as a predicate act under OCGA 16-14-9(A)] meaningless.”20

                                                                                                               20  One  of  the  main  knowing  misrepresentations  alleged  in  this  action,  the  Special  Report  of  the  USG,  fulfills  several  functions  in  establishing  the  validity  of  Plaintiff’s  Complaint.    The  Special  Report  is  a  double  violation  of  OCGA  16-­‐10-­‐20,  in  that  it  is  a  knowingly  false  report  by  a  state  agency,  and  a  knowingly  false  report  to  a  state  agency—for  example,  in  misrepresenting  that  Plaintiff  Tricoli  was  part  of  the  budget  team  that  misrepresented,  which  the  author,  Defendant  John  Fuchko,  knew  to  be  

  24  

Limited Application of Tort Claims Act

The GTCA does not apply to the pattern of criminal conduct alleged

under the RICO Act, to which the RICO Act itself applies. The torts of libel

and tortious interference that Defendants claim form the gravamen of the

suit do not embody the same legal elements as the indictable offenses that

constitute RICO predicate acts—that goes without saying for the very reason

that these torts are not “chargeable by indictment.” OCGA § 16-14-3(9)(A)

(RICO action authorized for listed indictable offenses). The knowingly false

reports by and to state agencies, mail and wire fraud, theft by deception, and

extortion are criminal violations for which a civil action is authorized under

Georgia RICO.21 OCGA § 16-14-6(c).

The only claims asserted that are arguably tortious in this case, and

thus covered by the GTCA,22 are fraudulent inducement and intentional

infliction of emotional distress. Neither are listed in the torts excepted from

the GTCA’s waiver of sovereign immunity. OCGA § 50-21-24(7).                                                                                                                false.  The  Special  Report  is  also  evidence  of  Defendants’  other  multiple  16-­‐10-­‐20  violations,  since  it  constitutes  an  admission  by  Defendants  that  the  budget  reports  were  falsified  and  two  separate  sets  of  books  were  kept,  one  for  the  USG  and  one  for  President  Tricoli  to  use  to  assess  GPC  finances  while  running  the  college.  21  These  RICO  claims  are  not  governed  by  any  of  the  procedural  requirements  of  the  GTCA  Defendants  seek  to  impose.  Def.  Brief,  p.  19.  22  To  the  limited  extent  the  GTCA  and  its  procedural  requirements  do  apply  to  this  action,  Plaintiff  notes  that  the  proof  of  ante  litem  notice  has  been  filed,  a  true  and  correct  copy  of  which  is  hereby  attached  as  Exhibit  3.  

  25  

Plaintiff has satisfied the elements of a fraudulent inducement claim in

alleging that Defendant Huckaby induced Tricoli to resign his position as

GPC President—not only with threats of termination and public disgrace,

but with false promises Tricoli would be offered another position with the

Board of Regents. del Mazo v. Sanchez, 366 S.E.2d 333, 336, 186 Ga.App.

120 (Ga. App., 1988) (“Willful misrepresentation of a material fact, made to

induce another to act, upon which such person acts to his injury, will give

him a right of action”).  

Moreover, fraudulent inducement is not co-equal with tortious

interference, or any other tort excepted by the GTCA, as disingenuously

argued by the Attorney General. Tortious interference requires interference

by a third party to the contract, an element not present in this case—in which

the Board of Regents itself, in the person of Chancellor Huckaby, made false

representations to Tricoli, upon which Tricoli was intended to rely, in order

to directly deprive him of his contractual rights.

Moreover, contrary to the Attorney General’s perverse logic,

Defendants may not absolve themselves, finding shelter in the tortious

interference immunity exception, by committing extortion, as alleged in the

Complaint, to deprive Plaintiff of his rights under the written contract. Once

again, that rationale is the Attorney General’s impossibly misguided attempt

  26  

to have its noisy tort Schnauzer swallow and devour the Doberman of

criminal extortion.23

Plaintiff States a Claim for Breach of Contract

Contrary to the Attorney General’s misrepresentations, Plaintiff does

allege a written contract. Complaint ¶¶ 63, 81, 84. Sovereign immunity does

not protect Defendants from this claim. Ga. Const. of 1983, Art. I, Sec. II,

Par. IX (c) (waives sovereign immunity with respect to "any action ex

contractu for the breach of any written contract").  

Plaintiff claims breach of a specific term of his written contract

requiring notice of non-renewal to be given by a date certain to avoid an

automatic renewal. That deadline passed without any notice given by

Defendants, obligating the Board of Regents to perform its duties under the

contract,24 by its own terms, which is to provide Plaintiff with his salary and

benefits for the succeeding year(s). Notwithstanding the combined ruse and

coercion by which Defendants induced Plaintiff’s resignation, Defendants

further purported to not renew Plaintiff’s annual contract, after the deadline

for such non-renewal occurred. Accordingly, Defendants are in breach and                                                                                                                23  Defendants’  actions  in  deceitfully  depriving  Plaintiff  of  his  contact  rights  also  satisfy  the  elements  of  the  RICO  predicate  act  of  theft  by  deception.  OCGA  §  16-­‐8-­‐3.  24  Plaintiff  has  been  and  remains  ready,  willing,  and  able  to  perform  his  duties  under  the  contract  and  seeks  injunctive  relief  to  restore  him  to  his  former  position  as  Georgia  Perimeter  College  President  of  which  he  was  wrongfully  deprived.  

