(Laws 1833, Cobb's 1851 Digest, pp. 644, 809; Code 1863, § 4391; Ga. L. 1865-66, p. 233, § 1; Code 1868, § 4432; Ga. L. 1873, p. 23, § 1; Code 1873, § 4504; Code 1882, § 4504; Ga. L. 1895, p. 63, § 1; Penal Code 1895, §§ 291, 292; Penal Code 1910, §§ 295, 296; Code 1933, §§ 89-9907, 89-9908; Ga. L. 1967, p. 858, § 1; Ga. L. 1975, p. 1325, § 1; Ga. L. 1983, p. 884, § 3-33; Ga. L. 1984, p. 22, § 45; Ga. L. 1988, p. 298, § 1; Ga. L. 1990, p. 1969, § 1; Ga. L. 2001, p. 487, § 3; Ga. L. 2011, p. 59, § 1-67/HB 415; Ga. L. 2014, p. 866, § 45/SB 340; Ga. L. 2016, p. 186, § 8/HB 941.)
The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "means" for "shall mean" in paragraphs (a)(1), (a)(2), and (a)(3).
The 2016 amendment, effective July 1, 2016, substituted "misdemeanor, and upon" for "misdemeanor and, upon" in subsection (c); deleted former subsection (f), which read: "Any indictment brought pursuant to subsection (b) of this Code section shall specially set forth the merits of the complaint against the accused public officer. A copy of the proposed bill of indictment shall be served on the accused public officer at least 15 days before it is presented to the grand jury."; deleted former subsection (g), which read: "The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state's evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state's witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which the accused and his or her counsel shall retire instanter from the grand jury room to permit the grand jury to deliberate upon the indictment."; deleted former subsection (h), which read: "At any time during the presentation of evidence or during deliberations, the grand jury may amend the indictment or instruct the district attorney to cause a new indictment to be drawn as in any other case. In such case, a copy of the amendment or new indictment, if it relates to the accused public official, shall be provided to the accused public official and his or her counsel."; and deleted former subsection (i), which read: "If a true bill is returned by the grand jury, the indictment shall, as in other cases, be published in open court and shall be placed on the superior court criminal docket of cases to be tried by a trial jury."
Cross references.- Indictment of peace officer for crime in performance of duties, § 17-7-52.
Affording of rights provided by section to state official charged by indictment with misfeasance or malfeasance in office, § 45-15-11.
Editor's notes.- Ga. L. 2001, p. 487, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Corruption Prevention Act.'"
Ga. L. 2001, p. 487, § 6, not codified by the General Assembly, provides that the provisions of Sections 3 and 4 of the Act shall apply to crimes committed before, on, and after April 20, 2001.
Ga. L. 2011, p. 59, § 1-1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"
Law reviews.- For article, "Georgia Local Government Officials and the Grand Jury," see 26 Ga. St. B.J. 50 (1989). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 79 (2016).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- The constitutionality of O.C.G.A. § 45-11-4 has been upheld, on the reasoning that public officials, who are peculiarly subject to complaint as to performance of their duties, may appear before the grand jury in the interest of preventing indictment on frivolous accusations. Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992).
O.C.G.A.
§ 45-11-4 not unconstitutionally vague or indefinite. - This section is not unconstitutional for the reason that the expression "malpractice in office" is too vague and indefinite to apprise the defendant of the conduct proscribed by that section because the expression is made sufficiently definite by construing the section in connection with the laws defining the official's duties. Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971).
The question as to whether malpractice has been committed can only be answered by considering the laws defining the particular official's duties along with the malpractice statute; only by reading those provisions into this section is it made sufficiently definite to satisfy the requirements of a valid penal statute. Cargile v. State, 67 Ga. App. 610, 21 S.E.2d 326 (1942); Phillips v. State, 127 Ga. App. 499, 194 S.E.2d 278 (1972).
No equal protection violation.
