§11-9-1. Short title; arrangement; classification.
§11-9-2. Application of this article.
§11-9-2a. Criminal investigation division established; funding of same.
§11-9-4. Failure to pay tax or file return or report.
§11-9-5. Failure to account for and pay over another's tax.
§11-9-6. Failure to collect or withhold tax.
§11-9-7. False statements to purchasers, lessees or employees relating to tax.
§11-9-8. Willful failure to maintain records or supply information; misuse of exemption certificate.
§11-9-9. Aiding, abetting, assisting or counseling in criminal violation.
§11-9-10. Attempt to evade tax.
§11-9-11. Engaging in business without payment of business franchise registration tax; posting business franchise registration certificate.
§11-9-12. Engaging in business without a business franchise registration certificate.
§11-9-13. Release on probation; conditions of probation.
§11-9-16. Effective date; former law preserved for certain purposes.
This article may be cited as the "West Virginia Tax Crimes and Penalties Act." No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this article, and no legal effect shall be given to any descriptive matter or headings relating to any part, section, subsection or paragraph of this article.
(20) Health care provider taxes imposed by article twenty-seven of this chapter.
(b) The provisions of this article also apply to the West Virginia tax procedure and administration act in article ten of this chapter and to any other articles of this chapter when application is expressly provided by the Legislature.
(c) The provisions of this article also apply to municipal sales and use taxes imposed pursuant to article thirteen-c, chapter eight of this code; the charitable bingo fee imposed by sections six and six-a, article twenty, chapter forty-seven of this code; the charitable raffle fee imposed by section seven, article twenty-one of said chapter; and the charitable raffle boards and games fees imposed by section three, article twenty-three of said chapter.
(d) Each and every provision of this article applies to the articles of this chapter listed in subsections (a), (b) and (c) of this section, with like effect, as if the provisions of this article were applicable only to the tax and were set forth in extenso in this article.
(a) Criminal investigation division. -- A criminal investigation division consisting of no more than twelve investigators, of which one investigator shall serve as division director, plus necessary support staff, all of whom are exempt from the classified service, is hereby established in the state Tax Division for the purpose of assuring compliance with laws and rules pertaining to the taxes, fees or credits administered under article ten of this chapter, including, but not limited to, the provisions of articles twenty, twenty-one and twenty-three, chapter forty-seven of this code, but not including income taxes, imposed on individuals by article twenty-one of this chapter.
(b) Special audits division. -- A special audits division consisting of no more than eight tax examiners, plus necessary support staff, all of whom are covered by the classified service, is hereby established in the auditing section of the state Tax Division for purposes of assuring compliance with laws and rules pertaining to taxes, fees or credits administered under article ten of this chapter, including, but not limited to, the provisions of articles twenty, twenty-one and twenty-three, chapter forty-seven of this code, but not including income taxes imposed on individuals by article twenty-one of this chapter.
(c) The Legislature hereby finds that the enforcement of the laws and rules pertaining to the taxes, fees or credits administered under article ten of this chapter, as are applicable to persons whose residence or principal place of business is outside of the State of West Virginia, requires greater efforts and investigation than required for resident persons subject thereto, and does further find that there is a greater rate of noncompliance with said laws and rules by nonresident persons. Therefore, the criminal investigation division and the special audits division created in subsections (a) and (b) of this section are hereby directed to expend a significant amount of their efforts to ensure compliance with the laws and rules pertaining to taxes, fees or credits administered under article ten of this chapter in accordance with the authority provided in this section, by persons whose residence or principal place of business is located outside the State of West Virginia.
(d) Deposits of certain fees. -- Charitable bingo fees imposed by article twenty, chapter forty-seven of this code; charitable raffle fees imposed by article twenty-one of said chapter; and charitable raffle boards and games fees imposed by article twenty-three of said chapter in an amount not to exceed the amount appropriated by the Legislature in any fiscal year shall be deposited in a special revenue account established in the Office of the Treasurer. The special revenue account shall be used to support compliance expenditures relating to the establishment, operation, maintenance and support of the criminal investigation division established in subsection (a) of this section and the special audits division established in subsection (b) of this section. The expenditures may include, but shall not be limited to, employee compensation, equipment, office supplies and travel expenses. On the last day of each fiscal year, unencumbered funds in the special revenue account in excess of $150,000 shall be transferred to the General Revenue Fund.
(e) Investigators. -- Investigators employed in the criminal investigation division shall have a background in accounting or law enforcement or related fields pursuant to article twenty-nine, chapter thirty of this code, or its equivalent. Any investigator designated by the Tax Commissioner shall have all the lawful powers delegated to members of the division of public safety except the power to carry firearms and shall have the authority to enforce the provisions of this article and the criminal provisions of any other article of this code to which this article applies, in any county or municipality of this state. The Tax Commissioner shall establish additional standards as he or she considers applicable or necessary. Any employee shall, before entering upon the discharge of his or her duties, execute a bond with security in the sum of $3,500, payable to the State of West Virginia, conditioned for the faithful performance of the employee's duties and the bond shall be approved as to form by the Attorney General and shall be filed with the Secretary of State for preservation in that office. The division of public safety, any county sheriff or deputy sheriff and any municipal police officer upon request by the Tax Commissioner is hereby authorized to assist the Tax Commissioner in enforcing the provisions of this article and any criminal penalty provision of any article of this code to which this article applies.
(f) Class A license plates. -- Notwithstanding the provisions of article three, chapter seventeen-a of this code, upon application by the Tax Commissioner and payment of fees, the Commissioner of Motor Vehicles shall issue a maximum of twenty Class A license plates to be used on state owned or leased vehicles assigned to investigators employed in the criminal investigation division.
(g) Reports. -- On July 1, of each year, beginning in the year one thousand nine hundred ninety-four, the Tax Commissioner shall present a written report to the joint committee on government operations on the division's compliance with the provisions of this section, including, but not limited to, activities of the divisions created by this section and disbursement of funding.
(1) "Person" means any individual, firm, partnership, limited partnership, copartnership, joint venture, association, corporation, municipal corporation, organization, receiver, estate, trust, guardian, executor, administrator and any officer, employee or member of any of the foregoing who, as an officer, employee or member, is under a duty to perform or is responsible for the performance or nonperformance of the act in respect of which a violation occurs under this article.