  27  

liable to Plaintiff for his annual contract salary and benefits since the date of

the breach.

The policy on punitive damages against the State clarifies that

state officials violating the RICO Act may be subject to punitive

damages.

It should first be noted that punitive damages under the RICO statute

are not governed by the GTCA—contrary to the Attorney General’s repeated

misrepresentation. Punitive damages for RICO claims are governed, rather,

by a specific provision of the RICO statute. OCGA § 16-14-6(c). Moreover,

any policy arguments against drawing punitive damages from the State

treasury only focus accountability and liability on the individual defendants.

No court that has reviewed the issue, including the US Supreme Court, has

had any qualms against awarding punitive damages against government

officials who meet the standards of outrageous and malicious conduct. In

committing actual criminal acts, Defendants in this case actually exceed the

wanton and willful standards for awarding punitive damages—as

specifically authorized by the RICO statute. OCGA § 16-14-4(c).

As stated by the US Supreme Court decision cited by the Georgia

cases with reference to punitive damages against the state in tort actions:

  28  

The courts readily distinguished between liability to compensate for injuries inflicted by a [government]'s officers and agents, and vindictive damages appropriate as punishment for the bad-faith conduct of those same officers and agents. Compensation was an obligation properly shared by the [government] itself, whereas punishment properly applied only to the actual wrongdoers. City of Newport v. Fact Concerts, Inc, 453 U.S. 247, 263, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). (emphasis added)

Likewise, even if State liability were limited to treble compensatory

damages, there is no policy whatever against awarding punitive damages

against individual Defendants in this case, as specifically authorized by the

RICO statute at OCGA §§ 16-14-6(c) & 16-14-3(6). If anything, public

officials who abuse their positions of public trust for improper ends,

achieved through illegal means, are even more deserving of an award of

punitive damages against them.

Conclusion

The RICO Act prohibits any person, association or entity, however

affiliated, whether in government or outside of government, from

committing a pattern of criminal acts for the common purpose of injuring

another person the way Tricoli was directly, intentionally, and

premeditatedly harmed by Defendants’ criminal fraud. OCGA § 16-14-4(a-

c). The RICO Act further authorizes a person harmed by such criminal

  29  

activity to institute a civil suit against the members of any RICO enterprise--

including one operating within a state government agency. OCGA § 16-14-

6(c), OCGA § 16-14-3(6), Caldwell.

There is no sound policy reason for immunizing the criminal conduct

of state employees, as the Attorney General seeks to do (instead of

prosecuting it). Every effort should be made, rather, to ensure that the

administration of the University System and the Attorney General’s office

are not co-opted by public employees immunized from the criminal laws of

this state such that they feel free to run a state agency as a criminal RICO

enterprise. In particular, Attorney General Sam Olens should be forced to

declare that such criminal activity in state office will not be tolerated and to

oppose it instead of defending it.

He can start by dropping the self-serving insistence, on his own behalf

and that of his co-defendant conspirators in this pattern of criminal activity,

the rather supercilious insistence that they are immune for criminal offenses

designated by the RICO statute that they commit when they are supposed to

be doing the public’s business. If the Attorney General is not going to

investigate and prosecute such criminal abuse of the power of the State, then

he can at least recognize that the RICO Act has provided a civil remedy to

  30  

Plaintiff Anthony Tricoli for the same continuing pattern of criminal

conduct. OCGA § 16-14-6(c).

Respectfully submitted this 1st Day of August, 2014. STEPHEN F. HUMPHREYS, P.C.

/s/ Stephen F. Humphreys ___________________________

STEPHEN F. HUMPHREYS Georgia Bar No. 378099 P.O. Box 192 Athens, GA 30603 1671 Meriweather Drive Bogart, GA 30622 (706) 543-7777 p (706) 543-1844 f (706) 207-6982 m

                           

  31  

EXHIBIT  1    

COLON et al. v. FULTON COUNTY. FULTON COUNTY v. WARREN. FULTON COUNTY v. COLON.

S12G1905. S12G1911. S12G1912.

Supreme Court of Georgia

Decided: November 18, 2013

Summaries:

