The following persons are ineligible to hold any civil office; and the existence of any of the following facts shall be a sufficient reason for vacating any office held by such person; but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, namely:
(Laws 1787, Cobb's 1851 Digest, p. 366; Laws 1823, Cobb's 1851 Digest, p. 209; Code 1863, § 125; Code 1868, § 120; Code 1873, § 129; Code 1882, § 129; Civil Code 1895, § 223; Ga. L. 1900, p. 42, § 1; Civil Code 1910, § 258; Ga. L. 1925, p. 77, § 1; Ga. L. 1931, p. 126, § 1; Code 1933, § 89-101; Ga. L. 1972, p. 868, § 1; Ga. L. 1976, p. 464, §§ 1, 2; Ga. L. 1982, p. 3, § 45; Ga. L. 1987, p. 3, § 45; Ga. L. 1988, p. 930, § 1; Ga. L. 1989, p. 596, § 1; Ga. L. 1992, p. 1138, § 1; Ga. L. 1993, p. 1279, § 15; Ga. L. 2016, p. 173, § 12/SB 199; Ga. L. 2016, p. 777, § 1/HB 73; Ga. L. 2017, p. 525, § 1/SB 258; Ga. L. 2018, p. 1112, § 45/SB 365.)
The 2016 amendments. The first 2016 amendment, effective April 26, 2016, added the last two sentences in paragraph (1). The second 2016 amendment, effective May 3, 2016, made an identical change by adding the next to the last sentence in paragraph (1).
The 2017 amendment, effective May 8, 2017, inserted ", school district, or municipality" near the middle of paragraph (2).
The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation throughout paragraph (1).
Cross references.- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.
Vacancies created by elected officials qualifying for other office, Ga. Const. 1983, Art. II, Sec. II, Para. V.
Nature and effect of adjudication, § 15-11-72.
Certain county officials ineligible, § 15-12-21.
Eligibility of subversive persons to hold office or position in government, § 16-11-12.
Eligibility and qualifications of candidates for public office, §§ 21-2-5 through21-2-8.
Editor's notes.- Ga. L. 1972, p. 193, § 10, not codified by the General Assembly, provided that it was the purpose of the Act to reduce the age of legal majority from 21 years to age 18 years of age so that all persons, upon reaching the age of 18 would have the rights, privileges, powers, duties, responsibilities, and liabilities, previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed as having the effect of changing the provisions of any general law relative to the required age to qualify for holding public office.
Law reviews.- For article on the effects of a conviction based on a nolo contendere plea on voting and holding public office, see 13 Ga. L. Rev. 723 (1979). For article surveying Georgia cases citing developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). 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 comment criticizing Tarpley v. Carr, 204 Ga. 721, 51 S.E.2d 638 (1949), requiring de jure offices to exist before acts by de facto city officers can be validated, see 1 Mercer L. Rev. 120 (1949).
JUDICIAL DECISIONSANALYSIS
General Consideration
Qualifications prescribed by Constitution.
- If the Constitution has prescribed the qualifications which allow and prevent eligibility to a public office, the General Assembly cannot by statute add to or take from those conditions of eligibility. Griggers v. Moye, 246 Ga. 578, 272 S.E.2d 262 (1980).
Local legislation not in conflict.
- Local legislation requiring candidates for the county commission to run for election from the district in which their legal residence lies did not conflict with former Ga. Const. 1976, Art. IX, Sec. I, Para. VIII (see Ga. Const. 1983, Art. IX, Sec. I, Para. III) and O.C.G.A. § 45-2-1. Griffin v. Glynn County, 264 Ga. 823, 452 S.E.2d 109 (1995).
Ineligibility to hold office is the exception.
- Eligibility to hold office is the general rule; ineligibility is the exception. Weems v. Glenn, 199 Ga. 388, 34 S.E.2d 511 (1945).
Paragraphs (1) through (8), inclusive, provide exceptions to the general rule. Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930).
Construction in favor of eligibility.
- Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Weems v. Glenn, 199 Ga. 388, 34 S.E.2d 511 (1945).