(2) "Return" or "report" means any return or report required to be filed by any article of this chapter imposing any tax to which this article applies as specified in section two of this article or by any other article of this code pursuant to which a tax or fee is imposed that is collected by the Tax Commissioner as specified in section two of this article.
(3) "Tax" or "taxes" means any tax to which this article applies, as specified in section two of this article, and includes additions to tax, penalties and interest unless the intention to give it a more limited meaning is disclosed by the context in which the term "tax" or "taxes" is used.
(4) "Tax commissioner" or "commissioner" means the Tax Commissioner of the State of West Virginia or his or her delegate.
(5) "This chapter" means chapter eleven of the Code of West Virginia, 1931, as amended, and shall include only those articles of chapter eleven of this code listed in section two of this article.
(6) "Willfully" means the intentional violation of a known legal duty to perform any act, required to be performed by any provision of this chapter or article thirteen-c, chapter eight of this code, in respect of which the violation occurs: Provided, That the mere failure to perform any act shall not be a willful violation under this article. A willful violation of this article requires that the defendant had knowledge of or notice of a duty to perform an act and that the defendant, with knowledge of or notice of that duty, intentionally failed to perform the act.
(7) "Evade" means to willfully and fraudulently commit any act with the intent of depriving the state of payment of any tax which there is a known legal duty to pay under this chapter.
(8) "Fraud" means any false representation or concealment as to any material fact made by any person with the knowledge that it is not true and correct, with the intent that the representation or concealment be relied upon by the state.
Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to pay any tax, or to file any return or report, who willfully fails to pay the tax, or willfully fails to file the return or report, more than thirty days after the date the tax is required to be paid by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $2,500. Each failure to pay tax, or file a return or report, more than thirty days after its due date for any tax period is a separate offense under this section and punishable accordingly: Provided, That thirty days prior to instituting criminal proceedings under this section, the Tax Commissioner shall give the person written notice of any failure to pay a tax or to file a return or report. Notice shall be served on the person by certified mail or by personal service. The provisions of this section shall not apply to the business franchise registration tax imposed by article twelve of this chapter.
Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect, or withhold, account for and pay over any tax, who willfully fails to truthfully account for and pay over the tax in the manner required by law, more than thirty days after the date the tax is required to be accounted for and paid over by law, is guilty of a felony if the amount of tax not paid over is $1,000 or more and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or imprisoned in a correctional facility not less than one nor more than three years, or, in the discretion of the court, be confined in jail not more than one year, or both fined and imprisoned; or is guilty of a misdemeanor, if the amount of tax not paid over is less than $1,000, and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000 or imprisoned in jail not more than six months, or both fined and imprisoned. Each failure to account for and pay over tax for any tax period under this section is a separate offense and punishable accordingly: Provided, That thirty days prior to instituting a criminal proceeding under this section, the Tax Commissioner shall give the person written notice of the failure to truthfully account for and pay over tax. Notice shall be served on the person by certified mail or personal service.
Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect or withhold any tax, who willfully fails to collect or withhold the tax in the manner required by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or imprisoned in jail not more than six months, or both fined and imprisoned. Each month or fraction thereof during which the failure continues is a separate offense under this section and punishable accordingly.
Any person required by law to collect or withhold any tax, who represents, advertises or states to the public or to any purchaser, lessee or employee that he will absorb or assume payment of any part of such tax or that such tax is not to be considered as part of or added to the sales price, or wages payable, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or imprisoned in the county jail not more than six months, or both fined and imprisoned.
If any person: (1) Willfully fails to maintain any records, or supply any information, in the manner required by this chapter or article thirteen-c, chapter eight of this code or regulations therefor promulgated in accordance with law, to compute, assess, withhold or collect any tax imposed by this chapter; or (2) presents to any vendor a certificate for the purpose of obtaining an exemption from the tax imposed by article fifteen or fifteen-a of this chapter or article thirteen-c, chapter eight of this code and then knowingly uses the item or service purchased in a manner that is not exempt from the tax without remitting the tax in the manner required by law, that person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or imprisoned in jail not more than six months, or both fined and imprisoned.
Any person who shall knowingly aid or abet or assist or counsel another person in the commission of any act prohibited by this article, whether or not such act is with the knowledge or consent of the person required by law to do the act, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or imprisoned in the county jail not more than six months, or both fined and imprisoned.
If any person: (1) Knowingly files a false or fraudulent return, report or other document under any provision of this chapter or article thirteen-c, chapter eight of this code; or (2) willfully delivers or discloses to the Tax Commissioner any list, return, account, statement, record or other document known by him or her to be fraudulent or false as to any material matter with the intent of obtaining or assisting another person in obtaining any credit, refund, deduction, exemption or reduction in tax not otherwise permitted by this chapter or article thirteen-c, chapter eight of this code; or (3) willfully attempts in any other manner to evade any tax imposed by this chapter or article thirteen-c, chapter eight of this code or the payment thereof, is guilty of a felony and, notwithstanding any other provision of the code, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000 or imprisoned in a correctional facility not less than one nor more than three years or, in the discretion of the court, be confined in jail not more than one year, or both fined and imprisoned.
(1) Engages in business without posting a business franchise registration certificate in the place of business in the manner required by law; (2) engages in business without payment of the business franchise registration tax when required by law; (3) engages in business after expiration of the period of time for which such certificate was granted without obtaining a new certificate; or (4) engages in business after the business franchise registration has been revoked, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be fined $100. Each day or part thereof that any violation continues is a separate offense and punishable accordingly: Provided, That the Tax Commissioner shall promulgate rules and regulations pursuant to chapter twenty-nine-a of this code relating to the posting of business franchise registration certificates, and violations of those rules and regulations shall constitute an offense under this section.
If any person engages in business within the State of West Virginia without obtaining a business franchise registration certificate when required by law, such person is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000.
Any circuit court of this state shall have the authority as provided in article twelve, chapter sixty-two of this code, to place on probation any person convicted of a crime pursuant to this article. Release on probation shall be upon the conditions required by section nine, article twelve, chapter sixty-two of this code, and such conditions may include, but need not be limited to, a specified period of public or community service by the probationer.