Source: Justia

In consolidated cases, Maria Colon and Gwendolyn Warren filed separate lawsuits against their employer, Fulton County, pursuant to Georgia's whistleblower statute, OCGA 45-1-4. Colon and Warren alleged that they were retaliated against after they jointly disclosed to their supervisors and refused to cover up that County employees were violating laws, rules, and regulations, thereby wasting and abusing County funds and public money. The County moved to dismiss the actions based on sovereign immunity and moved for judgment on the pleadings, arguing that the retaliation claims under the statute could not proceed against the County because the complaints did not relate to a "state program or operation." The trial court denied both motions. The Court of Appeals held that the cause of action set forth in OCGA 45-1-4 unambiguously expressed a specific waiver of sovereign immunity and the extent of such waiver, even though the statute does not expressly state that sovereign immunity is waived. Furthermore, the appellate court interpreted "state programs or operations" under the facts of this case and held that where an employer qualifies as a "public employer" under the statute only because it received funds from the state, the statute provides protection from retaliation only if the employee's complaints related to a "state-funded program or operation under the jurisdiction of the public employer." In Case No. S12G1905, Colon and Warren argued that the Court of Appeals erred in construing OCGA 45-1-4 such that employees of governmental entities may maintain an action under subsection (d) of the statute only if their complaints relate to "programs or operations" that are "funded at least in part by the state." In Case Nos. S12G1911 and S12G1912, Fulton County contended that the Court of Appeals erred in concluding that OCGA 45-1-4 expressed a specific waiver of the County's sovereign immunity. Upon review, the

  32  

Supreme Court affirmed the appellate court's decisions in Case Nos. S12G1911 and S12G1912, but reversed in Case No. S12G1905. MELTON, Justice.

In these consolidated cases, Maria Colon and Gwendolyn Warren filed separate lawsuits against their employer, Fulton County, pursuant to Georgia's whistleblower statute, OCGA § 45-1-4. Colon and Warren alleged that they were retaliated against after they jointly disclosed to their supervisors and refused to cover up that County employees were violating laws, rules, and regulations, thereby fraudulently wasting and abusing County funds and public money. The County moved to dismiss the actions based on sovereign immunity and moved for judgment on the pleadings, arguing that Colon's and Warren's retaliation claims under OCGA § 45-1-4 could not lie against the County because their complaints did not relate to a "state program or operation." See OCGA § 45-1-4 (b) ("A public employer may receive and investigate

Page 2

complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer"). The trial court denied both motions.

On appeal, the Court of Appeals held that the cause of action set forth in OCGA § 45-1-4 unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver, even though the statute does not expressly state that sovereign immunity is waived. See Fulton County v. Colon, 316 Ga. App. 883, 885 (1) (730 SE2d 599) (2012). However, the Court of Appeals nevertheless vacated the trial court's order denying the County's motion to dismiss, finding that the trial court erred in its determination that Colon and Warren had stated claims under OCGA § 45-1-4 (d).1 Id. at 889 (3).

Page 3

Specifically, the Court of Appeals concluded that, although § 45-1-4 (d) talks solely in terms of preventing retaliation against a public employee for "disclosing a violation of or noncompliance with a law, rule, or regulation," the legislature did not intend for subsection (d) to be read alone. Instead, subsection (d) was to be read in conjunction with the language of subsection (b). When reading these subsections together, the Court of Appeals determined that subsection (b) was intended to limit the statute's

  33  

reach so that it only provides protection to the extent that a public employee's complaints relate to "state programs or operations" under the public employer's jurisdiction. See generally id. at (2). The Court of Appeals then turned its attention to what was meant by "state programs or operations" under the facts of this case and held that where an employer qualifies as a "public employer" under the statute only because it received funds from the state (a situation it found to be undisputed by the parties in this case), the statute provides protection from retaliation only if the employee's complaints related to a "state-funded program or operation under the

Page 4

jurisdiction of the public employer." Id. at 889 (2). It then stated that state programs or operations under a county's jurisdiction are those that are "funded at least in part by the state but need not be of state origin." Id. Thus, the Court of Appeals remanded the case to the trial court for a determination of whether Colon's and Warren's complaints related to a state-funded program or operation under Fulton County's jurisdiction.

All of the parties filed petitions for certiorari to appeal from the Court of Appeals' decision, and this Court granted all of the petitions to determine whether the Court of Appeals properly construed OCGA § 45-1-4. In Case No. S12G1905, Colon and Warren argue that the Court of Appeals erred in construing OCGA § 45-1-4 such that employees of governmental entities may maintain an action under subsection (d) of the statute only if their complaints relate to "programs or operations" that are "funded at least in part by the state." In Case Nos. S12G1911 and S12G1912,2 Fulton County contends that the Court

Page 5

of Appeals erred in concluding that OCGA § 45-1-4 expresses a specific waiver of the County's sovereign immunity. For the reasons that follow, we affirm in Case Nos. S12G1911 and S12G1912,3 and we reverse in Case No. S12G1905.

Case Nos. S12G1911 and S12G1912 1. We agree with the Court of Appeals that OCGA § 45-1-4 sets forth a specific waiver of the County's sovereign immunity and the extent of such waiver.

