Cross references. - Filing false liens or encumbrances against public employees, § 16-10-20.1 .

Impersonating a public officer or employee, § 16-10-23 .

Rights of public officers and employees absent on military duty as members of organized militia or reserve forces, § 38-2-279 .

Law reviews. - For article, "Pensions and Chapter 9: Can Municipalities Use Bankruptcy to Solve Their Pension Woes?," see 27 Emory Bankr. Dev. J. 365 (2011). For article, "Solving Insolvent Public Pensions: The Limitations of the Current Bankruptcy Option," see 28 Emory Bankr. Dev. J. 89 (2011). For article, "Public Officers and Employees: Employees' Insurance and Benefit Plans," see 31 Ga. St. U.L. Rev. 177 (2014). For note, "Name-Clearing Hearings: How this 'Remedy' Fails to Safeguard the Procedural Due Process Rights of Public Employees Accused of Sexual Harassment," see 26 Ga. St. U.L. Rev. 1389 (2010). For note, "State of the Unions: The Impact of Janus on Public University Student Fees," see 54 Ga. L. Rev. 735 (2020).

CHAPTER 1 GENERAL PROVISIONS

Sec.

RESEARCH REFERENCES

Bad Faith in Abolition of Civil Service Position, 14 POF2d 611.

45-1-1. Employees of state hospitals and certain state institutions authorized to make purchases of goods and services; limitations.

Except as provided in Code Sections 45-10-20 through 45-10-25, employees of hospitals, educational institutions, eleemosynary institutions, penal institutions, and correctional institutions which are under the control and jurisdiction of a state department or the Board of Regents of the University System of Georgia shall be entitled to obtain goods and services in the same manner and under the same procedure used in obtaining such goods and services through such hospitals and institutions and the laws of this state relating to purchasing contrary thereto shall not apply to such employees; provided, however, that no employee shall be permitted to make any single purchase of goods or services in excess of $50.00, except medical and dental services only; and in no event shall any employee obtain goods or services for any person except for himself or members of his immediate family.

(Ga. L. 1956, p. 383, § 1; Ga. L. 1990, p. 8, § 45.)

45-1-2. Actions by or against public officers who have left office.

  1. When an action has been commenced by or against a public officer of the state in his official capacity and such officer's successor in office has been substituted as a party pursuant to subsection (d) of Code Section 9-11-25, such action shall proceed as if no change of parties had been made, provided that it shall be within the discretion of the court to allow the successor in office such time as it may deem necessary to appear, plead, or otherwise proceed with such action.
  2. This Code section shall not apply to actions against officers for damages on account of tortious acts committed by such officer under color of office, which actions survive against such officer or his personal representatives, notwithstanding the death, resignation, removal, or expiration of the term of such officer.
  3. This Code section shall relate only to actions commenced by or against state officers in their official capacity and shall not relate or apply to actions commenced by or against municipal, district, or county officers.

    (Ga. L. 1941, p. 516, §§ 2, 4, 5; Ga. L. 1990, p. 8, § 45.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 400.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 356, 357.

ALR. - Responsibility of public officer for negligence of subordinate in operation of vehicle, 3 A.L.R. 149 .

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

45-1-3. Display or sale of motor vehicle tag or sign purporting that owner serves on Governor's staff.

  1. Without the written permission of the Governor, it shall be unlawful to display in any manner upon any motor vehicle a sign, tag, or emblem of any fashion purporting to convey the impression that the owner thereof is a member of the Governor's staff.
  2. It shall be unlawful to sell or offer to sell any such sign, tag, or emblem.
  3. Any person, firm, or corporation who violates this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1964, p. 198, §§ 1-3.)

45-1-4. Complaints or information from public employees as to fraud, waste, and abuse in state programs and operations.

  1. As used in this Code section, the term:
    1. "Government agency" means any agency of federal, state, or local government charged with the enforcement of laws, rules, or regulations.
    2. "Law, rule, or regulation" includes any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.
    3. "Public employee" means any person who is employed by the executive, judicial, or legislative branch of the state or by any other department, board, bureau, commission, authority, or other agency of the state. This term also includes all employees, officials, and administrators of any agency covered by the rules of the State Personnel Board and any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.
    4. "Public employer" means the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.
    5. "Retaliate" or "retaliation" refers to the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.
    6. "Supervisor" means any individual:
      1. To whom a public employer has given authority to direct and control the work performance of the affected public employee;
      2. To whom a public employer has given authority to take corrective action regarding a violation of or noncompliance with a law, rule, or regulation of which the public employee complains; or
      3. Who has been designated by a public employer to receive complaints regarding a violation of or noncompliance with a law, rule, or regulation.
  2. A public employer may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.
  3. Notwithstanding any other law to the contrary, such public employer shall not after receipt of a complaint or information from a public employee disclose the identity of the public employee without the written consent of such public employee, unless the public employer determines such disclosure is necessary and unavoidable during the course of the investigation. In such event, the public employee shall be notified in writing at least seven days prior to such disclosure.
    1. No public employer shall make, adopt, or enforce any policy or practice preventing a public employee from disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency.
    2. No public employer shall retaliate against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.
    3. No public employer shall retaliate against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.
    4. Paragraphs (1), (2), and (3) of this subsection shall not apply to policies or practices which implement, or to actions by public employers against public employees who violate, privilege or confidentiality obligations recognized by constitutional, statutory, or common law.
    1. A public employee who has been the object of retaliation in violation of this Code section may institute a civil action in superior court for relief as set forth in paragraph (2) of this subsection within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.
    2. In any action brought pursuant to this subsection, the court may order any or all of the following relief:
      1. An injunction restraining continued violation of this Code section;
      2. Reinstatement of the employee to the same position held before the retaliation or to an equivalent position;
      3. Reinstatement of full fringe benefits and seniority rights;
      4. Compensation for lost wages, benefits, and other remuneration; and
      5. Any other compensatory damages allowable at law.
  6. A court may award reasonable attorney's fees, court costs, and expenses to a prevailing public employee. (Code 1981, § 45-1-4 , enacted by Ga. L. 1993, p. 563, § 1; Ga. L. 2005, p. 899, § 1/HB 665; Ga. L. 2007, p. 298, § 1/HB 16; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-66/HB 642.)

Cross references. - Reprisals prohibited against community service board, § 37-2-6 .

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews. - For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of labor and employment law, see 56 Mercer L. Rev. 291 (2004). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For annual survey on labor and employment law, see 64 Mercer L. Rev. 173 (2012). For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014). For article, "Georgia's Public Whistleblower Statute," see 20 Ga. St. Bar J. 8 (April 2015). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on labor and employment law, see 70 Mercer L. Rev. 125 (2018). For annual survey on labor and employment law, see 71 Mercer L. Rev. 137 (2019). For note on 2007 amendment of this Code section, see 24 Ga. St. U.L. Rev. 309 (2007).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construction. - Georgia Court of Appeals erred by inappropriately grafting the provisions of O.C.G.A. § 45-1-4(b) onto subsection (d) and then defining the types of state programs or operations that would allegedly have to be involved in order for a public employee to present a viable claim for retaliation under subsection (d); by inserting the terms of subsection (b) into subsection (d), and then defining those inapplicable terms with language that does not exist, the court engaged erroneously in rewriting the statute. Colon v. Fulton County, 294 Ga. 93 , 751 S.E.2d 307 (2013), overruled on other grounds, Rivera v. Washington, 2016 Ga. LEXIS 248 (Ga. 2016).

Adverse employment action under Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , was held to mean employment action analogous to or of a similar kind or class as discharge, suspension, or demotion. Franklin v. Pitts, 349 Ga. App. 544 , 826 S.E.2d 427 (2019).

Georgia Court of Appeals held that Burlington standard for retaliation cases should not be applied to the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 . Franklin v. Pitts, 349 Ga. App. 544 , 826 S.E.2d 427 (2019).

Georgia Court of Appeals overruled Freeman v. Smith, 324 Ga. App. 426 (2013) to the extent that the case applied the standard for an adverse employment action in Title VII retaliation cases to a Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , case; specifically, the portion of Freeman holding that the employee need only show that a reasonable employee would have found the challenged action materially adverse, meaning that it might well have dissuaded a reasonable employee from making a statutorily-protected disclosure. Franklin v. Pitts, 349 Ga. App. 544 , 826 S.E.2d 427 (2019).

Programs or operations covered by section. - O.C.G.A. § 45-1-4 applies to any state programs or operations, including those state programs over which an agency has administrative jurisdiction that are less than state-wide in scope. Weaver v. North Ga. Reg'l Educ. Serv. Agency, 243 Ga. App. 770 , 534 S.E.2d 463 (2000), reversing Weaver v. North Ga. Regional Educ. Serv. Agency, 238 Ga. App. 72 , 517 S.E.2d 794 (1999).

Discovery of retaliation. - As to a former employee's claim under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , the employee "discovered the retaliation" on April 7, 2005, when the employee received a supervisor's letter of termination or, at the very least, no later than August 10, 2005, when defendant university president affirmed the supervisor's decision to terminate the employee. The claim was untimely under § 45-1-4 (e)(1), as the employee filed suit November 14, 2006, some 15 months later. Stokes v. Savannah State Univ., 291 Fed. Appx. 931 (11th Cir. 2008)(Unpublished).

Ante litem notice not required. - City employee who filed suit under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , seeking money damages, among other remedies, was not required to provide written notice of the employee's claim within six months of the alleged retaliation under the municipal ante litem notice statute, O.C.G.A. § 36-33-5 , because the claim was not a negligence claim. West v. City of Albany, 300 Ga. 743 , 797 S.E.2d 809 (2017).

Timing of filing grievance. - Whistleblower suit by a county employee who filed a grievance after the employee was moved from a private office to a cubicle was timely filed under O.C.G.A. § 45-1-4(e)(1) because the grievance was filed within a year of the date the employee learned that the employee had been relieved of certain duties, although these duties had been removed two months earlier. Franklin v. Eaves, 337 Ga. App. 292 , 787 S.E.2d 265 (2016).

Retroactivity of amendments to statute. - Three-year statute of limitations that was added to the Georgia Whistleblower Act (GWA) in 2005 in O.C.G.A. § 45-1-4(e)(1) is prospective in nature; thus, a port authority officer's GWA claim, which related to the officer's 2004 discharge, was not affected by the amendment. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

New remedies under O.C.G.A. § 45-1-4 (e)(2) and (f), which were added by a 2005 amendment to the Georgia Whistleblower Act (GWA), § 45-1-4 , do not apply retroactively; thus, a port authority officer who asserted claims under the GWA in connection with the officer's 2004 discharge was limited to the remedies provided by the GWA as the GWA existed in 2004. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

Elements of claim. - It is not enough that a state employer had a policy of stamping out internal dissent; a plaintiff under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , must allege that the plaintiff dissented and was thereby stamped. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1272 (S.D. Ga. 2007).

Burden of proof. - McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a state whistle-blower claim is subject to summary adjudication, and this analytical framework is in no way inconsistent with the holding that circumstantial evidence may preclude summary judgment in these cases because the McDonnell Douglas burden-shifting analysis rightly places on the plaintiff the ultimate burden of proving that he or she was the victim of discrimination; therefore, the following analytical framework is applied to claims brought pursuant to O.C.G.A. § 45-1-4(d)(2): (1) the plaintiff must establish a prima facie case of retaliation by a preponderance of the evidence, (2) if a prima facie case is established by the plaintiff, the employer must, nevertheless, articulate a legitimate, non-retaliatory reason for the adverse employment action taken, and (3) when such a reason is given by the employer, the plaintiff must demonstrate that the stated reason for the employer's adverse action is pretextual. Forrester v. Ga. Dep't of Human Servs., 308 Ga. App. 716 , 708 S.E.2d 660 (2011).

Trial court did not err in granting the city's motion for summary judgment on a former employee's whistleblower claim because the former employee failed to show that the reason for termination was pretextual as the city provided evidence, much of which the former employee did not dispute, that the former employee approved duplicate wire transfers only weeks prior to termination and made a threatening phone call to another from a city phone. Tuohy v. City of Atlanta, 331 Ga. App. 846 , 771 S.E.2d 501 (2015).

In a retaliation claim under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , summary judgment was properly granted to the city as the city's chief operating officer (COO) terminated the former employee because dozens of other employees reported that the former employee was threatening and abusive to subordinates, showed nude photographs of an employee to other employees, and the former employee was untruthful with the Department of Human Resources during the investigation and the former employee lied about possessing the city's laptop computer; the reasons cited by the COO constituted legitimate, nondiscriminatory reasons for termination; and the former employee did not show that each proffered reason for the former employee's termination was pretextual. Harris v. City of Atlanta, 345 Ga. App. 375 , 813 S.E.2d 420 (2018), cert. denied, 2018 Ga. LEXIS 690 (Ga. 2018).

Monetary damages remedy. - Georgia Whistle Blower Statute (Act), O.C.G.A. § 45-1-4 , does not provide a remedy of monetary damages for public employees as: (1) the legislature did not specifically include a monetary damages remedy, such as the remedy provided by the Georgia Fair Employment Practices Act, specifically O.C.G.A. § 45-19-38(c) ; (2) the limitations of statutes waiving sovereign immunity have to be strictly followed; and (3) to "set aside" an action, the language used in the Act, consistent with the accepted definition of "set aside," requires the action to be vacated, cancelled, and annulled. Hughes v. Ga. Dep't of Corr., 267 Ga. App. 440 , 600 S.E.2d 383 (2004).

Because a former agency employee's claims under O.C.G.A. § 45-1-4 were limited to claims for reinstatement, and did not include monetary damages, the claims were consistent with the relief authorized by the statute; the employee's former superiors failed to show that the requirements of the Tort Claims Act, O.C.G.A. § 50-21-20 et seq. had been incorporated into the Whistleblower law. Moore v. Gabriel, F. Supp. 2d (M.D. Ga. Dec. 15, 2005).

Persons authorized to receive complaints. - Supervisor who could officially evaluate agency employees and thus take or recommend adverse personnel action against them was operating at that level of management authorized to receive potential fraud, waste, and abuse complaints and information on behalf of the agency. Weaver v. North Ga. Reg'l Educ. Serv. Agency, 243 Ga. App. 770 , 534 S.E.2d 463 (2000), reversing Weaver v. North Ga. Regional Educ. Serv. Agency, 238 Ga. App. 72 , 517 S.E.2d 794 (1999).

Must be employee at time of retaliation. - Grant of summary judgment to the state commission was affirmed because the plaintiff was not an employee at the time the commission's purported retaliatory acts occurred and the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , clearly mandated that its provisions related to retaliation against a person "who is employed" at the time of the alleged retaliation. Murray-Obertein v. Ga. Gov't Transparency & Campaign Fin. Comm'n, 344 Ga. App. 677 , 812 S.E.2d 28 (2018).

Res judicata did not bar state law claim. - Trial court erred in granting summary judgment on the basis of res judicata as to the plaintiff's claim of constructive discharge under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , because the doctrine of res judicata did not apply as there was not an identity of causes of action in both the federal and Georgia cases. Rintoul v. Tolbert, 341 Ga. App. 688 , 802 S.E.2d 56 (2017).

Judicial estoppel did not bar claim. - Judicial estoppel did not bar a county employee's whistleblower claim against the county; although the employee did not include the employee's claim in the employee's Chapter 13 bankruptcy filing in 2013, the claim did not arise until 2015, and the employee amended the employee's schedule to include the claim prior to the employee's bankruptcy proceeding being discharged, dismissed, or otherwise adjudicated. Ward-Poag v. Fulton County, 351 Ga. App. 325 , 830 S.E.2d 799 (2019).

Statute of limitations. - Medical research assistant's 2013 suit against the assistant's former employers alleging wrongful termination in 2004 and 2005 were barred by the statutes of limitations applicable to the assistant's claims under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , and the False Claims Act of 1986, 31 U.S.C. § 3730(h). Abreu-Velez v. Bd. of Regents of the Univ. Sys. of Ga., F.3d (11th Cir. Dec. 7, 2015), cert. denied, 136 S. Ct. 1838 , 194 L. Ed. 2 d 830 (U.S. 2016)(Unpublished).

Failure to show termination was pretext. - In a Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , claim, an employee failed to produce evidence raising a question of fact that the employee's supervisor did not honestly believe the reports the supervisor received that the employee had made misrepresentations on multiple occasions; therefore, the employee's termination for the misrepresentations was not pretextual. Dimino v. Ga. Dep't of Admin. Servs., F. Supp. 2d (N.D. Ga. Mar. 23, 2015).

Immunity

Eleventh Amendment immunity. - Plaintiff former employee's Georgia Whistleblower Act claim, filed against defendant former employer state college, failed due to Eleventh Amendment immunity, and the employee knew for years that the employee potentially named the incorrect party and acknowledged the employee might have to name an official capacity defendant, yet the employee failed to move timely to amend. Brandenburg v. Bd. of Regents of the Univ. Sys. of Ga., F.3d (11th Cir. Apr. 24, 2013)(Unpublished).

Waiver of sovereign immunity. - Right of action provided in the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 , is a waiver of the State of Georgia's sovereign immunity independent of the waiver in the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

Application

Personal use of a copier. - Plaintiff employee's report to a supervisor that plaintiff thought another employee was making personal use of a copier constituted making a complaint or providing information as to the possible existence of an activity constituting fraud, waste, and abuse. Weaver v. North Ga. Reg'l Educ. Serv. Agency, 243 Ga. App. 770 , 534 S.E.2d 463 (2000), reversing Weaver v. North Ga. Regional Educ. Serv. Agency, 238 Ga. App. 72 , 517 S.E.2d 794 (1999).

Persons to whom O.C.G.A. § 45-1-4 applies. - O.C.G.A. § 45-1-4 applies solely to persons employed in state government. By its terms, it does not apply to persons who work in the Governor's office, the General Assembly, the judicial branch of state government, or any local unit of government. North Ga. Reg'l Educ. Serv. Agency v. Weaver, 272 Ga. 289 , 527 S.E.2d 864 (2000), reversing Weaver v. North Ga. Regional Educ. Serv. Agency, 238 Ga. App. 72 , 517 S.E.2d 794 (1999).

Port police officer. - Former port police officer's Georgia Whistleblower Act claim was governed by the version of O.C.G.A. § 45-1-4 that was in effect prior to July 1, 2005 because the officer was discharged in 2004; the officer's claim failed because the information that the officer was allegedly discharged for conveying was related to a member of Georgia's Homeland Security Task Force, rather than the officer's employer, the Georgia Ports Authority. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1272 (S.D. Ga. 2007).

Port authority's rules on phone number disclosures. - Port authority officer who alleged that the officer was discharged after the officer complained that the port authority had serious security problems was not entitled to a declaratory judgment stating that the port authority's rule prohibiting employees from divulging the phone numbers of coworkers violated O.C.G.A. § 45-1-4 because the port authority's rule put a restriction on the disclosure of phone numbers, not the disclosure of rule violations. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

Termination for commonly known issues. - In the employees' action alleging that the employees were terminated from a county department of children and family services (DFCS) for reporting the unlawful conduct of a coworker in violation of the whistle-blower statute, O.C.G.A. § 45-1-4(d)(2), the employees failed to establish that the employees engaged in whistle-blowing because, to the extent that the employees claimed to have disclosed something that was already widely known (and even joked about), that was not the type of communication encompassed by the whistle-blower statute; the employees all testified in the employees' depositions that the coworker's illnesses and excuses were a "running joke" with DFCS directors, that everybody (employees and directors included) knew about the coworker's abuse of prescription drugs, and that the coworker's chronic absenteeism and drug use were discussed at the office on a daily basis. Forrester v. Ga. Dep't of Human Servs., 308 Ga. App. 716 , 708 S.E.2d 660 (2011).

Suit involving military service barred by intra-military doctrine. - Trial court properly dismissed a former brigadier general's suit against the Georgia National Guard for wrongful termination in violation of the whistleblower statute, O.C.G.A. § 45-1-4(e)(1), because the suit was barred by the intra-military affairs doctrine since the complaint arose out of activities incident to military service. Dudney v. State of Ga. DOD, 322 Ga. App. 464 , 745 S.E.2d 713 (2013).

Regional agencies not covered. - Regional educational service agencies are not state agencies and, therefore, are not public employers under O.C.G.A. § 45-1-4 . North Ga. Reg'l Educ. Serv. Agency v. Weaver, 272 Ga. 289 , 527 S.E.2d 864 (2000), reversing Weaver v. North Ga. Regional Educ. Serv. Agency, 238 Ga. App. 72 , 517 S.E.2d 794 (1999).

