TITLE 45 PUBLIC OFFICERS AND EMPLOYEES

Section 5. Vacation of Office, 45-5-1 through 45-5-7.

ARTICLE 2 COMMISSIONS

45-5-6. Public official investigated by special commission upon indictment; gubernatorial review if commission recommends suspension; suspension; reinstatement; replacement or temporary officer.

As used in this Code section, the term "public official" means any elected county officer; any elected member of a county governing authority; any elected member of a city-county consolidated government; any member of a county, area, or independent board of education; any school superintendent of a county, area, or independent school system; any solicitor-general of a state court; any elected member of any municipal governing authority; any member of the Public Service Commission; and any district attorney.
Upon indictment for a felony by a grand jury of this state or by the United States, which felony indictment relates to the performance or activities of the office of any public official, the Attorney General or district attorney shall transmit a certified copy of the indictment to the Governor who shall, subject to subsection (e) of this Code section, appoint a review commission. Except as provided in this subsection, the commission shall be composed of the Attorney General and two public officials who hold the same office as the individual indicted. The members of the commission shall receive no compensation for their services but shall be reimbursed for any expenses incurred in connection with the investigation. The funds necessary to conduct the investigation shall come from funds appropriated to the executive branch of government. If the Attorney General brings the indictment against the public official, the Attorney General shall not serve on the commission. In place of the Attorney General, the Governor shall appoint a retired Supreme Court Justice or a retired Court of Appeals Judge.
Unless a longer period of time is granted by the Governor, the commission shall make a written report to the Governor within 14 days. If the commission determines that 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, the commission shall recommend that the public official be suspended from office. If, and only if, the commission recommends suspension, then the Governor shall review the findings and recommendations of the commission and may suspend the public officer from office immediately and without further action pending the final disposition of the case or until the expiration of his term of office, whichever occurs first. During the term of office to which such officer was elected and in which the indictment occurred, if a nolle prosequi is entered, if the public official is acquitted, or if after conviction the conviction is later overturned as a result of any direct appeal or application for a writ of certiorari, the public official shall be immediately reinstated to the office from which he was suspended. While a public official is suspended under this Code section and until initial conviction by the trial court, the public official shall continue to receive the compensation from his office. After initial conviction by the trial court, the public official shall not be entitled to receive the compensation from his office. If the public official is reinstated to office, he shall be entitled to receive any compensation withheld under the provisions of this Code section.
1. For the duration of any suspension of any elected member of any municipal or consolidated city-county governing authority under this Code section, a replacement officer for the public officer suspended shall be appointed as provided for in any general law, local law, ordinance, or resolution governing the filling of a temporary vacancy in the public office affected. For the duration of any suspension of any other public official under this Code section, a replacement officer for the public official shall be appointed as provided for in any applicable general or local law governing the filling of a temporary vacancy in the public office affected. If no such general law, local law, ordinance, or resolution governing the filling of a temporary vacancy is applicable, then the Governor shall appoint a replacement officer for the public official suspended.
2. Upon the final conviction, the office of the public official shall be vacated immediately without further action. Said vacancy shall be filled in the manner provided by law for filling vacancies in such office.
No commission shall be appointed for a period of 14 days from the day the Governor receives the indictment. This period may be extended by the Governor. During this period of time, the indicted public official may, in writing, authorize the Governor to suspend him from office. Any such voluntary suspension shall be subject to the same conditions for review, reinstatement, or declaration of vacancy as are provided in this Code section for nonvoluntary suspensions.
After any suspension under this Code section, the suspended public official may petition the Governor for a review. The Governor may reappoint the commission to review the suspension. The commission shall make a written report in 14 days. If the commission recommends that the public official be reinstated, he shall immediately be reinstated to office.
The report and records of the commission and the fact that the public official has or has not been suspended shall not be admissible in evidence in any court for any purpose. The report and records of the commission shall not be open to the public.
The provisions of this Code section shall not apply to any indictment handed down prior to January 1, 1985.
If a public official who is suspended from office under the provisions of this Code section is not first tried at the next regular or special term following the indictment, the suspension shall be terminated and the public official shall be reinstated to office. The public official shall not be reinstated under this subsection if he is not so tried based on a continuance granted upon a motion made only by the defendant.
Unless otherwise provided by local law, in the event the Governor appoints a member of a governing authority as a temporary replacement for a suspended public official under paragraph (1) of subsection (d) of this Code section, the governing authority, by majority vote, shall select a temporary replacement who is qualified by law to serve as such member of the governing authority, to fill such member's seat on the governing authority until such time as the suspension of the public official is terminated or the end of such member's current term on the governing authority, whichever is earlier. Before selecting such temporary replacement, the governing authority shall advertise its intention to select such temporary replacement in the applicable legal organ at least once a week for two weeks and on the governing authority's website, if it has one, and shall solicit applicants for such temporary replacement position.