Article I, Section II, Paragraph IX (e) of the Georgia Constitution provides that "[t]he sovereign immunity of the state and its departments

  34  

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." In this regard, "[i]mplied waivers of governmental immunity should not be favored." Atlanta v. Gilmere, 252 Ga. 406, 409 (314 SE2d 204) (1984). This does not mean, however, that the Legislature must use specific "magic words" such as "sovereign immunity is hereby waived" in order to create a specific

Page 6

statutory waiver of sovereign immunity. See Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22 (3) (608 SE2d 611) (2005); City of Atlanta v. Barnes, 276 Ga. 449, 452 (3) ( 578 SE2d 110) (2003) ("When a statute provides the right to bring an action for a tax refund against a governmental body, that statute provides an express waiver of immunity and establishes the extent of the waiver (the amount of the refund)"). See also Williamson v. Dept. of Human Res., 258 Ga. App. 113 (1) (572 SE2d 678) (2002). Indeed, where, as here, the Legislature has specifically created a right of action against the government that would otherwise be barred by sovereign immunity, and has further expressly stated that an aggrieved party is entitled to collect money damages from the government in connection with a successful claim under the statute, there can be no doubt that the Legislature intended for sovereign immunity to be waived with respect to the specific claim authorized under the statute. See OCGA §§ 45-1-4 (d) (prohibiting a "public employer" from retaliating against its employees), (a) (defining a "public employer" as, among other things, "the executive, judicial, or legislative branch of the state . . . or any local or regional governmental entity that receives any funds from the State of Georgia"), (e) (1) (creating specific right for "[a] public employee who has been

Page 7

the object of retaliation in violation of this Code section [to] institute a civil action in superior court for relief as set forth in paragraph (2) of this subsection"), (e) (2) (allowing public employee who succeeds on retaliation claim to recover, among other things, "[c]ompensation for lost wages, benefits, and other remuneration; and . . . [a]ny other compensatory damages allowable at law"), and (f) (allowing court to "award reasonable attorney's fees, court costs, and expenses to a prevailing public employee" based his or her successful retaliation claim authorized by OCGA § 45-1-4 ). See also Sawnee Elec. Membership Corp., supra; Williamson, supra. Indeed, in order for the statute to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity. See, e.g.,

  35  

Chatman v. Findley, 274 Ga. 54, 55 (548 SE2d 5) (2001) ("Because the General Assembly is presumed to intend something by passage of [an] act, we must construe its provisions so as not to render it meaningless") (citation omitted).

We therefore affirm the Court of Appeals' decision insofar as it relates to the express waiver of sovereign immunity created by OCGA § 45-1-4.

Page 8

Case No. S12G1905 2. We disagree with the Court of Appeals, however, with respect to its interpretation of OCGA § 45-1-4 regarding causes of action for alleged retaliation. In this regard, in order to determine whether the Court of Appeals' interpretation of OCGA § 45-1-4 as a whole, and subsections (b) and (d) of the statute in particular, is correct, we must turn to the basic rules of statutory construction. Specifically,

we apply the fundamental rules of statutory construction that require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature. (Citations omitted.) Slakman v. Cont'l Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). Furthermore, "[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." Six Flags over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). In this regard, "under our system of separation of powers this Court does not have the authority to rewrite statutes." State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006).

Page 9

OCGA §§ 45-1-4 (d) (2) and (3) speak only in terms of prohibiting an employer from "retaliat[ing] against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency" or "for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation." These subsections say nothing of being limited by subsection (b) of the statute.

In turn, subsection (b) of the statute does not mention subsection (d) in any way. OCGA § 45-1-4 (b) states:

  36  

A public employer may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer. By its plain terms, subsection (b) of OCGA § 45-1-4 deals with a public employer's ability to "receive and investigate complaints or information . . . concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer." (Emphasis supplied.) It has nothing to do with, and

Page 10

indeed makes no mention of, retaliation. In short, there is nothing in the plain language of OCGA § 45-1-4 to suggest that the Legislature intended for subsections (b) and (d) of the statute to be read together such that retaliation claims under subsection (d) are somehow limited by a public employer's ability to "receive and investigate complaints or information" relating to possible "fraud, waste, and abuse" in state programs under subsection (b). See also Forrester v. Ga. Dept. of Human Servs., 308 Ga. App. 716, 723(1) (a) n.25 ("OCGA § 45-1-4 only covers complaints of 'abuse, fraud, and waste' in the context of a public employer's ability to receive and investigate such complaints by public employees, not in the context of retaliation, which explicitly only encompasses disclosures of 'violation[s] of or noncompliance with a law, rule, or regulation'") (citation and punctuation omitted; emphasis in original).

Subsections (b) and (d) of the statute do not have to be read together in the manner suggested by the Court of Appeals in order for all of the statutory provisions to work together harmoniously. See Fair v. State, 288 Ga. 244, 252 (2) ( 702 SE2d 420) (2010). ("The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in one part of a statute must be construed 'in the light of the legislative intent as found in the statute as a

Page 11

whole'") (citation omitted). Specifically, a straightforward reading of each section of the statute reveals the following. All of the operative terms of subsection (d) are defined in OCGA § 45-1-4 (a),4

Page 12

and the Legislature specifically did not state in either subsection (a) or (d)

  37  

that a claim for retaliation must be based on complaints relating to programs or operations funded by the state.5 Subsection (d) deals with the elements of a

Page 13

claim for retaliation. Subsections (e) and (f) set forth the right to a cause of action and the relief that may be obtained by a public employee in the event that the employee is retaliated against in violation of the statute.6 Subsection (b)