County attorney is not a county elected official, but rather is a county employee, so the residency requirement of O.C.G.A. § 45-2-1(1) does not apply to the county attorney under Ga. Const. 1983, Art. IX, Sec. I, Para. III and O.C.G.A. § 45-2-5; a county attorney is entitled to sovereign immunity as a county employee. Wallace v. Greene County, 274 Ga. App. 776, 618 S.E.2d 642 (2005).
Restrictions on eligibility for municipal office.
- There is no general law making eligibility to hold municipal office dependent on qualification to vote. Restrictions of that character may be provided in the charter of a municipality, but, unless so provided, they do not exist in the absence of general law on the subject. Beazley v. Lunceford, 178 Ga. 683, 173 S.E. 852 (1934).
Military personnel holding municipal office.
- Enlisted personnel on active duty in United States Navy are not ineligible under O.C.G.A. § 45-2-1 to hold municipal office in Georgia, since O.C.G.A. § 45-2-1 applies only to those holding or seeking to hold civil offices of a state character and officers of municipal corporations do not hold a civil office within the meaning of § 45-2-1. Westberry v. Saunders, 250 Ga. 240, 296 S.E.2d 596 (1982).
County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014).
De facto officer.
- When an individual was appointed to the position of recorder's court judge pro tem, and at all times subsequent to appointment held self out to the public as a recorder's judge pro tem and performed the duties of that office, including accepting guilty pleas, issuing search warrants, and holding preliminary hearings, that individual was a de facto officer and as such that individual's acts could not be collaterally attacked and set aside; thus, a search warrant issued by this individual was not null and void, and there was nothing in the record to indicate that the recorder court judge pro tem did not act in a neutral and detached manner in issuing the warrant. Freeman v. State, 172 Ga. App. 168, 322 S.E.2d 289 (1984).
Arrest warrant was not subsequently invalid because it was signed by a magistrate who was later removed from office for misconduct and, thus, any subsequent proceedings thereafter were also not invalid, as: (1) the magistrate's acts while in officer were considered valid as the acts of an officer de facto; and (2) due to such, the magistrate's acts could not be collaterally attacked and set aside. Keith v. State, 279 Ga. App. 819, 632 S.E.2d 669 (2006).
Cited in Culbreth v. Cannady, 168 Ga. 444, 148 S.E. 102 (1929); McGill v. Simmons, 172 Ga. 127, 157 S.E. 273 (1931); McBrien v. Starkweather, 43 Ga. App. 818, 160 S.E. 548 (1931); Odom v. Jones, 176 Ga. 147, 167 S.E. 304 (1932); Cooper v. Lewis, 177 Ga. 229, 170 S.E. 68 (1933); Marshall v. Walker, 183 Ga. 44, 187 S.E. 81 (1936); Morgan v. Crow, 183 Ga. 147, 187 S.E. 840 (1936); McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119 (1949); Barrett v. Slagle, 214 Ga. 650, 106 S.E.2d 908 (1959); Varnadoe v. Housing Auth., 221 Ga. 467, 145 S.E.2d 493 (1965); Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga. 1966); Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970); Dunn v. Cofer, 134 Ga. App. 173, 213 S.E.2d 483 (1975); Westley v. State, 143 Ga. App. 344, 238 S.E.2d 701 (1977); Lucas v. Woodward, 240 Ga. 770, 243 S.E.2d 28 (1978); Irwin v. Busbee, 241 Ga. 567, 247 S.E.2d 103 (1978); Ramsey v. Powell, 244 Ga. 745, 262 S.E.2d 61 (1979); Beck v. State, 286 Ga. App. 553, 650 S.E.2d 728 (2007); Spillers v. State, 299 Ga. App. 854, 683 S.E.2d 903 (2009).
Holders of Public Funds
Prior removal for misconduct.
- The conviction of an officer for misbehavior and misconduct in office in the illegal appropriation of public funds, and the officer's removal from office, are equivalent to an adjudication that the officer is ineligible to hold that office for and during the remainder of the term for which elected; therefore, the officer cannot be a candidate for the vacancy caused by the officer's own removal. McClellan v. Pearson, 163 Ga. 492, 136 S.E. 429 (1927).
Failure of tax collector to pay over taxes collected.
