Instead, sheriffs exercise authority over their deputies independent from the county. Sheriffs alone hire and fire their deputies. O.C.G.A. § 15-16-23; Wayne County v. Herrin, 210 Ga.App. 747, 751, 437 S.E.2d 793 (1993). Georgia courts have concluded that sheriffs' deputies are employees of the sheriff and not the county. Warren v. Walton, 231 Ga. 495, 499, 202 S.E.2d 405 (1973) (recognizing that "[d]eputy sheriffs . . . are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge") (internal quotation marks omitted); Drost v. Robinson, 194 Ga. 703, 710, 22 S.E.2d 475 (1942); Brown v. Jackson, 221 Ga.App. 200, 201, 470 S.E.2d 786 (1996) (noting deputy sheriffs "were employees of the sheriff and not Peach County"); Herrin, 210 Ga.App. at 751, 437 S.E.2d 793; Pettus v. Smith, 174 Ga.App. 587, 588, 330 S.E.2d 735 (1985); cf. Boswell v. Bramlett, 274 Ga. 50, 51, 549 S.E.2d 100 (2001) ("[E]mployees of constitutionally elected officers of a county are considered employees of the elected officer and not employees of the county, as represented by the local governing authority.").

Georgia courts have concluded that sheriffs alone are entitled to appoint and discharge their deputies and that deputies (including those serving as jailors) are employees of the sheriff and not the county. Warren v. Walton, 231 Ga. 495, 499, 202 S.E.2d 405, 409 (1973) (recognizing that "deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge") (internal quotation marks omitted); Drost v. Robinson, 194 Ga. 703, 710, 22 S.E.2d 475, 480 (1942); Brown v. Jackson, 221 Ga.App. 200, 201, 470 S.E.2d 786, 787 (1996) (noting deputy sheriffs "were employees of the sheriff and not Peach County"); Wayne County v. Herrin, 210 Ga.App. 747, 751, 437 S.E.2d 793, 798 (1993); Pettus v. Smith, 174 Ga.App. 587, 588, 330 S.E.2d 735, 737 (1985). Importantly for the question here, Georgia courts have concluded that sheriffs, not counties, are vicariously liable under state law for the actions of their deputies in performing their law enforcement activities.

County commissioners had no power to affect employees of other elected county officials until the enactment of O.C.G.A. § 36-1-21 in 1986.Floyd v. Chaffin, 201 Ga. App., 597, 597-98, 411 S.E.2d 570 (1991); see Wayne County v. Herrin, 210 Ga. App. 747, 750-51, 753-54 n. 5, 437 S.E.2d 793 (1993). cert. denied (1994).

In other words, unless legislation passed by the Georgia General Assembly prior to the effective date of OCGA § 36-1-21 specifically provided that employees of elected officials were covered by a merit system, no subsequent action of the county would have validly extended coverage to those employees. Gwinnett County cites Wayne County v. Herrin, 210 Ga. App. 747 ( 437 S.E.2d 793) (1993), as support for its position. Herrin is inapplicable since in that case the court specifically found that the "Board and [the sheriff] fully complied with all requirements set forth in OCGA § 36-1-21 (b) necessary to bring employees of the sheriff's office within the personnel system."

Ga. L. 1994, p. 4400, § 2 (b), within the coverage of the Clayton County civil service system as those employees are paid by the county. Our holding today is in no way intended to diminish the autonomy granted to the sheriff to appoint or discharge employees, see OCGA § 15-16-23; Wayne County v. Herrin, 210 Ga.App. 747 ( 437 SE2d 793) (1993), or to maintain the independence of his elected position. 2. Hill asserts that a certain resolution adopted by the Clayton Board of Commissioners in 1965 to implement the 1963 Civil Service Act violated the Home Rule provision of the Georgia Constitution, Art. IX, Sec. II, Par.

See supra notes 19-21.Nichols , 286 Ga. App. at 895 (3), 650 S.E.2d 380 (punctuation omitted); accord Brown v. Jackson , 221 Ga. App. 200, 201 (2), 470 S.E.2d 786 (1996) ; Wayne Cty. v. Herrin , 210 Ga. App. 747, 751 (3), 437 S.E.2d 793 (1993).Nichols , 286 Ga. App. at 895 (3), 650 S.E.2d 380 ; see Lowe v. Jones Cty. , 231 Ga. App. 372, 373 (2), 499 S.E.2d 348 (1998) (holding that because deputies are employees of the sheriff and not the county, a vicarious liability claim against the county for a deputy's conduct is precluded); Brown , 221 Ga. App. at 201 (2), 470 S.E.2d 786 (holding that because deputy was the employee of the sheriff and not the county, sheriff and not the county would have been the proper party to have sued under a theory of respondeat superior).

The sheriff and not the county is liable for the misconduct of his deputies. Id.; Wayne County v. Herrin, 210 Ga. App. 747, 751 (3) ( 437 S.E.2d 793). In this case, the sheriff who was sued in his official capacity is immune from liability; he is insulated from liability by the defense of sovereign immunity, and that immunity has not been waived in this case.

See O.C.G.A. § 15-16-23. Deputies, including those serving as jailers, are employees of the sheriff and not the county. Warren, 231 Ga. at 499, 202 S.E.2d 405 (recognizing that "[d]eputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge") (quotation marks omitted); Drost v. Robinson, 194 Ga. 703, 710, 22 S.E.2d 475 (1942); Brown v. Jackson, 221 Ga.App. 200, 201, 470 S.E.2d 786 (1996) (noting deputy sheriffs "were employees of the sheriff and not Peach County"); Wayne County v. Herrin, 210 Ga. App. 747, 751, 437 S.E.2d 793 (1993); Pettus v. Smith, 174 Ga.App. 587, 588, 330 S.E.2d 735 (1985); see Boswell, 274 Ga. at 51, 549 S.E.2d 100 ("[E]mployees of constitutionally elected officers of a county are considered employees of the elected officer and not employees of the county, as represented by the local governing authority."); Mobley v. Polk County, 242 Ga. 798, 801-02, 251 S.E.2d 538 (1979). This case involves the acts of Deputy Sheriff Brown, who served as Sheriff Peterson's chief jailer.

The parties do not dispute that Fulton County has enacted a civil service system by which Fulton County deputy clerks, including Plaintiff, are protected. According to that system, deputy clerks can only be dismissed for cause. (Pls. Resp., Exh. 44.) A Fulton County Clerk thus does not have the same power over her deputies as has been granted to sheriffs by Alabama or Florida law. See Wayne County v. Herrin, 437 S.E.2d 793, 799 (Ga.App. 1993); see also Aspinwall v. Herrin, 879 F. Supp. 1227 (S.D. Ga. 1994). Contrary to the unlimited authority described in the cases relied upon by Defendants, the authority of the Clerk of Fulton County was substantially constrained by the institution of a civil service system. See Herrin, 437 S.E.2d at 797-00; id. at 800 n. 5.

Because O.C.G.A. § 15-16-23 confers upon Georgia sheriffs complete and exclusive discretion to appoint deputies, traditionally, sheriff's deputies serve at the sheriff's pleasure. Wayne County v. Herrin, 210 Ga. App. 747, 437 S.E.2d 793 (1993).