- Conspiracy to commit murder is in no way similar to any crime for which a public officer would be entitled to appear before a grand jury; and thus this section does not violate the equal protection rights of a defendant so charged, under either the federal or the state Constitution. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).
O.C.G.A. § 45-11-4, by affording only certain enumerated officials the privilege of appearing before the grand jury prior to indictment, does not violate the equal protection clauses of the state and federal constitutions. State v. Deason, 259 Ga. 183, 378 S.E.2d 120 (1989).
No equal protection or due process violation.
- Because peace officers must make split second decisions regarding the safety of themselves and others and public officials decisions are generally deliberative, there was a rational basis for treating the two differently and, thus, there was no equal protection or due process violation due to the manner in which O.C.G.A. § 45-11-4 classified the two groups. Ellis v. State, 300 Ga. 371, 794 S.E.2d 601 (2016).
Purpose of O.C.G.A. § 45-11-4. - It is apparent that the legislature intended by this enactment to require faithfulness to public trust upon the part of the officials therein named. To secure this conduct the officials not only are required to perform the acts required of them by law, but are equally forbidden to commit under the color of office acts not authorized by law. Cargile v. State, 67 Ga. App. 610, 21 S.E.2d 326 (1942).
O.C.G.A. § 45-11-4 furthers the legitimate state interest of protecting certain government officials, vested with the authority to exercise discretion, against possible frivolous indictments pursued by persons aggrieved by the exercise of that discretion because the legislative rationale is that, if these officials do not have such protection, their reputation and performance of their duties could be compromised while they are defending baseless charges; by enacting O.C.G.A. § 17-7-52, the General Assembly intended to afford peace officers the enhanced protections given to other public officials regarding accusations arising from the performance or nonperformance of their official duties, and thus, the legitimate purpose of O.C.G.A. § 17-7-52, in conjunction with § 45-11-4, is to protect peace officers from harassing or frivolous charges before the grand jury. State v. Smith, 286 Ga. 409, 688 S.E.2d 348 (2010).
Application of O.C.G.A. §§ 17-7-52 and 45-11-4. - Trial court erred by holding that O.C.G.A. §§ 17-7-52(a) and45-11-4(g) did not apply as there was substantial evidence that the defendant entered the sheriff's office in furtherance of an investigation while the defendant was arguably on call on the night of the sheriff's death. Yancey v. State, 342 Ga. App. 294, 802 S.E.2d 702 (2017).
Grand jury power not limited.
- It was not the intention to limit the power of the grand jury to cases in which there should be a prosecutor. Groves v. State, 73 Ga. 205 (1884).
Under O.C.G.A. § 45-11-4(g), a public officer who was accused of unprofessional conduct had the right to appear before the grand jury to make such sworn statement as desired at the conclusion of the presentation of the state's evidence; however, a public official who was the topic of a critical grand jury presentment did not have any right to maintain the secrecy of the document in circumstances in which, contrary to the provisions of O.C.G.A. § 15-12-80, the grand jury caused the premature release of its presentments by giving them to the county attorney, before presenting them to the superior court for publication. Decatur County v. Bainbridge Post Searchlight, Inc., 280 Ga. 706, 632 S.E.2d 113 (2006).
Rational basis for special protection of officials.
- The dual dangers that the grand jury will be influenced by extra-legal, political considerations to return an unfounded indictment against a public official and that such indictment will cause disrespect of the public office are legitimate concerns of the state, providing a rational basis on which it could provide special protection from unfounded malfeasance in office charges or indictments of its commissioned officials, county judges, justices of the peace, and county commissioners. The procedures of O.C.G.A. § 45-11-4 are the means of effecting this policy. Sweeney v. Balkcom, 358 F.2d 415 (5th Cir. 1966).
Cumulative methods for removal.
- The constitutional and legislative method for removing officers do not conflict with this section, they are cumulative. Kent v. State, 18 Ga. App. 30, 88 S.E. 913 (1916).