Employment as grandfathered pharmacist. - Trial court erred in dismissing a public employee's Georgia Whistle Blower Statute, O.C.G.A. § 45-1-4 , suit as moot as: (1) the employer, the Georgia Department of Corrections, continued to employ grandfathered pharmacists according to an affidavit submitted under O.C.G.A. § 9-11-43 ; (2) the employee had been a grandfathered pharmacist while employed by the Department; and (3) the appellate court saw no reason, but for the alleged retaliatory action, that the employee would not remain employed as a pharmacist with the Department; the employee's retirement from the Department made the matter moot only if the employee did not want to return to work or could not because the employee was past the mandatory retirement age, but these facts were not apparent from the stipulation that the employee had retired. Hughes v. Ga. Dep't of Corr., 267 Ga. App. 440 , 600 S.E.2d 383 (2004).

Activity must concern law, rule, or regulation. - When a port authority officer alleged that the officer was discharged after the officer complained that the port authority was violating its own rules and the Georgia Peace Officer Standards and Training Act, O.C.G.A. § 35-8-1 et seq., the officer stated a cognizable claim under O.C.G.A. § 45-1-4(a)(2), (d)(2). Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

Allegations of safety concerns failed to allege violation of law, rule, or regulation. - A university professor failed to state a claim under the Whistleblower Act, O.C.G.A. § 45-1-4 , because the professor's allegations that the professor voiced concerns over lab safety at the university did not show that the professor disclosed any violation of a "law, rule, or regulation" as required under O.C.G.A. § 45-1-4 (a)(2). Edmonds v. Bd. of Regents, 302 Ga. App. 1 , 689 S.E.2d 352 (2009), cert. denied, No. S10C0824, 2010 Ga. LEXIS 437 (Ga. 2010), overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 300 Ga. 223 , 794 S.E.2d 85 (Ga. 2016).

Failure to allege violation of law, rule, or regulation. - Whistle-blower claim failed because the employee did not complain that there was a violation or non-compliance with any law, rule, or regulation. Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111 , 729 S.E.2d 625 (2012).

Chief of police's belief that employer's activity is illegal is sufficient. - Public college's chief of police who objected to the college administration's directive that the chief speak with the district attorney about having the charges against a suspected laptop thief dropped reasonably believed that the chief was objecting to illegal conduct, obstruction of justice under O.C.G.A. § 16-10-24(a) , and this was protected activity under O.C.G.A. § 45-1-4(d)(3) of the whistleblower statute. Albers v. Ga. Bd. of Regents of the Univ. Sys. of Ga., 330 Ga. App. 58 , 766 S.E.2d 520 (2014).

Jury determines if reprisal action was taken. - Board of Regents was not entitled to summary judgment on the employee's claim under O.C.G.A. § 45-1-4 , the "whistleblower" statute, because a jury issue existed regarding whether "action" was taken against the employee for purposes of § 45-1-4 ; the record contained at least some circumstantial evidence that the employee was dismissed in reprisal for the employee's investigation into the university's officers and for disclosing information of fraud in connection with the investigation. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75 , 585 S.E.2d 138 (2003).

Failure to make out prima facie case of retaliation. - Trial court did not err in granting summary judgment in favor of the Georgia Department of Human Services in the employees' action alleging that the employees were terminated from a county department of children and family services for reporting the unlawful conduct of a coworker in violation of the whistle-blower statute, O.C.G.A. § 45-1-4(d)(2), because, although there was a genuine issue of material fact as to whether the employees made protected disclosures to a supervisor, the employees could not show a causal connection between a protected disclosure and the adverse employment action taken against the employees; the employees presented no evidence that the actual decision-maker knew about the employees' disclosures to the supervisor about the coworker or that the supervisor personally had any role in the employees' termination other than to deliver the message of the employees' dismissals, and mere guesses and speculation were all that the employees presented in support of a causal connection between those disclosures and the employees' subsequent terminations. Forrester v. Ga. Dep't of Human Servs., 308 Ga. App. 716 , 708 S.E.2d 660 (2011).

In a wrongful termination case, the trial court erred by failing to grant the motion for summary judgment filed by the employer because the only evidence the employee presented of a causal connection was the temporal proximity between the disclosures and the adverse actions; but the only action that occurred less than three months after the disclosures were not materially adverse and the employee did not even allege that the person who took the action knew of the protected disclosures. Freeman v. Smith, 324 Ga. App. 426 , 750 S.E.2d 739 (2013), overruled on other grounds by Franklin v. Pitts, 349 Ga. App. 544 , 826 S.E.2d 427 (2019).

Former police officer's retaliation claim against a city failed under summary judgment because the officer did not produce evidence of a causal connection as to one adverse employment action, another adverse action was only at most a petty, slight, or minor annoyance and, in any event, the officer had not shown pretext as to the city's proffered legitimate, non-discriminatory reasons for the city's actions. Cobb v. City of Roswell, F.3d (11th Cir. Aug. 12, 2013)(Unpublished).

In the plaintiffs' suit alleging that the defendant terminated their employment, in violation of Georgia's Whistleblower Statute, O.C.G.A. § 45-1-4 , summary judgment was properly granted to the defendant as the plaintiffs failed to establish prima facie cases of retaliation because the plaintiffs, in making their complaints regarding short-staffing, identified only internal operating procedures for staffing requirements as the basis for their concerns; the plaintiffs did not disclose a violation or failure to comply with any law, rule, or regulation prior to their termination; and the plaintiffs did not object to or refuse to participate in an activity, policy, or practice which the plaintiffs reasonably believed to be in violation of or noncompliance with a law, rule, or regulation. Coward v. MCG Health, Inc., 342 Ga. App. 316 , 802 S.E.2d 396 (2017).

Insubordination as relevant factor. - Decision granting summary judgment to the Board of Regents of the University System of Georgia on a former administrative assistant's (AA) Georgia Whistleblower Act claim was proper as the former AA failed to establish that a genuine issue of material fact existed as to the reason for the former AA's termination; the board submitted direct evidence that the former AA's termination was based on insubordinate behavior during an exchange with a college president, but the former AA failed to present any evidence contradicting the occurrence of the dispute between the former AA and the president. Caldon v. Bd. of Regents of the Do-016 Univ. Sys. of Ga., 311 Ga. App. 155 , 715 S.E.2d 487 (2011).

Retaliation against public employees. - Trial court did not err by denying the city's motions for a directed verdict because there were conflicts in the evidence as to material issues of the matter, which were questions for the jury to resolve, and the court determined that the city had retaliated against the public employees under O.C.G.A. Ý 45-1-4 , thus, there was no basis to grant the motions. City of Pendergrass v. Rintoul, Ga. App. , 841 S.E.2d 399 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Assuming applicability of O.C.G.A. § 45-1-4 to the Georgia National Guard, referral of a member's complaint of fraud, waste or other abuse to a commanding officer, and by that officer to an investigator, was not a prohibited disclosure, and disciplinary action could be taken against a member who knowingly submitted false reports. 1996 Op. Att'y Gen. No. 96-15.

RESEARCH REFERENCES

ALR. - Pre-emption by workers' compensation statute of employee's remedy under state "whistleblower" statute, 20 A.L.R.5th 677.

Who are "public employers" or "public employees" within the meaning of state whistleblower protection acts, 90 A.L.R.5th 687.

What constitutes activity of employee protected under state whistleblower protection statute covering employee's "report," "disclosure," "notification," or the like of wrongdoing - Sufficiency of report, 10 A.L.R.6th 531.

What constitutes activity of employee, other than "reporting" wrongdoing, protected under state whistleblower protection statute, 13 A.L.R.6th 499.

What constitutes activity of private-sector employee protected under state whistleblower protection statute covering employee's "report," "disclosure," "notification," or the like of wrongdoing - nature of activity reported, 36 A.L.R.6th 203.

What constitutes activity of public or state employee protected under state whistleblower protection statute covering employee's "report," "disclosure," "notification," or the like of wrongdoing - nature of activity reported, 37 A.L.R.6th 137.

Prohibition, by Civil Service Reform Act of 1978, of reprisals against civil service whistleblowers (5 USCS § 2302(b)(8)), 124 A.L.R. Fed. 381.

Construction and application of whistleblower provision of Sarbanes-Oxley Act, 18 U.S.C.S. § 1514A(a)(1), 15 A.L.R. Fed. 2d 315.

45-1-5. Purging personnel records of terminated employee.

When an employee of the state or of a county, municipality, or school district is terminated and, as a condition of a settlement agreement, the personnel file of the employee is to be partially or totally purged, the former employee's personnel records, including both the personnel file and any associated work history records, shall be clearly designated with a notation that such records have been purged as a condition of a settlement agreement. Such notation shall be disclosed to any subsequent governmental entity seeking information as to a former employee's work history for the sole purpose of making a hiring decision.

(Code 1981, § 45-1-5 , enacted by Ga. L. 1995, p. 1081, § 1.)

45-1-6. Gifts to employees by vendors; disclosure; reports.

  1. As used in this chapter, the term:
    1. "Commission" means the Georgia Government Transparency and Campaign Finance Commission created under Code Section 21-5-4.
    2. "Gift" means a gratuity, subscription, membership, trip, meal, loan, extension of credit, forgiveness of debt, advance or deposit of money, or anything of value.
    3. "Person" means an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons.
    4. "Public employee" means every person employed by the executive, legislative, or judicial branch of state government or any department, board, bureau, agency, commission, or authority thereof. This shall not include elected officials.
    5. "Vendor" means any person who sells to or contracts with any branch of state government or any department, board, bureau, agency, or commission thereof for the provision of any goods or services.
  2. Any vendor who, either directly or through another person, makes a gift or gifts to one or more public employees exceeding in the aggregate $250.00 in value during any calendar year shall file a disclosure report with the commission in the form specified by the commission listing the amount and date of receipt, the name and mailing address of any vendor making the gift, and the name, address, and position of each public employee receiving such a gift.
  3. Each disclosure report required by subsection (b) of this Code section shall be filed with the commission not later than February 1 of each year and shall cover the preceding calendar year.
  4. A report required by this Code section shall be verified by the oath or affirmation of the person filing such report or statement taken before an officer authorized to administer oaths. Each report required in a calendar year shall contain cumulative totals of all gifts which have been made or received and which are required to be reported.
  5. In addition to other penalties provided under this Code section, a filing fee of $50.00 shall be imposed for each report that is filed late. In addition, a filing fee of $25.00 shall be imposed on the fifteenth day after the due date if the report has still not been filed.
  6. The commission is vested with the same powers with respect to this Code section as enumerated in Code Section 21-5-6.
  7. Venue for prosecution of civil violations of this Code section or for any other action by or on behalf of the commission shall be in the county of residence of the accused person at the time of the alleged violation or action.
  8. Any person who knowingly fails to comply with or knowingly violates this Code section shall be guilty of a misdemeanor. (Code 1981, § 45-1-6 , enacted by Ga. L. 1996, p. 1069, § 1; Ga. L. 2010, p. 1173, § 26/SB 17.)

Editor's notes. - Ga. L. 2010, p. 1173, § 1/SB 17, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Government Transparency and Campaign Finance Act of 2010.'"

Ga. L. 2010, p. 1173, § 30/SB 17, not codified by the General Assembly, provides, in part, that the amendment to this Code section applies to all reports filed on and after January 10, 2011.

Law reviews. - For article, "Georgia's New Ethics Laws: A Summary of the Changes Relevant to Lobbyists and Legislators," see 11 Ga. St. B.J. 22 (No. 4, 2005).

OPINIONS OF THE ATTORNEY GENERAL

Individuals required to file disclosure report. - All individuals who sell to or contract with any entity of state government and who give any gifts to public employees which in the aggregate exceed $250 in value must, by February 1 of each calendar year, file a disclosure report with the State Ethics Commission. 1997 Op. Att'y Gen. No. U97-12.

Ordinary financial transactions excepted from disclosure. - O.C.G.A. § 45-1-6 does not require the disclosure of ordinary financial transactions, such as loans or extensions of credit and deposits, made in the ordinary course of business. 1996 Op. Att'y Gen. No. 96-20.

CHAPTER 2 ELIGIBILITY AND QUALIFICATIONS FOR OFFICE

Article 1

General Provisions.

Article 2

Veterans' Civil Service Preference.

Article 3

Physical Examination of State Employees.

ARTICLE 1 GENERAL PROVISIONS

45-2-1. Persons ineligible to hold civil office; vacation of office; validity of acts performed while in office.

The following persons are ineligible to hold any civil office; and the existence of any of the following facts shall be a sufficient reason for vacating any office held by such person; but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, namely:

  1. Persons who are not citizens of this state and persons under the age of 21 years; provided, however, that upon passage of appropriate local ordinances, citizens of this state who are otherwise qualified and who have attained 18 years of age shall be eligible to hold any county or municipal office, except such offices of a judicial nature. The residency requirement for a candidate for any county office, except offices of a judicial nature, shall be 12 months' residency within the county. The residency requirement for a candidate for any municipal office, except offices of a judicial nature, shall be 12 months' residency within the municipality; provided, however, that municipalities may by charter provide for lesser residency requirements for candidates for municipal office, except offices of a judicial nature. Notwithstanding anything in this paragraph to the contrary, the General Assembly may provide by local law for a period of district residency for candidates for any county or municipal governing authority or board of education who are elected from districts not to exceed 12 months' residency within the district from which each such candidate seeks election. Any local law previously enacted by the General Assembly providing for a period of district residency for candidates for county or municipal office which does not exceed 12 months shall be granted full force and effect;
  2. All holders or receivers of public money of this state or any county, school district, or municipality thereof who have refused or failed when called upon after reasonable opportunity to account for and pay over the same to the proper officer;
  3. Any person finally convicted and sentenced for any felony involving moral turpitude under the laws of this or any other state when the offense is also a felony in this state, unless restored to all his rights of citizenship by a pardon from the State Board of Pardons and Paroles;
  4. Persons holding any office of profit or trust under the government of the United States other than that of postmaster and officers and enlisted men of the reserve components of the armed forces of the United States, or of either of the several states, or of any foreign state; provided, however, that without prejudice to his right to hold public office, any person may accept appointment to, and may receive his expenses and compensation arising from, membership upon any commission, board, panel, or other fact-finding or policy-making agency appointed by the President of the United States or other federal authority, where such appointment is of a temporary nature and the duties are not such as to interfere materially with the person's duties as a public officer. Acceptance of such an appointment and receipt of the emoluments therefrom shall not bar the right of any person to hold office in this state or to accede to a state office;
  5. Persons of unsound mind and persons who, from advanced age or bodily infirmity, are unfit to discharge the duties of the office to which they are chosen or appointed;
  6. Those persons who have not been inhabitants of the state, county, district, or circuit for the period required by the Constitution and laws of this state;
  7. A person who has not been a bona fide citizen of the county in which that person shall be elected or appointed at least 12 months prior to that person's election or appointment and who is not a qualified voter entitled to vote; provided, however, that no prior state or county residency requirement shall be applicable to any appointed local superintendent of schools; or
  8. All persons who are constitutionally disqualified for any cause. All officers are eligible for reelection and reappointment and to hold other offices, unless expressly declared to the contrary by the Constitution or laws of Georgia.

    (Laws 1787, Cobb's 1851 Digest, p. 366; Laws 1823, Cobb's 1851 Digest, p. 209; Code 1863, § 125; Code 1868, § 120; Code 1873, § 129; Code 1882, § 129; Civil Code 1895, § 223; Ga. L. 1900, p. 42, § 1; Civil Code 1910, § 258; Ga. L. 1925, p. 77, § 1; Ga. L. 1931, p. 126, § 1; Code 1933, § 89-101; Ga. L. 1972, p. 868, § 1; Ga. L. 1976, p. 464, §§ 1, 2; Ga. L. 1982, p. 3, § 45; Ga. L. 1987, p. 3, § 45; Ga. L. 1988, p. 930, § 1; Ga. L. 1989, p. 596, § 1; Ga. L. 1992, p. 1138, § 1; Ga. L. 1993, p. 1279, § 15; Ga. L. 2016, p. 173, § 12/SB 199; Ga. L. 2016, p. 777, § 1/HB 73; Ga. L. 2017, p. 525, § 1/SB 258; Ga. L. 2018, p. 1112, § 45/SB 365.)

The 2016 amendments. The first 2016 amendment, effective April 26, 2016, added the last two sentences in paragraph (1). The second 2016 amendment, effective May 3, 2016, made an identical change by adding the next to the last sentence in paragraph (1).

The 2017 amendment, effective May 8, 2017, inserted ", school district, or municipality" near the middle of paragraph (2).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation throughout paragraph (1).

Cross references. - Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

Vacancies created by elected officials qualifying for other office, Ga. Const. 1983, Art. II, Sec. II, Para. V.

Nature and effect of adjudication, § 15-11-72.

Certain county officials ineligible, § 15-12-21.

Eligibility of subversive persons to hold office or position in government, § 16-11-12 .

Eligibility and qualifications of candidates for public office, §§ 21-2-5 through 21-2-8 .

Editor's notes. - Ga. L. 1972, p. 193, § 10, not codified by the General Assembly, provided that it was the purpose of the Act to reduce the age of legal majority from 21 years to age 18 years of age so that all persons, upon reaching the age of 18 would have the rights, privileges, powers, duties, responsibilities, and liabilities, previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed as having the effect of changing the provisions of any general law relative to the required age to qualify for holding public office.

Law reviews. - For article on the effects of a conviction based on a nolo contendere plea on voting and holding public office, see 13 Ga. L. Rev. 723 (1979). For article surveying Georgia cases citing developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For comment criticizing Tarpley v. Carr, 204 Ga. 721 , 51 S.E.2d 638 (1949), requiring de jure offices to exist before acts by de facto city officers can be validated, see 1 Mercer L. Rev. 120 (1949).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Qualifications prescribed by Constitution. - If the Constitution has prescribed the qualifications which allow and prevent eligibility to a public office, the General Assembly cannot by statute add to or take from those conditions of eligibility. Griggers v. Moye, 246 Ga. 578 , 272 S.E.2d 262 (1980).

Local legislation not in conflict. - Local legislation requiring candidates for the county commission to run for election from the district in which their legal residence lies did not conflict with former Ga. Const. 1976, Art. IX, Sec. I, Para. VIII (see Ga. Const. 1983, Art. IX, Sec. I, Para. III) and O.C.G.A. § 45-2-1 . Griffin v. Glynn County, 264 Ga. 823 , 452 S.E.2d 109 (1995).

Ineligibility to hold office is the exception. - Eligibility to hold office is the general rule; ineligibility is the exception. Weems v. Glenn, 199 Ga. 388 , 34 S.E.2d 511 (1945).

Paragraphs (1) through (8), inclusive, provide exceptions to the general rule. Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930).

Construction in favor of eligibility. - Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Weems v. Glenn, 199 Ga. 388 , 34 S.E.2d 511 (1945).

County attorney is not a county elected official, but rather is a county employee, so the residency requirement of O.C.G.A. § 45-2-1(1) does not apply to the county attorney under Ga. Const. 1983, Art. IX, Sec. I, Para. III and O.C.G.A. § 45-2-5 ; a county attorney is entitled to sovereign immunity as a county employee. Wallace v. Greene County, 274 Ga. App. 776 , 618 S.E.2d 642 (2005).

Restrictions on eligibility for municipal office. - There is no general law making eligibility to hold municipal office dependent on qualification to vote. Restrictions of that character may be provided in the charter of a municipality, but, unless so provided, they do not exist in the absence of general law on the subject. Beazley v. Lunceford, 178 Ga. 683 , 173 S.E. 852 (1934).

Military personnel holding municipal office. - Enlisted personnel on active duty in United States Navy are not ineligible under O.C.G.A. § 45-2-1 to hold municipal office in Georgia, since O.C.G.A. § 45-2-1 applies only to those holding or seeking to hold civil offices of a state character and officers of municipal corporations do not hold a civil office within the meaning of § 45-2-1. Westberry v. Saunders, 250 Ga. 240 , 296 S.E.2d 596 (1982).

County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399 , 761 S.E.2d 46 (2014).

