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2018 Georgia Code 21-4-3 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 21-4-3 Case Law from Google Scholar Amendments to OCGA 21-4-3

TITLE 21 ELECTIONS

Section 4. Recall of Public Officers, 21-4-1 through 21-4-21.

ARTICLE 15 MISCELLANEOUS OFFENSES

21-4-3. Definitions.

As used in this chapter, the term:

  1. "Elected county school board members" and "elected county school superintendents" shall be considered county officers.
  2. "Elected education board members" and "elected school superintendents" of any independent school system shall be considered municipal officers.
  3. "Election superintendent" means:
    1. In the case of any elected state officers, the Secretary of State;
    2. In the case of any elected county officers, the county board of elections, if a county has such, or the judge of the probate court, provided that, if such judge of the probate court is the officer sought to be recalled, then the election superintendent shall be the clerk of the superior court; and
    3. In the case of any elected municipal officers, the municipal clerk or municipal board of elections or municipal election superintendent, if the municipality has such a board or election officer.

    (3.1) "Elective office" means an office filled by the exercise of the franchise of vote by electors in a general or special election as defined under the laws of this state.

  4. "Elector" means any person who possesses all of the qualifications for voting now or hereafter prescribed by the laws of this state and who has registered in accordance with Chapter 2 of this title.
  5. "Electoral district" means the area in which the electors reside who are qualified to vote for any of the candidates offering for a particular office.
  6. "Failure to perform duties prescribed by law" means the willful neglect or failure by an official to perform a duty imposed by statute.
  7. "Grounds for recall" means:
    1. That the official has, while holding public office, conducted himself or herself in a manner which relates to and adversely affects the administration of his or her office and adversely affects the rights and interests of the public; and
    2. That the official:
      1. Has committed an act or acts of malfeasance while in office;
      2. Has violated his or her oath of office;
      3. Has committed an act of misconduct in office;
      4. Is guilty of a failure to perform duties prescribed by law; or
      5. Has willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed.

      Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official.

    (7.1) "Legal sufficiency" means, solely as applied to the duties or functions of the election superintendent, a determination of the completeness of an application for a recall petition or a recall petition and a determination that an application for a recall petition or a recall petition contains a sufficient number of valid signatures. Such determinations shall not include any review of the sufficiency of the ground or grounds for the recall and the fact or facts upon which such ground or grounds are based.

  8. "Misconduct in office" means an unlawful act committed willfully by an elected public official or a willful violation of the code of ethics for government service contained in Code Section 45-10-1.
  9. "Official sponsors" or "sponsors" means the electors who circulate or file an application for a recall petition who were registered and eligible to vote in the last general or special election for the office held by the officer sought to be recalled and who reside in the electoral district of the officer sought to be recalled.

(Code 1981, §21-4-3, enacted by Ga. L. 1989, p. 1721, § 1; Ga. L. 1990, p. 1939, § 1; Ga. L. 1991, p. 133, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2014, p. 866, § 21/SB 340.)

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct this title, redesignated former paragraph (10) as present paragraph (3.1); and deleted "as defined in paragraph (4) of this Code section" following "vote by electors" in paragraph (3.1).

Editor's notes.

- Ga. L. 1990, p. 1939, § 8, not codified by the General Assembly, provides that the Act shall only apply to recall proceedings under Chapter 4 of Title 21 which are instituted on or after July 1, 1990.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, cases decided prior to the 1989 revision of this chapter are included in the annotations for this Code section.

Constitutionality.

- The provision of O.C.G.A. § 21-4-3(7)(B)(i) that an official "has committed an act or acts of malfeasance while in office" is not unconstitutionally vague; the legislature enacted the section with knowledge of the definition of "malfeasance in office" as contained in case law. Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

Conduct of a public official who participates in a closed meeting that is required by law to be open can become a "ground for recall" under the Recall Act, O.C.G.A. § 21-4-1 et seq., if the circumstances of that participation come within the definition of "grounds for recall." Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

Grounds alleged in recall petition.

- If one or more of the statutory grounds for recall set forth in O.C.G.A. § 21-4-3(7)(B) are alleged in the recall application, then the ground or grounds for recall are legally sufficient. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Since the factual allegations were either a mere conclusion, lacking reasonable particularity, or failed to allege conduct which would constitute one of the statutory grounds for recall, they were legally insufficient to support grounds for recall. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Sufficiency of recall applications.