The Tax Commissioner or any other public officer initiating proceedings against any person shall do so in the county of this state wherein such person resides, if any element of the offense occurred in the county of residence, or if no element of the offense occurs in the county of residence, then the county where the offense was committed.
Every prosecution for any offense arising under this article shall be commenced within three years after the offense was committed, notwithstanding any provision of this code to the contrary.
(a) The provisions of this article shall take effect on July 1, 1984, and shall apply to criminal violations of this chapter committed on or after such date.
(b) Any criminal violation of this chapter occurring before July 1, 1984, that would have been punishable under one of the sections of this chapter repealed by this act, shall nevertheless be punishable under those sections, as in effect on January 1, 1984, and for such purpose the following sections of this chapter are fully and completely preserved: Section twelve of article twelve, section twenty-two of article twelve-a, section twenty-one of article thirteen, section nine of article fourteen, section ten of article fourteen-a, section twenty-nine of article fifteen, sections nineteen and twenty of article fifteen-a, section ninety-two of article twenty-one and section thirty-eight of article twenty-four.


George WARNER, etc., et al.
George R. Higinbotham, Charleston, W. Va., for appellant.
Phillip D. Gaujot, Asst. Atty. Gen., Charleston, W. Va., for appellees, pro hac vice by special leave of Court.
We noted probable jurisdiction in this case, 411 U.S. 905, 93 S.Ct. 1533, 36 L.Ed.2d 194 (1973), because it appeared to present a significant issue, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as to the validity of that provision of W.Va.Code Ann. § 50—15—2 (1966),1 requiring a double bond as a condition for an appeal from a judgment entered by a justice of the peace in a civil case. See Lindsey v. Normet, 405 U.S. 56, 74—79, 92 S.Ct. 862, 874—877, 31 L.Ed.2d 36 (1972).
In November 1968 appellant Patterson purchased a used automobile from appellee Graham Motor Company under a deferred-purchase money contract. That portion of the price not paid at the time of purchase was evidenced by a negotiable promissory note. After taking delivery of the automobile but before completion of his payments, Patterson encountered mechanical difficulties with the car. Finding himself unable to obtain satisfaction from Graham, Patterson undertook to reject the purchase, pursuant to W.Va.Code Ann. § 46—2—602 (1966), and made no further payments on the note.
Patterson sought to appeal the case to a court of record. Bond was set at $600, double the amount of the judgment, as § 50 15—2 specified. Patterson was unable to find an individual surety and, being indigent, was also unable to raise the amount required by a commercial surety. As a result, the appeal was not perfected and the judgment adverse to him became final.
Prior to execution on the judgment, Patterson instituted this purported class action in the United States District Court for the Southern District of West Virginia against Justice of the Peace Warner and against Graham. He sought injunctive and declaratory relief. A three-judge court was convened and upheld the challenged West Virginia statute. It reasoned that the full hearing before the justice, with the opportunity to present a defense, accorded appellant due process, and that there was no requirement that the State provide appellate review. Turning to equal protection, the court held that a State may properly take steps to insure that an appellant post adequate security to protect a damages award already made, citing Lindsey v. Normet, 405 U.S., at 77, 92 S.Ct., at 876; that an appeal in forma pauperis in a civil case is a privilege, not a right; and that 'the concept of Equal Protection does not include full and unrestrained appellate review of an initial adjudication which afforded Due Process.' Patterson's request for relief was therefore denied.
After probable jurisdiction had been noted here, and shortly prior to the filing of briefs in this Court, the Supreme Court of West Virginia decided State ex rel. Reece v. Gies, W.Va., 198 S.E.2d 211 (1973). In Reece the portion of § 50—15—2 requiring an appeal bond in an amount double the damages plus one year's rent as a prerequisite to an appeal from a justice court in a suit for unlawful detention of real estate was under constitutional challenge. The West Virginia court, citing the District Court's decision in the present case and Greer v. Dillard, 213 Va. 477, 193 S.E.2d 668 (1973), upheld the bond amount provision, with two of the court's five justices dissenting on that issue, but went on to rule unanimously that the judgment entered against the defendant by a West Virginia justice of the peace was violative of the Due Process Clauses of the Federal and State Constitutions and was 'void.' 198 S.E.2d, at 216. Its rationale was that, because, the justice's fee was enhanced when he ruled in favor of the plaintiff, he possessed a pecuniary interest in the case's outcome, and the parties therefore were denied a neutral and unbiased judge. See also State ex rel. Moats v. Janco, 154 W.Va. 887, 180 S.E.2d 74 (1971).
The judgment entered against appellant Patterson by appellee Warner was rendered pursuant to the same West Virginia statutory scheme that was challenged, in part successfully, in Reece. Appellant, upon becoming aware of the Reece decision, filed a suggestion of mootness here. Appellee Warner at the time opposed the suggestion. Although that aspect of the case was not addressed in the briefs, it was discussed at oral argument. Tr. of Oral Arg. 3—6, 34—36. Appellant, despite his having made the suggestion of mootness, asserted at oral argument that Reece had no retroactive application, and that the judgment entered against him was not void and the case was not moot. Id., at 5. Appellee Warner contended otherwise, id., at 37—38, stating that in West Virginia, under Falconer v. Simmons, 51 W.Va. 172, 41 S.E. 193 (1902), a State Supreme Court pronouncement, with one exception, is fully retroactive in the sense that it is regarded as always having been the law.
Inasmuch as the decision of the Supreme Court of West Virginia in Reece was rendered after the entry of the judgment in the present case, the three-judge District Court had no occasion to consider whether the decision in Reece means that the judgment obtained by Graham against Patterson is void and whether the present case has become moot. We deem it desirable that the District Court, in the first instance, evaluate the effect of that intervening decision. Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for reconsideration in the light of State ex rel. Reece v. Gies, W.Va., 198 S.E.2d 211 (1973). In so doing, we intimate no view as to whether the case is or is not now moot.
Three hundred dollars is the monetary limit of the jurisdiction of a West Virginia justice of the peace in a civil action for the recovery of money. W.Va.Code Ann. § 50—2—1.