De facto officer. - When an individual was appointed to the position of recorder's court judge pro tem, and at all times subsequent to appointment held self out to the public as a recorder's judge pro tem and performed the duties of that office, including accepting guilty pleas, issuing search warrants, and holding preliminary hearings, that individual was a de facto officer and as such that individual's acts could not be collaterally attacked and set aside; thus, a search warrant issued by this individual was not null and void, and there was nothing in the record to indicate that the recorder court judge pro tem did not act in a neutral and detached manner in issuing the warrant. Freeman v. State, 172 Ga. App. 168 , 322 S.E.2d 289 (1984).

Arrest warrant was not subsequently invalid because it was signed by a magistrate who was later removed from office for misconduct and, thus, any subsequent proceedings thereafter were also not invalid, as: (1) the magistrate's acts while in officer were considered valid as the acts of an officer de facto; and (2) due to such, the magistrate's acts could not be collaterally attacked and set aside. Keith v. State, 279 Ga. App. 819 , 632 S.E.2d 669 (2006).

Cited in Culbreth v. Cannady, 168 Ga. 444 , 148 S.E. 102 (1929); McGill v. Simmons, 172 Ga. 127 , 157 S.E. 273 (1931); McBrien v. Starkweather, 43 Ga. App. 818 , 160 S.E. 548 (1931); Odom v. Jones, 176 Ga. 147 , 167 S.E. 304 (1932); Cooper v. Lewis, 177 Ga. 229 , 170 S.E. 68 (1933); Marshall v. Walker, 183 Ga. 44 , 187 S.E. 81 (1936); Morgan v. Crow, 183 Ga. 147 , 187 S.E. 840 (1936); McLendon v. Everett, 205 Ga. 713 , 55 S.E.2d 119 (1949); Barrett v. Slagle, 214 Ga. 650 , 106 S.E.2d 908 (1959); Varnadoe v. Housing Auth., 221 Ga. 467 , 145 S.E.2d 493 (1965); Bond v. Floyd, 251 F. Supp. 333 (N.D. Ga. 1966); Daniel v. Yow, 226 Ga. 544 , 176 S.E.2d 67 (1970); Dunn v. Cofer, 134 Ga. App. 173 , 213 S.E.2d 483 (1975); Westley v. State, 143 Ga. App. 344 , 238 S.E.2d 701 (1977); Lucas v. Woodward, 240 Ga. 770 , 243 S.E.2d 28 (1978); Irwin v. Busbee, 241 Ga. 567 , 247 S.E.2d 103 (1978); Ramsey v. Powell, 244 Ga. 745 , 262 S.E.2d 61 (1979); Beck v. State, 286 Ga. App. 553 , 650 S.E.2d 728 (2007); Spillers v. State, 299 Ga. App. 854 , 683 S.E.2d 903 (2009).

Holders of Public Funds

Prior removal for misconduct. - The conviction of an officer for misbehavior and misconduct in office in the illegal appropriation of public funds, and the officer's removal from office, are equivalent to an adjudication that the officer is ineligible to hold that office for and during the remainder of the term for which elected; therefore, the officer cannot be a candidate for the vacancy caused by the officer's own removal. McClellan v. Pearson, 163 Ga. 492 , 136 S.E. 429 (1927).

Failure of tax collector to pay over taxes collected. - O.C.G.A. § 45-2-1(2) does not mean that a person is ineligible to hold the office of sheriff, as being the holder of public money unaccounted for, merely by reason of the fact that as tax collector one failed and refused to pay over to the county taxes collected, was cited by the county commissioners for a settlement, and that upon failure to settle, an execution was issued against the tax collector and bondsmen, which was subsequently paid by the bondsmen; as there are circumstances under which a tax collector could act in the best of faith in the performance of trust, and still be unable to account personally for taxes collected. Weems v. Glenn, 199 Ga. 388 , 34 S.E.2d 511 (1945).

Felony Involving Moral Turpitude
1. In General

Disqualification from public office. - After the defendant pled nolo contendere in Florida to a felony, which was a felony under Georgia law, defendant would have been disqualified from holding public office pursuant to O.C.G.A. § 45-2-1(3) , but defendant was exempted from such disqualification by O.C.G.A. § 17-7-95(c) , under which the nolo plea could not be deemed a guilty plea for the purposes of effecting the disqualification. Hardin v. Brookins, 275 Ga. 477 , 569 S.E.2d 511 (2002).

Acts involving intoxicating liquors. - Neither the transportation and possession of non-tax-paid liquor nor the unlawful sale of intoxicating liquors is a crime involving moral turpitude. Hutto v. Rowland, 226 Ga. 889 , 178 S.E.2d 180 (1970).

Applicability to county superintendent of schools. - O.C.G.A. § 45-2-1(3) had no application to the office of county superintendent of schools for the reason that former O.C.G.A. § 20-2-102 (see now O.C.G.A. § 20-2-101 ), which defined the qualifications of county school superintendents, did not require that one be convicted "and sentenced" before one was ineligible to hold the office by reason of a crime involving moral turpitude. Huff v. Anderson, 212 Ga. 32 , 90 S.E.2d 329 (1955).

2. Pardon

No restoration of public office. - While the grant of a pardon restores one to full rights of citizenship, including the right to hold public office, and operates to remove all blot and stain growing out of a previous conviction of a felony involving moral turpitude, it does not operate to confer or restore a public office which was previously held, but which on account of the previous conviction and sentence was necessarily relinquished. Morris v. Hartsfield, 186 Ga. 171 , 197 S.E. 251 (1938).

Ineligibility not removed. - When the right of a county commissioner to hold office is attacked by reason of one having been, previous to election, convicted of a felony, and therefore not a qualified voter or eligible "to hold any civil office," the fact that one received a pardon after the institution of the quo warranto proceedings, but prior to the decision of the trial judge, does not remove ineligibility. Hulgan v. Thornton, 205 Ga. 753 , 55 S.E.2d 115 (1949).

Persons Holding Other Offices

Federal offices. - After the Governor undertook to declare vacancies in the offices of a member and chair of the State Highway Board (now Transportation Board), for ineligibility of the incumbent because of the incumbent's holding a federal office, but the order recited only that the incumbent held an office of profit or trust under the government of the United States, without stating what federal office the incumbent held, the order did not show ineligibility as claimed, since, for aught that appears, the federal office, if held, might have been one of the excepted offices. Patten v. Miller, 190 Ga. 123 , 8 S.E.2d 757 (1940).

A federal magistrate, even if only part-time, is ineligible to hold a civil office. Highsmith v. Clark, 245 Ga. 158 , 264 S.E.2d 1 (1980).

The tax assessor's service on a county agricultural committee (as part of a federal agency) did not bar appointment to the tax board because federal offices were excluded, the position was temporary, and would not interfere with the tax assessor's duties on the tax board. Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 , 568 S.E.2d 786 (2002).

County offices. - O.C.G.A. § 45-2-1 does not prohibit a member of a county school board from also holding office as a trustee of a local school district. The latter is not definable as a county office under O.C.G.A. § 45-2-2 so the provisions of § 45-2-2 are inapplicable. Casey v. McElreath, 177 Ga. 35 , 169 S.E. 342 (1933).

Consolidated government officers. - A provision in the charter granting authority to a consolidated government to redefine membership of a municipal board of water commissioners did not grant authority to appoint a city council member to the board, when such appointments constituted a conflict of interest under O.C.G.A. § 36-30-4 . Columbus, Ga. v. Board of Water Comm'rs, 261 Ga. 219 , 403 S.E.2d 791 (1991).

Eligibility for County Offices
1. Residency Requirement

The residency requirements in O.C.G.A. § 45-2-1(7) refer to domicile. Haggard v. Graham, 142 Ga. App. 498 , 236 S.E.2d 92 (1977).

Ordinarily a jury question. - The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined by the court as a matter of law except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498 , 236 S.E.2d 92 (1977).

Change in domicile. - If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, that person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498 , 236 S.E.2d 92 (1977).

Lack of standing. - Former county commissioner lacked U.S. Const. Art. III standing to pursue a suit alleging that the redistricting done under 2002 Ga. Laws 401 violated the commissioner's equal protection rights because, even if 2002 Ga. Laws 401 was found unconstitutional, a new redistricting plan might still cause the commissioner to lose the commissioner's incumbent status, thereby preventing the commissioner from running for the office of commissioner in the district that the commissioner served for eight years because the commissioner was no longer a resident of that district, as required by O.C.G.A. § 45-2-1 ; thus, the commissioner's injury could not be redressed by a favorable decision. Scott v. Taylor, 470 F.3d 1014 (11th Cir. 2006).

2. Qualified Voter Requirement

Office of ordinary (now probate judge). - Under application of the provisions of the Constitution and laws of this state, a person who is not a qualified voter is not eligible to the office of ordinary (now probate judge) of a county. Lee v. Byrd, 169 Ga. 622 , 151 S.E. 28 (1929).

Partnership ineligible. - Since a partnership cannot be a qualified voter, a partnership may not hold the public office of county auditor. Lester Witte & Co. v. Rabun County, 245 Ga. 382 , 265 S.E.2d 4 (1980).

Inapplicable to justice of the peace. - A justice of the peace is not a county officer and the statutory provisions that no person is eligible to hold a county office who is not "a qualified voter entitled to vote," has no application to the office of justice of the peace. Davis v. Mercer, 48 Ga. App. 191 , 172 S.E. 669 (1934).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

General Assembly is authorized to provide for membership by nonresidents on the Tobacco Advisory Board. 1969 Op. Att'y Gen. No. 69-495.

Minimum age requirement. - Statute would not prevent a person under 21 years of age from having that person's name on the ballot if that one will become 21 on or before the date for assuming office. 1972 Op. Att'y Gen. No. U72-60.

Age requirement for deputy clerks. - Since the authorization in former Code 1933, § 24-2713 (see now O.C.G.A. § 15-6-59 ) for appointment of deputies makes a deputy clerk a public officer of this state, under former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1 ) a deputy clerk of the superior court must be at least 21 years of age. 1958-59 Op. Att'y Gen. p. 43.

The office of highway treasurer is a public office created by the General Assembly. 1945-47 Op. Att'y Gen. p. 626.

A municipal office is a "civil office" within the contemplation of former Code 9133, § 89-101 (see now O.C.G.A. § 45-2-1 ). 1980 Op. Att'y Gen. No. 80-157.

Candidate in both general and special election. - Candidate on ballot in special congressional primary may not be permitted to run at same time in general election for position in Georgia General Assembly. 1982 Op. Att'y Gen. No. U82-30.

Eligibility for judge of probate court. - For a person to be eligible to hold the office of judge of probate court there must not only be full compliance with the constitutional and statutory residency requirements but also the person must meet the requirements of a qualified voter. 1967 Op. Att'y Gen. No. 67-368.

Person Charged With Crimes

.

Failure to pay over public moneys. - A judgment against a sheriff-elect for failure to account for and pay over county moneys must be paid before such individual is eligible to hold office, and a county must pay the bond premium on a sheriff regardless of the premium charged. 1976 Op. Att'y Gen. No. U76-58.

Conviction of crime involving moral turpitude. - A person who has been convicted of a crime involving moral turpitude cannot hold public office in this state. 1962 Op. Att'y Gen. p. 131.

Limitation on employment by Board of Regents because of felony involving moral turpitude. - Conviction and sentence for a felony involving moral turpitude does not render an individual ineligible for employment by the Board of Regents unless the position of employment is one which constitutes a position of trust. 1985 Op. Att'y Gen. No. 85-47.

Conviction for transporting stolen automobile. - A person convicted in federal court of transporting a stolen automobile in interstate commerce would be ineligible to hold any civil office. 1962 Op. Att'y Gen. p. 131.

Eligibility of parolees and convicted felons for civil employment. - Even though parolees from the penitentiary and all convicted felons, before pardon, are ineligible for any civil "office," this disability would not extend to mere employment when such employment does not amount to a position of trust. 1968 Op. Att'y Gen. No. 68-35.

Eligibility of work-release prisoners for civil employment. - Work-release prisoners may be employed in any unclassified position that is not a civil office; the same limitation would also apply to their employment in a classified position. 1974 Op. Att'y Gen. No. 74-142.

Persons Holding Other Offices

.

Persons holding federal office of profit or trust. - Membership on United States Department of Agricultural Stabilization and Conservation Committee is an office of profit or trust under the government of the United States and within the meaning of O.C.G.A. § 45-2-1 ; any person holding this office would be ineligible to hold any other civil office in this state. 1970 Op. Att'y Gen. No. 70-137.

A city commission member is prohibited from sitting on a draft board, since holders of any civil office are generally prohibited from holding any office of profit or trust under the federal government. 1971 Op. Att'y Gen. No. U71-107.

Representation of criminal defendants. - The obligations of trusteeship imposed upon public officers and public employees do not preclude the representation of a defendant in a criminal proceeding on the grounds of an impermissible conflict of interest from such representation and the holding of public office and employment. 1982 Op. Att'y Gen. No. U82-44.

Participation in federal program not constituting an office. - Even though additional compensation will be part of the salary of a member of the Uniform Division of the Department of Public Safety for additional work done for a federal drug abuse program, participation in such a program would not be an "office of profit or trust under the government of the United States" as prohibited by paragraph (4), primarily because participation would not be an "office" within the meaning of this section. 1972 Op. Att'y Gen. No. 72-69.

A part-time or substitute rural mail carrier is not prohibited by state law from serving as a deputy registrar. 1976 Op. Att'y Gen. No. U76-46.

A postmaster may run and hold an office on a city council. 1983 Op. Att'y Gen. No. 83-30.

Prohibition against holding two state offices. - This section is construed to mean that the same person cannot legally hold two state offices of profit or trust; therefore, while members of the Veterans Service Board do not receive a salary, the office is one created by the Constitution and is an office of trust under the Georgia Constitution. A member of the board who has been appointed thereto by the Governor is ineligible to hold another office of the state. 1945-47 Op. Att'y Gen. p. 476.

Employment of director for other duties. - Nothing in this section would prohibit the State Treasurer (now director of the Office of Treasury and Fiscal Services) from accepting employment with the state for the performance of duties not required of that office. 1945-47 Op. Att'y Gen. p. 626.

General Assembly members ineligible for county board of education. - Assuming the courts conclude the phrase "either of the several states" is sufficiently broad to include Georgia as well as any of the 49 other states in the union, it would then follow that O.C.G.A. § 45-2-1 renders a person holding an office of profit by virtue of being a member of the General Assembly ineligible to hold the civil office of membership on a county board of education in the absence of express legislative authorization. 1963-65 Op. Att'y Gen. p. 442.

Board memberships not civil offices. - Membership on the governing boards of public, nonmunicipal corporations, such as the Ports Authority, are not civil offices within the contemplation of the Georgia Constitution, though such members are clearly fiduciaries of public trust. 1971 Op. Att'y Gen. No. 71-18.

Treasurer of the State Highway Board (now Transportation Board) may also legally hold the office of judge of a city court. 1950-51 Op. Att'y Gen. p. 210.

Acceptance of incompatible position causing automatic vacation of office. - The offices of honorary consul and member of the Board of Commissioners of the Department of Industry and Trade are incompatible, and the acceptance of the position of honorary consul would automatically vacate the position on the Board of Commissioners. 1968 Op. Att'y Gen. No. 68-147.

The offices of vice chairman of the Board of Commissioners of the Department of Industry and Trade and honorary consul in Atlanta for the government of Japan are incompatible, and the acceptance of the position of consul would automatically vacate the position on the Board of Commissioners. 1969 Op. Att'y Gen. No. 69-93.

A judge of the superior court may hold office as a member of the county board of education. 1954-56 Op. Att'y Gen. p. 180.

Justice of peace holding office of municipal mayor. - There is apparently no general law of this state which would prohibit a justice of the peace from also holding the office of mayor of a municipality. 1957 Op. Att'y Gen. p. 53.

A justice of the peace is not ineligible under O.C.G.A. § 45-2-1 to hold office of mayor of a municipality unless prohibited by municipal charter. 1945-47 Op. Att'y Gen. p. 79.

A justice of the peace may also act as mayor of a municipality in the absence of a contrary provision in the charter of a municipality. 1948-49 Op. Att'y Gen. p. 478.

Person may hold county and municipal office unless prohibited by municipal charter. - Unless the municipal charter prohibits such, a person can hold a county office and a municipal office. 1950-51 Op. Att'y Gen. p. 336.

Construing former Code 1933, §§ 89-101 and 89-103 (see now O.C.G.A. §§ 45-2-1 and 45-2-2 ) together, unless the charter of a particular municipal corporation prohibited a county officer from holding a municipal office created under the charter, a person could hold a county office and a municipal office. 1945-47 Op. Att'y Gen. p. 68.

Person may hold both city and county court office. - There is no prohibition against one persons holding both the offices of judge of a city court and ordinary (now probate judge) of a county. 1970 Op. Att'y Gen. No. U70-60.

A sitting magistrate may be a candidate for the office of chief magistrate but would be required to resign former magistrate position before assuming the new office. 1983 Op. Att'y Gen. No. 83-59.

A city councilperson may also serve as a magistrate. 1983 Op. Att'y Gen. No. U83-55.

1983 Op. Att'y Gen. No. U83-55, which stated that there was no statutory, constitutional, or common-law prohibition against a person simultaneously holding the offices of magistrate and city councilperson, was issued prior to the ratification of Ga. Const. 1983, Art. II, Sec. II, Para. V, which provides that the test for simultaneously holding two offices is specific authorization, rather than prohibition; and since there is no law specifically authorizing a person to simultaneously hold the offices of magistrate and city councilperson, a chief magistrate could not hold office as chief magistrate while seeking election to the city council. 1985 Op. Att'y Gen. No. U85-41.

Federal attorney/hearing examiner cannot serve simultaneously as part-time associate magistrate. - An attorney/hearing examiner for the United States Merit Systems Protection Board may not simultaneously serve as a part-time associate magistrate since the examiner would be exercising discretion vested in the board for the benefit of the public, and thus would be subject to the same disqualification contemplated by O.C.G.A. §§ 45-2-1(4) and 45-3-1(4) as a member of the board, despite technical status as an "employee." 1985 Op. Att'y Gen. No. U85-12.

Armed forces member ineligible to hold municipal office. - Enlisted member of regular component of armed forces is ineligible to hold elected municipal office. 1980 Op. Att'y Gen. No. 80-157.

Military personnel on terminal leave as peace officers. - Members of the armed forces of the United States on terminal leave may be employed and certified as peace officers, but such members of the armed forces would be ineligible to hold certain law enforcement positions, such as sheriff, which are clearly civil offices. 1989 Op. Att'y Gen. 89-30.

Eligibility for County Offices

.

The proviso in paragraph (7) was enacted to change the result of Bower v. Avery, 172 Ga. 272 , 159 S.E. 10 (1931), i.e., a person would not be eligible to be elected or appointed as county school superintendent where that person was a bona fide citizen of that county for two years even though the person resided and voted within the corporate limits of an independent school district located in that county. 1954-56 Op. Att'y Gen. p. 200.

Removal of incumbents. - An appointment, which is made to a position for a term of years and when by law the incumbent may be removed only for cause or through a specific statutory procedure, may not be rescinded. The incumbent may be removed from the position only through compliance with the established legal procedures, which may include providing the incumbent with notice and an opportunity for a hearing on the reasons for removal. 2016 Op. Att'y Gen. No. U16-1.

Judges not considered county officers. - Historically, judges serving in the state judicial system have not been considered county officers under O.C.G.A. § 45-2-1 . 1978 Op. Att'y Gen. No. U78-8.

Qualifications of county school superintendent. - In addition to the qualifications of former Code 1933, § 32-1002 (see now O.C.G.A. § 20-2-101 ), a county school superintendent, being a county officer within the meaning of former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1(7) ) must have been a citizen of the county for a period of two years prior to the election and a qualified voter in the county entitled to vote. 1958-59 Op. Att'y Gen. p. 110.

Residents eligible for office of county school superintendent. - In a county where there is an independent city school system, a resident of the area included within the independent district is eligible to be a candidate for the office of county school superintendent in the primary and general election. 1963-65 Op. Att'y Gen. p. 225.

Local school board members. - Residency requirements for the election of local school board members cannot be established by board bylaws. 1997 Op. Att'y Gen. No. U97-25.

Residents eligible for reelection. - If, after election to the office of county school superintendent, the superintendent should move into the area included within the independent district, the superintendent will then be eligible to run for office again. 1963-65 Op. Att'y Gen. p. 225.

