Georgia Department of Law, from the office of Samuel S. Olens, Attorney General

Official Opinion 2014-1

July 16, 2014
To: 

Governor

Re: 

Only the Governor has the authority to fill the temporary vacancy created by the suspension of a Harris County commissioner pursuant to O.C.G.A. § 45‑5‑6.

You have requested my opinion on the proper procedure for filling a temporary vacancy on the Harris County commission should you suspend a member of the commission pursuant to O.C.G.A. § 45‑5‑6.  Because the local laws governing the operation of the commission do not have a provision for the filling of such a temporary vacancy created by a suspension, then, pursuant to O.C.G.A. § 45‑5‑6(d)(1), only you as the Governor have the authority to appoint the temporary replacement commissioner.

General State Law

Georgia law provides under O.C.G.A. § 45‑5‑6 that, upon the felony indictment of a covered official, either the prosecuting district attorney or the Attorney General shall transmit a certified copy of the indictment to the Governor.  After waiting 14 days from when the indictment is received, during which time the indicted officer may request in writing that the Governor suspend him from office, the Governor must then appoint a review commission consisting of the Attorney General and two public officials who then have 14 days in which to submit a written report to the Governor indicating whether the indictment “relates to and adversely affects the administration of the office of the indicted public official and that the rights and interests of the public are adversely affected thereby.”  O.C.G.A. § 45‑5‑6(b), (c), and (e).[1]  If the review commission makes such a finding, then it must recommend to the Governor that the official be suspended from office.  Id.  If the review commission makes a recommendation for suspension, then the Governor may accept that recommendation after reviewing the commission’s record and report.  Id.

The Governor may order such a suspension immediately and it remains in effect until the criminal case is finally disposed of or the officer’s term of office ends, whichever comes first.  Id.  The suspension is “with pay” and is otherwise only temporary and can be ended by the prosecutor dropping the charges in the case, by the official being acquitted, or if the conviction is reversed on appeal.  Id.; 1991 Op. Att’y Gen. 91‑14.  If any of those circumstances occurs, then the official is immediately reinstated to his office.  Additionally, the officer must be tried at the next regular or special term of court or the suspension is also automatically lifted, unless the delay in the trial is caused by the official requesting a continuance of his case.  O.C.G.A. § 45‑5‑6(i).  The suspended officer may also petition the Governor to review the suspension through the reappointment of the review commission and, if the review commission recommends reinstatement, then the law provides the reinstatement occurs immediately.  O.C.G.A. § 45‑5‑6(f).

In the meantime, a temporary replacement may be appointed to fill the suspended official’s office.  O.C.G.A. § 45‑5‑6(d)(1).  This appointment is made as authorized by general or local law, ordinance, or resolution providing for the filling of a temporary vacancy or, if there is no such authority, by appointment by the Governor.  Id.  That person serves for the balance of the suspension, which is until either the charges are finally disposed of or the suspended official’s term of office ends.  Id.  There is no general state law that provides a mechanism for the appointment of a temporary replacement for a member of a county commission where he has been temporarily suspended pursuant to these statutes.  See, e.g., O.C.G.A. § 36‑5‑21 (provisions for filling permanent vacancies in county commissions or other governing authorities.)

If the official is ultimately convicted of any felony, regardless of whether the official was previously suspended, the official is then immediately suspended by operation of law and without any further action by the Governor.  O.C.G.A. § 45‑5‑6.1(b).  This suspension is “without pay,” but if the conviction should later be reversed, then the official would be entitled to any compensation that had been withheld.  O.C.G.A. §§ 45‑5‑6(c), 45‑5‑6.1(b).  If so suspended, then a temporary appointment of a replacement is made to the office in the same manner as described above.  O.C.G.A. § 45‑5‑6(c)(1).

In any case, once a felony conviction is final by virtue of all direct appeals having been completed and the conviction upheld, then the officer is removed permanently from office by operation of law.  O.C.G.A. § 45‑5‑6.1(c)(2); see also O.C.G.A. § 45‑5‑6(d)(2).  The vacancy in the office may then be filled in the manner provided by law.  O.C.G.A. § 45‑5‑6.1(c)(2).