- O.C.G.A. § 45-2-1(2) does not mean that a person is ineligible to hold the office of sheriff, as being the holder of public money unaccounted for, merely by reason of the fact that as tax collector one failed and refused to pay over to the county taxes collected, was cited by the county commissioners for a settlement, and that upon failure to settle, an execution was issued against the tax collector and bondsmen, which was subsequently paid by the bondsmen; as there are circumstances under which a tax collector could act in the best of faith in the performance of trust, and still be unable to account personally for taxes collected. Weems v. Glenn, 199 Ga. 388, 34 S.E.2d 511 (1945).
Felony Involving Moral Turpitude
1. In General
Disqualification from public office.
- After the defendant pled nolo contendere in Florida to a felony, which was a felony under Georgia law, defendant would have been disqualified from holding public office pursuant to O.C.G.A. § 45-2-1(3), but defendant was exempted from such disqualification by O.C.G.A. § 17-7-95(c), under which the nolo plea could not be deemed a guilty plea for the purposes of effecting the disqualification. Hardin v. Brookins, 275 Ga. 477, 569 S.E.2d 511 (2002).
Acts involving intoxicating liquors.
- Neither the transportation and possession of non-tax-paid liquor nor the unlawful sale of intoxicating liquors is a crime involving moral turpitude. Hutto v. Rowland, 226 Ga. 889, 178 S.E.2d 180 (1970).
Applicability to county superintendent of schools.
- O.C.G.A. § 45-2-1(3) had no application to the office of county superintendent of schools for the reason that former O.C.G.A. § 20-2-102 (see now O.C.G.A. § 20-2-101), which defined the qualifications of county school superintendents, did not require that one be convicted "and sentenced" before one was ineligible to hold the office by reason of a crime involving moral turpitude. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).
2. Pardon
No restoration of public office.
- While the grant of a pardon restores one to full rights of citizenship, including the right to hold public office, and operates to remove all blot and stain growing out of a previous conviction of a felony involving moral turpitude, it does not operate to confer or restore a public office which was previously held, but which on account of the previous conviction and sentence was necessarily relinquished. Morris v. Hartsfield, 186 Ga. 171, 197 S.E. 251 (1938).
Ineligibility not removed.
- When the right of a county commissioner to hold office is attacked by reason of one having been, previous to election, convicted of a felony, and therefore not a qualified voter or eligible "to hold any civil office," the fact that one received a pardon after the institution of the quo warranto proceedings, but prior to the decision of the trial judge, does not remove ineligibility. Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115 (1949).
Persons Holding Other Offices
Federal offices.
- After the Governor undertook to declare vacancies in the offices of a member and chair of the State Highway Board (now Transportation Board), for ineligibility of the incumbent because of the incumbent's holding a federal office, but the order recited only that the incumbent held an office of profit or trust under the government of the United States, without stating what federal office the incumbent held, the order did not show ineligibility as claimed, since, for aught that appears, the federal office, if held, might have been one of the excepted offices. Patten v. Miller, 190 Ga. 123, 8 S.E.2d 757 (1940).
A federal magistrate, even if only part-time, is ineligible to hold a civil office. Highsmith v. Clark, 245 Ga. 158, 264 S.E.2d 1 (1980).
The tax assessor's service on a county agricultural committee (as part of a federal agency) did not bar appointment to the tax board because federal offices were excluded, the position was temporary, and would not interfere with the tax assessor's duties on the tax board. Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478, 568 S.E.2d 786 (2002).
County offices.
- O.C.G.A. § 45-2-1 does not prohibit a member of a county school board from also holding office as a trustee of a local school district. The latter is not definable as a county office under O.C.G.A. § 45-2-2 so the provisions of § 45-2-2 are inapplicable. Casey v. McElreath, 177 Ga. 35, 169 S.E. 342 (1933).
Consolidated government officers.
- A provision in the charter granting authority to a consolidated government to redefine membership of a municipal board of water commissioners did not grant authority to appoint a city council member to the board, when such appointments constituted a conflict of interest under O.C.G.A. § 36-30-4. Columbus, Ga. v. Board of Water Comm'rs, 261 Ga. 219, 403 S.E.2d 791 (1991).
Eligibility for County Offices
1. Residency Requirement
The residency requirements in O.C.G.A. § 45-2-1(7) refer to domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Ordinarily a jury question.