Residency in political subdivision. - A candidate for the office of county commissioner must be a resident of the county for a period of 24 months (now 12 months) prior to election, but does not have to reside in the commission district from which the candidate seeks election for a period of 24 months (now 12 months) prior to election. 1986 Op. Att'y Gen. No. 86-23.

Local law residency requirements for candidates unenforceable. - The provisions of a local act establishing a requirement that candidates for the Board of Commissioners of Clay County be residents of the commissioner districts from which the candidates are seeking election for a period of at least five years immediately preceding the date of the election is unenforceable as being a local act in derogation of general law. 1984 Op. Att'y Gen. No. U84-31.

A county was not authorized to establish more stringent residency requirements for the election of county commissioners than the one-year requirement of O.C.G.A. § 45-2-1 . 1997 Op. Att'y Gen. No. U97-27.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 53 et seq., § 70 et seq.

20B Am. Jur. Pleading and Practice Forms, Public Officers and Employees, § 3.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 15-34 et seq.

ALR. - Incompatibility of offices or positions in the military and in the civil service, 26 A.L.R. 142 ; 132 A.L.R. 254 ; 147 A.L.R. 1419 ; 148 A.L.R. 1399 ; 150 A.L.R. 1444 .

Unfitness as affecting right to restoration by mandamus to office from which one has been illegally removed, 36 A.L.R. 508 .

Payment of salary to de facto officer as defense to action or proceeding by de jure officer for salary, 55 A.L.R. 997 ; 64 A.L.R.2d 1375.

Officer holding over without authority after expiration of his term as a de facto officer, 71 A.L.R. 848 .

Policemen as public officers, 84 A.L.R. 309 ; 156 A.L.R. 1356 .

Time as of which eligibility or ineligibility to office is to be determined, 88 A.L.R. 812 ; 143 A.L.R. 1026 .

Other public offices or employments within prohibition as regards judicial officers of constitutional or statutory provinces against holding more than one office, 89 A.L.R. 1113 .

Right of de facto officer to salary or other compensation annexed to office, 93 A.L.R. 258 ; 151 A.L.R. 952 .

Distinction between office and employment, 93 A.L.R. 333 ; 140 A.L.R. 1076 .

De jure office as condition of a de facto officer, 99 A.L.R. 294 .

Effect of election to or acceptance of one office by incumbent of another where both cannot be held by same person, 100 A.L.R. 1162 .

Status as de jure public office of one appointed by a de facto office or body or by a body which included a de facto mem whose vote or consent was necessary to the appointment, 106 A.L.R. 1324 .

Right of Civil Service Commission to prescribe maximum or minimum age requirements for candidates for positions or promotion in civil service, 122 A.L.R. 1452 .

Presumption and burden of proof as to one's status as a de facto officer upon which validity or effect of his act depends, 161 A.L.R. 967 .

Constitutionality of statute requiring, or limiting, selection or appointment of public officers or agents from members of a political party or parties, 170 A.L.R. 198 .

Payment of salary to de facto officer as defense to action or proceeding by de jure officer for salary, 64 A.L.R.2d 1375.

What constitutes conviction within statutory constitutional provision making convicting of crime ground of disqualification for, removal from, or vacancy in, public office, 71 A.L.R.2d 593.

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.

Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office, 39 A.L.R.3d 303.

Removal of public officers for misconduct during previous term, 42 A.L.R.3d 691.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Validity of requirement that candidate or public officer has been resident of governmental unit for specified period, 65 A.L.R.3d 1048.

Validity of age requirement for state public office, 90 A.L.R.3d 900.

Validity, construction and application of regulation regarding outside employment of governmental employees or officers, 94 A.L.R.3d 1230, 62 A.L.R.5th 671.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 A.L.R.4th 702.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 10 A.L.R.5th 139.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 11 A.L.R.5th 52.

45-2-2. Person to hold only one county office; commissioned officer not to be deputy for another.

No person shall hold, in any manner whatever, or be commissioned to hold more than one county office at one time, except by special enactment of the General Assembly; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment.

(Ga. L. 1890-91, p. 102, § 1; Civil Code 1895, § 224; Civil Code 1910, § 259; Code 1933, § 89-103; Ga. L. 1990, p. 8, § 45.)

JUDICIAL DECISIONS

County coroner not prohibited from holding office of constable. - A constable is not a county officer; and therefore a coroner, as a county officer, is not, by virtue of this section, prohibited from holding the office of constable. McBrien v. Starkweather, 43 Ga. App. 818 , 160 S.E. 548 (1931).

Consolidated government officers. - A provision in the charter granting authority to a consolidated government to redefine membership of a municipal board of water commissioners did not grant authority to appoint a city council member to the board, when such appointments constituted a conflict of interest under O.C.G.A. § 36-30-4 . Columbus, Ga. v. Board of Water Comm'rs, 261 Ga. 219 , 403 S.E.2d 791 (1991).

Deputy sheriff could not serve as school board member for the same county. Black v. Catoosa County Sch. Dist., 213 Ga. App. 534 , 445 S.E.2d 340 (1994).

County coroner illegally commissioned as deputy sheriff of county. - A person commissioned as coroner of a county cannot afterwards during that person's term be legally commissioned as a deputy sheriff of the county, in the absence of the authority of a special legislative enactment, and where, in the absence of such authority, a person, after having been commissioned as coroner and during that term, has been appointed and commissioned as a deputy sheriff for the county, the appointment and commission as a deputy sheriff are illegal, and that person's official status is that of coroner only. Carter v. Veal, 42 Ga. App. 88 , 155 S.E. 64 (1930).

Cited in Smith v. Ellabelle-Eldora Sch. Dist., 40 Ga. App. 561 , 150 S.E. 454 (1929); Casey v. McElreath, 177 Ga. 35 , 169 S.E. 342 (1933).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Construction of common law. - At common law, one could simultaneously hold two public offices unless the two were incompatible, and incompatibility existed when performance of duties of one office interfered with performance of duties of the other. 1981 Op. Att'y Gen. No. U81-6.

Prohibition against simultaneously holding two county offices. - O.C.G.A. § 45-2-2 is a direct prohibition against an individual holding two county offices at the same time. 1965-66 Op. Att'y Gen. No. 65-89.

O.C.G.A. § 45-2-2 prohibits simultaneous holding of two county offices, or one county officer being deputy to another. 1981 Op. Att'y Gen. No. U81-6.

A special enactment may authorize a plurality of offices, and since this section itself contemplates a special enactment, such an enactment may be made without violating the constitutional prohibition against enactment of special laws when provision has been made by general law. 1971 Op. Att'y Gen. No. U71-34.

Time of creation of county office not controlling. - The general law that members of county boards of tax assessors are ineligible to serve on county boards of education is applicable to a county, even though the county school system was created prior to adoption of the Constitution of 1877. 1962 Op. Att'y Gen. p. 58.

"County officers" defined. - In a technical sense, the term "county officers" includes only the "county officers" referred to in 1945, Art. XI, Sec. II, Para. 1 (see now Ga. Const. 1983, Art. IX, Sec. I, Para. III), i.e., those who are elected by the qualified voters of their respective counties and hold office for four years. 1958-59 Op. Att'y Gen. p. 146.

Ordinarily, unless there is some special statute, a county police officer does not come within the term of one holding a county office. The county office within the purview of this section has been held to be an office created by law for a term of four years and elected by the people of the county. 1957 Op. Att'y Gen. p. 20.

An appointed official is not a county officer for purposes of O.C.G.A. § 45-2-2 . 1981 Op. Att'y Gen. No. U81-6.

No disqualification from running for another office. - This section does not say that a person holding one office shall be disqualified to be elected to another, but merely says that a person may not hold two such offices at the same time; the effect of this language is that a person holding one office is not disqualified from running for another, but on election to the latter office, that person automatically forfeits the first. 1958-59 Op. Att'y Gen. p. 146.

Qualifying as candidate for another office not prohibited. - Although this section declares that no person shall hold two county offices, it appears that qualifying as a candidate for the office of ordinary (now judge of probate court) while serving as a justice of the peace, would not result in placing the candidate in the position of holding two county offices; moreover, a justice of the peace is not a county but a state officer. 1968 Op. Att'y Gen. No. 68-219.

Effect of county officer winning primary nomination for another county office. - A member of the county board of education would be eligible to run in a county primary for the office of county commissioner, since a primary is not an election in the strict sense of the term, and obviously does not result in placing the successful nominee in the position of "holding" an office within the meaning of this section; however, if the person receives the nomination, that person must resign as a member of the school board prior to qualifying in general a election for commissioner. 1958-59 Op. Att'y Gen. p. 146.

Specific Offices

.

Members of county board of education are ineligible to hold another county office. 1954-56 Op. Att'y Gen. p. 78.

County board of education member may serve on board of registrars. - A person who is a member of the county board of education can also serve on the board of registrars, without violating that provision of law prohibiting a person from holding more than one county office. 1945-47 Op. Att'y Gen. p. 145.

County board of education member may serve as a member of the General Assembly. 1962 Op. Att'y Gen. p. 52.

County board of education member may serve as a justice of the peace. 1948-49 Op. Att'y Gen. p. 499.

Service on county board of equalization and voter registration. - There is no violation of this section when a person serves simultaneously as a member of the county board of equalization and as a member of the board of voter registration. 1975 Op. Att'y Gen. No. U75-75.

Section not applicable to county employees. - This section applies only to county officers as distinguished from county employees, such as county registrar and county land appraiser. 1973 Op. Att'y Gen. No. U73-83.

Holding two positions with local education board. - While O.C.G.A. § 45-2-2 prohibits a person from holding more than one county office, there is no state law or state regulation prohibiting a person from holding two positions of employment with a local board of education, and drawing a salary for each position. School bus drivers, teachers and janitors are employees of the local school system; therefore, a person could be employed as a school bus driver and as a janitor. 1957 Op. Att'y Gen. p. 98.

County employees not barred from holding county offices. - O.C.G.A. § 45-2-2 would not prohibit a person from holding the position of an employee of a county water system and also that of a member of a county board of education. 1963-65 Op. Att'y Gen. p. 438.

County employees not barred from holding county offices. - A person can serve as both an assistant district attorney of a judicial circuit and a member of a county board of education. 1958-59 Op. Att'y Gen. p. 105.

O.C.G.A. § 45-2-2 inapplicable to school principal or teacher. - A teacher of vocational agriculture is a county employee and not a county officer; therefore, O.C.G.A. § 45-2-2 would not apply to such teacher. 1954-56 Op. Att'y Gen. p. 77.

A school principal or a public school teacher is a county employee and not a county officer; therefore, this section would not apply to a school principal or teacher. 1958-59 Op. Att'y Gen. p. 100.

There is no prohibition which would prevent a teacher from becoming a candidate for a seat on the county board of education. 1968 Op. Att'y Gen. No. 68-231.

Legality of school employee's contract with board of which the employee is a member. - A school principal or a public school teacher could legally serve as a member of the county board of education; however, the legality of a contract of employment entered into by a school principal or teacher with a county board of education of which the said principal or teacher is a member is questionable. 1958-59 Op. Att'y Gen. p. 100.

State employees not barred from holding county offices. - The chair of a county board of commissioners may be employed as a full-time probation officer by the State Board of Probation. 1968 Op. Att'y Gen. No. 68-21.

A person in the employ of the state as a professor may occupy a seat on the school board of a county. 1968 Op. Att'y Gen. No. 68-168.

A member of a State Agricultural Commodities Commission may simultaneously hold the office of county commissioner. 1976 Op. Att'y Gen. No. U76-30.

There is no legal impediment to a judge of the state court of a county simultaneously serving as juvenile court judge for a judicial circuit which embraces several counties including the county for which that person is a state court judge. 1976 Op. Att'y Gen. No. U76-56.

Court reporter receiving allowance under O.C.G.A. § 15-14-6 may qualify for office of justice of peace. - Person designated as official court reporter, who receives state allowances pursuant to Ga. L. 1971, p. 417, § 1 (see now O.C.G.A. § 15-14-6 ), may qualify and campaign for office of justice of the peace. 1980 Op. Att'y Gen. No. U80-23.

Justice of the peace not barred from holding office of county commissioner. - Justice of the peace, not being a county official, is not barred from holding at same time office of county commissioner. 1962 Op. Att'y Gen. p. 53.

Service on county political committee and board of education. - An elected member of a county democratic committee may serve at the same time as a member of the county board of education; membership on the county democratic committee is a political position and not a county office. 1967 Op. Att'y Gen. No. 67-147.

Justice of the peace may be member on a political party's county executive committee. - There is no prohibition against a justice of the peace at the same time holding membership on the county democratic executive committee. 1962 Op. Att'y Gen. p. 50.

A coroner is a county officer and may hold a state office, e.g., that of constable or justice of the peace. 1954-56 Op. Att'y Gen. p. 55.

Coroner may be appointed constable. - There is no statutory provision preventing the appointment of a coroner to act as constable, provided that the constable is appointed under the conditions and procedure provided in the Code for the appointment of constables under certain conditions. 1957 Op. Att'y Gen. p. 20.

Coroner may act as county police officer. - It does not appear that a coroner would be prohibited under this section from acting as a county police officer. 1957 Op. Att'y Gen. p. 20.

Coroner may not act as deputy sheriff. - County coroner may not legally hold office as deputy sheriff. 1954-56 Op. Att'y Gen. p. 54.

It appears that offices of deputy coroner and deputy sheriff are incompatible because of inconsistent duties under O.C.G.A. Art. 2, Ch. 16, T. 45; thus, a deputy sheriff may not also serve as deputy coroner. 1981 Op. Att'y Gen. No. U81-6.

Coroner may not hold county office. - A coroner, being a county officer, could not hold the office of deputy sheriff or any other county office or deputy to a county officer, but could hold a job as a municipal police officer or as a notary public ex officio justice of the peace or constable. 1958-59 Op. Att'y Gen. p. 38.

Coroners and deputy coroners. - Coroners and deputy coroners may not serve as deputy sheriffs or city police officers. 1997 Op. Att'y Gen. No. U97-18.

Deputy sheriff not to serve as county coroner. - A person legally commissioned as a deputy sheriff cannot simultaneously be commissioned and serve as coroner of the county unless the General Assembly has specifically provided for dual service. 1969 Op. Att'y Gen. No. 69-356.

Incompatible county offices. - Under this section, a person could not hold the office as a member of the county board of public welfare and as a member of the county board of education. 1945-47 Op. Att'y Gen. p. 648.

A member of the county board of commissioners of roads and revenues may not become county school superintendent. 1945-47 Op. Att'y Gen. p. 147.

Chair of the commissioners may not serve as county convict warden. 1960-61 Op. Att'y Gen. p. 55.

A deputy sheriff cannot serve as a member of a county board of education. 1965-66 Op. Att'y Gen. No. 65-78.

Tax commissioner prohibited from serving as assistant to probate judge. - This section precludes the appointment of a tax commissioner as an assistant to the probate judge for the purpose of conducting an election. 1975 Op. Att'y Gen. No. 75-90.

Judge of probate court cannot legally hold the office of superior court clerk; however, if a vacancy occurs at a time other than during the term of the superior court and the vacancy results from an emergency and the ordinary (now probate judge) cannot otherwise fill the vacancy in the manner described in former Code 1933, §§ 24-2707 and 24-2709, the probate judge may act as clerk. 1974 Op. Att'y Gen. No. 74-42.

Judge of probate court may not hold the office of county attorney. - A judge of probate court of a county is not qualified to also hold the public office of county attorney; it is self-evident that the duties of the two public offices in many instances would be conflicting and would be incompatible. 1962 Op. Att'y Gen. p. 61.

Service as volunteer firefighter. - Dual service as a volunteer firefighter and member of a city council or county commission does not violate O.C.G.A. § 36-30-4 or O.C.G.A. § 45-2-2 ; however, cities and counties must determine for themselves, based on the circumstances, whether a common law conflict of interest exists. 1998 Op. Att'y Gen. No. U98-8.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 57 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 27.

ALR. - Effect of election to or acceptance of one office by incumbent of another where both cannot be held by same person, 100 A.L.R. 1162 .

45-2-3. Persons failing to obtain commissions ineligible for reelection.

Persons who, after an election, fail to comply with all the prerequisites of the law in order to obtain commissions or certificates to discharge the duties of their office shall, by reason of such failure, be ineligible for reelection to the same office at the next election.

(Orig. Code 1863, § 127; Code 1868, § 122; Code 1873, § 131; Code 1882, § 131; Civil Code 1895, § 225; Civil Code 1910, § 260; Code 1933, § 89-104.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 128 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 48, 49.

45-2-4. Officers to reside in state, discharge duties until successor commissioned, and have seal.

All officers of this state shall reside in this state at such places as are designated by law and shall discharge the duties of their offices until the successors are commissioned and qualified, except that public officers appointed by the Governor and subject to confirmation by the Senate shall not hold over until their successors have been appointed and confirmed; and all officers whose certificates or records or other papers are admissible in evidence in any court in this state must have and keep an official seal.

(Orig. Code 1863, § 128; Code 1868, § 123; Code 1873, § 132; Code 1882, § 132; Civil Code 1895, § 226; Civil Code 1910, § 261; Code 1933, § 89-105; Ga. L. 1982, p. 3, § 45; Ga. L. 1990, p. 8, § 45.)

Cross references. - Governor filling certain vacancies, § 45-12-52 .

Law reviews. - For article examining history of recall in Georgia local government law, and considering future developments, see 10 Ga. L. Rev. 883 (1976).

JUDICIAL DECISIONS

No vacancy created. - The office does not expire at the expiration of the term, but the elected officer holds over until a successor is commissioned and qualified. Holding over prevents vacancy. Stephenson v. Powell, 169 Ga. 406 , 150 S.E. 641 (1929).

An office is not vacant so long as it is filled by an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it. Garcia v. Miller, 261 Ga. 531 , 408 S.E.2d 97 (1991).

Superior court judge to serve "until his successor is qualified." - Previous state constitutions explicitly provided that the term of office for superior court judges "shall be for four years, and until his successor is qualified." Omission of the phrase "until his successor is qualified" in the 1983 Constitution does not prevent judges from remaining in office after their four-year term of office ends. Garcia v. Miller, 261 Ga. 531 , 408 S.E.2d 97 (1991).

Because a complete and continuous judicial system is required to ensure that governmental functions continue without interruption, the judicial power of holdover superior court judges remains vested in them until their successors are qualified. Garcia v. Miller, 261 Ga. 531 , 408 S.E.2d 97 (1991).

Commission not conclusive evidence as to term of office. - A commission issued by the Governor to a duly elected member of the board of education of a county, in which the term of such officer is stated to be for a given number of years and to end on a designated date, is not conclusive evidence of the right of such officer to hold beyond such term and designated date, and does not prevent courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins and ends. The statute and not the commission determines the commencement and ending of the term of such officer. Stephenson v. Powell, 169 Ga. 406 , 150 S.E. 641 (1929).

Board of commissioners to hold over. - After a local Act was enacted to abolish the board of county commissioners and establish a new board, but the Act failed to provide for an election date for the new members, the members of the board existing at the date of its passage should discharge the duties and functions of their office until the members of the new board are elected and qualified. Kidd v. Nelson, 213 Ga. 417 , 99 S.E.2d 123 (1957).

Legislature may specify a special procedure to fill vacancies in positions of county commissioners as long as that procedure violates no other constitutional provision. Smith v. Abercrombie, 235 Ga. 741 , 221 S.E.2d 802 (1975).

Liability on bond continues. - The effect of this section is to extend the term of office under the original appointment until a successor has been qualified, with the further effect that liability on an official bond continues when an official elected for a fixed period thereafter holds over, after its expiration, until a successor is appointed. City of Elberton v. Jones, 35 Ga. App. 536 , 133 S.E. 745 (1926).

While the general rule is that sureties are liable only for a breach of official duty committed by their principal during the term of office for which the bond was given, the effect of this section is to extend the term of office under the original appointment until a successor has been qualified, with the further effect that liability on such a bond continues when an official elected for a fixed period thereafter holds over, after its expiration, until a successor is appointed. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Hold over official properly replaced. - Removal of the appellant from a city zoning board was upheld because once the appellant held over, the appellant could be replaced at any time, without regard to cause, by the city council appointing a successor and since the member did not have a legitimate claim of entitlement to the position once becoming a holdover official, the appellant was not entitled to due process protections before the city council appointed the successor. Kanitra v. City of Greensboro, 296 Ga. 674 , 769 S.E.2d 911 (2015).