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The Foreign Corrupt Practices Act (“FCPA”)1 became law in 1977 and has been enforced aggressively for many years. It is the US Government’s primary tool in combating overseas bribery and corruption. The Department of Justice (“DOJ”) has jurisdiction over criminal prosecutions, while the Securities and Exchange Commission (“SEC”) is empowered to bring civil enforcement actions. The FCPA has a broad geographical reach and creates significant exposure for both companies and individuals. Recent policy changes that increase the incentives for voluntary self-disclosures of apparent FCPA violations indicate that the DOJ may be moving away from large-scale corporate penalties,2 though US authorities have continued to bring large corporate enforcement actions in 2018.
In April 2016, building on the Yates Memorandum, the DOJ announced a one-year pilot program (“FCPA Pilot Program”), which was extended for an additional year in March 2017,5 designed to encourage companies to voluntarily disclose FCPA violations. More recently, in November 2017, the DOJ announced a revised FCPA Corporate Enforcement Policy (“CEP”), which builds on and replaces the FCPA Pilot Program and further incentivises voluntary self-disclosure on the part of companies that uncover apparent corruption.6 Specifically, the CEP converts the FCPA Pilot Program’s informal incentives for voluntary disclosure into a “presumption” that the DOJ will decline to prosecute and will not impose a monitor for corporations that disclose, cooperate and remediate.
Further, as demonstrated by enforcement actions in 2017 and 2018, global enforcement remains robust. For example, US officials collaborated for the first time with Singaporean authorities in investigating Keppel Offshore and Marine Ltd., a Singaporean company, and its US subsidiary for their years-long practice of bribing Brazilian officials.11 Brazilian law enforcement also participated in the investigation. This joint investigation culminated in December 2017 in a multi-jurisdictional settlement of $422 million, of which the US government and the Singapore government each received $105 million, while the Brazilian government received the rest. US officials also brought their first coordinated action with French authorities related to overseas corruption in a June 2018 action against Société Générale S.A. related to bribery of Libyan officials which resulted in a total payment of $585 million split equally between US and French authorities.
While the FCPA does not provide an absolute defence based on adequate anti-bribery procedures and due diligence, robust procedures are essential to mitigating FCPA exposure. If the US Government becomes aware of potential red flags or suspicious payments by a corporation, it will look for real, substantial and sustained compliance efforts, including a strong anti-corruption message from the top. Companies subject to the FCPA also should carefully consider, particularly in light of the CEP, whether to self-report violations in order to maximise the chance of a favourable resolution with the government.
No “issuer” (an entity whose shares are publicly traded on a US exchange, including most American Depository Receipts (“ADRs”), or any officer, director, employee or agent of such an entity) or “domestic concern” (US person, or officer, director, employee or agent of a US person) may corruptly pay, offer, authorise, or promise to pay money or anything of value to a foreign government official, candidate for office, or political party, in order to secure an improper advantage or assist in obtaining or retaining business.
As a result, both individuals and corporations have FCPA exposure. The FCPA covers, for instance, all US citizens regardless of location, foreign subsidiaries of US entities, US parents (which may be liable for the actions of their foreign subsidiaries), foreign entities traded on US exchanges, and indeed any non-US company or national that causes an act to be done within the United States by any person acting as an agent of the non-US person. Importantly, a principal can be liable for the actions of an agent even if the principal merely turns a blind eye to the high risk of a bribe and does not have actual knowledge of corrupt activity.
The bribery provision contains an exception for “facilitating or expediting payments” made in furtherance of routine governmental action. This exception is interpreted narrowly by enforcement authorities and the exception only applies when a payment is made to further “routine governmental action” that involves non-discretionary acts. According to guidance released by regulatory authorities, examples of “routine governmental action” include processing visas, providing police protection or mail service, and supplying utilities like phone service, power, and water. Routine government action does not include a decision to award new business or to continue business with a particular party. Nor does it include acts that are within an official’s discretion or that would constitute misuse of an official’s office. Importantly, anti-bribery laws in certain jurisdictions, including the United Kingdom, do not permit facilitation payments. Given the narrowness of the exception under the FCPA and the prohibition on facilitation payments in some jurisdictions, it is a global best practice to prohibit such payments.
The FCPA does not prevent companies from bona fide business promotion expenses, including legitimate hospitality for government officials. Some “hallmarks” of appropriate hospitality are when a gift is “given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law . . . . Items of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action by DOJ or SEC”.13 Large or extravagant gifts (e.g., watches, cash, exotic travel, etc.), however, are more likely to be considered to have been given with an improper purpose.
In practice, the “books and records” provision has led to many of the largest FCPA fines. Individuals can also be held civilly or criminally liable for participating in such violations. Companies may also fall foul of this provision even if not all of the elements of a bribery offence, as described above, have been met. For instance, if a corporation allowed a third-party agent to make corrupt payments to another person, but it was doubtful whether that person was a “foreign government official”, the corporation could still face FCPA prosecution under the books and records provision of the FCPA if the company’s books and records characterised such payments in a misleading way; for instance, recording them as consulting fees.
making a charitable contribution, even to a bona fide charity, if that contribution benefits a foreign official or is part of a quid pro quo.
the third party is a charity (even bona fide) affiliated with a foreign government or official(s).
While we cannot cover all FCPA enforcement developments in this space, we highlight a few that present the greatest potential for further development in the near future.
Three recent record-breaking enforcement actions demonstrate that international law enforcement cooperation remains the norm in anti-corruption enforcement. Such cooperation brings about “double jeopardy” risks – penalties in multiple jurisdictions for the same conduct – in connection with anti-corruption settlements.
In September 2017, as discussed above, Telia Company AB, a Swedish telecommunications firm, agreed to pay to more than $965 million in fines in the United States, the Netherlands, and Sweden to settle charges related to $331 million in bribes paid to an Uzbek government official.17 In its press release, the DOJ cited help from law enforcement authorities and other regulators in the Netherlands, Norway, Sweden, Switzerland, Latvia, France, Spain, Hong Kong, the British Virgin Islands, the Cayman Islands, Bermuda, Cyprus and Ireland.