- The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined by the court as a matter of law except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Change in domicile.
- If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, that person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Lack of standing.
- Former county commissioner lacked U.S. Const. Art. III standing to pursue a suit alleging that the redistricting done under 2002 Ga. Laws 401 violated the commissioner's equal protection rights because, even if 2002 Ga. Laws 401 was found unconstitutional, a new redistricting plan might still cause the commissioner to lose the commissioner's incumbent status, thereby preventing the commissioner from running for the office of commissioner in the district that the commissioner served for eight years because the commissioner was no longer a resident of that district, as required by O.C.G.A. § 45-2-1; thus, the commissioner's injury could not be redressed by a favorable decision. Scott v. Taylor, 470 F.3d 1014 (11th Cir. 2006).
2. Qualified Voter Requirement
Office of ordinary (now probate judge).
- Under application of the provisions of the Constitution and laws of this state, a person who is not a qualified voter is not eligible to the office of ordinary (now probate judge) of a county. Lee v. Byrd, 169 Ga. 622, 151 S.E. 28 (1929).
Partnership ineligible.
- Since a partnership cannot be a qualified voter, a partnership may not hold the public office of county auditor. Lester Witte & Co. v. Rabun County, 245 Ga. 382, 265 S.E.2d 4 (1980).
Inapplicable to justice of the peace.
- A justice of the peace is not a county officer and the statutory provisions that no person is eligible to hold a county office who is not "a qualified voter entitled to vote," has no application to the office of justice of the peace. Davis v. Mercer, 48 Ga. App. 191, 172 S.E. 669 (1934).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Assembly is authorized to provide for membership by nonresidents on the Tobacco Advisory Board. 1969 Op. Att'y Gen. No. 69-495.
Minimum age requirement.- Statute would not prevent a person under 21 years of age from having that person's name on the ballot if that one will become 21 on or before the date for assuming office. 1972 Op. Att'y Gen. No. U72-60.
Age requirement for deputy clerks.
- Since the authorization in former Code 1933, § 24-2713 (see now O.C.G.A. § 15-6-59) for appointment of deputies makes a deputy clerk a public officer of this state, under former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1) a deputy clerk of the superior court must be at least 21 years of age. 1958-59 Op. Att'y Gen. p. 43.
The office of highway treasurer is a public office created by the General Assembly. 1945-47 Op. Att'y Gen. p. 626.
A municipal office is a "civil office" within the contemplation of former Code 9133, § 89-101 (see now O.C.G.A. § 45-2-1). 1980 Op. Att'y Gen. No. 80-157.
Candidate in both general and special election.- Candidate on ballot in special congressional primary may not be permitted to run at same time in general election for position in Georgia General Assembly. 1982 Op. Att'y Gen. No. U82-30.
Eligibility for judge of probate court.- For a person to be eligible to hold the office of judge of probate court there must not only be full compliance with the constitutional and statutory residency requirements but also the person must meet the requirements of a qualified voter. 1967 Op. Att'y Gen. No. 67-368.
Person Charged With Crimes
Failure to pay over public moneys.
- A judgment against a sheriff-elect for failure to account for and pay over county moneys must be paid before such individual is eligible to hold office, and a county must pay the bond premium on a sheriff regardless of the premium charged. 1976 Op. Att'y Gen. No. U76-58.
Conviction of crime involving moral turpitude.- A person who has been convicted of a crime involving moral turpitude cannot hold public office in this state. 1962 Op. Att'y Gen. p. 131.
Limitation on employment by Board of Regents because of felony involving moral turpitude.- Conviction and sentence for a felony involving moral turpitude does not render an individual ineligible for employment by the Board of Regents unless the position of employment is one which constitutes a position of trust. 1985 Op. Att'y Gen. No. 85-47.
Conviction for transporting stolen automobile.- A person convicted in federal court of transporting a stolen automobile in interstate commerce would be ineligible to hold any civil office. 1962 Op. Att'y Gen. p. 131.
Eligibility of parolees and convicted felons for civil employment.- Even though parolees from the penitentiary and all convicted felons, before pardon, are ineligible for any civil "office," this disability would not extend to mere employment when such employment does not amount to a position of trust. 1968 Op. Att'y Gen. No. 68-35.