(Code 1933, § 89-506, enacted by Ga. L. 1976, p. 277, § 1; Ga. L. 1984, p. 1279, § 1; Ga. L. 1986, p. 600, §§ 1, 2; Ga. L. 1996, p. 748, § 25; Ga. L. 2014, p. 18, § 1/SB 367.)

The 2014 amendment, effective April 10, 2014, added subsection (j).

Cross references.

- Procedures for and effect of suspension or removal of public officials upon felony indictment or conviction, Ga. Const. 1983, Art. II, Sec. III, Para. I.

Suspension of public officers upon conviction of felony, Ga. Const. 1983, Art. II, Sec. III, Para. II.

Editor's notes.

- Ga. L. 2014, p. 18, § 3/SB 367, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, and Section 1 shall enable the temporary replacement of all persons serving as temporary replacements for suspended public officials on the effective date of this Act as well as the temporary replacement of all persons appointed as temporary replacements for suspended public officials on and after the effective date of this Act." This Act became effective April 10, 2014.

JUDICIAL DECISIONS

Constitutionality.

- Suspension of an elected official who is under felony indictment under O.C.G.A. § 45-5-6 does not deprive either the elected official or the electorate of due process or equal protection, and it does not violate the separation of powers doctrine. Eaves v. Harris, 258 Ga. 1, 364 S.E.2d 854, appeal dismissed, 487 U.S. 1228, 108 S. Ct. 2889, 101 L. Ed. 2d 924 (1988).

The constitutional provision prohibiting a convicted felon from holding elective office does not preempt the provision in O.C.G.A. § 45-5-6 for the temporary suspension of an elected official indicted for a felony. Eaves v. Harris, 258 Ga. 1, 364 S.E.2d 854, appeal dismissed, 487 U.S. 1228, 108 S. Ct. 2889, 101 L. Ed. 2d 924 (1988).

Suspension of an elected official who is under a felony indictment bears a rational relationship to a compelling state interest - that of ensuring the public's confidence in government. Eaves v. Harris, 258 Ga. 1, 364 S.E.2d 854, appeal dismissed, 487 U.S. 1228, 108 S. Ct. 2889, 101 L. Ed. 2d 924 (1988).

Cited in LaPann v. State, 167 Ga. App. 288, 306 S.E.2d 373 (1983); DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013).

OPINIONS OF THE ATTORNEY GENERAL

When a public official's initial conviction is set aside on appeal and a new trial ordered, that official is entitled to have his or her salary resumed and receive back compensation. 1991 Op. Att'y Gen. No. U91-14.

Recall election procedures may be invoked during official's appeal of felony conviction.

- The recall election procedures of the "Public Officers Recall Act", O.C.G.A. § 21-4-1 et seq., may be invoked by electors with respect to a public official notwithstanding the pendency of that official's appeal of a felony conviction. 1983 Op. Att'y Gen. No. 83-16.

Filling term of Henry County sheriff.

- A special election must be held at the November 1984 general election to fill the remainder of the term of office of sheriff of Henry County. 1984 Op. Att'y Gen. No. 84-70.

Only the Governor has authority to fill temporary vacancy created by suspension of commissioner.

- Harris County local law did not have a provision for the appointment or replacement of a county commissioner who had 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 rested with the Governor. 2014 Op. Att'y Gen. No. 2014-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 184 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 227 et seq.

ALR.

- Constitutionality and construction of statute providing for payment of salary of public officer or employee during period of unlawful removal or suspension, or expenses incurred by him in gaining reinstatement or in defending himself against charge of misconduct or incompetency in office, 103 A.L.R. 763.

Conviction of offense under federal law or law of another state or country as vacating accused's holding of state or local office or as ground of removal, 20 A.L.R.2d 732.

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