No person shall hold, in any manner whatever, or be commissioned to hold more than one county office at one time, except by special enactment of the General Assembly; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment.
(Ga. L. 1890-91, p. 102, § 1; Civil Code 1895, § 224; Civil Code 1910, § 259; Code 1933, § 89-103; Ga. L. 1990, p. 8, § 45.)
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Consideration
Construction of common law.
- At common law, one could simultaneously hold two public offices unless the two were incompatible, and incompatibility existed when performance of duties of one office interfered with performance of duties of the other. 1981 Op. Att'y Gen. No. U81-6.
Prohibition against simultaneously holding two county offices.
- O.C.G.A. § 45-2-2 is a direct prohibition against an individual holding two county offices at the same time. 1965-66 Op. Att'y Gen. No. 65-89.
O.C.G.A. § 45-2-2 prohibits simultaneous holding of two county offices, or one county officer being deputy to another. 1981 Op. Att'y Gen. No. U81-6.
A special enactment may authorize a plurality of offices, and since this section itself contemplates a special enactment, such an enactment may be made without violating the constitutional prohibition against enactment of special laws when provision has been made by general law. 1971 Op. Att'y Gen. No. U71-34.
Time of creation of county office not controlling.- The general law that members of county boards of tax assessors are ineligible to serve on county boards of education is applicable to a county, even though the county school system was created prior to adoption of the Constitution of 1877. 1962 Op. Att'y Gen. p. 58.
"County officers" defined.- In a technical sense, the term "county officers" includes only the "county officers" referred to in 1945, Art. XI, Sec. II, Para. 1 (see now Ga. Const. 1983, Art. IX, Sec. I, Para. III), i.e., those who are elected by the qualified voters of their respective counties and hold office for four years. 1958-59 Op. Att'y Gen. p. 146.
Ordinarily, unless there is some special statute, a county police officer does not come within the term of one holding a county office. The county office within the purview of this section has been held to be an office created by law for a term of four years and elected by the people of the county. 1957 Op. Att'y Gen. p. 20.
An appointed official is not a county officer for purposes of O.C.G.A. § 45-2-2. 1981 Op. Att'y Gen. No. U81-6.
No disqualification from running for another office.- This section does not say that a person holding one office shall be disqualified to be elected to another, but merely says that a person may not hold two such offices at the same time; the effect of this language is that a person holding one office is not disqualified from running for another, but on election to the latter office, that person automatically forfeits the first. 1958-59 Op. Att'y Gen. p. 146.
Qualifying as candidate for another office not prohibited.- Although this section declares that no person shall hold two county offices, it appears that qualifying as a candidate for the office of ordinary (now judge of probate court) while serving as a justice of the peace, would not result in placing the candidate in the position of holding two county offices; moreover, a justice of the peace is not a county but a state officer. 1968 Op. Att'y Gen. No. 68-219.
Effect of county officer winning primary nomination for another county office.- A member of the county board of education would be eligible to run in a county primary for the office of county commissioner, since a primary is not an election in the strict sense of the term, and obviously does not result in placing the successful nominee in the position of "holding" an office within the meaning of this section; however, if the person receives the nomination, that person must resign as a member of the school board prior to qualifying in general a election for commissioner. 1958-59 Op. Att'y Gen. p. 146.
Specific OfficesMembers of county board of education are ineligible to hold another county office. 1954-56 Op. Att'y Gen. p. 78.
County board of education member may serve on board of registrars.- A person who is a member of the county board of education can also serve on the board of registrars, without violating that provision of law prohibiting a person from holding more than one county office. 1945-47 Op. Att'y Gen. p. 145.
County board of education member may serve as a member of the General Assembly. 1962 Op. Att'y Gen. p. 52.
County board of education member may serve as a justice of the peace. 1948-49 Op. Att'y Gen. p. 499.
Service on county board of equalization and voter registration.- There is no violation of this section when a person serves simultaneously as a member of the county board of equalization and as a member of the board of voter registration. 1975 Op. Att'y Gen. No. U75-75.
Section not applicable to county employees.- This section applies only to county officers as distinguished from county employees, such as county registrar and county land appraiser. 1973 Op. Att'y Gen. No. U73-83.
Holding two positions with local education board.
- While O.C.G.A. § 45-2-2 prohibits a person from holding more than one county office, there is no state law or state regulation prohibiting a person from holding two positions of employment with a local board of education, and drawing a salary for each position. School bus drivers, teachers and janitors are employees of the local school system; therefore, a person could be employed as a school bus driver and as a janitor. 1957 Op. Att'y Gen. p. 98.
County employees not barred from holding county offices.
- O.C.G.A. § 45-2-2 would not prohibit a person from holding the position of an employee of a county water system and also that of a member of a county board of education. 1963-65 Op. Att'y Gen. p. 438.
County employees not barred from holding county offices.- A person can serve as both an assistant district attorney of a judicial circuit and a member of a county board of education. 1958-59 Op. Att'y Gen. p. 105.
O.C.G.A.
§ 45-2-2 inapplicable to school principal or teacher. - A teacher of vocational agriculture is a county employee and not a county officer; therefore, O.C.G.A. § 45-2-2 would not apply to such teacher. 1954-56 Op. Att'y Gen. p. 77.
A school principal or a public school teacher is a county employee and not a county officer; therefore, this section would not apply to a school principal or teacher. 1958-59 Op. Att'y Gen. p. 100.
There is no prohibition which would prevent a teacher from becoming a candidate for a seat on the county board of education. 1968 Op. Att'y Gen. No. 68-231.