A special law for the removal of certain county commissioners by the judge of the superior court is not invalid as controverting this section. Smith v. Duggan, 153 Ga. 463, 112 S.E. 458 (1922).
Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11) was enacted pursuant to the provisions of former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4), and was applicable only to state officials who hold an office created under the Constitution or laws of this state. Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).
Punishment upon conviction.
- This section means that any of the officers charged with the offense therein named shall, upon a legal conviction in a court having jurisdiction, be punished as for a misdemeanor and removed from office. Cargile v. State, 194 Ga. 20, 20 S.E.2d 416, answer conformed to, 67 Ga. App. 610, 21 S.E.2d 326 (1942).
Cited in Moore v. State, 64 Ga. App. 171, 12 S.E.2d 410 (1940); Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960); Phillips v. State, 229 Ga. 313, 191 S.E.2d 61 (1972); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); White v. State, 132 Ga. App. 62, 207 S.E.2d 577 (1974); State v. Hollomon, 132 Ga. App. 304, 208 S.E.2d 167 (1974); Holloman v. State, 133 Ga. App. 275, 211 S.E.2d 312 (1974); White v. State, 233 Ga. 593, 212 S.E.2d 777 (1975); Popham v. State, 138 Ga. App. 876, 227 S.E.2d 825 (1976); Reed v. State, 148 Ga. App. 264, 251 S.E.2d 148 (1978); Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 273 S.E.2d 19 (1980); Knowles v. State, 159 Ga. App. 239, 283 S.E.2d 51 (1981); Quillan v. State, 160 Ga. App. 167, 286 S.E.2d 503 (1981); Palmer v. Wilkins, 163 Ga. App. 104, 294 S.E.2d 355 (1982); Cook v. State, 256 Ga. 808, 353 S.E.2d 333 (1987); Tostensen v. State, 190 Ga. App. 423, 379 S.E.2d 9; Powell v. State, 191 Ga. App. 616, 382 S.E.2d 634 (1989); Sauls v. State, 220 Ga. App. 115, 468 S.E.2d 771 (1996); Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003); Olsen v. State, 302 Ga. 288, 806 S.E.2d 556 (2017).
Officials Included
Peace officers.
- When the General Assembly modified O.C.G.A. § 45-11-4 in 1990 to make plain that its protections encompassed those formerly in office, it fully realized that O.C.G.A. § 17-7-52 mandated that such protections be extended to peace officers. Dudley v. State, 273 Ga. 466, 542 S.E.2d 99 (2001).
When the defendant quashed the indictment against the defendant due to the state's failure to allow the defendant to appear before the grand jury as was the defendant's right as a police officer under O.C.G.A. §§ 17-7-52 and § 45-11-4, the state did not appeal as was the state's right under O.C.G.A. § 5-7-1(a)(1); the state instead obtained an accusation against the defendant, and the trial court quashed the accusation due to the state's failure to allow the defendant to appear before the grand jury, thus, the state could not argue, in opposing the defendant's motion to quash the accusation, that the defendant was not performing the defendant's official duties at the time of the alleged criminal conduct. Furthermore, since the trial court had previously decided this issue against the defendant, res judicata under O.C.G.A. § 9-12-40 barred further litigation of the issue. State v. Allen, 262 Ga. App. 724, 586 S.E.2d 378 (2003).
O.C.G.A.
§ 45-11-4 applicable only to probate judges, county commissioners, and justices of the peace. - O.C.G.A. § 45-11-4 does not appear to apply to all government employees per se, but to probate judges, county commissioners, and justices of the peace who are charged with malpractice in office. Wages v. State, 165 Ga. App. 587, 302 S.E.2d 112 (1983) (decided prior to the 1983 amendment, which deleted the reference to justices of the peace, prior to the 1988 amendment, which made O.C.G.A. § 45-11-4 also applicable to mayors and members of municipal governing authorities and prior to the 1990 amendment, which, in part, further broadened the applicability of O.C.G.A. § 45-11-4).
