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

PLAINTIFFS 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 Plaintiffs 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

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 16-1020,2 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.

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 1614-2(b). Because the Defendants manipulated the publics 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 Generals 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. Plaintiffs Georgia RICO
claims are not for tortious conduct governed by the GTCA, as the Attorney

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 1614-3(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 conductagainst 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 19697.
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 202203.
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 Plaintiffs ouster as President. At the time of Tricolis 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.

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 thenPresident 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 Plaintiffs career and livelihood by
removing him from the presidency of Georgia Perimeter College (GPC) and
torpedoing his efforts to obtain another jobcausing him direct, dire,
concrete, and permanent economic harm--far above and beyond any mere
loss of reputation, contrary to the Attorney Generals 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 Plaintiffs Complaint involve $9 million in
missing money that has never been accounted for. Yet, according to the
Attorney Generals preposterous attempt to apply tort doctrine to criminal
acts, state officials would be immune from suit even if it were discovered

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 Generals 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 GTCAs 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

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

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
actionintentional 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 personincluding governmental entities);
State v. Dorsey, 615 SE2d 512 (Ga. 2005) (RICO action against DeKalb

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.

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 Legislaturewhether 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 statutes
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 conductand
squarely rejected it. Here is how the Georgia Supreme Court refuted State
Labor Commissioner Caldwells argument, identical to the Attorney

10

Generals 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 Generals argument that state officials
enjoy sovereign immunity from RICO actions, is mentioned nowhere in the Attorney
Generals brief in support of his motion to dismiss, though the Caldwell case has been
previously brought to the Attorney Generals 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.

11

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 Briefwhile ignoring the substance of the RICO statute
entirelymerely 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.

12

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,
statinglike the Attorney General in the instant casethat 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 Generals 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

13

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 wordsmust
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

14

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 entitiesjust as
the RICO statute specifically addresses governmental entitiesand 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 Generals
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 stateand 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 provisionjust 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 FEPAcontrary to the Attorney Generals
complete misrepresentation of the case law and statutory authority on this point.

15

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 Generalas well as
other on-point cases the Attorney General does not mentionexpressly
reject the Attorney Generals 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

16

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 Generals 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 immunitythat 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).

17

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 liabilitynot 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.

18

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

19

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 elementsassault 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 childs condition despite repeated attempts to reach her).

20

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

21

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 1610-20 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.

22

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 Generals claim that the knowing misrepresentation of the
budget numbers in state budget hearings, GPC executive committee
meetings, and official reports to the Presidents Cabinet are absolved by the
GTCA exception for accounting errors directly contradicts OCGA 16-1020. 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 16-1020, a RICO pattern of predicate acts under OCGA 16-14-9(A), and
therefore a criminal offense giving rise to Tricolis 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 Legislatures enumeration of OCGA 1610-20 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 Plaintiffs
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
agencyfor example, in misrepresenting that Plaintiff Tricoli was part of the budget
team that misrepresented, which the author, Defendant John Fuchko, knew to be

23

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 actsthat 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 GTCAs 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.

24

Plaintiff has satisfied the elements of a fraudulent inducement claim in

alleging that Defendant Huckaby induced Tricoli to resign his position as
GPC Presidentnot 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 casein 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 Generals 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 Generals impossibly misguided attempt

25

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 Generals 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 Plaintiffs resignation, Defendants
further purported to not renew Plaintiffs 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.

26

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 GTCAcontrary to the Attorney Generals 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 damagesas
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:

27

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

28

activity to institute a civil suit against the members of any RICO enterprise-including one operating within a state government agency. OCGA 16-146(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 Generals 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 publics 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

29

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

30

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

31

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 451-4 (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

32

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

33

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.,

34

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:

35

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)

36

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.

37

-------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

38

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;

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(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

41

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

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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,

45

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 schools
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

46

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 Tricolis
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 Tricoliwhich 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 Huckabys false promise of USG employment to
induce his resignation, Tricoli lost his salary and benefits as GPC

47

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

48

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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

52