Eligibility of work-release prisoners for civil employment.- Work-release prisoners may be employed in any unclassified position that is not a civil office; the same limitation would also apply to their employment in a classified position. 1974 Op. Att'y Gen. No. 74-142.
Persons Holding Other Offices
Persons holding federal office of profit or trust.
- Membership on United States Department of Agricultural Stabilization and Conservation Committee is an office of profit or trust under the government of the United States and within the meaning of O.C.G.A. § 45-2-1; any person holding this office would be ineligible to hold any other civil office in this state. 1970 Op. Att'y Gen. No. 70-137.
A city commission member is prohibited from sitting on a draft board, since holders of any civil office are generally prohibited from holding any office of profit or trust under the federal government. 1971 Op. Att'y Gen. No. U71-107.
Representation of criminal defendants.- The obligations of trusteeship imposed upon public officers and public employees do not preclude the representation of a defendant in a criminal proceeding on the grounds of an impermissible conflict of interest from such representation and the holding of public office and employment. 1982 Op. Att'y Gen. No. U82-44.
Participation in federal program not constituting an office.- Even though additional compensation will be part of the salary of a member of the Uniform Division of the Department of Public Safety for additional work done for a federal drug abuse program, participation in such a program would not be an "office of profit or trust under the government of the United States" as prohibited by paragraph (4), primarily because participation would not be an "office" within the meaning of this section. 1972 Op. Att'y Gen. No. 72-69.
A part-time or substitute rural mail carrier is not prohibited by state law from serving as a deputy registrar. 1976 Op. Att'y Gen. No. U76-46.
A postmaster may run and hold an office on a city council. 1983 Op. Att'y Gen. No. 83-30.
Prohibition against holding two state offices.- This section is construed to mean that the same person cannot legally hold two state offices of profit or trust; therefore, while members of the Veterans Service Board do not receive a salary, the office is one created by the Constitution and is an office of trust under the Georgia Constitution. A member of the board who has been appointed thereto by the Governor is ineligible to hold another office of the state. 1945-47 Op. Att'y Gen. p. 476.
Employment of director for other duties.- Nothing in this section would prohibit the State Treasurer (now director of the Office of Treasury and Fiscal Services) from accepting employment with the state for the performance of duties not required of that office. 1945-47 Op. Att'y Gen. p. 626.
General Assembly members ineligible for county board of education.
- Assuming the courts conclude the phrase "either of the several states" is sufficiently broad to include Georgia as well as any of the 49 other states in the union, it would then follow that O.C.G.A. § 45-2-1 renders a person holding an office of profit by virtue of being a member of the General Assembly ineligible to hold the civil office of membership on a county board of education in the absence of express legislative authorization. 1963-65 Op. Att'y Gen. p. 442.
Board memberships not civil offices.- Membership on the governing boards of public, nonmunicipal corporations, such as the Ports Authority, are not civil offices within the contemplation of the Georgia Constitution, though such members are clearly fiduciaries of public trust. 1971 Op. Att'y Gen. No. 71-18.
Treasurer of the State Highway Board (now Transportation Board) may also legally hold the office of judge of a city court. 1950-51 Op. Att'y Gen. p. 210.
Acceptance of incompatible position causing automatic vacation of office.- The offices of honorary consul and member of the Board of Commissioners of the Department of Industry and Trade are incompatible, and the acceptance of the position of honorary consul would automatically vacate the position on the Board of Commissioners. 1968 Op. Att'y Gen. No. 68-147.
The offices of vice chairman of the Board of Commissioners of the Department of Industry and Trade and honorary consul in Atlanta for the government of Japan are incompatible, and the acceptance of the position of consul would automatically vacate the position on the Board of Commissioners. 1969 Op. Att'y Gen. No. 69-93.
A judge of the superior court may hold office as a member of the county board of education. 1954-56 Op. Att'y Gen. p. 180.
Justice of peace holding office of municipal mayor.- There is apparently no general law of this state which would prohibit a justice of the peace from also holding the office of mayor of a municipality. 1957 Op. Att'y Gen. p. 53.
A justice of the peace is not ineligible under O.C.G.A. § 45-2-1 to hold office of mayor of a municipality unless prohibited by municipal charter. 1945-47 Op. Att'y Gen. p. 79.