County commissioners and notaries public.
- This section applies to county commissioners, and since notaries public are ex officio justices of the peace notaries are also included in this section. Dyer v. State, 7 Ga. App. 58, 65 S.E. 1089 (1909).
O.C.G.A.
§ 45-11-4 applies to deputy warden and correctional officers. - Deputy warden and correctional officers are by virtue of their employment to be considered as peace officers while performing their duties; they are, like other public servants charged with acts of tyranny and oppression mentioned in O.C.G.A. § 45-11-4, entitled to appear before grand jury to extent permitted by O.C.G.A. § 45-11-4. State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981).
Police officer may be charged with a misdemeanor by accusation in state court. Sanderson v. State, 217 Ga. App. 51, 456 S.E.2d 667 (1995).
O.C.G.A.
§ 45-11-4 inapplicable to official resigning position prior to indictment. - As O.C.G.A. § 45-11-4 applies to state officials, a court clerk who resigned post prior to the institution of any proceedings against the clerk is not covered. To be eligible for the provisions of O.C.G.A. § 45-11-4, a party must be a state official when an indictment is presented. Axson v. State, 174 Ga. App. 236, 329 S.E.2d 566 (1985).
Since a defendant was an investigator for the district attorney when the criminal acts at issue occurred, but had been discharged from that position prior to indictment, there was no merit in the defendant's argument that the protections of O.C.G.A. § 17-7-52 and § 45-11-4 should be extended to one who is charged with official misdeeds but who is no longer employed as a government official or peace officer when proceedings against that former official are commenced. Lundy v. State, 195 Ga. App. 682, 394 S.E.2d 559 (1990).
A councilperson of a municipality is simply not one of the officials covered by this section. Humphrey v. State, 231 Ga. 855, 204 S.E.2d 603, cert. denied, 419 U.S. 839, 95 S. Ct. 68, 42 L. Ed. 2d 66 (1974).
No special privileges for officer charged with crime.
- When the special presentment in a conspiracy to defraud a county case does not charge a superior court judge with malfeasance or malpractice in office, the judge was not entitled, merely by virtue of the fact of occupying a high office in the state, to the special privileges accorded the holders of such offices under the provisions of this section. Clinkscales v. State, 102 Ga. App. 670, 117 S.E.2d 229 (1960).
When a county officer is indicted for a crime, but not specifically the crime of malpractice in office under this section, and the crime charged does not by its statutory definition include an act of malfeasance or malpractice in office as a necessary ingredient thereof, such public officer is not entitled to the privileges of this section. Under these circumstances, the fact that the indictment alleges, or in proving the crime charged the proof would show, that in committing the crime charged the defendant committed an act which would constitute malpractice in office would not make the indictment one so charging defendant under this section. Abercrombie v. State, 125 Ga. App. 402, 188 S.E.2d 160 (1972).
Indictment provisions of O.C.G.A.
§ 45-11-4 inapplicable to police officers involved in burglary. - Ga. L. 1975, p. 607, § 1 (see now O.C.G.A. §§ 17-7-52) and provisions of former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4) regarding indictment did not apply to defendants employed as city police officers and who, while in uniform during hours on duty, transported certain confederates to a private building for purpose of burglarizing the building. Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979); Morrill v. State, 216 Ga. App. 468, 454 S.E.2d 796 (1995).
Grand jury testimony of former police officer excluded.
- O.C.G.A. § 45-11-4(e), which stripped former police officer's rights to avoid cross-examination and have the officer's attorney present during grand jury testimony, could not constitutionally be applied retroactively, and the trial court properly excluded the officer's grand jury testimony obtained in violation of the officer's rights under the former version of this section. State v. Lindsay, 255 Ga. App. 464, 566 S.E.2d 41 (2002).