Page 14

authorizes the public employer to receive and investigate complaints from public employees "concerning the possible existence of fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer." And subsection (c), with limited exceptions, prohibits the public employer from disclosing the whistle blowing public employee's identity without written consent.7 There is nothing about this straightforward construction of OCGA § 45-1-4 that would require subsections (b) and (d) to be read in the manner suggested by the Court of Appeals in order for the statute to make sense.8

Page 15

In this regard, the Court of Appeals erred by inappropriately grafting the provisions of subsection (b) onto subsection (d) of OCGA § 45-1-4, and it compounded this error by then defining the types of "state programs or operations" that would allegedly have to be involved in order for a public employee to present a viable claim for retaliation under subsection (d). Indeed, by inserting the terms of subsection (b) into subsection (d), and then defining these inapplicable terms with language that does not exist in OCGA § 45-1-4, the Court of Appeals committed error, as, "under our system of separation of powers[, courts do] not have the authority to rewrite statutes." Fielden, supra, 280 Ga. at 448.

Accordingly, we reverse the Court of Appeals' decision with respect to its interpretation of OCGA §§ 45-1-4 (b) and (d).

Page 16

Judgments affirmed in Case Nos. S12G1911 and S12G1912. All the Justices concur, except Blackwell, J., who concurs in judgment only as to Division 1. Judgment reversed in case No. S12G1905. All the Justices concur.

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--------

Notes:

1. OCGA §§ 45-1-4 (d) (2) and (d) (3) provide:

(2) No public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity. (3) No public employer shall retaliate against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation. 2. The briefs in these two cases are identical, as the separate case numbers exist only insofar as they relate to each of the individual plaintiffs involved below (i.e., Case No. S12G1911 relates to Warren and Case No. S12G1912 relates to Colon). The two case numbers will therefore be handled together for purposes of this Opinion.

3. Because the issue relating to the County's waiver of sovereign immunity would be dispositive in this case if decided in the County's favor, we will address Case Nos. S12G1911 and S12G1912 first.

4. OCGA § 45-1-4 (a) provides:

(a) As used in this Code section, the term: (1) "Government agency" means any agency of federal, state, or local government charged with the enforcement of laws, rules, or regulations. (2) "Law, rule, or regulation" includes any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance. (3) "Public employee" means any person who is employed by the executive, judicial, or legislative branch of the state or by any other department, board, bureau, commission, authority, or other agency of the state. This term also includes all employees, officials, and administrators of any agency covered by the rules of the State Personnel Board and any local or regional governmental entity that receives any funds from the State of Georgia or any state agency. (4) "Public employer" means the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency. (5) "Retaliate" or "retaliation" refers to the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency. (6) "Supervisor" means any individual: (A) To whom a public employer has given authority to direct and control the work performance of the affected public employee; (B) To whom a public employer has given authority to take corrective action regarding a violation of or noncompliance with a law, rule, or regulation of which the public employee

  39  

complains; or (C) Who has been designated by a public employer to receive complaints regarding a violation of or noncompliance with a law, rule, or regulation. 5. In this regard, the Legislature made sure to define public employees and employers under subsections (a) (3) and (4) in such a manner as to include "governmental entit[ies] that receive[] any funds from the State of Georgia or any state agency," but specifically declined to use this same definitional language in subsection (a) (5) with respect to the types of disclosures by a public employee that could give rise to a retaliation claim if an adverse employment action was taken against the employee for having "disclos[ed] a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency." If the Legislature intended for the disclosures giving rise to a potential retaliation claim to be limited to those relating to programs or operations funded by the state, it could have expressly stated so.

6. OCGA §§ 45-1-4 (e) and (f) provide:

(e) (1) A public employee who has been the object of retaliation in violation of this Code section may institute a civil action in superior court for relief as set forth in paragraph (2) of this subsection within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier. (2) In any action brought pursuant to this subsection, the court may order any or all of the following relief: (A) An injunction restraining continued violation of this Code section; (B) Reinstatement of the employee to the same position held before the retaliation or to an equivalent position; (C) Reinstatement of full fringe benefits and seniority rights; (D) Compensation for lost wages, benefits, and other remuneration; and (E) Any other compensatory damages allowable at law. (f) A court may award reasonable attorney's fees, court costs, and expenses to a prevailing public employee. 7. OCGA § 45-1-4 (c) provides:

(c) Notwithstanding any other law to the contrary, such public employer shall not after receipt of a complaint or information from a public employee disclose the identity of the public employee without the written consent of such public employee, unless the public employer determines such disclosure is necessary and unavoidable during the course of the investigation. In such event, the public employee shall be notified in writing at least seven days prior to such disclosure. 8. Indeed, the straightforward construction of the statute outlined above makes perfect sense, as a public employee might not even know whether state money is involved at the time that he or she discovers and reports a violation of the rules to his or her supervisor. Under OCGA § 45-1-4, regardless of whether a public employee has knowledge of the extent to which state funds may or may not be involved in a reported violation of rules or regulations, the public employee would still be protected from retaliation after making the disclosure. This makes sense, as OCGA § 45-1-4 would then operate such that a public employee would always be protected from retaliation when disclosing improper conduct, rather than offering protection for some public employees who disclose improper conduct (i.e. those reporting rule violations relating to state funded operations) and leaving others who disclose improper conduct without such protection (i.e. those reporting rule violations that do not relate to state funded operations).  

