Sale of Real or Personal Property to Political Subdivision by Local Officer or Employee; Exceptions; Limitation of Civil Liability

  1. Law
  2. Georgia Code
  3. Crimes and Offenses
  4. Offenses Against Public Administration
  5. Abuse of Governmental Office
  6. Sale of Real or Personal Property to Political Subdivision by Local Officer or Employee; Exceptions; Limitation of Civil Liability

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  1. As used in this Code section, the term "employing local authority" means a local authority or board created by a local Act of the General Assembly or a local constitutional amendment or created by general law and requiring activation by an ordinance or resolution of a local governing authority.
  2. Any employee, appointed officer, or elected officer of a political subdivision, hereafter referred to as "employing political subdivision," or agency thereof or any employee or appointed officer of an employing local authority who for himself or herself or in behalf of any business entity sells any real or personal property to:
    1. The employing political subdivision or employing local authority;
    2. An agency of the employing political subdivision;
    3. A political subdivision for which local taxes for education are levied by the employing political subdivision; or
    4. A political subdivision which levies local taxes for education for the employing political subdivision

      shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

  3. Subsection (b) of this Code section shall not apply to:
    1. Sales of personal property of less than $800.00 per calendar quarter;
    2. Sales of personal property made pursuant to sealed competitive bids made by the employee, appointed officer, or elected officer, either for himself or herself or on behalf of any business entity; or
    3. Sales of real property in which a disclosure has been made:
      1. To the judge of the probate court of the county in which the purchasing political subdivision or local authority is wholly included or, if not wholly included in any one county, to the judge of the probate court of any county in which the purchasing political subdivision or local authority is partially included and which shall have been designated by the purchasing political subdivision or local authority to receive such disclosures, provided that if the sale is made by the judge of the probate court, a copy of such disclosure shall also be filed with any superior court judge of the superior court of the county;
      2. At least 15 days prior to the date the contract or agreement for such sale will become final and binding on the parties thereto; and
      3. Which shows that an employee, appointed officer, or elected officer of an employing political subdivision or agency thereof or of an employing local authority has a personal interest in such sale, which interest includes, without being limited to, any commission, fee, profit, or similar benefit and which gives the name of such person, his or her position in the political subdivision or agency or local authority, the purchase price, and location of the property.
  4. Any contract or transaction for a sale made in accordance with subsection (c) of this Code section shall be valid and no employee, appointed officer, or elected officer shall be subject to civil liability for any such sale.

(Code 1933, § 26-2306, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1972, p. 542, § 1; Ga. L. 1975, p. 854, § 1; Ga. L. 1979, p. 536, § 1; Ga. L. 1980, p. 733, § 1; Ga. L. 1982, p. 2107, § 15; Ga. L. 1983, p. 1326, § 2; Ga. L. 1984, p. 22, § 16; Ga. L. 1986, p. 10, § 16; Ga. L. 1994, p. 607, § 9; Ga. L. 1998, p. 593, § 1; Ga. L. 2003, p. 140, § 16; Ga. L. 2010, p. 228, § 1/HB 1007; Ga. L. 2011, p. 752, § 16/HB 142.)

Cross references.

- Purchase by state of supplies, materials, and other items generally, § 50-5-50 et seq.

Law reviews.

- For article discussing statute preceding present criminal Code section restricting municipal purchasing from city officials, see 5 Ga. St. B.J. 309 (1969). For article discussing the effect of this Code section on general statute on votes by municipal councilmen in matters of personal interest, § 36-30-6, and on local statutory law, see 7 Ga. St. B.J. 431 (1971).

JUDICIAL DECISIONS

Broad definition of property not intended.

- In enacting former Code 1933, § 26-2306 (see now O.C.G.A. § 16-10-6), the General Assembly obviously did not intend that a broad definition of property should be applied, because it limited the term property by the word "personal." DeFoor v. State, 233 Ga. 190, 210 S.E.2d 707 (1974).

Description of property in indictment.