The Telia case was the second FCPA action brought in connection with bribes paid to facilitate entry into the Uzbek market. In February 2016, VimpelCom Ltd. (“VimpelCom”) agreed to pay nearly $400 million to the DOJ and SEC and to retain an independent compliance monitor for three years and to pay a separate penalty of nearly $400 million to Dutch regulators.18 In addition to the charges against VimpelCom, the DOJ’s Kleptocracy Asset Recovery Initiative also brought complaints seeking forfeiture of $850 million in allegedly tainted funds connected to the Uzbek bribe recipient held in European bank accounts. Then, in June 2017, the DOJ obtained orders to seize assets held in certain European countries, demonstrating the parallel avenues used by the US Government to target funds connected to corrupt activities.
In June 2018, Société Générale S.A. entered into a settlement agreement with the DOJ related to bribery of Libyan officials which resulted in a total payment of $585 million split equally between US and French authorities. The charges related to bribes paid to Libyan officials through an intermediary “broker” to secure investments from Libyan state-owned financial institutions. The enforcement action represented the fifth-highest penalty to date.
Also of note, in January 2017, the SEC and DOJ for the first time entered into a joint FCPA resolution with a company for conduct stemming from violations of compliance obligations in prior FCPA settlements. Specifically, Zimmer Biomet, an Indiana-based medical device company, admitted that it violated its 2012 agreements with the DOJ and SEC by continuing to use a third-party distributor who was known to have paid bribes to Brazilian officials notwithstanding the fact that Biomet (Zimmer Holdings acquired Biomet in June 2015)20 had agreed to stop using that distributor in the 2012 agreements. Interestingly, the government did not allege that Zimmer Biomet violated the FCPA’s anti-bribery provisions. Instead, the government alleged that Zimmer Biomet’s actions violated the FCPA’s books and records provisions. For these violations and for allowing its Mexican subsidiary to pay bribes to Mexican customs officials, Zimmer Biomet was assessed a $17.4 million criminal penalty by the DOJ and a $6.5 million civil penalty by the SEC. In addition, the SEC ordered Zimmer Biomet to pay $6.5 million in disgorgement. Finally, Zimmer Biomet, which had been under the supervision of an independent corporate monitor since 2012, agreed to retain such a monitor for an additional three years.
In November 2017, the DOJ released the CEP, which aims to encourage voluntary self-disclosure and to reduce duplicative penalties that are levied by multiple law enforcement agencies. As discussed above, the CEP transforms the FCPA Pilot Program’s incentives for voluntary self-disclosure into a “presumption” of non-prosecution. The CEP is notable because for the first time the DOJ has established a “presumption” in response to voluntary self-disclosures. While the FCPA Pilot Program had explicitly set forth standards for when companies may be eligible for reduction of penalties in FCPA enforcement actions, the DOJ had stopped short of establishing any kind of “presumption”.
The CEP offers credit to companies that: (1) voluntarily disclose violations; (2) fully cooperate with government authorities; and (3) timely and appropriately remediate violations. The CEP specifies that when a company satisfies these elements, “there will be a presumption that the company will receive a declination,” which will include disgorgement of profits.21 The presence of aggravating circumstances can overcome this presumption. The CEP defines “aggravating circumstances” to include: (1) involvement by executive management in FCPA violations; (2) significant profits stemming from misconduct; (3) pervasiveness of misconduct; and (4) repeat offences. Where a company discloses, cooperates and remediates but aggravating circumstances are present, the DOJ will recommend a 50% reduction off the minimum sanction under the US Sentencing Guidelines and will not impose a monitor (assuming implementation of an effective compliance program).
While FCPA-related litigation is relatively rare, one case that warrants monitoring could have a significant impact on potential jurisdiction over non-US persons under the FCPA. In United States v. Hoskins, the US Government has argued that an executive of Alstom S.A. should be held liable for FCPA violations under theories of conspiracy and aiding and abetting FCPA violations.24 Under these theories, a non-US person could be subject to criminal FCPA liability even where the defendant was not an agent of a domestic concern and did not commit acts while physically present in the United States because the individual conspired with, or aided and abetted violations by, individuals who were subject to the FCPA.
A US district court has twice rejected the government’s arguments, but the government filed an appeal to the United States Court of Appeals for the Second Circuit in April 2016. If the Second Circuit affirms the district court’s decisions, this would represent a limit on the government’s efforts to expand the extraterritorial reach of the FCPA. In contrast, a reversal would expand potential criminal liability for FCPA violations to non-US persons who previously seemingly were not captured by the FCPA’s already-broad jurisdiction. The Second Circuit heard oral arguments in this case in March 2017 and has not yet issued a ruling.
Contrary to the SEC’s position that disgorgement is an equitable remedy without time constraints, recent federal court cases have clarified that SEC claims for disgorgement are subject to a five-year statute of limitations.25 On June 5, 2017, in Kokesh v. SEC, the US Supreme Court unanimously held that 28 U.S.C § 2462 bars the SEC from obtaining disgorgement in actions brought beyond the five-year statute of limitations.26 The Court rejected the SEC’s contention that disgorgement is an equitable remedy that restores the status quo, and held that since disgorgement orders “go beyond compensation, are intended to punish, and label defendants wrongdoers as a consequence of violating public laws, they represent a penalty and thus fall within the 5-year statute of limitation”.27 By limiting disgorgement to alleged anti-bribery and recordkeeping violations over the most recent five years, the ruling will constrain the SEC’s leverage in settlement discussions for FCPA cases (as well as other subject areas). The case may also raise new considerations for companies/individuals contemplating whether to toll the statute of limitations.
In February 2017, the DOJ released a guidance document, “Evaluation of Corporate Compliance Programs”, that companies may use to preview what enforcement authorities may discuss during investigations and/or settlement proceedings.28 While helpful, the guidance primarily reinforces core standards already introduced by the Resource Guide to the FCPA and US Sentencing Guidelines. US government guidance, including the new evaluation guidance, has historically highlighted certain “hallmarks” of compliance: commitment of senior management, code of conduct/policies and procedures, resources, autonomy/independence of compliance program, training, incentives and disciplinary measures, risk assessment processes and analytics, third party due diligence, and periodic testing/review.