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     EXHIBIT  2    GA. Code 45-1-4 Whistleblowers (Georgia Code (2013 Edition))     (a) As used in this Code section, the term: (1) "Government agency" means any agency of federal, state, or local government charged with the enforcement of laws, rules, or regulations. (2) "Law, rule, or regulation" includes any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance. (3) "Public employee" means any person who is employed by the executive, judicial, or legislative branch of the state or by any other department, board, bureau, commission, authority, or other agency of the state. This term also includes all employees, officials, and administrators of any agency covered by the rules of the State Personnel Board and any local or regional governmental entity that receives any funds from the State of Georgia or any state agency. (4) "Public employer" means the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency. (5) "Retaliate" or "retaliation" refers to the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency. (6) "Supervisor" means any individual: (A) To whom a public employer has given authority to direct and control the work performance of the affected public employee;

  41  

(B) To whom a public employer has given authority to take corrective action regarding a violation of or noncompliance with a law, rule, or regulation of which the public employee complains; or (C) Who has been designated by a public employer to receive complaints regarding a violation of or noncompliance with a law, rule, or regulation. (b) A public employer may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer. (c) Notwithstanding any other law to the contrary, such public employer shall not after receipt of a complaint or information from a public employee disclose the identity of the public employee without the written consent of such public employee, unless the public employer determines such disclosure is necessary and unavoidable during the course of the investigation. In such event, the public employee shall be notified in writing at least seven days prior to such disclosure. (d) (1) No public employer shall make, adopt, or enforce any policy or practice preventing a public employee from disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency. (2) No public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity. (3) No public employer shall retaliate against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation. (4) Paragraphs (1), (2), and (3) of this subsection shall not apply to policies or practices which implement, or to actions by public employers against public employees who violate, privilege or confidentiality obligations recognized by constitutional, statutory, or common law. (e) (1) A public employee who has been the object of retaliation in violation of this Code section may institute a civil action in superior court for relief as

  42  

set forth in paragraph (2) of this subsection within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier. (2) In any action brought pursuant to this subsection, the court may order any or all of the following relief: (A) An injunction restraining continued violation of this Code section; (B) Reinstatement of the employee to the same position held before the retaliation or to an equivalent position; (C) Reinstatement of full fringe benefits and seniority rights; (D) Compensation for lost wages, benefits, and other remuneration; and (E) Any other compensatory damages allowable at law. (f) A court may award reasonable attorney's fees, court costs, and expenses to a prevailing public employee. HISTORY: Code 1981, § 45-1-4, enacted by Ga. L. 1993, p. 563, § 1; Ga. L. 2005, p. 899, § 1/HB 665; Ga. L. 2007, p. 298, § 1/HB 16; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-66/HB 642.                                        

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EXHIBIT 3  

 IN THE SUPERIOR COURT

OF DEKALB COUNTY GEORGIA

ANTHONY S. TRICOLI, Plaintiff, vs. ROB WATTS; RON CARRUTH; JIM RASMUS; MARK GERSPACHER; SHELETHA CHAMPION; HENRY HUCKABY; JOHN FUCHKO; STEVE WRIGLEY; BEN TARBUTTON; THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA; SAM OLENS, THE ATTORNEY GENERAL OF GEORGIA; and ROBIN JENKINS Defendants.

) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO.

JURY TRIAL DEMANDED

NOTICE  OF  FILING  OF  EXHIBIT  TO  COMPLAINT    

 

Comes now Plaintiff Anthony Tricoli and files Exhibit 1 to the

Complaint, as referenced in the original filing, which was inadvertently

omitted at the time of the May 7, 2014 filing.

Respectfully submitted this 5th day of June, 2014. STEPHEN F. HUMPHREYS, P.C.

/s/ Stephen F. Humphreys ___________________________

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STEPHEN F. HUMPHREYS Georgia Bar No. 378099 P.O. Box 192 Athens, GA 30603 1671 Meriweather Drive Bogart, GA 30622 (706) 543-7777 p (706) 543-1844 f (706) 207-6982 m

Stephen  F.  Humphreys,  P.C.  P.O.  Box  192  

Athens,  GA  30603  706  207  6982  

athenslaw@gmail.com    

April  22,  2013    Lisa  Pratt,  Director  Risk  Management  Division  Department  of  Administrative  Services  200  Piedmont  Ave  SW  Atlanta,  GA  30334    Sam  Olens  Attorney  General  of  Georgia  40  Capitol  Square  SW  Atlanta,  GA  30334    Hank  Huckaby,  Chancellor  Board  of  Regents  of  the  University  System  of  Georgia  270  Washington  Street,  SW.  Atlanta,  GA  30334  