Cited in Bashlor v. Bacon, 168 Ga. 370 , 147 S.E. 762 (1929); Wiley v. Douglas, 168 Ga. 659 , 148 S.E. 735 (1929); Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930); Mitchell v. Pittman, 184 Ga. 877 , 194 S.E. 369 (1937); Britton v. Bowden, 188 Ga. 806 , 5 S.E.2d 47 (1939); Roan v. Rodgers, 201 Ga. 696 , 40 S.E.2d 551 (1946); Brooks v. Malone, 247 Ga. 314 , 275 S.E.2d 653 (1981).

OPINIONS OF THE ATTORNEY GENERAL

No vacancy of office as long as authorized officer exists. - There cannot be a vacancy in an office so long as there is an officer authorized by law to perform the officer's functions. 1958-59 Op. Att'y Gen. p. 107.

Officers not permitted to hold over. - Members of the Professional Standards Commission may not continue to serve past their appointed three-year terms and until their successors are appointed and qualified; they are public officers subject to O.C.G.A. § 45-2-4 , in the absence of express language to the contrary. 1998 Op. Att'y Gen. No. 98-3.

Duty of incumbent to hold over. - Upon the expiration of the term of the incumbent, whose tenure is for a definite term, it is the duty of the incumbent to continue in the discharge of that office until a successor is qualified; the superadded period being a part of the rightful term of office. 1958-59 Op. Att'y Gen. p. 107.

To whom holding over requirement applies. - A county welfare board member whose term has expired can and should hold over and perform the duties of such office until a successor has been duly appointed and qualified. 1948-49 Op. Att'y Gen. p. 466.

A justice of the peace must continue in office until a successor is appointed and qualified for taking the oath of office. 1958-59 Op. Att'y Gen. p. 54.

As local board of education members are public officers, their terms shall continue until their successors are commissioned. 1975 Op. Att'y Gen. No. 75-15.

Members-elect of a local board of education shall not enter upon the duties of office until qualified, commissioned, and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. 1975 Op. Att'y Gen. No. 75-15.

An incumbent soil and water conservation district supervisor continues in office until a successor has been duly elected, sworn in, and commissioned. 1976 Op. Att'y Gen. No. 76-10.

Justices of the peace, constables, and notaries public ex officio justices of the peace act in a hold-over capacity and discharge the duties of their offices until their successors are commissioned and qualified. 1969 Op. Att'y Gen. No. 69-173.

Compensation for holding over period. - A district attorney held in office pending outcome of the election of a successor is entitled to payment for that period. 1969 Op. Att'y Gen. No. 69-361.

Senate's declining to consider appointments. - Adjournment of the Senate sine die without confirmation of gubernatorial appointments created vacancies in those offices and the Governor is free to fill those vacancies through the Governor's own ad interim appointments until the Senate should next meet. 2003 Op. Att'y Gen. No. 2003-5.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 80 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 26.

45-2-5. Municipal or county governments not to require residence as condition of employment.

No municipal or county government in this state shall require as a condition of employment by such government that applicants for employment as officers or employees, or such officers or employees now or hereafter employed, must reside within the boundaries of the municipality or county.

(Ga. L. 1975, p. 1576, § 1.)

Law reviews. - For article discussing effect of City of Atlanta v. Myers, 240 Ga. 261 , 240 S.E.2d 60 (1977), on limits of municipal government autonomy, see 12 Ga. L. Rev. 805 (1978). For article, "The United States Supreme Court as Home Rule Wrecker," see 34 Mercer L. Rev. 363 (1982).

JUDICIAL DECISIONS

Ordinance restricting residence held unconstitutional. - Ordinance of the City of Atlanta providing residential requirements for officers and employees of the police and fire bureaus contrary to this section is unconstitutional and void under Ga. Const. 1976, Art. I, Sec. II, Para. VII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Atlanta v. Myers, 240 Ga. 261 , 240 S.E.2d 60 (1977).

Ordinance not in conflict with this section. - A city ordinance requiring all public safety personnel to reside within 8.75 miles of city hall, is not in conflict with O.C.G.A. § 45-2-5 because this ordinance does not impose a distance requirement which makes residence within the political subdivision necessary. Dixon v. City of Perry, 262 Ga. 212 , 416 S.E.2d 279 (1992).

Residency not required. - County attorney is not a county elected official, but rather is a county employee, so the residency requirement of O.C.G.A. § 45-2-1(1) does not apply to the county attorney under Ga. Const. 1983, Art. IX, Sec. I, Para. III and O.C.G.A. § 45-2-5 ; a county attorney is entitled to sovereign immunity as a county employee. Wallace v. Greene County, 274 Ga. App. 776 , 618 S.E.2d 642 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Qualifications of voter registrars and deputy registrars established by former Code 1933, are unaffected by Ga. Laws 1975, p. 1576 (see now O.C.G.A. § 45-2-5 ), prohibiting counties and municipalities from requiring employees to reside within. 1975 Op. Att'y Gen. No. 75-111.

City of Commerce may not require that city manager be elector of municipality. - See 1986 Op. Att'y Gen. No. U86-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 80 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 26.

45-2-6. Municipal or county governments not to use residence as advantage or disadvantage in administering employee merit system.

A municipal or county government of this state, in using any merit system examination or other type of examination or evaluation of personnel in connection with application for employment, demotion, or discharge of employees or promotion of employees, shall not apply additional points, credits, or other benefits to residents of the municipality or county to give such residents an advantage for the purpose of employment or promotion, or a disadvantage for the purpose of demotion or discharge, over nonresidents solely on the basis of residency. This Code section and Code Section 45-2-5 shall not be construed to prohibit the choice of a resident over a nonresident when both applicants for employment or both employees are equally qualified for the position sought by them or when both employees are equally at fault or ineffective when they are being considered for demotion or discharge from employment.

(Ga. L. 1975, p. 1576, § 2; Ga. L. 2002, p. 415, § 45.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 80 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 26.

45-2-7. Employment of aliens - Prohibited generally; exceptions.

Reserved. Repealed by Ga. L. 2015, p. 385, § 3-2/HB 252, effective July 1, 2015.

Editor's notes. - This Code section was based on Ga. L. 1937-38, Ex. Sess., p. 189, § 1; Ga. L. 1955, p. 382, § 1; Ga. L. 1968, p. 1244, § 1; Ga. L. 2009, p. 859, § 15/HB 509.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

45-2-8. Employment of aliens - Official subject to removal for violation.

Reserved. Repealed by Ga. L. 2015, p. 385, § 3-2/HB 252, effective July 1, 2015.

Editor's notes. - This Code section was based on Ga. L. 1937-38, Ex. Sess., p. 189, § 2.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

45-2-9. State agencies not to discriminate in employment against servicemen's wives.

  1. No department, agency, or board of the state shall deny employment with such department, agency, or board to a wife whose husband is on active duty in the armed forces of the United States or on active duty in a reserve component of the armed forces of the United States, including the national guard, merely because she is a wife of a member of the armed forces.
  2. This Code section shall not be construed to require a department, agency, or board of the state to employ any person who is not qualified for such employment or to employ any person if no opening is available for the position applied for by such person. This Code section is intended only to prevent departments, agencies, and boards of the state from discriminating against wives of servicemen in the opportunity of securing employment with such departments, agencies, and boards.

    (Ga. L. 1970, p. 169, § 1.)

Cross references. - Priority of service designation for veterans and spouses, § 34-14-6.

ARTICLE 2 VETERANS' CIVIL SERVICE PREFERENCE

Cross references. - Commissioner of veterans service, preference to veterans, § 38-4-9 .

Point credit for veterans taking examinations given by state examining boards, § 43-1-9 et seq.

45-2-20. "Armed conflict" defined.

As used in this article, the term "armed conflict" means armed military intervention beyond the limits of the United States, as well as any confrontation of the armed forces of the United States with foreign nationals in which actual hostilities erupt.

(Ga. L. 1969, p. 642, § 3.)

Cross references. - Priority of service designation for veterans and spouses, § 34-14-6.

"War veterans" defined, § 38-4-50 .

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 37, 39, 69.

ALR. - Character of service or connection with military or naval service necessary to entitle one to benefit of veterans' prefer statute in relation to civil service, 87 A.L.R. 1002 .

45-2-21. Veteran entitled to additional five points on civil service examination score.

  1. Any veteran who has served on active duty as a member of the armed forces of the United States for a period of more than 180 days, not counting service under an initial period of active duty for training under the six-months' reserve or National Guard programs, any portion of which service occurred during a period of armed conflict in which any branch of the armed forces of the United States engaged, whether under United States command or otherwise, and who was honorably discharged therefrom shall be entitled to and shall have five points added to his passing score on any competitive civil service examination for employment with the state government or any political subdivision thereof; provided, however, that such veteran is not already eligible for veterans preference under Article IV, Section III, Paragraph II of the Constitution of Georgia.
  2. Notwithstanding the 180 day minimum active duty requirement of subsection (a) of this Code section, the five-point preference granted to veterans under said subsection shall apply to any member of the National Guard or armed forces reserve who served on active duty for any length of time during any portion of the time the armed forces of the United States were engaged in Operation Desert Shield or Operation Desert Storm if such service occurred in an area of imminent danger as defined by the United States Department of Defense as follows:

    "Area of imminent danger" means:

    1. The Persian Gulf;
    2. The Red Sea;
    3. The Gulf of Oman;
    4. The portion of the Arabian Sea that lies north of 10 degrees north latitude and west of 68 degrees east longitude;
    5. The Gulf of Aden; and
    6. The total land area of Saudi Arabia, Kuwait, Iraq, Yemen, Oman, Bahrain, Qatar, and the United Arab Emirates.

      (Ga. L. 1969, p. 642, § 1; Ga. L. 1983, p. 3, § 61; Ga. L. 1984, p. 22, § 45; Ga. L. 1992, p. 2087, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "National Guard" was substituted for "national guard" in subsection (a).

Law reviews. - For article, "Veterans' Preferences in Public Employment: Unconstitutional Gender Discrimination?," see 26 Emory L.J. 13 (1977).

JUDICIAL DECISIONS

Justification for preference. - The veterans' hiring preference has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations. Dash v. Department of Human Resources, 153 Ga. App. 633 , 266 S.E.2d 305 (1980).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 37, 69.

ALR. - Character of service or connection with military or naval service necessary to entitle one to benefit of veterans' prefer statute in relation to civil service, 87 A.L.R. 1002 .

Constitutionality of state veterans' public employment preference laws, 161 A.L.R. 494 .

Rights of non-civil service public employees, with respect to discharge or dismissal, under state veterans' tenure statutes, 58 A.L.R.2d 960.

45-2-22. Disabled veteran entitled to additional ten points on civil service examination score.

Any veteran, as provided in Code Section 45-2-21, who has at least a 10 percent service connected disability, as rated and certified by the United States Department of Veterans Affairs, shall be entitled to and shall have ten points added to his passing score on any competitive civil service examination, said ten-point preference being in lieu of and not in addition to any other similar preference accorded by law.

(Ga. L. 1969, p. 642, § 2; Ga. L. 1990, p. 8, § 45; Ga. L. 1990, p. 45, § 1.)

JUDICIAL DECISIONS

Justification for preference. - The veterans' hiring preference has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations. Dash v. Department of Human Resources, 153 Ga. App. 633 , 266 S.E.2d 305 (1980).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 37, 39, 69.

ALR. - Character of service or connection with military or naval service necessary to entitle one to benefit of veterans' prefer statute in relation to civil service, 87 A.L.R. 1002 .

Constitutionality of state veterans' public employment preference laws, 161 A.L.R. 494 .

ARTICLE 3 PHYSICAL EXAMINATION OF STATE EMPLOYEES

Cross references. - Confidentiality of medical information, § 24-12-10 et seq.

Power of Department of Human Resources to require reporting of certain diseases and injuries, § 31-12-2 .

Disclosure of medical records and other medical information pertaining to the mentally ill, the mentally retarded, alcoholics, etc. §§ 37-3-166 , 37-4-125 , 37-7-166 .

Medical and physical examination program: Prospective state employees, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Personnel Board, Chapter 478-4.

45-2-40. Employees to furnish certificate of physical fitness for employment.

No person who is otherwise qualified shall be employed in any capacity by the state or any department or agency thereof unless the person is certified as meeting the standards of medical and physical fitness by a qualified medical practitioner within a prescribed number of calendar days after the date of an offer of employment. However, the State Personnel Board may provide for standards of medical and physical fitness for some positions that require only certification by the prospective employee and such certification may be accepted by the respective employing department without further assessment by a medical practitioner.

(Ga. L. 1956, p. 808, § 1; Ga. L. 1960, p. 189, § 1; Ga. L. 1975, p. 76, § 1; Ga. L. 1990, p. 8, § 45; Ga. L. 1996, p. 1094, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

The only exception to this section is a temporary employee who is employed for a period not exceeding 45 days, and who is not reemployed more than once for a similar period within any 12 consecutive months; all other employees must have a preemployment physical examination as a prerequisite to employment by the state. 1963-65 Op. Att'y Gen. p. 678 (rendered prior to 1996 amendment).

RESEARCH REFERENCES

Am. Jur. 2d. - Am. Jur. 2d, New Topic Service, Americans with Disabilities Act, §§ 1 et seq., 281 et seq.

45-2-41. Committee of doctors to develop fitness standards; licensed physician to make physical examination; contracts for assessments of employees; fee for committee members and consultants; certification.

  1. The commissioner of administrative services, subject to the approval of the State Personnel Board, shall appoint up to five doctors of medicine licensed by the state and other specialists, as appropriate, to develop standards of medical and physical fitness required for persons about to be appointed to positions in the state service. Such standards shall be related to the duties required of specific positions in the state service. The commissioner of administrative services shall develop the forms to secure the information needed to determine if prospective employees meet the medical and physical fitness standards required to perform the essential functions of the relevant position.
  2. If a physical examination is required by the standards of medical and physical fitness, a licensed medical practitioner may perform the assessment and report the findings to a physician in the employ of or under contract with the state or respective employing department. The licensed medical practitioner may be of the applicant's choice and at the applicant's expense or may be a licensed physician in the employ of or under contract with the state or respective employing department. When the licensed physician is in the employ of or under contract with the state or respective employing department, the assessment and findings shall be made to the respective department and shall be final, except as provided in the State Personnel Board rules.
  3. The commissioner of administrative services may, through a competitive proposal process, enter into an agreement on behalf of the departments to contract with medical practitioners for the purpose of conducting assessments for medical and physical fitness as required by the standards of medical and physical fitness. In such case, each department may use the selected contractor as an expense of a departmental employee selection process or may recommend that prospective employees seek the examination at the contractor's site at the prospective employee's expense. If the prospective employee chooses to use a medical practitioner other than one selected by the department or under contract with the state on behalf of the department, the findings and recommendations of such other practitioner shall be furnished to the medical practitioner selected by the department or under contract with the state on behalf of the department for final determination of the medical and physical fitness of the prospective employee. Expenses for the medical practitioner under contract with the state on behalf of the department shall be paid by the respective employing department based upon the services provided by such medical practitioner.
  4. The State Personnel Board is authorized to establish a fee and make payment of same to the consultants appointed by the commissioner of administrative services for services rendered in the development of standards of medical and physical fitness for state employees; provided, however, that no state employee shall receive additional compensation for services as a consultant for developing the standards of medical and physical fitness.
  5. The certification required by Code Section 45-2-40 shall be completed as required in the rules of the State Personnel Board; provided, however, that if a physical examination is required by the standards for medical and physical fitness, the physical examination shall be completed prior to the date of appointment, and the reporting of results shall occur within a prescribed number of calendar days from the date of appointment.

    (Ga. L. 1956, p. 808, § 2; Ga. L. 1960, p. 189, § 2; Ga. L. 1962, p. 541, §§ 1-3; Ga. L. 1975, p. 76, § 2; Ga. L. 1990, p. 8, § 45; Ga. L. 1996, p. 1094, § 2; Ga. L. 2012, p. 446, § 2-67/HB 642.)

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

OPINIONS OF THE ATTORNEY GENERAL

Legislative intent. - Legislative intent in enactment of O.C.G.A. § 45-2-41 is to ensure that the prospective employee will be physically capable of carrying out the duties of appointment. In addition, O.C.G.A. § 45-2-41 protects the prospective employee from possible harmful effects associated with employment, which may arise by virtue of a particular preexisting physical malady. O.C.G.A. § 45-2-41 also affords protection to the state and its agencies from potential liability under workers' compensation laws for conditions arising after employment, but caused in whole or in part by preexisting physical conditions. 1981 Op. Att'y Gen. No. 81-23.

The General Assembly intended use of state-employed physicians to the greatest extent possible. 1981 Op. Att'y Gen. No. 81-23 (rendered prior to 1996 amendment).

Prospective employee need not employ and pay private physician for preemployment physical. 1981 Op. Att'y Gen. No. 81-23 (rendered prior to 1996 amendment).

Payment by Department of Transportation of costs of preemployment physical examinations. - Department of Transportation is authorized, via appropriate contractual arrangements, to pay costs of preemployment physical examinations directly to local physicians appointed by Department of Human Resources. The Department of Transportation also may reimburse Department of Human Resources, via appropriate contractual arrangements, for costs of preemployment physical examinations paid by Department of Human Resources to local physicians appointed by it. 1981 Op. Att'y Gen. No. 81-23.

Examination to be performed by any licensed physician. - This section does not state that the physician has to be licensed in the State of Georgia; therefore, as long as the examining physician is "licensed" the requirements of law are met. 1963-65 Op. Att'y Gen. p. 598.

A physical examination of an employee must be completed before disbursement of salary to an affected employee; however, the report on the physical examination may be filed with the appointing authority by the examining physician after the disbursement of salary within a prescribed number of calendar days as fixed by the State Personnel Board; this means that a new employee can be officially appointed and begin actual performance of duties prior to the completion of the physical examination, but that the physical examination is to be completed before the disbursement of any salary; a salary check may not be given to the employee prior to the completion of the physical examination, and the number of days fixed by the Merit System is only with reference to the report of the physical examination. 1963-65 Op. Att'y Gen. p. 499 (rendered prior to 1996 amendment).

Effect of disbursements prior to completion of physical examination. - The Merit System cannot certify to the correctness of payroll of the Department of Human Resources in its customary post-audit if the payroll shows disbursements prior to the completion of the physical examination, as this would not be in compliance with O.C.G.A. § 45-2-41 . 1963-65 Op. Att'y Gen. p. 499 (rendered prior to 1996 amendment).

45-2-42. State department or agency to furnish standards of fitness of positions.

The state department or agency shall furnish to the applicant the standards of medical and physical fitness for the position for which applied in such manner as to enable a medical practitioner to ascertain the physical capacity of the applicant to fulfill the requirements of employment.

(Ga. L. 1956, p. 808, § 3; Ga. L. 1975, p. 76, § 3; Ga. L. 1996, p. 1094, § 3.)

45-2-43. Examining medical practitioner to make report; conditions impairing prescribed duties; consent for distribution of additional confidential medical information; reports; confidentiality of files.

If a physical examination is required, the examining medical practitioner shall make a report certifying that the prospective employee has been examined and certified as not having any condition that would impair the fulfillment of the prescribed duties of the employment. However, if a condition exists which would impair the fulfillment of the prescribed duties, the medical practitioner shall identify such condition, the employing agency shall provide reasonable accommodation to the extent required by the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and the medical practitioner shall certify that the prospective employee, with the accommodation, meets the standards of medical and physical fitness for the position. Additional confidential medical information should be given only with the consent of the applicant. The examining medical practitioner shall complete the necessary forms and findings in accordance with the rules of the State Personnel Board. All such medical information shall be retained in a separate, confidential file and not as a part of the personnel file.

(Ga. L. 1956, p. 808, § 4; Ga. L. 1975, p. 76, § 4; Ga. L. 1996, p. 1094, § 3; Ga. L. 2002, p. 415, § 45.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, a period was deleted at the end of the next to last sentence.

45-2-44. State Personnel Board to adopt rules and regulations; expenditure of funds.

The State Personnel Board, subject to the approval of the Governor, shall adopt and promulgate rules and regulations for the administration of this article. The board, through the commissioner of administrative services, is authorized to expend allocated funds for the necessary forms and other incidental administrative expenses in effectuating this article. All other expenses shall be borne by the prospective employee or the respective employing department in accordance with the rules of the board.

(Ga. L. 1956, p. 808, § 5; Ga. L. 1960, p. 189, § 3; Ga. L. 1996, p. 1094, § 3; Ga. L. 2012, p. 446, § 2-68/HB 642.)