In comparison to prior guidance, the new guidance places additional emphasis on certain areas. In relevant part, guidance includes approximately 120 questions that enforcement officials may ask when evaluating the effectiveness of a company’s compliance program. Several of the questions call for detailed and granular information, including whether “business units/divisions” were consulted prior to the rollout of compliance procedures/policies and the company has trained individual relationship managers “about what compliance risks are and how to manage them”.29 The questions demonstrate a new emphasis on management failures of oversight, resourcing dedicated to a compliance program, and compensation/incentive structures pertaining to compliance. Among other things, the questions highlight the importance of documenting risk assessments. The document also includes questions that probe the independence and integrity of an internal investigation.
US authorities may employ a number of tools other than the FCPA to combat bribery. For instance, the Travel Act prohibits commercial bribery (bribery of a non-government official), even though the FCPA does not. Additionally, corporations may face considerable exposure as a result of civil lawsuits by customers, competitors, and even their own shareholders. US authorities have also begun to go after bribery from the “demand” side, by prosecuting allegedly corrupt foreign officials for offences such as money-laundering and wire fraud, and attempting to seize any US assets of such foreign officials. Corporations can also be debarred from federal contracts, and institutional investors may be barred from doing business with a firm that is subject to FCPA action. Other institutions, such as the World Bank, may also debar a firm for bribery violations.
The monitorships to which many corporations consent in order to resolve FCPA violations are also costly and, as the Zimmer-Biomet example discussed above demonstrates, may increase government scrutiny of other areas of the corporation’s activities. The DOJ has continued to impose hybrid monitorships as a requirement of some – but not all – enforcement actions, meaning that an independent monitor was required for part, but not all, of the term of the Deferred Prosecution Agreement. The decision whether to impose a monitorship appears to be based on the company’s ability to remediate past wrongdoing and on the severity of the company’s unlawful conduct. Hybrid monitorships are more likely to be imposed where a company has substantially cooperated with an investigation and has undertaken remediation efforts, but the original conduct or the remediation efforts leave the Department of Justice with concerns. In contrast, where the original offence is considered serious and the extent of remediation is unclear or lacking, the government may insist on a monitorship throughout the term of the settlement.
Additionally, as the Telia Company AB, VimpelCom, Rolls-Royce, and Société Générale actions demonstrate, US Government officials continue to work closely with other governments in investigating potential cross-border corruption.
1. 15 U.S.C. § 78dd-1, et seq.
2. See US Dep’t of Justice, FCPA Corporate Enforcement Policy (Nov. 29, 2017) (hereinafter “CEP”) available at https://www.justice.gov/criminal-fraud/file/838416/download.
3. The Criminal Division of the US Dep’t of Justice & the Enforcement Division of the US Securities and Exchange Commission, FCPA: A Resource Guide to the US Foreign Corrupt Practices Act (November 2012) (hereinafter, FCPA Resource Guide), available athttp://www.justice.gov/criminal/fraud/fcpa/guide.pdf.
4. Individual Accountability for Corporate Wrongdoing, DOJ, September 9, 2015 (hereinafter “Yates Memorandum”), available at http://www.justice.gov/dag/file/769036/download; US Dep’t of Justice, The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance (April 5, 2016) (available at https://www.justice.gov/opa/file/838386/download).
5. Acting Assistant Attorney General Kenneth A. Blanco Speaks at the American Bar Association National Institute on White Collar Crime (Mar. 10, 2017), available at https://www.justice.gov/opa/speech/acting-assistant-attorney-general-kenneth-blanco-speaks-american-bar-association-national (hereinafter Blanco ABA Remarks).
6. CEP, supra note 1.
7. Telia Company AB and Its Uzbek Subsidiary Enter Into a Global Foreign Bribery Resolution of More Than $965 Million for Corrupt Payments in Uzbekistan, US Dep’t of Justice (Sept. 21, 2017) available athttps://www.justice.gov/opa/pr/telia-company-ab-and-its-uzbek-subsidiary-enter-global-foreign-bribery-resolution-more-965.
8. Teva Pharmaceutical Industries Ltd. Agrees to Pay More Than $283 Million to Resolve Foreign Corrupt Practices Act Charges,US Dep’t of Justice (Dec. 22, 2017) available athttps://www.justice.gov/opa/pr/teva-pharmaceutical-industries-ltd-agrees-pay-more-283-million-resolve-foreign-corrupt.
9. Panasonic Avionics Corporation Agrees to Pay $137 Million to Resolve Foreign Corrupt Practices Act Charges, US Dep’t of Justice (April 30, 2018) available athttps://www.justice.gov/opa/pr/panasonic-avionics-corporation-agrees-pay-137-million-resolve-foreign-corrupt-practices-act; Panasonic Charged With FCPA and Accounting Fraud Violations, US Securities and Exchange Commission (April 30, 2018) available at https://www.sec.gov/news/press-release/2018-73.
10. Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties for Bribing Gaddafi-Era Libyan Officials and Manipulating LIBOR Rate, US Dep’t of Justice (June 4, 2018) available at https://www.justice.gov/opa/pr/soci-t-g-n-rale-sa-agrees-pay-860-million-criminal-penalties-bribing-gaddafi-era-libyan.
11. Keppel Offshore & Marine Ltd. and U.S. Based Subsidiary Agree to Pay $422 Million in Global Penalties to Resolve Foreign Bribery Case (December 22, 2017) available athttps://www.justice.gov/opa/pr/keppel-offshore-marine-ltd-and-us-based-subsidiary-agree-pay-422-million-global-penalties.
12. See Securities & Exchange Commission v. Straub, 921 F. Supp. 2d 244 (S.D.N.Y. 2013). Less than two weeks later, a different federal judge in New York dismissed claims against a foreign FCPA defendant, finding that any connection to false US filings was “far too attenuated” to establish jurisdiction over the defendant. US Securities & Exchange Commission v. Sharef, 924 F. Supp. 2d 539, 546 (S.D.N.Y. 2013). The second court, however, did not have occasion to address the question of whether emails sent through US servers form a sufficient basis for jurisdiction.
13. FCPA Resource Guide, supra note 3, at 17.
14. FCPA Resource Guide, supra note 3, at 43.
15. US Dep’t of Justice, Fraud Section Year in Review 2017, available at https://www.justice.gov/criminal-fraud/file/1026996/download.