Legality of school employee's contract with board of which the employee is a member.- A school principal or a public school teacher could legally serve as a member of the county board of education; however, the legality of a contract of employment entered into by a school principal or teacher with a county board of education of which the said principal or teacher is a member is questionable. 1958-59 Op. Att'y Gen. p. 100.
State employees not barred from holding county offices.- The chair of a county board of commissioners may be employed as a full-time probation officer by the State Board of Probation. 1968 Op. Att'y Gen. No. 68-21.
A person in the employ of the state as a professor may occupy a seat on the school board of a county. 1968 Op. Att'y Gen. No. 68-168.
A member of a State Agricultural Commodities Commission may simultaneously hold the office of county commissioner. 1976 Op. Att'y Gen. No. U76-30.
There is no legal impediment to a judge of the state court of a county simultaneously serving as juvenile court judge for a judicial circuit which embraces several counties including the county for which that person is a state court judge. 1976 Op. Att'y Gen. No. U76-56.
Court reporter receiving allowance under O.C.G.A.
§ 15-14-6 may qualify for office of justice of peace. - Person designated as official court reporter, who receives state allowances pursuant to Ga. L. 1971, p. 417, § 1 (see now O.C.G.A. § 15-14-6), may qualify and campaign for office of justice of the peace. 1980 Op. Att'y Gen. No. U80-23.
Justice of the peace not barred from holding office of county commissioner.- Justice of the peace, not being a county official, is not barred from holding at same time office of county commissioner. 1962 Op. Att'y Gen. p. 53.
Service on county political committee and board of education.- An elected member of a county democratic committee may serve at the same time as a member of the county board of education; membership on the county democratic committee is a political position and not a county office. 1967 Op. Att'y Gen. No. 67-147.
Justice of the peace may be member on a political party's county executive committee.- There is no prohibition against a justice of the peace at the same time holding membership on the county democratic executive committee. 1962 Op. Att'y Gen. p. 50.
A coroner is a county officer and may hold a state office, e.g., that of constable or justice of the peace. 1954-56 Op. Att'y Gen. p. 55.
Coroner may be appointed constable.- There is no statutory provision preventing the appointment of a coroner to act as constable, provided that the constable is appointed under the conditions and procedure provided in the Code for the appointment of constables under certain conditions. 1957 Op. Att'y Gen. p. 20.
Coroner may act as county police officer.- It does not appear that a coroner would be prohibited under this section from acting as a county police officer. 1957 Op. Att'y Gen. p. 20.
Coroner may not act as deputy sheriff.- County coroner may not legally hold office as deputy sheriff. 1954-56 Op. Att'y Gen. p. 54.
It appears that offices of deputy coroner and deputy sheriff are incompatible because of inconsistent duties under O.C.G.A. Art. 2, Ch. 16, T. 45; thus, a deputy sheriff may not also serve as deputy coroner. 1981 Op. Att'y Gen. No. U81-6.
Coroner may not hold county office.- A coroner, being a county officer, could not hold the office of deputy sheriff or any other county office or deputy to a county officer, but could hold a job as a municipal police officer or as a notary public ex officio justice of the peace or constable. 1958-59 Op. Att'y Gen. p. 38.
Coroners and deputy coroners.- Coroners and deputy coroners may not serve as deputy sheriffs or city police officers. 1997 Op. Att'y Gen. No. U97-18.
Deputy sheriff not to serve as county coroner.- A person legally commissioned as a deputy sheriff cannot simultaneously be commissioned and serve as coroner of the county unless the General Assembly has specifically provided for dual service. 1969 Op. Att'y Gen. No. 69-356.
Incompatible county offices.- Under this section, a person could not hold the office as a member of the county board of public welfare and as a member of the county board of education. 1945-47 Op. Att'y Gen. p. 648.
A member of the county board of commissioners of roads and revenues may not become county school superintendent. 1945-47 Op. Att'y Gen. p. 147.
Chair of the commissioners may not serve as county convict warden. 1960-61 Op. Att'y Gen. p. 55.
A deputy sheriff cannot serve as a member of a county board of education. 1965-66 Op. Att'y Gen. No. 65-78.
Tax commissioner prohibited from serving as assistant to probate judge.- This section precludes the appointment of a tax commissioner as an assistant to the probate judge for the purpose of conducting an election. 1975 Op. Att'y Gen. No. 75-90.
Judge of probate court cannot legally hold the office of superior court clerk; however, if a vacancy occurs at a time other than during the term of the superior court and the vacancy results from an emergency and the ordinary (now probate judge) cannot otherwise fill the vacancy in the manner described in former Code 1933, §§ 24-2707 and 24-2709, the probate judge may act as clerk. 1974 Op. Att'y Gen. No. 74-42.
Judge of probate court may not hold the office of county attorney.- A judge of probate court of a county is not qualified to also hold the public office of county attorney; it is self-evident that the duties of the two public offices in many instances would be conflicting and would be incompatible. 1962 Op. Att'y Gen. p. 61.
Service as volunteer firefighter.
- Dual service as a volunteer firefighter and member of a city council or county commission does not violate O.C.G.A. § 36-30-4 or O.C.G.A. § 45-2-2; however, cities and counties must determine for themselves, based on the circumstances, whether a common law conflict of interest exists. 1998 Op. Att'y Gen. No. U98-8.
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, § 57 et seq.
C.J.S.- 67 C.J.S., Officers and Public Employees, § 27.
ALR.
- 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.