- Applications seeking the recall of city officials were insufficient within the meaning of O.C.G.A. § 21-4-3(7)(B) in that there was nothing in the applications from which the public could determine that the allegations, even if taken as true, amounted to acts of misconduct or malfeasance. Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

Cited in Cone v. Johnson, 251 Ga. 371, 306 S.E.2d 244 (1983).

RESEARCH REFERENCES

ALR.

- Sufficiency of particular charges as affecting enforceability of recall petition, 114 A.L.R.5th 1.

Sufficiency of technical and procedural aspects of recall petitions, 116 A.L.R.5th 1.

Cases Citing O.C.G.A. § 21-4-3

Total Results: 9  |  Sort by: Relevance  |  Newest First

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Collins v. Morris, 438 S.E.2d 896 (Ga. 1994).

Cited 23 times | Published | Supreme Court of Georgia | Jan 24, 1994 | 263 Ga. 734, 94 Fulton County D. Rep. 319

...ground for recall has been indeed stated and whether the supporting allegations of fact, if true, would authorize a finding that the statutorily specified ground for recall exists. If one or more of the statutory grounds for recall set forth in OCGA § 21-4-3 (7) (B) are alleged in the recall application, then the ground or grounds for recall are legally sufficient....
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Steele v. Honea, 409 S.E.2d 652 (Ga. 1991).

Cited 17 times | Published | Supreme Court of Georgia | Nov 1, 1991 | 261 Ga. 644, 19 Media L. Rep. (BNA) 1605

...We granted discretionary review of the trial court's orders pursuant to OCGA § 21-4-6(e), and asked that the parties address this question: Whether a claimed violation of the Open Meetings Act is a ground for recall of a public officer under the 1989 Recall Act (OCGA § 21-4-3(7)). We will discuss first this general inquiry, and then turn to the circumstances of the case under review. 1. (a) The Recall Act, at OCGA § 21-4-3(7), provides: "Grounds for recall" means: (A) That the official has, while holding public office, conducted himself or herself in a manner which relates to and adversely affects the administration of his or her office and adversely affects...
...It is also my hope that, from this concurrence, others will come to recognize and share my concern with the extremely limited nature of the judicial review afforded by the 1991 amendment to the Act. NOTES [1] These are two of the "grounds for recall" set out at OCGA § 21-4-3(7)....
...However, if such a criminal proceeding were to occur, in all likelihood it would not occur until long after the recall election had been held. How then can a determination ever be made as to the wilfulness which the Act declares to be a necessary element of "misconduct in office?" OCGA § 21-4-3(8)....
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Davis v. Shavers, 495 S.E.2d 23 (Ga. 1998).

Cited 15 times | Published | Supreme Court of Georgia | Jan 26, 1998 | 269 Ga. 75, 98 Fulton County D. Rep. 329

...m duties prescribed in law; or (v) Has willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. OCGA § 21-4-3(7)....
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Brooks v. Branch, 424 S.E.2d 277 (Ga. 1993).

Cited 8 times | Published | Supreme Court of Georgia | Jan 8, 1993 | 262 Ga. 658, 93 Fulton County D. Rep. 159

...official ... [h]as committed an act or acts of malfeasance while in office; ... [h]as violated his or her oath of office; ... [h]as committed an act of misconduct in office; [and] [i]s guilty of a failure to perform duties prescribed by law[.] [OCGA § 21-4-3 (7) (B) (i)-(iv).] As factual support for the grounds asserted, the appellants alleged *659 that the board members (a) [failed] to give due notice to the public, and the local organ of the county, of school board meetings in violation of [O...
...determination of the legal sufficiency of such alleged fact or facts as to form and not as to truth and shall not include discovery or evidentiary hearings. [Emphasis supplied.] 2. If one or more of the statutory grounds for recall set forth in OCGA § 21-4-3 (7) (B) are alleged in the recall application, then the ground or grounds for recall are legally sufficient....
...fact or facts are stated with "reasonable particularity," Hamlett v. Hubbard, 262 Ga. 279 (416 SE2d 732) (1992). 3. In this case, the appellants have asserted in their applications four out of the five statutory grounds for recall contained in OCGA § 21-4-3 (7) (B)....
...Hubbard, 262 Ga., supra. In Steele, we held that such a violation "can become" a ground for recall "if the circumstances of [the] participation [by the challenged official in the violation] come within the definition of `grounds for recall,'" contained in § 21-4-3 (7)....
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Atlanta Journal & Atlanta Constitution v. Long, 376 S.E.2d 865 (Ga. 1989).