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 127 et seq.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, §§ 207-227.

45-2-45. Applicability of article.

This article shall not apply to department heads, temporary employees, other categories of employees of the state as defined by the State Personnel Board, or to students in the University System of Georgia in the employ of the state, nor shall it apply to any present employee. As used in this Code section, the term "temporary employee" means a person whose period of employment is of short duration or is part time as defined by the State Personnel Board.

(Ga. L. 1956, p. 808, § 6; Ga. L. 1960, p. 189, § 4; Ga. L. 1962, p. 541, § 4; Ga. L. 1996, p. 1094, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Application to employees in the University System of Georgia. - The exemption of this section applies only to the heads of state departments and not the various subdivisions, subdepartments, and branches of departments of state government; therefore, as it applies to the department, the Regents of the University System of Georgia, the exemption would only apply to the chancellor and not to presidents of the various units of the department, nor various administrative and academic departments and subdivisions thereof. 1963-65 Op. Att'y Gen. p. 598 (rendered prior to 1996 amendment).

CHAPTER 3 OFFICIAL OATHS AND COMMISSIONS

Article 1

Official Oaths.

Article 2

Commissions.

ARTICLE 1 OFFICIAL OATHS

45-3-1. Oaths required in addition to oath of office and constitutional oath.

Every public officer shall:

  1. Take the oath of office;
  2. Take any oath prescribed by the Constitution of Georgia;
  3. Swear that he or she is not the holder of any unaccounted for public money due this state or any political subdivision or authority thereof;
  4. Swear that he or she is not the holder of any office of trust under the government of the United States, any other state, or any foreign state which he or she is by the laws of the State of Georgia prohibited from holding;
  5. Swear that he or she is otherwise qualified to hold said office according to the Constitution and laws of Georgia;
  6. Swear that he or she will support the Constitution of the United States and of this state; and
  7. If elected by any circuit or district, swear that he or she has been a resident thereof for the time required by the Constitution and laws of this state.

    (Orig. Code 1863, § 134; Code 1868, § 129; Code 1873, § 139; Code 1882, § 139; Civil Code 1895, § 234; Civil Code 1910, § 269; Code 1933, § 89-302; Ga. L. 1986, p. 168, § 1; Ga. L. 1998, p. 510, § 1.)

Cross references. - Disqualification from public office of holders of unaccounted-for public money due state, Ga. Const. 1983, Art. II, Sec. II, Para. III and § 45-2-1 .

Criminal penalty for violation of oath by public officer, § 16-10-1 .

Law reviews. - For article, "The Georgia Bill of Rights: Dead or Alive?," see 34 Emory L.J. 341 (1985).

JUDICIAL DECISIONS

Oath not required of municipal officers. - This section applies to officers commissioned by the Governor, and not to municipal officers not commissioned by the Governor. Brewer v. Johnson, 184 Ga. 806 , 193 S.E. 778 (1937).

Unless required by city charter or other statute. - An oath by a municipal officer is not necessary in the absence of any requirement thereof by the city charter or some other statute. Brewer v. Johnson, 184 Ga. 806 , 193 S.E. 778 (1937).

Cited in McDuffie v. Perkerson, 178 Ga. 230 , 173 S.E. 151 (1933); Morgan v. Crow, 183 Ga. 147 , 187 S.E. 840 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Oath required of members of county board of health. - Members of the county board of health were public officers within the meaning of former Code 1933, §§ 89-301 and 89-302 (see now O.C.G.A. §§ 45-3-16 and 45-3-1 , respectively) and were required to take the oath as prescribed by Ga. L. 1961, p. 552, § 1 (see now O.C.G.A. § 45-3-11 ). 1963-65 Op. Att'y Gen. p. 432.

Oath required of local board of education member. - A local board of education member was required to take the oath specified in former Code 1933, § 89-302 (see now O.C.G.A. § 45-3-1 ). Until the member takes the oath, the local board member was not to enter upon the duties of office. 1975 Op. Att'y Gen. No. 75-15.

Reelected or reappointed board member may continue to serve prior to taking oath for new term. - Members-elect of a local board of education shall not enter upon the duties of office until qualified, commissioned, and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. 1975 Op. Att'y Gen. No. 75-15.

Forestry investigators not required to take oaths other than loyalty oath. - Forestry investigators provided for by former Code 1933, § 43-208 (see now O.C.G.A. § 12-6-20 ) were not "public officers" of the state, but were "employees" only, and as such are under no requirement to give bond or take an oath, other than the loyalty oath. 1952-53 Op. Att'y Gen. p. 95.

Office of trust under United States Government. - An attorney-hearing examiner for the United States Merit Systems Protection Board may not simultaneously serve as a part-time associate magistrate since the examiner would be exercising discretion vested in the board for the benefit of the public, and thus would be subject to the same disqualification contemplated by O.C.G.A. §§ 45-2-1(4) and 45-3-1(4) as a member of the board, despite technical status as an "employee." 1985 Op. Att'y Gen. No. U85-12.

45-3-2. Form and subscription of oath.

The form of the oath prescribed in Code Section 45-3-1 and the oath of office to be taken and subscribed shall be forwarded with the dedimus potestatem and shall be taken and subscribed at the time of receiving the commission before the officer to whom the same is directed and in conformity with any directions.

(Orig. Code 1863, § 135; Code 1868, § 130; Code 1873, § 140; Code 1882, § 140; Civil Code 1895, § 235; Civil Code 1910, § 270; Code 1933, § 89-303.)

45-3-3. Officer authorized to administer oaths; oaths to be written, subscribed, and dated.

When not otherwise provided by law and when not directed in the dedimus potestatem, the oaths of office may be taken before any officer authorized by law to administer an oath. Such oaths shall be written and subscribed by the persons taking them and accompanied by the certificate of such officer, which shall specify the day and year taken.

(Orig. Code 1863, § 136; Code 1868, § 131; Code 1873, § 141; Code 1882, § 141; Civil Code 1895, § 236; Civil Code 1910, § 271; Code 1933, § 89-304.)

JUDICIAL DECISIONS

Cited in McDuffie v. Perkerson, 178 Ga. 230 , 173 S.E. 151 (1933).

OPINIONS OF THE ATTORNEY GENERAL

Oath of office of clerk of superior court may be administered by judge of superior court. 1980 Op. Att'y Gen. No. U80-48.

RESEARCH REFERENCES

ALR. - Necessity and sufficiency of officer's jurat or certificate as to oath, 116 A.L.R. 587 .

45-3-4. Filing of oaths - Generally.

The oaths prescribed in Code Section 45-3-1, when taken by an officer whose general duties are not confined to any one county unless otherwise specially provided, shall be filed with the certificate required by Code Section 45-3-3 in the office of the Governor and, when taken by an officer whose duties are confined to one county, shall be filed as provided in Code Section 45-3-5.

(Orig. Code 1863, § 137; Code 1868, § 132; Code 1873, § 142; Code 1882, § 142; Civil Code 1895, § 237; Civil Code 1910, § 272; Code 1933, § 89-305; Ga. L. 1990, p. 8, § 45.)

JUDICIAL DECISIONS

Cited in County Comm'rs v. O'Neal, 38 Ga. App. 158 , 142 S.E. 914 (1928); Talmadge v. Cordell, 167 Ga. 594 , 146 S.E. 467 (1928); Brewer v. Johnson, 184 Ga. 806 , 193 S.E. 778 (1937).

45-3-5. Filing of oaths - County officers.

When taken by the judges of the probate courts and the clerks of the superior courts, official oaths shall be filed in the office of the clerk of the superior court and also entered on the minutes of the court. When taken by sheriffs, the oaths shall be filed in the office of the judge of the probate court and shall be entered on the minutes of the superior courts; and when taken by coroners, tax collectors, tax receivers, county treasurers, magistrates, constables, or any other county officers, they shall be filed in the office of the judge of the probate court, who shall enter them on the minutes of his court.

(Orig. Code 1863, § 138; Code 1868, § 133; Code 1873, § 143; Code 1882, § 143; Civil Code 1895, § 238; Civil Code 1910, § 273; Code 1933, § 89-306; Ga. L. 1983, p. 884, § 4-1.)

45-3-6. Filing of oaths - Endorsement of filing time.

The officer in whose office the oaths prescribed in Code Section 45-3-1 are filed must endorse thereon the day and year of filing.

(Orig. Code 1863, § 139; Code 1868, § 134; Code 1873, § 144; Code 1882, § 144; Civil Code 1895, § 239; Civil Code 1910, § 274; Code 1933, § 89-307.)

45-3-7. Oaths of deputies.

Before proceeding to act, all deputies shall take the same oaths as their principals take and the oaths shall be filed and entered on the minutes of the same office with the same endorsement thereon; but this Code section shall not apply to any deputy who may be employed in particular cases only. A deputy sheriff may take his oaths before the sheriff and the oaths may be filed in and entered in the records of the sheriff's office.

(Orig. Code 1863, § 140; Code 1868, § 135; Code 1873, § 145; Code 1882, § 145; Civil Code 1895, § 240; Civil Code 1910, § 275; Code 1933, § 89-308; Ga. L. 1980, p. 527, § 1.)

JUDICIAL DECISIONS

Cited in Nave v. State, 171 Ga. App. 165 , 318 S.E.2d 753 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Emergency squad members to be qualified as deputy sheriffs. - A police intelligence unit should provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which they intend to operate. 1969 Op. Att'y Gen. No. 69-473.

Procedure for qualifying emergency deputies. - When a number of emergency deputies are to be appointed, they may all be qualified at a joint meeting by a superior court judge if all counties involved are within that circuit; if, however, other counties are to be served, proper oath must be taken within each such county. 1971 Op. Att'y Gen. No. U71-84.

45-3-8. Effect of failure to take and file oath generally.

No officer or deputy required by law to take and file the oaths prescribed in Code Section 45-3-1 shall enter upon the duties of his office without first taking and filing the same in the proper office.

(Orig. Code 1863, § 141; Code 1868, § 136; Code 1873, § 146; Code 1882, § 146; Civil Code 1895, § 241; Civil Code 1910, § 276; Code 1933, § 89-309.)

JUDICIAL DECISIONS

Cited in Brown v. Blackmon, 272 Ga. 435 , 530 S.E.2d 712 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Local board of education member to take oath prior to assuming duties. - A local board of education member was required to take the oath specified in former Code 1933, § 89-302 (see now O.C.G.A. § 45-3-1 ). Until the member takes the oath, the local board member was not to enter upon the duties of office. 1975 Op. Att'y Gen. No. 75-15.

Reelected or reappointed members may continue to serve. - Members-elect of a local board of education shall not enter upon the duties of office until qualified, commissioned, and administered the appropriate oaths. An incumbent board member who has been reelected or reappointed may continue to serve as an official member of the board prior to receiving the commission and being administered the appropriate oaths for the new term. 1975 Op. Att'y Gen. No. 75-15.

Emergency squad members to be qualified as deputy sheriffs. - A police intelligence unit should provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which they intend to operate. 1969 Op. Att'y Gen. No. 69-473.

RESEARCH REFERENCES

ALR. - Constitutional, statutory, or charter provision as to time of taking oath of office and giving official bond as mandatory or directory, 158 A.L.R. 639 .

45-3-9. Entry into duties of office without oath.

Any officer or deputy required by law to take and file an official oath who shall enter upon the duties of his office without first taking and filing the same in the proper office shall be guilty of a misdemeanor.

(Orig. Code 1863, § 141; Code 1868, § 136; Code 1873, § 146; Code 1882, § 146; Penal Code 1895, § 270; Penal Code 1910, § 273; Code 1933, § 89-9901.)

JUDICIAL DECISIONS

Cited in Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

OPINIONS OF THE ATTORNEY GENERAL

Effect of deputy's failure to take oath. - Failure of a deputy to take the required oath does not render the deputy's acts taken under color of office to be invalid, inasmuch as notwithstanding the deficiency, the deputy is still a "de facto officer"; the same rule applies where the deficiency is a failure to furnish bond. 1965-66 Op. Att'y Gen. No. 66-211.

Emergency squad members to be qualified as deputy sheriffs. - A police intelligence unit should provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which they intend to operate. 1969 Op. Att'y Gen. No. 69-473.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 369.

C.J.S. - 67 C.J.S., Officer and Public Employees, § 359.

45-3-10. Effect of failure to take and file oath upon validity of official acts.

The official acts of an officer shall be valid regardless of his omission to take and file the oath, except in cases where so specially declared.

(Orig. Code 1863, § 142; Code 1868, § 137; Code 1873, § 147; Code 1882, § 147; Civil Code 1895, § 242; Civil Code 1910, § 277; Code 1933, § 89-310.)

JUDICIAL DECISIONS

Official actions not invalidated for failure to take oath. - The validity of an election held at the proper time and place by qualified persons is not affected by their failure to take and subscribe the oath required by law, unless it appears that by reason of such failure the result of the election was different from what it would have been had the managers been duly sworn. King v. County Bd. of Educ., 174 Ga. 685 , 164 S.E. 52 (1932).

Liability of surety unaffected by failure to take oath. - The official bond given by a sheriff, conditioned for the faithful performance of the duties of office, obligates the surety thereon for any breach of official duty by the sheriff's deputies, and this includes deputies de facto. Powell v. Fidelity & Deposit Co., 45 Ga. App. 88 , 163 S.E. 239 (1932).

De facto officer's acts cannot be collaterally attacked. - Defendant's contention that notaries public lacked authority because they had not taken oath of office and were therefore invalidly appointed is refuted by O.C.G.A. § 45-3-10 ; and the case law in this state is in accord on a de facto officer theory that by proof of officer's acts the office is proven, and as a de facto officer those acts cannot be collaterally attacked and set aside. Little v. State, 157 Ga. App. 462 , 278 S.E.2d 17 (1981).

Cited in King v. County Bd. of Educ., 42 Ga. App. 563 , 156 S.E. 710 (1931); Philpot v. Wells, 69 Ga. App. 489 , 26 S.E.2d 155 (1943); Barrett v. Slagle, 214 Ga. 650 , 106 S.E.2d 908 (1959); Mach v. State, 109 Ga. App. 154 , 135 S.E.2d 467 (1964); Westley v. State, 143 Ga. App. 344 , 238 S.E.2d 701 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Official actions not invalidated for failure to take oath. - Failure of a deputy to take the required oath does not render the deputy's acts taken under color of office to be invalid, inasmuch as notwithstanding the deficiency, the deputy is still a "de facto officer"; the same rule applies where the deficiency is a failure to furnish bond. 1965-66 Op. Att'y Gen. No. 66-211.

RESEARCH REFERENCES

ALR. - Right of de facto officer to salary or other compensation annexed to office, 151 A.L.R. 952 .

Presumption and burden of proof as to one's status as a de facto officer upon which validity or effect of his act depends, 161 A.L.R. 967 .

45-3-10.1. Applicability of Code Sections 45-3-1 through 45-3-10.

  1. Code Sections 45-3-1 through 45-3-10 shall apply to all municipal corporations and to all peace officers of this state or any political subdivision or authority thereof.
  2. When taken by municipal officers, official oaths shall be filed in the office of the judge of the probate court. When taken by peace officers, official oaths shall be filed in the records of such department or agency. (Code 1981, § 45-3-10.1 , enacted by Ga. L. 1998, p. 510, § 2.)

45-3-11. Loyalty oath - Persons required to take oath generally.

All persons who are employed by and are on the payroll of the state and are the recipients of wages, per diem, or salary of the state or its departments and agencies, with the exception of pages employed by the General Assembly, and all counties and cities, school districts, and local educational systems throughout the entire state, are required to take an oath that they will support the Constitution of the United States and the Constitution of Georgia.

(Ga. L. 1949, p. 960, § 1; Ga. L. 1961, p. 552, § 1; Ga. L. 1982, p. 3, § 45; Ga. L. 1984, p. 22, § 45; Ga. L. 2002, p. 415, § 45; Ga. L. 2015, p. 385, § 5-3/HB 252.)

The 2015 amendment, effective July 1, 2015, deleted "and that they are not members of the Communist Party" following "the Constitution of Georgia" at the end of this Code section.

Cross references. - Investigation of person prior to public employment to ascertain whether such person is a subversive person, § 16-11-13 .

Eligibility of subversive persons to be nominated or elected to public office, § 21-2-7 .

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

Law reviews. - For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 , 12 L. Ed. 2 d 377 (1964), see 2 Ga. St. B.J. 123 (1965).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality of oath. - The portion of the Georgia loyalty oath which requires one to swear to support the constitutions of Georgia and the United States is constitutional and valid. The portion of the Georgia loyalty oath which requires one to disavow membership in the Communist Party is violative of the First and Fourteenth Amendments of the United States Constitution and should not be administered. 1985 Op. Att'y Gen. No. 85-19.

Oath required of members of county board of health. - Members of the county board of health were public officers within the meaning of former Code 1933, §§ 89-301 and 89-302 (see now O.C.G.A. §§ 45-3-16 and 45-3-1 , respectively) and were required to take the oath as prescribed by Ga. L. 1961, p. 552, § 1 (see now O.C.G.A. § 45-3-11 ). 1963-65 Op. Att'y Gen. p. 432.

Since the language of this section broadly includes all persons employed by and on the payroll, and recipients of wages per diem and/or salary of the State of Georgia and counties or cities, this section includes members of county boards of health and requires such members to take the approved oath of loyalty. 1963-65 Op. Att'y Gen. p. 432.

Oath not required of employees of city housing authority. - Although a city housing authority is an instrumentality of the state, it is not an agency, board, or department of the state, and, therefore, employees of the housing authority of a city are not required to sign the loyalty oath. 1950-51 Op. Att'y Gen. p. 98.

RESEARCH REFERENCES

ALR. - Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

45-3-12. Loyalty oath - Elected officers.

The loyalty oath required by Code Section 45-3-11, this Code section, and Code Sections 45-3-13 through 45-3-15 shall apply to all elected officers of this state, including the Governor, constitutional officers, elected officials of any political subdivision of the government of Georgia, and local school board officials.

(Ga. L. 1949, p. 960, § 5; Ga. L. 1990, p. 8, § 45.)

RESEARCH REFERENCES

ALR. - Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

45-3-13. Loyalty oath - Form.

The oath prescribed in Code Section 45-3-11 shall be in the following form:

"I, ________________________ (Name) a citizen of ______________ and being an employee of ________________________ and the recipient of public funds for services rendered as such employee, do hereby solemnly swear and affirm that I will support the Constitution of the United States and the Constitution of Georgia."

(Ga. L. 1949, p. 960, § 3; Ga. L. 1950, p. 282, § 1; Ga. L. 2015, p. 385, § 5-4/HB 252.)

The 2015 amendment, effective July 1, 2015, deleted "and that I am not a member of the Communist Party" following "the Constitution of Georgia" at the end of this Code section.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

Law reviews. - For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 , 12 L. Ed. 2 d 377 (1964), see 2 Ga. St. B.J. 123 (1965).

JUDICIAL DECISIONS

For constitutionality of this section prior to the 1981 recodification. - See Georgia Conference of Am. Ass'n of Univ. Professors v. Board of Regents, 246 F. Supp. 553 (N.D. Ga. 1965).

RESEARCH REFERENCES

ALR. - Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

45-3-14. Effect of failure to sign loyalty oath.

If any person required by Code Sections 45-3-11 through 45-3-13, this Code section, and Code Section 45-3-15 to execute a loyalty oath fails to sign said oath, then the governing authority under whom such person is employed shall cause such person's name to be taken from the payroll and such person shall not be permitted to receive any payment from the state.

(Ga. L. 1949, p. 960, § 4; Ga. L. 1990, p. 8, § 45; Ga. L. 1991, p. 94, § 45.)

Law reviews. - For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 , 12 L. Ed. 2 d 377 (1964), see 2 Ga. St. B.J. 123 (1965).

JUDICIAL DECISIONS

Cited in Brown v. Blackmon, 272 Ga. 435 , 530 S.E.2d 712 (2000).

RESEARCH REFERENCES

ALR. - Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

45-3-15. Proceeding for false swearing when loyalty oath violated.

If any person required to do so by Code Sections 45-3-11 through 45-3-14 and this Code section executes a loyalty oath and subsequently it is proved that said individual has violated the oath, then the governing authority shall institute proceedings in the proper court against such person for false swearing.

(Ga. L. 1949, p. 960, § 6; Ga. L. 1990, p. 8, § 45.)

