TITLE 36
LOCAL GOVERNMENT
Section 5. Organization of County Government, 36-5-1 through 36-5-29.
ARTICLE 2
COUNTY GOVERNING AUTHORITIES
36-5-21. Vacancy in office of county commissioner or other governing authority.
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When a vacancy occurs in the office of a county governing authority in any county in which the local Act creating that governing authority for the county makes no provision for succession to fill the vacancy and the unexpired term of office exceeds six months in duration, it shall be the duty of the judge of the probate court of the county to call a special election to elect a successor and fill the vacancy in not less than 30 nor more than 60 days. The election shall be held as provided by Chapter 2 of Title 21, the "Georgia Election Code," and the cost of the election shall be defrayed by the proper county authorities. If the unexpired term to be filled is less than six months in duration and the local Act creating the governing authority makes no provision to fill the vacancy, the judge of the superior court of the county shall have the power to appoint a successor to fill the unexpired term.
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Unless otherwise provided by local law, when the office of any county commissioner is vacated for any reason and a special election is required to be called pursuant to subsection (a) of this Code section, the remaining members of the board of commissioners shall constitute the governing authority of the county during the interim period between the creation of the vacancy and the election and qualification of a successor to fill the vacancy pursuant to subsection (a) of this Code section, except that if as a result of that vacancy or any combination of such vacancies there is no longer any commissioner remaining in office to constitute the county governing authority, the judge of the probate court of the county shall serve as the county governing authority until the election and qualification under subsection (a) of this Code section of all successors to the vacated positions on the county governing authority.
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A judge of the probate court serving as the county governing authority pursuant to subsection (b) of this Code section shall receive for such service, in addition to any other compensation that judge is authorized by law to receive, an amount equal to the amount the chairman of the board of commissioners or the sole commissioner, as applicable, would have been authorized to receive for that period of service.
(Ga. L. 1898, p. 93, § 1; Civil Code 1910, § 627; Code 1933, § 23-801; Ga. L. 1947, p. 173, § 1; Ga. L. 1986, p. 328, § 1; Ga. L. 1987, p. 1482, § 6.)
Law reviews.
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For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).
JUDICIAL DECISIONS
Duty arises instantly upon occurrence of vacancy.
Newton v. Stembridge, 212 Ga. 828, 96 S.E.2d 504 (1957).
Cited in
Stembridge v. Newton, 213 Ga. 304, 99 S.E.2d 133 (1957).
OPINIONS OF THE ATTORNEY GENERAL
Filling vacancy in public office.
- Vacancy in the office of tax collector is filled by temporary appointment by the ordinary (now county governing authority) until a special election to fill the vacancy is held and such special election may be held on the same day as the general election. 1945-47 Op. Att'y Gen. p. 83.
Special Act controls.
- If a county has a special Act which varies this section, the county must follow the procedure there set forth. 1974 Op. Att'y Gen. No. U74-22 (see O.C.G.A.
§
36-5-21).
Special elections.
- O.C.G.A.
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36-5-21 is by its very term not applicable if the local act creating the governing authority for the county provides for the manner of succession to fill a vacancy.
1990 Op. Att'y Gen. No. U90-9.
When the local law creating the board of commissioners for Houston County, as amended, provides that, with regard to vacancies occurring more than one year prior to the expiration of the term of office, the vacancy "shall be filled by a special election called by the election superintendent of Houston County in the same manner as in the case to fill vacancies in other county offices . . .," the general law relating to the filling of a vacancy on the county commission is not applicable, and the special election to fill the vacancy in the office of county commissioner should be conducted pursuant to the general special election provisions of the Georgia Election Code, O.C.G.A.
§§
21-2-540 and21-2-541, as is the case with vacancies in other county offices when there is no specific provision which applies. 1990 Op. Att'y Gen. No. U90-9.
RESEARCH REFERENCES
Am. Jur. 2d.
- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions,
§
164 et seq.
C.J.S.
- 20 C.J.S., Counties,
§
163 et seq.