A justice of the peace may also act as mayor of a municipality in the absence of a contrary provision in the charter of a municipality. 1948-49 Op. Att'y Gen. p. 478.
Person may hold county and municipal office unless prohibited by municipal charter.- Unless the municipal charter prohibits such, a person can hold a county office and a municipal office. 1950-51 Op. Att'y Gen. p. 336.
Construing former Code 1933, §§ 89-101 and 89-103 (see now O.C.G.A. §§ 45-2-1 and45-2-2) together, unless the charter of a particular municipal corporation prohibited a county officer from holding a municipal office created under the charter, a person could hold a county office and a municipal office. 1945-47 Op. Att'y Gen. p. 68.
Person may hold both city and county court office.- There is no prohibition against one persons holding both the offices of judge of a city court and ordinary (now probate judge) of a county. 1970 Op. Att'y Gen. No. U70-60.
A sitting magistrate may be a candidate for the office of chief magistrate but would be required to resign former magistrate position before assuming the new office. 1983 Op. Att'y Gen. No. 83-59.
A city councilperson may also serve as a magistrate. 1983 Op. Att'y Gen. No. U83-55.
1983 Op. Att'y Gen. No. U83-55, which stated that there was no statutory, constitutional, or common-law prohibition against a person simultaneously holding the offices of magistrate and city councilperson, was issued prior to the ratification of Ga. Const. 1983, Art. II, Sec. II, Para. V, which provides that the test for simultaneously holding two offices is specific authorization, rather than prohibition; and since there is no law specifically authorizing a person to simultaneously hold the offices of magistrate and city councilperson, a chief magistrate could not hold office as chief magistrate while seeking election to the city council. 1985 Op. Att'y Gen. No. U85-41.
Federal attorney/hearing examiner cannot serve simultaneously as part-time associate magistrate.
- An attorney/hearing examiner for the United States Merit Systems Protection Board may not simultaneously serve as a part-time associate magistrate since the examiner would be exercising discretion vested in the board for the benefit of the public, and thus would be subject to the same disqualification contemplated by O.C.G.A. §§ 45-2-1(4) and45-3-1(4) as a member of the board, despite technical status as an "employee." 1985 Op. Att'y Gen. No. U85-12.
Armed forces member ineligible to hold municipal office.- Enlisted member of regular component of armed forces is ineligible to hold elected municipal office. 1980 Op. Att'y Gen. No. 80-157.
Military personnel on terminal leave as peace officers.- Members of the armed forces of the United States on terminal leave may be employed and certified as peace officers, but such members of the armed forces would be ineligible to hold certain law enforcement positions, such as sheriff, which are clearly civil offices. 1989 Op. Att'y Gen. 89-30.
Eligibility for County Offices
The proviso in paragraph (7) was enacted to change the result of Bower v. Avery, 172 Ga. 272, 159 S.E. 10 (1931), i.e., a person would not be eligible to be elected or appointed as county school superintendent where that person was a bona fide citizen of that county for two years even though the person resided and voted within the corporate limits of an independent school district located in that county. 1954-56 Op. Att'y Gen. p. 200.
Removal of incumbents.- An appointment, which is made to a position for a term of years and when by law the incumbent may be removed only for cause or through a specific statutory procedure, may not be rescinded. The incumbent may be removed from the position only through compliance with the established legal procedures, which may include providing the incumbent with notice and an opportunity for a hearing on the reasons for removal. 2016 Op. Att'y Gen. No. U16-1.
Judges not considered county officers.
- Historically, judges serving in the state judicial system have not been considered county officers under O.C.G.A. § 45-2-1. 1978 Op. Att'y Gen. No. U78-8.
Qualifications of county school superintendent.
- In addition to the qualifications of former Code 1933, § 32-1002 (see now O.C.G.A. § 20-2-101), a county school superintendent, being a county officer within the meaning of former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1(7)) must have been a citizen of the county for a period of two years prior to the election and a qualified voter in the county entitled to vote. 1958-59 Op. Att'y Gen. p. 110.
Residents eligible for office of county school superintendent.- In a county where there is an independent city school system, a resident of the area included within the independent district is eligible to be a candidate for the office of county school superintendent in the primary and general election. 1963-65 Op. Att'y Gen. p. 225.