The existence of a “permanent vacancy” as defined under general state law should not be confused with the creation of a “temporary vacancy” as described in O.C.G.A. § 45‑5‑6(d)(1).[2]  As is made clear throughout O.C.G.A. § 45‑5‑6, the “temporary vacancy” is, by definition, really created only by the suspension of an elected member of a governing authority.  The suspended officer continues to be the incumbent office holder, continues to receive his salary, and may in fact be returned to active service in his office by any number of actions, including reinstatement by the Governor, failure to be tried within the statutory time limits, acquittal at trial, or reversal of any conviction on appeal.  O.C.G.A. § 45‑5‑6(c), (f), and (i).  The office of the suspended official is not “vacant” as otherwise defined under Georgia law and the provisions for filling an actual vacancy are not implicated.

Harris County

On May 12, 2014, a member of the Harris County commission was indicted in the Superior Court of Harris County on three counts of bribery and three counts of a violation of the oath of office by a public officer.  The indictment was transmitted to and then received in the Office of the Governor on May 15.  Pursuant to O.C.G.A. § 45‑5‑6(b), on June 16 the Governor appointed a review commission consisting of the Attorney General and county commissioners from Bleckley and Lumpkin Counties “to determine whether the indictment relates to and adversely affects the administration of the office of” the Harris County commissioner and whether the “rights and interests of the public are adversely affected thereby.”  O.C.G.A. § 45‑5‑6(c).  The review commission subsequently met and then transmitted its confidential recommendation to the Governor.

The General Assembly has enacted a number of provisions creating and governing the Harris County commission.  See 2012 Ga. Laws 3677 (local redistricting), 2002 Ga. Laws 3888 (local redistricting), 1994 Ga. Laws 3682 (local redistricting), 1993 Ga. Laws 3682(local redistricting) , 1993 Ga. Laws 3552 (local redistricting), 1988 Ga. Laws 3567 (compensation), 1984 Ga. Laws 3534 (local redistricting and charter amendments), 1972 Ga. Laws 3468 (amendment to the number of commissioners), 1951 Ga. Laws 2453 (charter amendments), 1894 Ga. Laws 205 (compensation), 1869 Ga. Laws 170 (charter enactment.)  However, none of these enactments deals with the appointment of a temporary replacement of a commissioner suspended through the process outlined in O.C.G.A. § 45‑5‑6.

Section 3 of the county’s charter, as amended in 1984, does contain provisions for the filling of permanent vacancies on the commission.  It states:

In the event of a vacancy in the office of a member of the board whose unexpired term exceeds 180 days, it shall be the duty of the judge of the Probate Court of Harris County to call a special election for the filling of such vacancy, which election shall be governed by the provisions of the “Georgia Election Code” relative to special elections for the filling of vacancies.  The special election shall be conducted within 60 days of the date of the occurrence of the vacancy.  In the event the unexpired term does not exceed 180 days, it shall be the duty of the remaining members of the board to fill the vacancy by appointment.  All persons elected or appointed to fill vacancies pursuant to the provisions of this section shall serve for the remainder of the unexpired term of any such office and until their successors are elected and qualified. 

1984 Ga. Laws 3534, 3539, § 3.  It is clear that this portion of the local laws is applicable only to permanent vacancies of the type contemplated in O.C.G.A. § 45‑5‑1, and not to a temporary replacement for a person who is suspended under O.C.G.A. § 45‑5‑6.

The local law describes the selection of a person to serve the balance of an unexpired term, but as noted above the duration of a suspension under O.C.G.A. § 45‑5‑6 is indeterminate.  By the very terms of O.C.G.A. § 45‑5‑6, the suspended official’s office is not in fact “vacant” under the law.  The incumbent still holds that office.  The Governor’s suspension may be ended prior to the expiration of a term of office by any number of events such as the dropping of the criminal charges, acquittal at trial, reversal by an appellate court, or even just the passage of the prescribed period of time in which the trial must be held.  O.C.G.A. § 45‑5‑6(c).  Because the suspension is not for the “balance of the unexpired term,” then the 1984 provisions of the local law to that effect are not applicable to the process mandated under O.C.G.A. § 45‑5‑6.