Indictment and Right to HearingThis section provides the public official defendant two important rights: (1) the right to be served with a copy of the indictment prior to its being laid before the grand jury; and (2) the right to appear with witnesses before and to be heard by the grand jury. Sweeney v. Balkcom, 358 F.2d 415 (5th Cir. 1966).
Contents of indictment.
- This section means that there must be set forth in the indictment a detailed statement of the facts upon which the charge is predicated. Morris v. State, 59 Ga. App. 804, 2 S.E.2d 240 (1939).
The fact that the indictment fails to charge that the defendant received any benefit from the commission of defendant's alleged unlawful and fraudulent acts and conduct is immaterial. Morris v. State, 59 Ga. App. 804, 2 S.E.2d 240 (1939).
Motion to quash indictment denied.
- When a police officer raped a woman in his custody, he was properly denied the protection of being permitted to be present and to make a sworn statement when the case was presented to the grand jury, since the performance of official duties does not include rape. Gober v. State, 203 Ga. App. 5, 416 S.E.2d 292, cert. denied, 203 Ga. App. 906, 416 S.E.2d 292 (1992).
Trial court properly denied defendant's demurrer and motion to quash based upon the state's alleged violation of defendant's rights under O.C.G.A. § 45-11-4(g) and (h), with regard to the procedure to be followed when charging a public officer with a crime, as defendant failed to show that the state violated any of defendant's rights under the statute. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008).
Motion to quash indictment improperly granted.
- Trial court's order quashing an indictment filed against the defendant, a mayor, was reversed, as: (1) it was undisputed that the defendant was not charged under O.C.G.A. § 45-11-4(b); (2) the prosecutor declined to charge the defendant under that section of the statute; and (3) the fact that the defendant could have been charged under O.C.G.A. § 45-11-4(b) did not entitled the defendant to protection under O.C.G.A. §§ 45-11-4(f) and (g). State v. West, 283 Ga. App. 302, 641 S.E.2d 289 (2007).
Notice of grand jury hearing.
- There is no statutory time requirement, within which notice of the grand jury hearing must be given, set forth in former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4), and the five-day rule required under Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6) was not applicable since that rule applied only to court hearings on motions, and an appearance before a grand jury was not a hearing on a motion. Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979).
There is no statutory time requirement set forth in O.C.G.A. § 45-11-4 as to when notice of the grand jury hearing must be given. McWilliams v. State, 177 Ga. App. 447, 339 S.E.2d 721 (1985).
Notice of specific time and place of indictment
- O.C.G.A. § 45-11-4 must be construed necessarily to include the right to notice of the specific time that the proposed indictment will be before the grand jury, and common sense requires that the right to notice also include the location of the presentment because the statute unequivocally confers upon the accused the rights to appear before the grand jury to make a sworn statement at the conclusion of the state's evidence and, either in person or through counsel, to be physically present during the state's presentation of all evidence relevant to the proposed indictment, presentment, or accusation, O.C.G.A. § 45-11-4(g), and the task of providing the notice to the accused of the date, time, and place of the state's evidentiary showing logically and pragmatically must lie with the state. State v. Smith, 286 Ga. 409, 688 S.E.2d 348 (2010).
Notice of presentment required.
- Court of appeals did not err in finding that the state failed to notify the defendant when the proposed indictment would be presented and in directing that the defendant's convictions be set aside because notice of the specific time and place of the grand jury presentment was required to be provided to the defendant by the state; timely serving the accused with a copy of the proposed bill of indictment but failing to timely inform the accused of when and where the reckoning with the grand jury will occur is not substantial compliance with the requirements of O.C.G.A. §§ 17-7-52 and45-11-4 in regard to notification to the accused, and the required notice of the date, time, and location of the expected grand jury presentment implicit in § 45-11-4(g) is that of reasonable notice, that is, notice calculated to provide the accused a fair and full opportunity to exercise the rights provided by § 45-11-4(g). State v. Smith, 286 Ga. 409, 688 S.E.2d 348 (2010).