Cited 8 times | Published | Supreme Court of Georgia | Mar 2, 1989 | 259 Ga. 23

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Davis v. Shavers, 439 S.E.2d 650 (Ga. 1994).

Cited 7 times | Published | Supreme Court of Georgia | Feb 7, 1994 | 263 Ga. 785, 94 Fulton County D. Rep. 482

...Following the procedures of OCGA § 21-4-6 (f), the trial court found, in each case, that the recall application was legally insufficient, and enjoined the election superintendent from issuing recall petition forms. Additionally, the trial court denied appellees' motions to declare portions of OCGA §§ 21-4-3 and 21-4-6 unconstitutional....
...S93A1616 through S93A1618, appellants appeal the trial court's finding that the recall applications were legally insufficient. *786 In Case Nos. S93X1734, S93X1735 and S93X1736, the appellees cross-appeal the trial court's determination that OCGA §§ 21-4-3 and 21-4-6 withstand the constitutional challenges made....
...The trial court found that the first two factual allegations — that Shavers illegally passed an amendment by resolution rather than by ordinance, and that Shavers voted to pay another councilman two years salary in advance — were insufficient to allege acts of malfeasance or misconduct in office within the meaning of OCGA § 21-4-3 (7) (B)....
...of the statute, they lack standing to challenge it. C. W. Matthews Contracting Co. v. Gover, 263 Ga. 108 *789 (2) (428 SE2d 796) (1993); Tempo Management v. DeKalb County, 258 Ga. 713 (373 SE2d 622) (1988). 6. Last, cross-appellants argue that OCGA § 21-4-3 (7) (B) (i), which states as a ground for recall that an official "has committed an act or acts of malfeasance while in office," is unconstitutionally overbroad....
...v. Richmond County, 263 Ga. 267, 269-270 (430 SE2d 726) (1993). This court has previously discussed at length the definition of the term "malfeasance in office," Cargile v. State, 194 Ga. 20, 24 (20 SE2d 416) (1942), and the legislature enacted OCGA § 21-4-3 with the knowledge of this definition....
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Hamlett v. Hubbard, 416 S.E.2d 732 (Ga. 1992).

Cited 7 times | Published | Supreme Court of Georgia | May 28, 1992 | 262 Ga. 279, 92 Fulton County D. Rep. 758

...... and shall not include ... evidentiary hearings." Accordingly, the truth of the facts alleged in an application for a recall petition will not be reviewed by any court. [Id. at 646-647.] [2] In this case, all of the five statutory grounds of OCGA § 21-4-3 (7) (B) were alleged as having been violated by the school board member....
...elates to and adversely affects the administration of his or her current office and adversely affects the rights and interests of the public if one or more additional grounds for recall exist as set forth in subparagraph (B) of paragraph (7) of Code Section 21-4-3.
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Cone v. Johnson, 251 Ga. 371 (Ga. 1983).

Cited 2 times | Published | Supreme Court of Georgia | Sep 7, 1983 | 306 S.E.2d 244

...ficials1 gained considerable momentum in Bleckley County. Appellant Cone actively participated in this movement, and on April 26, 1982, appellant filed the three recall petitions for verification with the probate judge of Bleckley County. See OCGA §§ 21-4-3(3)(B) and 21-4-4 (Code Ann....
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George v. Baker, 265 Ga. 858 (Ga. 1995).

Published | Supreme Court of Georgia | Nov 13, 1995 | 463 S.E.2d 124

...734, 737 (438 SE2d 896) (1994) (following a judicial determination that a prior application was legally insufficient under OCGA § 21-4-6 “there is no statutory provision proscribing the filing of an additional application” ) (emphasis supplied). OCGA §§ 21-4-3 (7.1) and 21-4-11 (a). See Hunter, 265 Ga....