Law reviews. - For comment on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 , 12 L. Ed. 2 d 377 (1964), see 2 Ga. St. B.J. 123 (1965).

RESEARCH REFERENCES

ALR. - Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

45-3-16. Applicability of article.

This article shall apply to the oaths of office of all public officers of this state unless the contrary is expressly provided.

(Orig. Code 1863, § 163; Code 1868, § 158; Code 1873, § 169; Code 1882, § 169; Civil Code 1895, § 265; Civil Code 1910, § 300; Code 1933, § 89-301.)

JUDICIAL DECISIONS

Oath not required of municipal officers. - This section applies to officers commissioned by the Governor, and not to municipal officers not commissioned by the Governor. Brewer v. Johnson, 184 Ga. 806 , 193 S.E. 778 (1937).

Unless required in city charter or other statute. - An oath by a municipal officer is not necessary in the absence of any requirement thereof by the city charter or some other statute. Brewer v. Johnson, 184 Ga. 806 , 193 S.E. 778 (1937).

Cited in Maddox v. City of Atlanta, 49 Ga. App. 791 , 171 S.E. 573 (1933); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Morgan v. Crow, 183 Ga. 147 , 187 S.E. 840 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Oath required of members of county board of health. - Members of the county board of health were public officers within the meaning of former Code 1933, §§ 89-301 and 89-302 (see now O.C.G.A. §§ 45-3-1 and § 45-3-16 and were required to take the oath as prescribed by Ga. L. 1961, p. 552, § 1 (see now O.C.G.A. § 45-3-11 ). 1963-65 Op. Att'y Gen. p. 432.

ARTICLE 2 COMMISSIONS

45-3-30. Officers commissioned under great seal of state.

The commissions of the following officers shall have annexed thereto the great seal of the state, and shall be signed by the Governor and countersigned by the Secretary of State, namely: senators and representatives in Congress; Justices of the Supreme Court; Judges of the Court of Appeals, superior courts, and juvenile courts; the Attorney General; district attorneys; reporters of the Supreme Court and Court of Appeals; the Secretary of State; the Commissioner of Insurance; and all military officers of the grade of general. The commissions of all federal and judicial officers enumerated above shall be on parchment.

(Orig. Code 1863, § 129; Code 1868, § 124; Code 1873, § 133; Code 1882, § 133; Civil Code 1895, § 227; Civil Code 1910, § 262; Code 1933, § 89-201; Ga. L. 1984, p. 565, § 3; Ga. L. 1990, p. 8, § 45.)

JUDICIAL DECISIONS

Cited in Jones v. Mills, 216 Ga. 616 , 118 S.E.2d 484 (1961); Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981).

45-3-31. Officers commissioned under executive seal.

The commissions of all other civil officers, except constables and clerks of magistrate courts, of the state or county shall be under the seal of the office of the Governor, signed by the Governor, and countersigned by one of his secretaries. All officers of the militia of the grade of lieutenant or higher shall have commissions under the seal of the office of the Governor.

(Orig. Code 1863, § 130; Code 1868, § 125; Code 1873, § 134; Code 1882, § 134; Civil Code 1895, § 228; Civil Code 1910, § 263; Code 1933, § 89-202; Ga. L. 1983, p. 884, § 3-32; Ga. L. 1984, p. 22, § 45; Ga. L. 1987, p. 398, § 2.)

JUDICIAL DECISIONS

Judicial notice of officers holding commissions. - The courts of Georgia are bound to take judicial notice of who are the public officers of the state holding under commissions issued by the Governor. Henson v. Airways Serv., Inc., 220 Ga. 44 , 136 S.E.2d 747 (1964).

An inspector of fertilizer was not such a civil officer as must be commissioned by the Governor under this section. Talmadge v. Cordell, 167 Ga. 594 , 146 S.E. 467 (1928).

Cited in Jones v. Mills, 216 Ga. 616 , 118 S.E.2d 484 (1961); Foster v. Kelly, 107 Ga. App. 801 , 131 S.E.2d 587 (1963).

OPINIONS OF THE ATTORNEY GENERAL

County school superintendents entitled to commission. - All county school superintendents, whether elected by the people under the Constitution or elected by the local board of education under a local constitutional amendment, are entitled to a commission under this section. 1954-56 Op. Att'y Gen. p. 193.

The sheriff is an officer commissioned by the executive department. 1974 Op. Att'y Gen. No. U74-29.

CHAPTER 4 OFFICIAL BONDS

Sec.

Cross references. - Giving of bonds by persons collecting tax, revenue, or other moneys on behalf of state, political subdivision, and other entities, § 45-8-2 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Bond not required from forestry investigators. - Forestry investigators provided for by former Code 1933, § 43-208 (see now O.C.G.A. § 12-6-20 ) were not "public officers" of the state, but are "employees" only, and as such are under no requirement to give bond or take an oath, other than the loyalty oath. 1952-53 Op. Att'y Gen. p. 95.

Former Code 1933, § 24-2805 (see now O.C.G.A. § 15-16-5 ) must be construed in conjunction with former Code 1933, § 89-402 (see now O.C.G.A. § 45-4-1 et seq.), relating to official bonds in general. 1976 Op. Att'y Gen. No. 76-31.

RESEARCH REFERENCES

ALR. - Liability on general bond of public officer for acts covered by a special bond, 4 A.L.R. 1431 ; 140 A.L.R. 1459 .

Liability of officer or his sureties in respect of public funds as affected by settlement or compromise agreement with other officials or board or committee, 103 A.L.R. 1048 .

Statutory conditions prescribed for public officer's bond as part of bond which does not in terms include them, or which expressly excludes them, 109 A.L.R. 501 .

Personal liability of public officer or sureties on his bond for nonperformance or improper performance of a duty imposed upon a board of corporate body of which he is a member, 123 A.L.R. 756 .

Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Time from which interest begins to run on fidelity or public officer's bond, 57 A.L.R.2d 1317.

45-4-1. Bonds to be payable to Governor and conditioned upon faithful discharge of duties.

The bonds of all public officers required by law to give bond, unless otherwise provided, shall be made payable to the Governor and his successor in office. In all cases in which a different condition is not prescribed, such bonds shall be conditioned upon the faithful discharge of the duties of the office by the officer during the time he continues in the office or discharges any of its duties.

(Orig. Code 1863, § 143; Code 1868, § 138; Code 1873, § 148; Code 1882, § 148; Civil Code 1895, § 243; Civil Code 1910, § 278; Code 1933, § 89-402.)

JUDICIAL DECISIONS

Conditions read in conjunction with official bonds. - Former Code 1933, § 89-418 (see now O.C.G.A. § 45-4-24 ) providing that official bonds shall be for the benefit of persons injured by the principals must be read with the conditions of such bonds obligating the officials to well and truly perform the duties of their office, and refers to such liabilities as arise within the proper intendment of the obligation. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932); Culpepper v. United States Fid. & Guar. Co., 199 Ga. 56 , 33 S.E.2d 168 (1945).

Conditions on bond of county school superintendent. - The bond of the county school superintendent was an official bond; and there being nothing in the law requiring it which prescribes a different condition, under former Civil Code 1910, § 278 (see now O.C.G.A. § 45-4-1 ) it was properly conditioned upon the faithful discharge of the duties of this office. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932).

Sureties are chargeable with knowledge of the law, and of having executed official bonds with reference to the law. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932).

Cited in Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Green v. Perryman, 186 Ga. 239 , 197 S.E. 880 (1938); Drost v. Robinson, 194 Ga. 703 , 22 S.E.2d 475 (1942); Warren v. Walton, 231 Ga. 495 , 202 S.E.2d 405 (1973).

45-4-2. Deputy's bond.

Deputies shall give bonds with surety, payable to their principals, for their conduct as deputies, conditioned as and for the same amounts, unless otherwise provided by law, as their principals' bonds. Such bonds shall be recorded in the same office and in the same manner as the bonds of the principals.

(Orig. Code 1863, § 157; Code 1868, § 152; Code 1873, § 163; Code 1882, § 163; Civil Code 1895, § 259; Civil Code 1910, § 294; Code 1933, § 89-426; Ga. L. 1982, p. 1779, §§ 2, 4.)

JUDICIAL DECISIONS

Option of which bond to sue on. - One who is aggrieved by the official misconduct of a deputy sheriff may at that person's option sue either on the sheriff's bond or on the deputy's bond. Aldridge v. Wooten, 68 Ga. App. 887 , 24 S.E.2d 700 (1943).

Cited in Drost v. Robinson, 194 Ga. 703 , 22 S.E.2d 475 (1942); Warren v. Walton, 231 Ga. 495 , 202 S.E.2d 405 (1973).

OPINIONS OF THE ATTORNEY GENERAL

A deputy sheriff should give bond in the same amount as principal. 1969 Op. Att'y Gen. No. 69-100.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 473 et seq.

ALR. - Liability of clerk of court, county clerk or prothonotary, or surety on bond, for negligent or wrongful acts of deputies or assistants, 71 A.L.R.2d 1140.

45-4-3. Return of bonds; actions on bonds.

All bonds taken by public officers under the laws of this state shall be returned to the offices specified by law; and any person interested therein may bring an action thereon, in his own name, in any court having jurisdiction thereof.

(Orig. Code 1863, § 15; Code 1868, § 13; Code 1873, § 13; Code 1882, § 13; Civil Code 1895, § 13; Civil Code 1910, § 13; Code 1933, § 89-905; Ga. L. 1983, p. 3, § 34.)

JUDICIAL DECISIONS

No preliminary judgment against the principal, the officer, is necessary to a suit against the surety on bond. Maryland Cas. Co. v. Smith, 56 Ga. App. 154 , 192 S.E. 449 (1937).

Cited in Fidelity & Deposit Co. v. Norwood, 38 Ga. App. 534 , 144 S.E. 387 (1928); United States Fid. & Guar. Co. v. Stephens, 45 Ga. App. 300 , 164 S.E. 461 (1932); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138 , 177 S.E. 272 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 539 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 489 et seq.

ALR. - Personal liability of officers of drainage or highway districts for negligence of subordinates or employees causing damage to person or property, 61 A.L.R. 300 .

Liability of sureties on bond of public officer as affected by fact that it was not signed by him, 110 A.L.R. 959 .

Suit against public officer to recover possession of property as suit against state or federal government, 160 A.L.R. 332 .

45-4-4. Bonds of officers commissioned by Governor.

Official bonds of all officers who are entitled to commissions from the Governor and who are required to give bonds shall be prepared and furnished by the office of the Governor at the time of forwarding the dedimus potestatem.

(Orig. Code 1863, § 144; Code 1868, § 139; Code 1873, § 149; Code 1882, § 149; Civil Code 1895, § 244; Civil Code 1910, § 279; Code 1933, § 89-403; Ga. L. 1990, p. 8, § 45.)

Cross references. - Governor issuing a dedimus potestatem, § 45-12-20 .

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 134 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 73, 74.

45-4-5. Bonds to have sureties; number and qualifications.

All bonds that this chapter applies to shall have at least two and not more than 20 good and solvent sureties who shall be worth the amount of said bond, over and above their homestead, in case of county officers, all of whom must be permanent residents of the state and two of whom must also be residents of the county; provided, however, that a surety insurance company which has complied with all requirements to transact business in this state may be accepted as surety upon the bond of any person required by law to execute bonds, in lieu of any other surety or sureties, as provided in Code Section 45-4-6. When the approving court or officers do not know that a surety is worth the required amount, they shall not accept him unless he swears that his means are sufficient in amount, which swearing they shall record on the bond.

(Orig. Code 1863, § 146; Ga. L. 1863-64, p. 124, § 3; Code 1868, § 141; Code 1873, § 151; Code 1882, § 151; Ga. L. 1889, p. 45, § 1; Civil Code 1895, § 246; Civil Code 1910, § 281; Code 1933, § 89-414.)

Cross references. - Authorizing corporate surety in lieu of personal surety, § 33-24-48 .

JUDICIAL DECISIONS

Cited in Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 352.

ALR. - Construction and applicability of provision of public officer's bond exempting sureties from liability for loss due to failure of bank or other depository, 98 A.L.R. 719 .

45-4-6. Corporate sureties authorized.

Guaranty or surety companies incorporated under the laws of this state or which have complied with all requirements to transact business in this state may become sureties upon the bonds of all state or county officers; and the various officers of this state whose duty it is to approve the sureties upon such bonds are authorized to accept such company or companies as one of the sureties or the only surety upon such bond, as the solvency of such company may warrant.

(Ga. L. 1889, p. 178, § 1; Civil Code 1895, § 247; Civil Code 1910, § 282; Code 1933, § 89-415.)

Cross references. - Authorizing corporate surety in lieu of personal surety, § 33-24-48 .

OPINIONS OF THE ATTORNEY GENERAL

Corporate surety liable for full amount of sheriff's bond. - Sheriffs must be bonded by at least one corporate surety liable for full amount of the statutory bond penalty; it is not permissible for sheriffs to file separate corporate surety bonds, each for less than the surety penalty even when the assumed but fictitious total of the penalties under each bond equals the statutory penalty. 1976 Op. Att'y Gen. No. 76-31.

RESEARCH REFERENCES

ALR. - Construction and applicability of provision of public officer's bond exempting sureties from liability for loss due to failure of bank or other depository, 98 A.L.R. 719 .

45-4-7. County officials required to have corporate surety on bond; county to pay premiums.

All county officials who are required to give an official bond shall make bond signed by some surety or guaranty company authorized to do business in this state. The premiums due on all such bonds must be paid by the county fiscal authorities out of county funds, and it shall be mandatory upon the county fiscal authorities in every county in the state to pay the premiums due on all such bonds out of county funds. This Code section shall not apply to county school superintendents' bonds.

(Ga. L. 1947, p. 1543, § 1; Ga. L. 1949, p. 1190, § 1; Ga. L. 1951, p. 741, § 1.)

Law reviews. - For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).

JUDICIAL DECISIONS

County not liable beyond payment of premiums. - Except for the payment of the premiums herein mentioned, a county has no liability in connection with the violations of the civil rights of any person by a county officer. Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150 , 223 S.E.2d 133 (1976).

Availability to surety company of information concerning extent of liability. - When a surety company agrees to execute a surety bond of a public officer, it has the opportunity and should avail itself of every means of ascertaining exactly what position that officer occupies with respect to public funds for which the company assumes liability. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Cited in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

No state funds used to pay premiums. - The intent of this section is to require these premiums to be paid out of county funds without any pro rata share being paid by the state. 1948-49 Op. Att'y Gen. p. 456.

O.C.G.A. § 45-4-7 applies only to certain county officials. - The General Assembly intended this section to apply only to county officials who are required by law to give an official bond. 1948-49 Op. Att'y Gen. p. 462.

O.C.G.A. § 45-4-7 applies to a deputy sheriff. - Deputy sheriff is "county official" within meaning of law and premiums on deputy's bond should be paid by county. 1957 Op. Att'y Gen. p. 37.

O.C.G.A. § 45-4-7 applies to a sheriff. - A judgment against a sheriff elect for failure to account for and pay over county moneys must be paid before such individual is eligible to hold office, and a county must pay the bond premium on a sheriff regardless of the premium charged. 1976 Op. Att'y Gen. No. U76-58.

O.C.G.A. § 45-4-7 does not apply to a constable. - A constable does not come under the provisions of this section relating to county officers posting surety bonds. 1952-53 Op. Att'y Gen. p. 24.

One corporate surety liable for full amount of sheriff's bond. - Sheriffs must be bonded by at least one corporate surety liable for full amount of the statutory bond penalty; it is not permissible for sheriffs to file separate corporate surety bonds, each for less than the surety penalty even when the assumed but fictitious total of the penalties under each bond equals the statutory penalty. 1976 Op. Att'y Gen. No. 76-31.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 352.

ALR. - Right or duty of municipality, county, or other public body to pay premium on bond given by officer, 66 A.L.R. 795 .

45-4-8. Attorney at law or county officer not to be surety.

No attorney at law or county officer shall be accepted as surety on the bond of any county officer.

(Ga. L. 1876, p. 13, § 1; Code 1882, § 152; Civil Code 1895, § 248; Civil Code 1910, § 283; Code 1933, § 89-416.)

45-4-9. New bond and surety when surety relieved or insufficient.

The Governor shall require a new surety and bond for the performance of any public duty by any officer under this chapter when, in the Governor's discretion:

  1. The surety gives written notice to the Governor of his desire to be relieved from future liability for good cause stated and sworn to; or
  2. The surety becomes insufficient, based upon satisfactory evidence.

    (Laws 1845, Cobb's 1851 Digest, p. 1036; Code 1863, § 164; Code 1868, § 159; Code 1873, § 170; Code 1882, § 170; Civil Code 1895, § 266; Civil Code 1910, § 301; Code 1933, § 89-424.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 368.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 73, 74.

45-4-10. Effect of officer failing to comply with new bond and surety.

If any officer shall fail to comply with the requisition of the Governor to furnish a new bond and surety within ten days from the date such officer is served personally with a copy of the executive order containing such requisition, he shall on account of such failure be removed from office and a vacancy declared.

(Orig. Code 1863, § 165; Code 1868, § 160; Code 1873, § 171; Code 1882, § 171; Civil Code 1895, § 267; Civil Code 1910, § 302; Code 1933, § 89-425.)

RESEARCH REFERENCES

ALR. - Nature of proceedings under statute providing for removal of officer on accusation by grand jury, etc., 81 A.L.R. 1089 .

Power to remove public officer without notice and hearing, 99 A.L.R. 336 .

Removal of public officers for misconduct during previous term, 42 A.L.R.3d 691.

45-4-11. Blanket bonds covering two or more political subdivisions, officers authorized; amount and coverage period; recording; entities.

  1. Notwithstanding any other provision of law to the contrary, the several counties, municipalities, and other political subdivisions of this state, including independent school districts, are authorized to purchase blanket bonds in lieu of individual bonds. Blanket bonds may cover any two or more officers, officials, agents, and any other employees of such political subdivisions where they are required by law to be bonded.
  2. A blanket bond shall be in an amount sufficient to cover all or certain specified individual bonds otherwise required by law to be purchased by a county, municipality, or other political subdivision. The blanket bond shall specify the dates of coverage, the positions or persons covered by the bond, and the persons or entities to whom or to which the bond is payable.
  3. A blanket bond shall be signed by the judge of the probate court of the county wherein the county, municipality, or school district purchasing the blanket bond is located. The bond shall be filed and recorded in the office of the probate court. Such signing, filing, and recording shall be in lieu of any other endorsement, signing, filing, approval, or recording otherwise required by law for individual bonds. Where a municipality or school district is located in more than one county, the bond shall be signed, filed, and recorded by the probate judge of the county within which the municipality or school district is predominately located based upon population.
  4. In addition to any other guaranty or surety companies authorized by this chapter, a blanket bond may be offered by an interlocal risk management agency created pursuant to Chapter 85 of Title 36 or Article 29 of Chapter 2 of Title 20 and may be in the form of a copy of an original annual coverage agreement providing the blanket bond.

    (Ga. L. 1963, p. 480, § 1; Ga. L. 2002, p. 978, § 1.)

Law reviews. - For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).

45-4-12. Approval and filing of bonds.

The approval of all official bonds shall be in writing, endorsed on the bonds, and shall show the day and year on which they were approved; and such bonds shall not be filed until thus approved.

(Orig. Code 1863, § 145; Code 1868, § 140; Code 1873, § 150; Code 1882, § 150; Civil Code 1895, § 245; Civil Code 1910, § 280; Code 1933, § 89-404.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 136.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 473 et seq.

45-4-13. Approval, filing, and recording of bonds of court clerks, magistrates, sheriffs, coroners, surveyors, treasurers, and tax collectors.

The official bonds given for county taxes by the clerks of the superior courts, chief magistrates, magistrates, sheriffs, coroners, county surveyors, county treasurers, county tax collectors, and county tax receivers shall be approved by the judge of the probate court, filed in his office, and recorded by him. The bonds of tax collectors and tax receivers for state taxes, after being likewise approved, shall be recorded by the judge of the probate court; and the original bond shall be transmitted by him to the Governor for deposit in the comptroller general's office.

(Orig. Code 1863, § 155; Code 1868, § 150; Code 1873, § 161; Code 1882, § 161; Civil Code 1895, § 257; Civil Code 1910, § 292; Code 1933, § 89-405; Ga. L. 1989, p. 247, § 1; Ga. L. 2013, p. 141, § 45/HB 79.)