If the local law were applied in this situation so as to elect a “temporary” replacement for the suspended officer, then under the local law that person would be elected for the balance of the unexpired term and could not be removed from office if one of the conditions described in O.C.G.A. § 45‑5‑6(c) were to occur.  There are restrictions in the law regarding cutting short an elected official’s term of office.  Under O.C.G.A. § 1‑3‑11, “[n]o office to which a person has been elected shall be abolished nor the term of the office shortened or lengthened by local or special Act during the term for which such person was elected unless the same shall be approved by the people of the jurisdiction affected in a referendum on the question.”  Otherwise there are limited statutory circumstances under which an elected official may be removed from office prior to the expiration of a term.  See, e.g., Ga. Const. Art. II, Sec. II, Para. IV and O.C.G.A. § 21‑4‑1 through 21‑4‑21 (Recall); Ga. Const. Art. II, Sec. III and O.C.G.A. §§ 45‑5‑6, 45‑5‑6.1 (Removal for felony conviction.)  There is no indication that the Harris County local law would supersede any of these provisions to permit the removal of a person elected as a “temporary” replacement for a suspended official.

In interpreting the meaning of both the local law and O.C.G.A. § 45‑5‑6 in this situation:

The cardinal rule of statutory interpretation is to ascertain the intent of the General Assembly, giving words their ordinary signification unless they are words of art or words connected with a particular trade or subject matter.  O.C.G.A. § 1‑3‑1.  It is also fundamental that the duties and powers of public officers and agencies are limited to those defined by law. O.C.G.A. § 45‑6‑5; Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922).

1999 Op. Att’y Gen. U99-9, quoting 1997 Op. Att'y Gen. U97-21, p. 168 (emphasis added).  “‛It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter . . . are construed together and harmonized wherever possible so as to ascertain the legislative intendment and give effect thereto.’  Ryan v. Commissioners of Chatham County et al., 203 Ga. 730, 731-732 (1948).”  1990 Op. Att’y Gen. 90-13.  “A statute which specifically relates to the very conduct in question . . . controls over more generalized legislation, such as we have in this case of broad legislation about nonprofit corporations in general . . . .  See Georgia Mental Health Institute v. Brady, 262 Ga. 591, 592 (1993).”  1995 Op. Att’y Gen. 95‑36.  “All valid statutes should be reconciled and implemented consistently whenever possible.  However, in the event of conflicting provisions, the statute later in time would govern as the last expression of the General Assembly's intent.  Foster v. Brown, 199 Ga. 444, 451 (1945); Carroll & Co. v. Langford Construction Co., 182 Ga. App. 258, 260 (1987).”  1990 Op. Att’y Gen. 90‑17.  Finally:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 275 (1998); accord, Bd. of Comm’rs v. Callan, 290 Ga. 327, 332-33(2012).

Applying the specific words of the statutes involved in the context of the other appropriate laws as noted above, and determining the intent of the General Assembly in these circumstances, it is my official opinion that the Harris County local law does not have a provision for the appointment or replacement of a county commissioner who has been suspended by the Governor pursuant to O.C.G.A. § 45‑5‑6.  Therefore, the authority to appoint a temporary replacement commissioner during the pendency of the suspension rests with the Governor.

Prepared by:

DENNIS R. DUNN

Deputy Attorney General




[1] In the event the indictment is brought by the Attorney General, a retired appellate judge is to be appointed in lieu of the Attorney General.  O.C.G.A. § 45‑5‑6(b).

[2] Under Georgia law, an office becomes permanently vacant: “(1) By the death of the incumbent; (2) By resignation, when accepted; (3) By decision of a competent tribunal declaring the office vacant; (4) By voluntary act or misfortune of the incumbent whereby he is placed in any of the specified conditions of ineligibility to office; (5) By the incumbent ceasing to be a resident of the state or of the county, circuit, or district for which he was elected; (6) By failing to apply for and obtain commissions or certificates or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution of Georgia; or (7) By abandoning the office or ceasing to perform its duties, or both.”  O.C.G.A. § 45‑5‑1(a).  The occurrence of each of these events creates by operation of law a permanent vacancy where the office holder finally and irrevocably leaves office.  That determination is made by the officer or body authorized to fill the vacancy, recognizing that there is no longer an incumbent for that office, and the office is to be filled in accordance with the applicable law.  O.C.G.A. § 45‑5‑1(b).