  45  

 re:  Anthony  Tricoli  Ante  Litem  Notice    To  whom  it  may  concern:       This  firm  represents  Anthony  Tricoli,  former  president  of  Georgia  Perimeter  College  (GPC)  in  the  University  of  Georgia  System  (USG).  We  are  writing  to  give  notice  of  tort  claims  against  the  Board  of  Regents  for  the  USG  for  actions  occurring  in  Atlanta  and  Decatur,  Georgia  that  occurred  or  were  discovered  on  or  about  April  25,  2012.       The  injury  to  Dr.  Tricoli  occurred  because  of  acts  or  omissions  by  the  Board  of  Regents  and  officers  of  the  University  System  and  Georgia  Perimeter  College  for  which  the  Board  of  Regents  is  liable.       Specifically,  GPC  Executive  Vice  President  for  Financial  and  Administrative  Affairs  Ron  Carruth  failed  to  inform  Dr.  Tricoli  pursuant  to  system  policy  of  factors  affecting  the  budget  of  Georgia  Perimeter  College.  When  an  alleged  $16  million  shortfall  was  alleged  on  April  25,  2012,  other  state  officers  including  personnel  of  the  State  Audit  Department,  GPC,  USG,  and  the  Board  of  Regents  claimed  to  know  about  problems  with  the  GPC  budget  over  a  period  of  three  years  without  informing  Tricoli.  These  alleged  budget  shortfalls  were  used  as  a  pretext  for  forcing  Tricoli  out  of  his  job  as  GPC  president,  even  though  a  subsequent  state  audit  cleared  Tricoli  of  any  knowledge  of  the  budget  problems  because  he  was  misinformed  by  the  responsible  budget  officials  and  the  USG  budget  oversight  procedures  were  found  to  be  deficient  and  in  need  of  reform.       Persons  with  knowledge  of  the  alleged  budget  shortfalls  who  did  not  inform  Tricoli  include  without  limitation  USG  Chancellor  Henry  Huckaby,  Executive  Vice  Chancellor  of  Administration  Steve  Wrigley,  Associate  Vice  Chancellor  of  Fiscal  Affairs  Ben  Riden,  Vice  Chancellor  of  Fiscal  Affairs  John  Brown,  GPC  Executive  Vice  President  for  Financial  and  Administrative  Affairs  Ron  Carruth,  GPC  Budget  Director  Mark  Gerspacher,  GPC  Associate  Vice  President  of  Fiscal  Affairs  Sheletha  Champion,  former  Chief  Operating  Officer  and  interim  GPC  President  Rob  Watts,  Assistant  Director  for  Financial  Services  Michael  Cole,  Assistant  Vice  Chancellor  for  Fiscal  Affairs  Usha  Ramachandran,  

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Secretary  to  the  President  Barbara  Price,  and  Executive  Assistant  to  the  President  Julius  Whitaker.       These  officers  committed  fraud  by  failing  to  inform  Tricoli  of  their  knowledge  of  the  alleged  shortfall  as  required  by  USG  and  GPC  policy—in  any  personnel  evaluation,  budget  hearing,  cabinet  meeting,  or  any  other  part  of  the  budget  review  process-­‐-­‐which  would  have  allowed  for  the  president  to  make  necessary  budget  corrections.    They  also  actively  misinformed  President  Tricoli  about  the  state  of  the  GPC  budget.  Approximately  ten  days  prior  to  the  revelation  of  the  alleged  $16  million  shortfall,  Carruth  informed  Tricoli  that  the  GPC  budget  had  a  $4  million  surplus.  Carruth  and  the  other  named  individuals  had  been  meeting  about  the  budget  for  weeks  prior  to  the  April  25  disclosure  and  intentionally  kept  these  matters  secret  from  President  Tricoli  in  violation  of  GPC  Policy  302  on  Budget  Administration.    Even  upon  a  subsequent  USG  audit,  the  reasons  for  this  discrepancy  have  never  been  disclosed  or  ascertained.  The  audit  supported  our  position,  however,  stating  that  the  president  must  rely  on  the  budget  officials  who  did  not  perform  their  duties  to  inform  him  of  the  actual  state  of  the  GPC  budget.       In  May  of  2012,  after  the  alleged  budget  shortfalls  were  uncovered,  USG  Chancellor  Huckaby  informed  Tricoli  that  he  would  be  fired  if  he  did  not  resign.  Huckaby  stated  that  if  he  resigned  as  GPC  president,  Tricoli  would  be  given  a  job  with  the  USG  in  the  downtown  headquarters.  Tricoli  was  offered  no  opportunity  to  address  the  newly-­‐revealed  budget  discrepancies.       As  confirmed  by  a  subsequent  audit,  GPC  Policy  302  on  Budget  Administration  was  not  followed  by  Executive  Vice  President  for  Administrative  and  Financial  Affairs  Ron  Carruth.  Carruth  did  not  inform  President  Tricoli  of  expenditure  trends  affecting  the  school’s  ability  to  stay  within  its  budget.       Despite  this  failure,  confirmed  by  the  subsequent  state  audit  report,  Tricoli  was  publicly  blamed  for  an  alleged  $16  million  budget  shortfall  by  the  USG,  and  for  a  $25  million  shortfall  by  Interim  President  Rob  Watts.    Tricoli  was  forced  to  resign  from  his  position  on  that  basis  under  threat  of  dismissal  by  the  Chancellor,  and  was  offered  a  University  System  job  in  the  central  office  in  order  to  induce  his  