16. US Securities and Exchange Commission, SEC Enforcement Actions: FCPA Cases, available at https://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml.
17. Telia Company AB, supra note 7.
18. See VimpelCom to Pay $795 Million in Global Settlement for FCPA Violations, US Securities & Exchange Commission (Feb. 18, 2016), available at https://www.sec.gov/news/pressrelease/2016-34.html; see also VimpelCom Limited and United LLC Enter into Global Foreign Bribery Resolution of More than $795 Million, US Department of Justice (Feb. 18, 2016), available at https://www.justice.gov/opa/pr/vimpelcom-limited-and-unitel-llc-enter-global-foreign-bribery-resolution-more-795-million.
19. Rolls-Royce plc Deferred Prosecution Agreement with US Department of Justice, Dec. 20, 2016, available at https://www.justice.gov/opa/press-release/file/927221/download.
20. Zimmer Completes Combination with Biomet, June 24, 2015, available at http://investor.zimmerbiomet.com/news-and-events/news/2015/24-06-2015-191859180.
21. CEP, supra note 1.
22. See US Securities & Exchange Commission, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions, Release No. 34-44969 (Oct. 23, 2001), available at http://www.sec.gov/litigation/investreport/34-44969.htm.
23. See US Securities & Exchange Commission, Policy Statement of the Securities and Exchange Commission Concerning Cooperation by Individuals in its Investigations and Related Enforcement Actions, SEC Rel. No. 34-61340 (Jan. 13, 2010), available at https://www.sec.gov/rules/policy/2010/34-61340.pdf.
24. United States v. Hoskins, 123 F. Supp. 3d 316, 318 (D. Conn. 2015).
25. See SEC v. Graham, 823 F.3d 1357 (11th Cir. 2016).
26. See Kokesh v. SEC, No. 16-529, slip op. at 2–3 (US Jun. 5, 2017).
28. Evaluation of Corporate Compliance Programs, US Department of Justice (Feb. 8, 2017), available at https://www.justice.gov/criminal-fraud/page/file/937501/download (hereinafter DOJ Evaluation Guidance).
29. DOJ Evaluation Guidance at 7.

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Full Case Name: WYNO et al. v. LOWNDES COUNTY et al.
Country of Origin: United States Court Name: Court of Appeals of Georgia Primary Citation: 331 Ga. App. 541, 771 S.E.2d 207 (2015), cert. denied (June 15, 2015) Date of Decision: Wednesday, March 25, 2015 Judge Name: McFADDEN, Judge. Jurisdiction Level: Georgia Alternate Citation: 2015 WL 1318263 (Ga. Ct. App. 2015) Judges: ANDREWS, P.J. RAY, J. McFADDEN, J. Docket Num: No. A14A2086.
Summary: Victim was attacked and killed by her neighbor's dog. Victim's husband, acting individually and as administrator of his wife's estate, brought action against dog owners and several government defendants, whom he alleged failed to respond to earlier complaints about the dog. The trial court dismissed the action against the government for failure to state a claim, concluding that sovereign and official immunity or, alternatively, the Responsible Dog Ownership Law (OCGA § 4–8–30), barred action against the government defendants. Husband appealed. The appeals court held the trial court did not err in dismissing the action against the county and its employees in their official capacities. The former version of OCGA § 4–8–30, effective at the time of the attack, provided immunity to local governments and their employees from liability for all injuries inflicted by dangerous or potentially dangerous dogs. The appeals court held that the trial court erred in dismissing the action against the employees in their individual capacities based on official immunity, however. By applying the former OCGA § 4–8–30 (2012) to dismiss the action against the employees in their individual capacities, the trial court implicitly rejected the husband’s constitutional challenge to the statute. Judgment was therefore affirmed in part and reversed in part, and remanded to the trial court to enter a ruling specifically and directly passing on the husband’s constitutional challenge.
*1 Misty Wyno was attacked and killed by her neighbors' dog. Her husband, Jason Wyno, acting individually and as administrator of Mrs. Wyno's estate, brought this action against the dog's owners and against several governmental defendants—Lowndes County and four individual county employees associated with the county's animal control services—who he alleged had failed to respond appropriately to earlier complaints about the dog. The trial court dismissed the action against the county and the employees for failure to state a claim, concluding that sovereign and official immunity or, alternatively, the Responsible Dog Ownership Law, OCGA §§ 4–8–20, et seq., barred the action against those defendants. The trial court did not dismiss the action against the dog's owners, but he did enter a final judgment under OCGA § 9–11–54(b) in favor of the governmental defendants, and Wyno filed a direct appeal.
As detailed below, we affirm the dismissal of the action against the county and its employees in their official capacities pursuant to the version of the Responsible Dog Ownership Law then in effect, former OCGA § 4–8–30 (2012). As to the action against the employees in their individual capacities, however, we cannot affirm. The employees are not entitled to dismissal on official immunity grounds at this stage of the proceedings. And as to the Responsible Dog Ownership Law, Wyno has argued both below and on appeal that the statute contravenes Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d), which governs the official immunity of employees sued in their individual capacities. Although the trial court implicitly rejected Wyno's constitutional challenge, we cannot review that ruling because the trial court did not make it expressly. Accordingly, as to the employees in their individual capacities, we reverse the judgment and remand the case for the trial court to enter an express ruling on the constitutional challenge and for other proceedings consistent herewith.
1. Facts alleged in complaint and standard of review.
should not be sustained unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
Austin v. Clark, 294 Ga. 773, 775, 755 S.E.2d 796 (2014) (citation omitted).
Construed in favor of Wyno, the complaint alleged that the neighbors' dog attacked Mrs. Wyno on December 8, 2011, as she was returning to her residence from the neighbors' home. Mrs. Wyno sustained fatal injuries. Previously, numerous complaints about dogs at the neighbors' residence had been lodged with the county and the county's animal control services. These included complaints that the dogs were unrestrained and “habitually loose,” that they growled and lunged at children and adults, that a dog chased some children, and that a dog bit a child in the face. Three of the individual defendants-animal control officers for the county—responded to these various complaints but took no action other than returning the dogs to their owners. In doing so, Wyno alleged, these animal control officers “negligently failed to perform ministerial duties under Georgia laws, county ordinances, internal policies, and other duties.”Wyno alleged that the other individual defendant—the director and manager of the county's animal shelter and supervisor of the animal control officers—did not require the animal control officers to perform their duties, and that this individual and the county generally failed to adequately hire, train, and supervise the animal control officers. The failure of the county and its employees to take appropriate action in response to the complaints, alleged Wyno, was malicious and caused the attack against Mrs. Wyno and her death.
