State v. Goolsby

• Decision Date: 08 March 1989
• Docket Number: No. 77858,77858
• Citation: 381 S.E.2d 299,191 Ga.App. 161
• Parties: STATE of Georgia v. GOOLSBY.
• Court: Georgia Court of Appeals

Page 299

381 S.E.2d 299

191 Ga.App. 161

STATE of Georgia v. GOOLSBY.

No. 77858.

Court of Appeals of Georgia.

March 8, 1989.

Rehearing Denied March 30, 1989.

Certiorari Denied May 4, 1989.

Nixon, Yow, Waller & Capers, Paul H. Dunbar III, E. Freddie Sanders, Augusta, for appellant.

Burnside, Wall & Daniel, Thomas R. Burnside, Jr., Harry D. Revell, Augusta, for appellee.

CARLEY, Chief Judge.

In February of 1987, the Grand Jury of Columbia County began the investigation of possible criminal activity on the part of the local sheriff. In anticipation of his own disqualification to participate therein, the District Attorney of the Augusta Judicial Circuit inquired whether appellee-claimant Kenneth Goolsby, a former district attorney who is now engaged in private practice, would accept an appointment as special counsel. After receiving assurances that he would be afforded full independence in the conduct of the investigation, appellee accepted the appointment. Accordingly on February 11, 1987, the district attorney formally appointed appellee special counsel "with all rights, duties and obligations appurtenant to that office, said appointment to continue at the pleasure of the District Attorney."

Thereafter, appellee continued his private legal practice but devoted most of his time to the criminal investigation. Appellee was compensated at an hourly rate by Columbia County, and at no time did he receive compensation from the State of Georgia. On February 26, 1987, while engaged in his employment as special counsel, appellee was involved in an automobile collision. As the result of the injuries that he received, appellee filed a claim for workers' compensation.

The Administrative Law Judge found that appellee was not an independent contractor and was entitled to receive workers' compensation benefits from Columbia County. The Full Board, after a de novo review, found that appellee was not an independent contractor and was entitled to receive workers' compensation benefits from the state. On appeal to the superior court, the award to appellee of workers' compensation benefits from the state was affirmed. The present appeal results from this court's grant of the state's application for a discretionary appeal from the superior court's affirmance of the Full Board's award.

1. If, as a matter of law, appellee was an independent contractor, then any question of whether he would be entitled to workers' compensation from Columbia County or from the state becomes moot. Accordingly, the issue of appellee's status as an independent contractor will be addressed first.

"The district attorney in each judicial circuit may employ such additional assistant district attorneys, deputy district attorneys, or other attorneys, investigators, paraprofessionals, clerical assistants, and other employees or independent contractors as may be provided for by local law or as may be authorized by the governing authority of the county or counties comprising the judicial circuit. The district attorney shall define the duties and fix the title of any attorney or other employee of the district attorney's office." (Emphasis supplied.) OCGA § 15-18-20(a). Appellee was not appointed to serve as a full-time general employee of the district attorney. Notwithstanding his appointment, appellee maintained his private law practice and the district attorney defined appellee's duties as relating exclusively to the conduct of the criminal investigation of the local sheriff and the district attorney fixed appellee's title as special counsel for that particular investigation. It is undisputed that the control of that investigation was intended to be in the hands of appellee rather than of the district attorney. This is affirmatively shown by testimony that appellee's independence was a condition of his acceptance of the appointment. It is also inferentially shown by the ostensible disqualification of the district attorney from participation in the investigation. If, notwithstanding his purported disqualification, the district attorney nevertheless intended to exercise control over appellee's conduct of the investigation, then his appointment of appellee as a special counsel was a sham. There is evidence that, subsequent to his appointment, appellee did receive guidance and help from the district attorney. There is, however, no evidence that the district attorney undertook the control of the investigation. In fact, the evidence shows that the district attorney placed one of his own assistants under appellee's supervision and control and that this assistant considered that it was appellee and not the district attorney who was in control of the investigation. The only evidence of any "control" over appellee is that his service as special counsel was "at the pleasure" of the district attorney. However, the district attorney's retention of this right of "control" is not necessarily inconsistent with appellee's status as an independent contractor. If the appointment to serve "at the pleasure" of the district attorney is interpreted as meaning that, although the district attorney would not retain the general right to control the time, manner and method of the investigation, he would retain the limited right to insure that an otherwise independent investigation of the local sheriff was conscientiously pursued by appellee, this is consistent with the right of an employer of an independent contractor to insist that the job that was contracted for is done according to specifications.

" 'The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. [Cits.]' [Cit.].... [T]he continuous check of 'the work of an independent contractor to see that the work is being done according to the specifications of the job is thoroughly consistent with the relationship of employer and independent contractor and with the mere right of the employer to insist on a certain specific result.'... '[T]he right to change the work and the right to dispense with the independent contractor's services if, during the performance of the job, it appeared that he either was incapable or unwilling to do the job according to the plans and specifications' [is] consistent with the independent contractor relationship. 'The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow'...." Simpkins v. Unigard Mut. Ins. Co., 130 Ga.App. 535, 538(1), 203 S.E.2d 742 (1974).

"[N]othing else appearing, ... evidence as to the power to terminate the employment alone is sufficient evidence to authorize a finding that the [employer] had the right to control the time, manner and method of doing the work." (Emphasis supplied.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 638, 176 S.E.2d 925 (1970). However, there is considerably more in the present case than the evidence that appellee's appointment as special counsel was "at the pleasure" of the district attorney. Appellee maintained his status as a private attorney and was appointed special counsel for the limited purpose of conducting a particular investigation on behalf of Columbia County. He insisted on independence in the conduct of the investigation and the district attorney granted that independence. Appellee is a professional engaged in the private practice of law and, as an experienced former district attorney himself, he needed no supervision in conducting the investigation he was hired to handle. There is no evidence that the district attorney did in fact control and direct appellee in the conduct of the criminal investigation of the local sheriff. See generally Moss v. Central of Ga. R. Co., 135 Ga.App. 904, 906, 219 S.E.2d 593 (1975). Considering all of the other circumstances, that appellee's appointment was "at the pleasure" of the district attorney is not inconsistent with his status as an independent contractor. See Simpkins v. Unigard Mut. Ins. Co., supra. On this undisputed evidence, appellee was, as...