  47  

voluntary  departure  under  the  onus  of  the  alleged  budget  problem  purportedly  known  to  USG  officials  for  the  previous  three  years.  After  Tricoli  changed  his  position  in  reliance  on  this  promise  from  the  Chancellor,  by  resigning  his  position  as  GPC  president  and  losing  his  hearing  rights  that  would  have  accrued  upon  involuntary  termination,  the  promised  job  was  withdrawn  by  Huckaby  and  Tricoli  was  left  unemployed  and  unemployable.       By  engaging  in  this  bait  and  switch,  Huckaby  avoided  the  procedures  of  Board  of  Regents  Policy  2.4.3  for  removal  of  University  Presidents.    The  hearing  Tricoli  would  have  had  under  this  policy  if  removed  for  cause  would  have  shown  what  the  audit  eventually  showed,  that  at  no  time  was  President  Tricoli  provided  with  any  information  which  would  have  allowed  him  to  recognize  or  correct  the  alleged  budget  shortfall.    Moreover,  though  University  System  employees  claimed  to  have  known  that  GPC  had  been  overspending  for  three  years,  this  supposed  shortfall  was  never  once  brought  to  Tricoli’s  attention  in  any  annual  evaluation  of  his  performance  by  the  BOR,  or  any  meeting  of  the  Executive  Team,  Presidential  Cabinet,  Strategic  Planning  Budget  Committee,  or  USG  Budget  Hearing.       Prospective  employers  with  whom  Tricoli  was  interviewing  after  his  forced  departure  were  actively  informed  by  GPC  official  Rob  Jenkins  of  the  alleged  budgetary  problems  at  GPC  to  prevent  Tricoli  from  obtaining  comparable  employment  commensurate  with  his  training  and  experience.  Jenkins  sent  an  email  to  the  Chancellor  on  April  30,  2012,  with  false  allegations  about  Tricoli—which  Huckaby  referenced  in  his  discussion  with  Tricoli  about  resigning  on  May  6.       State  officials  thus  committed  acts  rendering  the  state  liable  for  breach  of  contract,  fraud,  conspiracy,  intentional  infliction  of  emotional  distress,  promissory  estoppel,  and  reliance  damages.       State  officials  acting  outside  the  scope  of  their  employment  committed  fraud,  conspiracy,  tortious  interference,  promissory  estoppel,  intentional  infliction  of  emotional  distress,  and  defamation.       In  reliance  on  Huckaby’s  false  promise  of  USG  employment  to  induce  his  resignation,  Tricoli  lost  his  salary  and  benefits  as  GPC  

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president  and  the  salary  and  benefits  of  the  comparable  system  office  position  he  was  promised.  In  addition,  Tricoli  was  by  denied  his  appeal  rights,  depriving  him  of  due  process  under  Regents  policy  and  due  process  of  law  under  the  Fifth  and  Fourteenth  Amendments  to  the  U.S.  Constitution.    These  salary  and  benefits  total  approximately  $300,000  per  year  for  the  remainder  of  his  anticipated  career  until  retirement.       Without  the  fraud  that  caused  his  wrongful  removal  from  office,  Tricoli  would  have  continued  his  existing  contract  until  its  completion.  Without  the  fraud  that  caused  his  removal  from  office,  Tricoli  would  have  had  his  existing  contract  renewed,  as  the  time  for  giving  any  notice  of  reasons  for  non-­‐renewal  had  already  lapsed  at  the  time  of  his  forced  resignation.       Without  the  fraud  that  caused  his  wrongful  removal  from  office,  Tricoli  expected  to  work  at  GPC  or  USG  for  an  additional  14  years.  Due  to  the  fraud  and  dissemination  of  false  information  it  has  been  impossible  for  Tricoli  to  obtain  other  employment  commensurate  with  his  ability,  training,  experience,  and  accomplishments.    In  addition,  Tricoli  has  incurred  continuing  legal  expenses  because  of  this  tortious  conduct.    Tricoli  is  claiming  $4.2  million  in  damages  plus  legal  fees.    Thank  you  for  your  immediate  attention  to  this  matter  and  we  look  forward  to  your  earliest  response.   Stephen Humphreys Attorney for Anthony Tricoli

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CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that all Defendants in this action have

been served via counsel who purports to represent them in this action, this

4th day of August, 2014, as follows:

Samuel S. Olens Dennis R. Dunn Kathleen M. Pacious Annette M. Cowart Loretta L. Pinkston Christopher A. McGraw C. McLaurin Sitton Office of the Attorney General 40 Capitol Square, SW Atlanta, Georgia 30334-1300

STEPHEN F. HUMPHREYS, P.C.

/s/ Stephen F. Humphreys ___________________________

STEPHEN F. HUMPHREYS Georgia Bar No. 378099 P.O. Box 192 Athens, GA 30603 1671 Meriweather Drive Bogart, GA 30622 (706) 543-7777 p (706) 543-1844 f (706) 207-6982 m