*2 The trial court dismissed Wyno's action against the county and the county employees for failure to state a claim. The trial court held that sovereign immunity barred the action against the county, official immunity barred the action against the county employees, and, alternatively, the Responsible Dog Ownership Law and particularly the provisions of former OCGA § 4–8–30 (2012) barred the action against all of the governmental defendants.
2. Action against county and employees in their official capacities.
It is the intent of the General Assembly that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog. Under no circumstances shall a local government or any employee or official of a local government which enforces or fails to enforce the provisions of this article [regarding dangerous dog control] be held liable for any damages to any person who suffers an injury inflicted by a dog that has been identified as being a dangerous dog or potentially dangerous dog or by a dog that has been reported to the proper authorities as being a dangerous dog or potentially dangerous dog or by a dog that a local government has failed to identify as a dangerous dog or potentially dangerous dog or by a dog which has been identified as being a dangerous dog or potentially dangerous dog but has not been kept or restrained in the manner described in subsection (b) of Code Section 4–8–25 or by a dangerous dog or potentially dangerous dog whose owner has not maintained insurance coverage or a surety bond as required in subsection (c) of Code Section 4–8–25.
Former OCGA § 4–8–30 (2012).
Wyno argues that former OCGA § 4–8–30 (2012) does not bar his action because he bases his claims on the defendants' failure to enforce a local dog control ordinance in addition to the state dog control statute. We disagree, however, with Wyno's contention that “OCGA § 4–3–30, by its own terms, only applies to claims for ‘failing to enforce the provisions of this article,’ i.e. the state dangerous dog statute.”The express language of the code section provides immunity to local governments and their employees and officials from liability for all injuries inflicted by dangerous or potentially dangerous dogs. Its reference to the enforcement of “this article” is used to describe the local governments, employees, and officials entitled to immunity; in other words, the code section applies to those local governments, employees and officials “which enforce[ ] or fail[ ] to enforce the provisions of this article [the code section's provisions related to dangerous dog control].” Former OCGA § 4–8–30 (2012). We do not read that reference to limit immunity in cases that also involve local dog control ordinances, because the code section contains no such limitation and to limit immunity would go against the General Assembly's expressly stated intent “that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury or death of a person caused by such dog.”Former OCGA § 4–8–30 (2012) (emphasis supplied). See Early v. Early, 269 Ga. 415, 416, 499 S.E.2d 329 (1998) (“In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may clearly gathered therefrom, we need look no further in determining what that intent was.”) (citation and punctuation omitted).
*3 Wyno purports to challenge the constitutionality of former OCGA § 4–8–30 (2012) as contravening Ga. Const. of 1983, Art. I., Sec. II, Par. IX (d), which concerns the official immunity afforded to public employees in their individual capacities. See generallyAustin, 294 Ga. at 774 & n. 2, 755 S.E.2d 796 (Georgia's constitution contains the doctrine of official immunity, which “provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority”) (citation omitted). That constitutional provision, however, does not apply to Wyno's action against the county or its employees in their official capacities. See Harry v. Glynn County, 269 Ga. 503, 503(1), 501 S.E.2d 196 (1998) (counties are entitled to sovereign immunity under Ga. Const. of 1983, Art. I, Sec. II, Par. IX); Wendelken v. JENK LLC, 291 Ga.App. 30, 32(2), 661 S.E.2d 152 (2008) (public employees sued in their official capacities are entitled to sovereign immunity).
Because former OCGA § 4–8–30 (2012) bars the action against the county and its employees in their official capacities, we affirm the trial court's dismissal of the action against them. Consequently, we need not address Wyno's claims of error regarding the trial court's alternative ground of dismissing the action on sovereign immunity.
3. Action against employees in their individual capacities.
[a]t this time, it cannot be said that the allegations of the complaint disclose with certainty that [Wyno] would not be entitled to relief under any state of provable facts asserted in support. For example, there conceivably could be evidence of some explicit detailed laundry list of discrete tasks each individual [animal control officer] was required to perform [when faced with a complaint about a dog]. At this stage in the litigation, it does not matter [whether or not] the existence of such a laundry list is unlikely.... This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment. As the record stands, however, the trial court improperly granted the individual defendants' motion to dismiss [on official immunity grounds].
Austin, 294 Ga. at 775, 755 S.E.2d 796 (citation omitted; emphasis in original).
(b) Responsible Dog Ownership Law.
*4 all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.
Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Under Wyno's rationale, to the extent former OCGA § 4–8–30 (2012) bars actions against the employees in their individual capacities that otherwise would be permitted by this constitutional provision, the statute is unconstitutional. Although Wyno raised this constitutional challenge in his response to the defendants' motion to dismiss, the trial court did not specifically or directly pass on the constitutional issue in his order. Consequently, we cannot review that issue on appeal. See City of Decatur v. DeKalb County, 284 Ga. 434, 436–438(1), (2), 668 S.E.2d 247 (2008).
Nevertheless, by applying former OCGA § 4–8–30 (2012) to dismiss the action against the employees in their individual capacities, the trial court implicitly rejected the constitutional challenge to the statute. We therefore reverse that part of the order dismissing the action against the employees in their individual capacities and remand this case to the trial court for that court to enter a ruling specifically and directly passing on the constitutional challenge and for further proceedings consistent therewith. See Stafford v. Bryan County, 312 Ga.App. 533, 534, 718 S.E.2d 832 (2011); Buchan v. Hobby, 288 Ga.App. 478, 480, 654 S.E.2d 444 (2007).
Judgment affirmed in part and reversed in part, and case remanded with direction.
ANDREWS, P.J., and RAY, J., concur.
[FN 1] The present version of the controlling language is at OCGA § 40–8–31.