- The fact that an indictment charged a county employee with the sale of "creek sand and gravel" while the proof demonstrated that the substance sold was "chert" did not create a fatal variance between the indictment and the proof; defendant had notice of the charges against the defendant and was not surprised or prevented from preparing a defense. Young v. State, 205 Ga. App. 357, 422 S.E.2d 244 (1992).

Ordinance did not preempt statute.

- Miller County, Ga., Ordinance No. 10-01, § 3 does not purport to supplant O.C.G.A. § 16-10-6 because the effect of § 3 is to strengthen O.C.G.A. § 16-10-6 by a broader prohibition with additional specific requirements for any exception; the county had authority, as an incident of the county's home rule power, to enact Miller County, Ga., Ordinance No. 10-01, § 3 so long as the ordinance did not conflict with general law. Bd. of Comm'rs v. Callan, 290 Ga. 327, 720 S.E.2d 608 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 26-5004, and Ga. L. 1959, p. 34, § 2 are included in the annotations for this Code section.

Contract placing public officer in conflict-of-interest position is absolutely void, even though it is fair and honestly executed. 1970 Op. Att'y Gen. No. U70-116.

Application.

- Section applies to all elected officers of a political subdivision who sell any personal property to a political subdivision of which they are officers. 1980 Op. Att'y Gen. No. U80-22.

Prohibition of section extends to members of legislature.

- Because of clear principle of law that members of legislature are deemed to be state officers, they are included within the scope of this section. 1969 Op. Att'y Gen. No. 69-444.

City council may not employ one of its councilmen to perform contract with city. 1970 Op. Att'y Gen. No. U70-116.

Sale of services was not embraced within former Code 1933, § 26-2306 (see now O.C.G.A. § 16-10-6). 1980 Op. Att'y Gen. No. U80-22.

When sale of services by member of one agency to another agency is permissible.

- Member of state board such as State Advisory Council may sell services to state on competitive bid basis provided the member operates a regularly established business enterprise which meets all legal requirements for submission of bids on services involved, and provided further that the member shall not under any circumstances sell services to agency of which the person is a member. 1969 Op. Att'y Gen. No. 69-475.

Rendering of architectural service is not sale of personal property within meaning of section. 1969 Op. Att'y Gen. No. 69-476.

State agency member should not participate directly in sales by corporation it owns stock in.

- Member of state agency who is officer and stockholder in corporation making sales to the member's agency should not participate directly in sale of goods to state. 1970 Op. Att'y Gen. No. U70-175.

Following instances constitute violations of this section: (1) state officer or employee who acts for personal interest and sells personal property to state; (2) state officer or employee who acts as agent for another and sells any personal property to state; and (3) state officer or employee who intends to violate section but acts through agent who sells officer's or employee's personal property to state. 1969 Op. Att'y Gen. No. 69-444.

Chair of a board of county commissioners cannot sell groceries to the chair's county where the nature of that contract would require the chair to judge own continual performance, notwithstanding the use of a competitive sealed bid in awarding the contract. 1983 Op. Att'y Gen. No. U83-8.

There is no prohibition of state officer or employee selling to political subdivision of state. 1971 Op. Att'y Gen. No. 71-124.

Legislator is not prevented from selling personal property to political subdivision of state. 1971 Op. Att'y Gen. No. 71-124.

Officers or employees of political subdivision not precluded from selling personal property to state. 1971 Op. Att'y Gen. No. 71-124.

Sale or lease of real property to private corporation by state official falls outside scope of former Code 1933, § 26-2306 (see now O.C.G.A. § 16-10-6) and the provisions concerning the code of ethics for public office and employees (see O.C.G.A. Ch. 10, T. 45). 1977 Op. Att'y Gen. No. 77-53.

Uncompensated public authority member may deal with public institution governed by authority.

- Member of public authority who receives neither compensation nor per diem is not prohibited from dealing with the public institution the authority is set up to govern. 1963-65 Op. Att'y Gen. p. 345 (decided under former Code 1933, § 26-5004, and Ga. L. 1959, p. 34, § 2).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 375.

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 362.

ALR.

- Construction and application of "public authority" defense to criminal prosecution of private citizen, 24 A.L.R.6th 455.


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