dissenting.
Contrary to the majority’s assertion, the 1991 amendment to the Georgia Constitution has no effect on the liability of municipal corporations and municipal officers.3 Further, the cases cited by the majority for the proposition that Campbell would have immunity for the negligent performance of a discretionary duty are inapplicable in this case, because those cases dealt with liability to a specially injured third party, rather than liability to the municipality and its taxpayers *484in general.4 Rather, this case is controlled by Koehler v. Massell,5 and under the reasoning set forth in that case, Common Cause’s complaint does set forth a cause of action sufficient to survive a motion to dismiss.
In Koehler, a taxpayer of Atlanta brought suit on behalf of all Atlanta taxpayers against the mayor and city council members of Atlanta, in their personal capacities, seeking damages for acts performed in the municipal officers’ official capacities.6 Koehler claimed that the mayor and city council had authorized payments to tort victims of city employees even though the tort victims were not entitled to payment under the rules of sovereign immunity.7 Thus, according to the complaint, the mayor and city council distributed municipal funds that the city was not legally obligated to pay, an act for which the mayor and city council lacked authority.8
The factual situation in this case is remarkably similar. Common Cause, on behalf of the Atlanta taxpayers, sued the former Atlanta mayor, in his personal capacity, for acts done in his official capacity. Common Cause alleges that the mayor authorized payments to PCOA to which PCOA was not entitled, because PCOA had already agreed to provide the same services at a lower cost to the City. Thus, according to the complaint, the mayor distributed municipal funds that the City was not legally obligated to pay, an act for which the mayor lacked specific authority. Campbell has never explained why he chose to continue to authorize greater payments to PCOA than it was entitled under the new contract.
I recognize the need to limit the type of actions that may be brought against public officials for acts done in their official capacity. As we stated in Koehler, officials “ought not to be lightly called upon to personally respond in damages for their official legislative acts, but certainly, if it can be shown that they have, in effect, raided the public treasury to enhance their personal fortunes, they should be held personally liable.”9
But by improperly focusing on the 1991 amendment, the majority sets an unduly rigid standard for holding public officials personally liable. Quoting the 1991 amendment, the majority states that Campbell can only be held liable for a discretionary act if he acted *485“with actual malice or with actual intent to cause injury.”10 The majority is correct that Common Cause must allege some wrongdoing by Campbell to survive a motion to dismiss, and prove that wrongdoing to ultimately hold Campbell liable. But because the 1991 amendment is inapplicable to this case, the standard is broader than that described by the majority, and Common Cause’s complaint satisfies the correct standard.
Decided June 16, 2005 Reconsideration denied June 30, 2005. Bondurant, Mixson & Elmore, Emmet J. Bondurant, Sarah M. Shalf, Gordon L. Hamrick IV, for appellants. Linda K DiSantis, Lemuel H. Ward, Lord, Bissell & Brook, Michael V. Coleman, Corliss S. Lawson, Paul T. Kim, for appellees. Susan M. Pruett, James F. Grubiak, amici curiae.Under Koehler, Common Cause must show that Campbell acted with “bad faith, malice, or fraud coupled with a showing of direct or indirect pecuniary gain to the municipal officers accruing therefrom. . . ,”11 The reasons for Campbell’s decision to give PCOA more taxpayer funds than it was entitled to remain to be proven. But just as the allegations in Koehler were sufficient to survive a motion to dismiss, the allegations set forth in Common Cause’s complaint, when viewed in the light most favorable to Common Cause, sufficiently state a claim under the lenient pleading requirements.12
In Koehler, this Court held that the complaint sufficiently stated a cause of action to survive a motion to dismiss, and the same is true in this case. Accordingly, because the majority mistakenly limits the rights of taxpayers to hold public officials accountable for the wrongful expenditure of taxpayer funds, I dissent.
See City of Thomaston v. Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994) (“municipalities do not come within the ambit of the 1991 amendment”); Cameron v. Lang, 274 Ga. 122, n. 12 (549 SE2d 341) (2001).
See, e.g., Gilbert v. Richardson, 264 Ga. 744, 752-753 (452 SE2d 476) (1994) (countypolice officer immune from personal liability for official discretionary acts that caused injury to third parties); Cameron, 274 Ga. at 125-126.
229 Ga. 359 (191 SE2d 830) (1972).
Id.
Id. at 359-360.
Id. at 360.
Id. at 366.
Majority opinion at 482.
Koehler, 229 Ga. at 366.
OCGA § 9-11-12 (b) (6); see also Mitchell v. Dickey, 226 Ga. 218, 220 (173 SE2d 695) (1970) (“ ‘a motion to dismiss for failure to state a claim shall not be granted 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’ ”).