Local school board members.- Residency requirements for the election of local school board members cannot be established by board bylaws. 1997 Op. Att'y Gen. No. U97-25.
Residents eligible for reelection.- If, after election to the office of county school superintendent, the superintendent should move into the area included within the independent district, the superintendent will then be eligible to run for office again. 1963-65 Op. Att'y Gen. p. 225.
Residency in political subdivision.- A candidate for the office of county commissioner must be a resident of the county for a period of 24 months (now 12 months) prior to election, but does not have to reside in the commission district from which the candidate seeks election for a period of 24 months (now 12 months) prior to election. 1986 Op. Att'y Gen. No. 86-23.
Local law residency requirements for candidates unenforceable.- The provisions of a local act establishing a requirement that candidates for the Board of Commissioners of Clay County be residents of the commissioner districts from which the candidates are seeking election for a period of at least five years immediately preceding the date of the election is unenforceable as being a local act in derogation of general law. 1984 Op. Att'y Gen. No. U84-31.
A county was not authorized to establish more stringent residency requirements for the election of county commissioners than the one-year requirement of O.C.G.A. § 45-2-1. 1997 Op. Att'y Gen. No. U97-27.
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, §§ 53 et seq., § 70 et seq.
20B Am. Jur. Pleading and Practice Forms, Public Officers and Employees, § 3.
C.J.S.- 67 C.J.S., Officers and Public Employees, § 15-34 et seq.
ALR.
- Incompatibility of offices or positions in the military and in the civil service, 26 A.L.R. 142; 132 A.L.R. 254; 147 A.L.R. 1419; 148 A.L.R. 1399; 150 A.L.R. 1444.
Unfitness as affecting right to restoration by mandamus to office from which one has been illegally removed, 36 A.L.R. 508.
Payment of salary to de facto officer as defense to action or proceeding by de jure officer for salary, 55 A.L.R. 997; 64 A.L.R.2d 1375.
Officer holding over without authority after expiration of his term as a de facto officer, 71 A.L.R. 848.
Policemen as public officers, 84 A.L.R. 309; 156 A.L.R. 1356.
Time as of which eligibility or ineligibility to office is to be determined, 88 A.L.R. 812; 143 A.L.R. 1026.
Other public offices or employments within prohibition as regards judicial officers of constitutional or statutory provinces against holding more than one office, 89 A.L.R. 1113.
Right of de facto officer to salary or other compensation annexed to office, 93 A.L.R. 258; 151 A.L.R. 952.
Distinction between office and employment, 93 A.L.R. 333; 140 A.L.R. 1076.
De jure office as condition of a de facto officer, 99 A.L.R. 294.
Effect of election to or acceptance of one office by incumbent of another where both cannot be held by same person, 100 A.L.R. 1162.
Status as de jure public office of one appointed by a de facto office or body or by a body which included a de facto mem whose vote or consent was necessary to the appointment, 106 A.L.R. 1324.
Right of Civil Service Commission to prescribe maximum or minimum age requirements for candidates for positions or promotion in civil service, 122 A.L.R. 1452.
Presumption and burden of proof as to one's status as a de facto officer upon which validity or effect of his act depends, 161 A.L.R. 967.
Constitutionality of statute requiring, or limiting, selection or appointment of public officers or agents from members of a political party or parties, 170 A.L.R. 198.
Payment of salary to de facto officer as defense to action or proceeding by de jure officer for salary, 64 A.L.R.2d 1375.
What constitutes conviction within statutory constitutional provision making convicting of crime ground of disqualification for, removal from, or vacancy in, public office, 71 A.L.R.2d 593.
Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.
Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office, 39 A.L.R.3d 303.
Removal of public officers for misconduct during previous term, 42 A.L.R.3d 691.
Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.
Validity of requirement that candidate or public officer has been resident of governmental unit for specified period, 65 A.L.R.3d 1048.
Validity of age requirement for state public office, 90 A.L.R.3d 900.
Validity, construction and application of regulation regarding outside employment of governmental employees or officers, 94 A.L.R.3d 1230, 62 A.L.R.5th 671.
Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.
What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 10 A.L.R.5th 139.
What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 11 A.L.R.5th 52.