Waiver of grand jury appearance.
- A defendant justice of the peace indicted for false swearing who waived copy of indictment, list of witnesses, formal arraignment, and who pleaded not guilty at the call of the case, waived the right to appear before a grand jury under O.C.G.A. § 45-11-4. Fancher v. State, 113 Ga. App. 195, 147 S.E.2d 463 (1966).
Defendant had no right to appear before grand jury.
- O.C.G.A. § 45-11-4 is not involved when the police officer did not appear before the grand jury in connection with an accusation against the officer, but appeared before the grand jury as a prosecution witness for the state; thus, the criminal defendant had no right to appear. Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992).
Trial court did not err in finding that the defendant, who was an officer with a college police department, was not entitled to be present and make a statement pursuant to O.C.G.A. §§ 17-7-52(a) and45-11-4 when the defendant's case was presented to the grand jury because the indictment did not allege that the crimes occurred while the defendant was performing the defendant's duties; the defendant was not on campus as defined by O.C.G.A. § 20-8-1(1), and the record did not show that the defendant's official duties as a campus police officer included the commission of the acts at issue while the defendant was off duty and engaged in leisure activities outside of the defendant's jurisdiction. Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010).
Although a deputy charged with sexual battery and false imprisonment was a certified peace officer and the offenses occurred during the deputy's working hours, the deputy had stepped aside from the deputy's official duties when the deputy allegedly restrained women against their will, groped their breasts and buttocks, and exposed the deputy's genitalia; therefore, the deputy was not entitled to the rights to be present and make a sworn statement to the grand jury provided in O.C.G.A. §§ 17-7-52 and45-11-4. State v. Dorsey, 342 Ga. App. 188, 802 S.E.2d 61 (2017).
Accused has no right under O.C.G.A. § 45-11-4 to cross-examine witnesses or present own witnesses. McWilliams v. State, 177 Ga. App. 447, 339 S.E.2d 721 (1985).
Officer entitled to statutory protections.
- When the defendant, a police officer, was charged with misdemeanor traffic violations of speeding and failing to reduce speed when approaching an intersection, the defendant was entitled to the statutory protections of O.C.G.A. §§ 17-7-52 and45-11-4 afforded to police officers charged with a crime. State v. Lockett, 259 Ga. App. 179, 576 S.E.2d 582 (2003).
Charge of false writings and statements, in violation of O.C.G.A. § 16-10-20, which arose during the performance of official duties by the defendant, a police officer, should have been dismissed because proper notice pursuant to O.C.G.A. §§ 17-7-52 and45-11-4 was not given to the defendant; other charges against the defendant were not subject to dismissal as those charges did not arise in the performance of official duties, and the lack of notice did not improperly influence or infect the other convictions. Wiggins v. State, 280 Ga. 268, 626 S.E.2d 118 (2006).
Lack of proper notice to police officer.
- With regard to a defendant's conviction on three counts of false statements and writings, the trial court erred by denying the defendant's motion for a new trial as a result of erring by denying the defendant's plea in abatement and motion to dismiss the indictment as the state violated the notice provisions under O.C.G.A. §§ 17-7-52 and45-11-4, with respect to peace officers and public officials, by failing to notify the defendant when the proposed indictment would be presented to the grand jury. The defendant, a police officer and police chief of two municipalities, was accused of falsifying time records and, as a police officer, was entitled to the notice set forth under the statutes. Smith v. State, 297 Ga. App. 300, 676 S.E.2d 750 (2009), aff'd, 286 Ga. 409, 688 S.E.2d 348 (2010).
Malpractice in Office
Word "malpractice" generally means evil, bad, or wrong practice, and when applied as in this section, to public officers and restricted to official acts by the words "in office," it retains its meaning of bad or evil, and is applied to official acts. Cargile v. State, 67 Ga. App. 610, 21 S.E.2d 326 (1942); Clinkscales v. State, 102 Ga. App. 670, 117 S.E.2d 229 (1960).
