O.C.G.A.

O.C.G.A. § 21-4-3 (2019)

Definitions

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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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: (A) In the case of any elected state officers, the Secretary of State; (B) 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 (C) 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:

(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 the rights and interests of the public; and (B) That the official: (i) Has committed an act or acts of malfeasance while in office; (ii) Has violated his or her oath of office; (iii) Has committed an act of misconduct in office; (iv) Is guilty of a failure to perform duties prescribed by 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. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official; provided, however, that a judicial circuit district attorney’s failure to perform the duties provided for in Code Section 15-18-6 or a state court solicitor-general’s failure to perform the duties provided for in Code Section 15-18-66 shall constitute grounds for a recall of such elected 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.

History

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; Ga. L. 2023, p. 718, § 4/SB 92, effective May 5, 2023. The 2023 amendment, effective May

5, 2023, added the proviso at the end of the undesignated paragraph following division (7)(B)(v).

Annotations

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 statutory 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 Ga. LEXIS 78 (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, No. S91A1106, 1991 Ga. LEXIS 1043 (Ga. Nov. 1, 1991). Grounds alleged in recall petition. - If one or more of the statutory grounds

for recall set forth in O.C.G.A. § 21-43(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 Ga. LEXIS 69 (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 Ga. LEXIS 69 (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 Ga. LEXIS 78 (1994).

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.

Notes of Decisions

Cited in 9 cases (1 in the last 5 years), 1983–2021 · leading case: Steele v. Honea, 409 S.E.2d 652 (Ga. 1991).

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Steele v. Honea, 409 S.E.2d 652 (Ga. 1991). · cites it 16× “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…”

Davis v. Shavers, 439 S.E.2d 650 (Ga. 1994). · cites it 20× “Additionally, the trial court denied appellees' motions to declare portions of OCGA §§ 21-4-3 and 21-4-6 unconstitutional.”

Collins v. Morris, 438 S.E.2d 896 (Ga. 1994). · cites it 4× “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.”

Hamlett v. Hubbard, 416 S.E.2d 732 (Ga. 1992). · cites it 8× “] [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.”

Brooks v. Branch, 424 S.E.2d 277 (Ga. 1993). · cites it 7× “] [OCGA § 21-4-3 (7) (B) (i)-(iv).] As factual support for the grounds asserted, the appellants alleged *659 ;hat 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 [OCGA §] 50-14-1 (a) (2)…”

Davis v. Shavers, 495 S.E.2d 23 (Ga. 1998). · cites it 4× “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 (B) That the official: (i) Has committed an act or acts of malfeasance while in…”

State of Alaska, Off. of Lieutenant Governor, Div. of Elections & Dir. Gail Fenumiai, in an Off. capacity v. Recall Dunleavy, 491 P.3d 343 (Alaska 2021). “violat[ion of] oath of office”); Ga. Code Ann. §§ 21-4-3 (7), 21.4-4(c) (limiting recall to “acts of malfeasance or misconduct while in office”; violations of “oath of office”; “failure to perform duties prescribed by law”; or “willful[] misuse[], conver[sion], or…”

Cone v. Johnson, 306 S.E.2d 244 (Ga. 1983). · cites it 2× “See OCGA §§ 21-4-3(3)(B) and 21-4-4 (Code Ann.”

George v. Baker, 463 S.E.2d 124 (Ga. 1995). · cites it 2× “OCGA §§ 21-4-3 (7.1) and 21-4-11 (a). See Hunter, 265 Ga.”

— 21-4-3(3)(B) — 1 case

Cone v. Johnson, 306 S.E.2d 244 (Ga. 1983). “See OCGA §§ 21-4-3(3)(B) and 21-4-4 (Code Ann.”

— 21-4-3(7) — 2 cases

Steele v. Honea, 409 S.E.2d 652 (Ga. 1991). “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…”

Davis v. Shavers, 495 S.E.2d 23 (Ga. 1998). “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 (B) That the official: (i) Has committed an act or acts of malfeasance while in…”

— 21-4-3(8) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.