Malpractice in office relating to county commissioners, as used in this section, means a wrongful or unjust doing of an act which the doer has no right to do, or failure to do what the law makes it the commissioner's duty to do, with evil intent or motive or due to culpable neglect. Cargile v. State, 67 Ga. App. 610, 21 S.E.2d 326 (1942); Phillips v. State, 127 Ga. App. 499, 194 S.E.2d 278 (1972).
This section provides for official not individual misbehavior, and rudeness of an officer will not constitute misconduct unless it amounts to oppression under color of title. Lancaster v. Hill, 136 Ga. 405, 71 S.E. 731, 1912C Ann. Cas. 272 (1911).
This section is available only when the public official is charged with malfeasance, or malpractice, in office, and the courts hold that such an offense is committed only when there is a close connection between the wrongful acts and the defendant's performance of official duties. Sweeney v. Balkcom, 358 F.2d 415 (5th Cir. 1966).
Malpractice is a question of fact for the jury. Russell v. State, 57 Ga. 420 (1876).
It is the duty of a grand juror to divulge knowledge of the existence of malpractice. Groves v. State, 73 Ga. 205 (1884).
Valid instruction covering corruption.
- A charge that, to warrant a conviction, it must appear that the magistrate wilfully and knowingly demanded and received more costs than the magistrate was entitled to, covers the point that it was corruptly done; and the refusal to charge, that it must have been corruptly done, will not require a new trial. Ridenhour v. State, 75 Ga. 382 (1885).
Charge and receipt of unlawful fees.
- Any county commissioner who knowingly and willfully assists another public officer in charging and receiving unlawful fees is guilty of malpractice in office and of violating the provisions of this section. Cargile v. State, 67 Ga. App. 610, 21 S.E.2d 326 (1942).
False swearing in connection with the collection of criminal fees would fall into the category of misfeasance or malfeasance by a justice of the peace. Fancher v. State, 113 Ga. App. 195, 147 S.E.2d 463 (1966).
Actions not constituting violation.
- Since the legislature has not seen fit to prohibit county officials from obtaining personal goods or services through the mechanism of the county's name or from sending county employees on personal errands, county officials who take such actions do not violate this section. Phillips v. State, 127 Ga. App. 499, 194 S.E.2d 278 (1972).
Indictment charging county commissioner with malpractice in office for allowing county trucks to be used for private business was properly dismissed, since the statutes outlining the commissioner's duties did not forbid the use of public property for private purposes and the commissioner therefore was not clearly informed that the actions were criminal. State v. Burrell, 189 Ga. App. 812, 377 S.E.2d 898 (1989).
Gratuity given to private association.
- Indictment which alleged that county commissioner of roads and revenues donated and gave a gratuity to a VFW Post, a private association, in the form of asphalt, labor from county employees, and the use of county equipment in the grading and preparation of the parking lot for which the county was not compensated or reimbursed and from which the county received no substantial benefit, adequately alleged a violation of O.C.G.A. § 45-11-4 for malpractice in office. Kennedy v. State, 205 Ga. App. 152, 421 S.E.2d 560, cert. denied, 205 Ga. App. 900, 421 S.E.2d 560 (1992).
OPINIONS OF THE ATTORNEY GENERAL
Fingerprinting.
- The Georgia Crime Information Center is authorized to collect and file fingerprints of persons charged with a violation of O.C.G.A. § 45-11-4(b). 2001 Op. Att'y Gen. No. 2001-11.
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, §§ 369 et seq., 410.
C.J.S.- 67 C.J.S., Records, § 250.
ALR.- What constitutes offense of official oppression, 83 A.L.R.2d 1007.
Validity and construction of statutes permitting grand jury witnesses to be accompanied by counsel, 90 A.L.R.3d 1340.