45-4-14. Time for filing bonds.

The official bonds of public officers, required by law to be filed in the office of the comptroller general, Secretary of State or with the office of the Governor, shall be filed within 40 days after the election or appointment of such officers. All county officers shall have until the first day of January following the election to file their bonds as required by law.

(Orig. Code 1863, § 148; Ga. L. 1863-64, p. 124, § 1; Code 1868, § 143; Code 1873, § 154; Ga. L. 1875, p. 16, § 1; Code 1882, § 154; Civil Code 1895, § 250; Ga. L. 1898, p. 105, § 1; Civil Code 1910, § 285; Code 1933, § 89-408; Ga. L. 1990, p. 8, § 45; Ga. L. 2013, p. 141, § 45/HB 79.)

JUDICIAL DECISIONS

Duty of reelected legislative official to file bond. - When an election for Commissioner of Madison County, a legislative office, was held in November, at which an incumbent was reelected to such office, it was the incumbent's duty to file an official bond with the ordinary (now probate judge) on or before January 1; and, upon the incumbent's own personal failure to do so, a vacancy in the office resulted. Compton v. Hix, 184 Ga. 749 , 193 S.E. 252 (1937).

Failure by reelected official to file bond results in vacancy of the office. - When, after November election, ordinary (now probate judge) received from Governor a commission and oath, and on December 18 notified the officer so reelected that the ordinary had them ready for the officer elect to qualify by filing an official bond and taking the oath, and the officer, having already on December 6 applied to a surety company to become a surety, but not having heard from the company, failed to do anything more until after the first day of January toward procurement of a bond than to inquire of the local agent; thus, allowing the prescribed time to expire without filing the bond, the failure to file bond was necessarily the fault of the officer elect, and resulted in a vacancy of the office. Compton v. Hix, 184 Ga. 749 , 193 S.E. 252 (1937).

Disregard for the requirements of this section amounts to a forfeiture by the respondent of any claim to the office. Especially would this be true when it appears that, due to the respondent's neglect and delay in filing any bond, another person has been named to the office, and has qualified by taking the oath and making the bond required by law. Robert v. Steed, 207 Ga. 41 , 60 S.E.2d 134 (1950).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 483.

ALR. - Constitutional, statutory, or charter provision as to time of taking oath of office and giving official bond as mandatory or directory, 158 A.L.R. 639 .

45-4-15. Filing time to be endorsed on bonds.

Every officer in whose office the official bond of any public officer is filed shall endorse on such bond the day and year when the same was filed and shall sign his name to such endorsement.

(Orig. Code 1863, § 151; Code 1868, § 146; Code 1873, § 157; Code 1882, § 157; Civil Code 1895, § 253; Civil Code 1910, § 288; Code 1933, § 89-411.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 135.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 483.

45-4-16. Manner in which power of attorney to be attested and filed where bond signed by attorney in fact.

When an official bond is signed by an attorney in fact, the power of attorney shall be attested by the judge of the probate court and filed and recorded in the same manner as the bond.

(Orig. Code 1863, § 147; Code 1868, § 142; Code 1873, § 153; Code 1882, § 153; Civil Code 1895, § 249; Civil Code 1910, § 284; Code 1933, § 89-417.)

45-4-17. Probate court judge to certify to Governor taking of oaths and giving of bonds.

The judge of the probate court must sign a certificate to the Governor stating that the clerks of the superior courts, chief magistrates, magistrates, sheriffs, coroners, county surveyors, county treasurers, county tax collectors, and county tax receivers have taken the oaths and given the bonds sent from the office of the Governor, together with a statement of the dates, amounts, and names of the sureties of each and that the judges of the probate court have delivered to such officers their commissions. The certificate and statement shall be attested by the clerk of said court, if any, and immediately transmitted to the Governor.

(Orig. Code 1863, § 156; Code 1868, § 151; Code 1873, § 162; Code 1882, § 162; Civil Code 1895, § 258; Civil Code 1910, § 293; Code 1933, § 89-406; Ga. L. 1989, p. 247, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 74.

45-4-18. Certification of failure of officer to make and file bond.

When any officer of whom bond is required shall fail to make and file the same, as prescribed in Code Section 45-4-14, the court or officer in whose office the bond is required to be filed shall at once certify such failure to the appointing power and to the power whose duty it may be to order an election.

(Orig. Code 1863, § 149; Code 1868, § 144; Code 1873, § 155; Code 1882, § 155; Civil Code 1895, § 251; Civil Code 1910, § 286; Code 1933, § 89-409.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 73, 74.

45-4-19. Notice to Attorney General of failure of officer to file bond.

If any public officer required by law to give bond shall fail to file the same in the proper office within the time prescribed, notice of such failure shall be given to the Attorney General or to the appropriate prosecuting attorney by the officer in whose office such bond is required to be filed, by or during the first two days of the session of the superior court held in the county in which the officer so failing resides, next after such failure.

(Orig. Code 1863, § 152; Code 1868, § 147; Code 1873, § 158; Code 1882, § 158; Civil Code 1895, § 254; Civil Code 1910, § 289; Code 1933, § 89-412.)

45-4-20. Nonconforming bond to stand in place of official bond though not approved and filed.

Whenever any officer required by law to give an official bond shall act under a bond which is not payable and conditioned or not approved and filed as prescribed by law, such bond shall not be void but shall stand in the place of the official bond, subject, on its condition being broken, to all the remedies, including actions, which the persons aggrieved might have maintained on the official bond.

(Orig. Code 1863, § 161; Code 1868, § 156; Code 1873, § 167; Code 1882, § 167; Civil Code 1895, § 263; Civil Code 1910, § 298; Code 1933, § 89-419.)

JUDICIAL DECISIONS

Purpose of O.C.G.A. § 45-4-20 . - This section, speaking in a general sense, was enacted to prevent miscarriages of justice that might occur whenever such a bond is not approved as prescribed by law. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Bond with nonconforming contents taking the place of official bond. - The law requiring a bond for the Commissioner of Agriculture, and the bond alleged to have been breached being the only bond given by the defendant as Commissioner of Agriculture, and being the bond under which the person served as Commissioner of Agriculture during the time alleged, the bond, even assuming if it was irregular in some respects, "stands in the place of the official bond." Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932).

Although the bond executed by a public official who was required by statute to execute a bond for the faithful performance of the duties of the office contained limitations upon the liability of the principal and the surety which were not permissible in the statutory bond, it was payable to the obligee required by the statute, and it was the intention of the parties to execute the statutory bond required of a public officer for the faithful performance of the duties of the office; therefore, the limitations were void, and the bond was to be considered as the statutory bond required. American Sur. Co. v. Googe, 45 Ga. App. 108 , 163 S.E. 293 (1932).

Bond not properly executed and approved taking the place of official bond. - When a bond was executed by a bank, which had been legally designated as a depository to receive money for a county in which the office of treasurer had been abolished, and the bond was conditioned upon the faithful discharge by the bank of its duties as county depository but was made payable to a designated person described therein as the ordinary "in and for said county, for the time being, and his successors in office," and, when the county was one which had a commissioner to whom the bond should have been made payable as required by former Civil Code 1910, § 571 (see now O.C.G.A. § 36-6-4 ), and the bond was approved by the ordinary (now probate judge), the tax collector, and the commissioner, as the "county depository commission," instead of by the commissioner, as required by that section, the bond was one indemnifying the county against loss of county funds while in the possession of the bank as the county depository; and while the bond was not executed and approved as required by law, it stood, by virtue of former Civil Code 1910, § 298 (see now O.C.G.A. § 45-4-20 ), in the place of the official bond required by law of a depository of county funds. Carter v. Veal, 42 Ga. App. 88 , 155 S.E. 64 (1930).

Bond not properly executed creating common law liability. - A bond of a public officer of this state, not made payable to the obligee designated by the statute requiring such bond, and not conditioned as prescribed by law, is not vitiated, but is a common-law undertaking rather than a statutory bond, and the surety on such a bond is only liable under the provisions contained in such bond. U.S. Fid. & Guar. Co. v. McCurdy, 51 Ga. App. 507 , 180 S.E. 902 (1935).

Bond is binding even though not signed by the principal. - When an official bond is made, delivered, accepted, and acted upon as an official bond, the same being a joint and several obligation under its terms and provisions, it is binding on both principal and surety, though not signed by the principal. U.S. Fid. & Guar. Co. v. McCurdy, 51 Ga. App. 507 , 180 S.E. 902 (1935).

Officer and director of bank was not a public official within the meaning of this section. Green v. Perryman, 186 Ga. 239 , 197 S.E. 880 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 133, 134.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 473 et seq.

ALR. - Liability of sureties on bond of public officer as affected by fact that it was not signed by him, 110 A.L.R. 959 .

45-4-21. Effect of failure of officer to mark bond or give required notice.

If any officer whose duty it is to mark a bond filed and to give the several notices required in this chapter shall fail to do so without good and sufficient excuse, he shall be fined as for a contempt of court, in the discretion of the court, upon information being filed and a citation being served to appear before the superior court of the county of his residence.

(Orig. Code 1863, § 153; Code 1868, § 148; Code 1873, § 159; Code 1882, § 159; Civil Code 1895, § 255; Civil Code 1910, § 290; Code 1933, § 89-413.)

JUDICIAL DECISIONS

Right of action against surety for breach of official duties. - A failure of a sheriff, by and through the deputy, to faithfully perform the duties of office, although the act may give rise to a cause of action ex delicto, constitutes a breach of the official bond given by the sheriff for the faithful performance of the duties of the office, as required by O.C.G.A. § 45-4-21 . A right of action against the surety for the breach of the bond arises ex contractu. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934).

RESEARCH REFERENCES

ALR. - Conduct contemplated by statute which makes neglect of duty by public officer or employee a punishable offense, 134 A.L.R. 1250 .

45-4-22. Effect of official act before bond approved and filed.

  1. No public officer required by law to give bond shall perform any official act before his bond is approved and filed as required.
  2. Any such public officer who shall perform any official act before his bond is approved and filed shall be guilty of a misdemeanor.

    (Orig. Code 1863, § 150; Code 1868, § 145; Code 1873, § 156; Code 1882, § 156; Ga. L. 1895, p. 63, § 2; Civil Code 1895, § 252; Penal Code 1895, § 272; Civil Code 1910, § 287; Penal Code 1910, § 275; Code 1933, §§ 89-410, 89-9902.)

JUDICIAL DECISIONS

Vacancy in office created by failure to file bond. - When an election for Commissioner of Madison County, a legislative office, was held in November, at which an incumbent was reelected to such office, it was the incumbent's duty to file an official bond with the ordinary (now probate judge) on or before January 1; and, upon the incumbent's personal failure to do so, a vacancy in the office resulted. Compton v. Hix, 184 Ga. 749 , 193 S.E. 252 (1937).

Cited in Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932); Patten v. Miller, 190 Ga. 123 , 8 S.E.2d 757 (1940).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 73, 473.

45-4-23. Places for keeping bonds.

All bonds taken from public officers shall be kept in the places specified by law and copies thereof shall be furnished to any person desiring them.

(Orig. Code 1863, § 14; Code 1868, § 12; Code 1873, § 12; Code 1882, § 12; Civil Code 1895, § 12; Civil Code 1910, § 12; Code 1933, § 89-407.)

JUDICIAL DECISIONS

Provisions applicable only to certain public officers. - The provisions embraced in this section were intended to be applicable only to the public officers of this state who are required by general law to give bonds for the faithful performance of duties the officers owe to the public at large. National Sur. Co. v. Seymour, 177 Ga. 735 , 171 S.E. 380 (1933); Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875 , 35 S.E.2d 474 (1945).

No application to bonded officer of municipality. - This section does not have any application whatever to a bonded officer of a municipality who is required, by special legislation relating to that municipality alone, to give such a bond as the mayor and council may deem necessary to the proper protection of the city itself. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875 , 35 S.E.2d 474 (1945).

Cited in Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 473.

45-4-24. Bond obligations of principal and surety; conditions required for existence of cause of action on bond.

  1. Every official bond executed under this chapter is obligatory on the principal and sureties thereon:
    1. For any breach of the condition during the time the officer shall continue in office or discharge any of the duties thereof;
    2. For any breach of the condition by a deputy, although not expressed in such bond, unless otherwise declared by law;
    3. For the faithful discharge of any duties which may be required of such officer by any law passed subsequent to the execution of such bond, although no such condition is expressed therein; or
    4. For the use and benefit of every person who is injured, either by any wrongful act committed under color of his office or by his failure to perform or by the improper or neglectful performance of those duties imposed by law.
  2. No claim or cause of action shall exist against the bond, the surety, or the principal, and no claim or cause of action for indemnification by the surety against the principal shall exist, unless one of the following conditions exists:
    1. The principal personally benefits financially from the act complained of; or
    2. The principal was personally aware of and had actual knowledge of the act complained of; had actual knowledge that the act was illegal, contrary to law, or the breach of a duty imposed by law; and either acted to cause or failed to prevent the act complained of.

      (Orig. Code 1863, § 154; Code 1868, § 149; Code 1873, § 160; Code 1882, § 160; Civil Code 1895, § 256; Civil Code 1910, § 291; Code 1933, § 89-418; Ga. L. 1975, p. 1089, § 1; Ga. L. 1990, p. 8, § 45.)

Law reviews. - For article considering the public official's potential liability for funds, losses and torts, and suggesting insurance coverage, see 11 Mercer L. Rev. 288 (1960). For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 45-4-24 applicable only to official bonds. - Under the provisions of this section, bonds of public officers are conditioned for the use and benefit of every person who is injured by the principal under color of office; but, as to statutory-penalty bonds which are not bonds of public officers, this provision does not apply, and a member of the public who is injured by the principal's failure to observe the conditions of the bond cannot sue the principal and sureties on such bond to collect damages for such wrongful act when the statute gives that person no right to bring such action. Talmadge v. General Cas. Co. of Am., 88 Ga. App. 234 , 76 S.E.2d 562 (1953); Martin v. Hartford Accident & Indem. Co., 88 Ga. App. 236 , 76 S.E.2d 564 (1953).

Acts entirely unauthorized not breach of bond. - When a tax-collector, having no authority of law whatever to make levies and sales under tax fi. fa., issued a fi. fa. purporting to be for taxes due, and placed it in the hands of another as the tax collector's deputy, who, "armed" with the fi. fa. and acting under the instructions of the tax-collector, seized property of the alleged taxpayer and sold it, to the owner's damage, it was held that such acts constituted no breach of the tax-collector's bond and the surety on the bond was not liable therefor. Fidelity & Deposit Co. v. Smith, 35 Ga. App. 744 , 134 S.E. 801 (1926).

Cited in American Sur. Co. v. Robinson, 53 F.2d 22 (5th Cir. 1931); Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Maryland Cas. Co. v. Salmon, 45 Ga. App. 173 , 164 S.E. 80 (1932); John Hancock Mut. Life Ins. Co. v. Rowland, 178 Ga. 494 , 173 S.E. 417 (1934); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Nesbit v. National Sur. Corp., 63 Ga. App. 518 , 11 S.E.2d 667 (1940); Creaser v. Durant, 197 Ga. 531 , 29 S.E.2d 776 (1944); Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823 , 41 S.E.2d 576 (1947); Walker v. Whittle, 83 Ga. App. 445 , 64 S.E.2d 87 (1951); Irwin v. Arrendale, 117 Ga. App. 1 , 159 S.E.2d 719 (1967); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401 , 163 S.E.2d 834 (1968); Price v. Arrendale, 119 Ga. App. 589 , 168 S.E.2d 193 (1969).

Liability of Public Officers

Use of racial epithlets by officer not breach of bond. - A deputy sheriff's use of racial epithets during a telephone conversation regarding the plaintiff did not give rise to a cause of action that would allow for recovery on the deputy's bond. Booth v. Firemen's Ins. Co., 223 Ga. App. 243 , 477 S.E.2d 376 (1996).

Officer's investigation as breach of bond. - A deputy sheriff did not breach a deputy's bond in connection with an investigation of an altercation involving plaintiff and another since there was no evidence that the deputy had a duty under the law that ran specifically to the plaintiff. Booth v. Firemen's Ins. Co., 223 Ga. App. 243 , 477 S.E.2d 376 (1996).

Unless act constitutes breach of official duty. - When an arresting officer, who has a prisoner under arrest, kills the prisoner unlawfully and without provocation, the officer commits a breach of official duty, and there is a liability upon the officer's official bond, to the statutory beneficiary of the dead man for damages for the homicide. Powell v. Fidelity & Deposit Co., 45 Ga. App. 88 , 163 S.E. 239 (1932).

"Color of office" defined. - "Color of office" is a pretense of official right to do an act, made by one who has no such right. Luther v. Banks, 111 Ga. 374 , 36 S.E. 826 (1900); Fidelity & Deposit Co. v. Smith, 35 Ga. App. 744 , 134 S.E. 801 (1926); Jones v. Reed, 58 Ga. App. 72 , 197 S.E. 665 (1938); Hawkins v. National Sur. Corp., 63 Ga. App. 367 , 11 S.E.2d 250 (1940); Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121 , 55 S.E.2d 656 (1949).

An officer's acts are done colore officii when they are of such a nature that the officer's official position does not authorize the doing of such acts though they are done in a form that purports they are done by reason of official duty and by virtue of office. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932); Richards v. American Sur. Co., 48 Ga. App. 102 , 171 S.E. 924 (1933); Jones v. Reed, 58 Ga. App. 72 , 197 S.E. 665 (1938); Hawkins v. National Sur. Corp., 63 Ga. App. 367 , 11 S.E.2d 250 (1940).

Sheriff liable for improper act of deputies. - An improper act done by sheriff's deputies under a pretended or supposed right, which does not exist, would as a colore officii act render sheriff liable to anyone aggrieved. Hawkins v. National Sur. Corp., 63 Ga. App. 367 , 11 S.E.2d 250 (1940).

Wrongful act during attempted arrest. - An officer shooting at the occupants of an automobile who have fled from an attempted arrest for a misdemeanor (illegal transportation of liquor) commits a wrongful act under color of office. Copeland v. Dunehoo, 36 Ga. App. 817 , 138 S.E. 267 (1927).

Liability for injuries inflicted during performance of official duties. - This section providing that official bonds shall be for the benefit of persons injured by the principals must be read with the conditions of such bonds obligating the officials to well and truly perform the duties of their office, and refers to such liabilities as arise within the proper intendment of the obligation. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932); Culpepper v. United States Fid. & Guar. Co., 199 Ga. 56 , 33 S.E.2d 168 (1945).

Option to bring personal suit or action on official bond. - If a person has been injured and has suffered damage by any wrongful act committed by an officer under color of office, the person can sue such officer personally or upon the officer's official bond, and recover the amount of the damage. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932); Jones v. Reed, 58 Ga. App. 72 , 197 S.E. 665 (1938).

Suit for wrongful act by sheriff or deputy. - Suit may be brought upon the sheriff's bond for any wrongful act "committed under color of the his office" by the sheriff or a deputy, and such a bond is obligatory upon the principal and sureties thereon for the "use and benefit of every person who is injured" by such wrongful act. Richards v. American Sur. Co., 48 Ga. App. 102 , 171 S.E. 924 (1933).

One who is aggrieved by the official misconduct of a deputy sheriff may at their option sue either on the sheriff's bond or on the deputy's bond. Aldridge v. Wooten, 68 Ga. App. 887 , 24 S.E.2d 700 (1943).

Sheriff liable for failure to take bond from deputy. - The sheriff was required by former Code 1933, § 24-2811 (see now O.C.G.A. § 15-16-23 ) to take a bond from a deputy, and for failure to discharge the sheriff's duty in this respect may be held liable, even after the sheriff's retirement from office, by any person who has been injured. Maryland Cas. Co. v. Smith, 56 Ga. App. 154 , 192 S.E. 449 (1937).

Suit by member of the public not authorized on nonofficial bond. - When the instrument sued on in an action against a municipal police officer for false arrest, is not a statutory official bond, and consequently can be enforced only according to the terms and obligations stated in the bond, the terms of this section cannot be read into the bond so as to authorize a suit in favor of a member of the public. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875 , 35 S.E.2d 474 (1945) (decided under former Code 1933, § 89-418 as it appeared prior to 1975).

Liability of Sureties

Sureties are chargeable with knowledge of the law, and of having executed official bonds with reference to the law. Citizens' Bank v. American Sur. Co., 174 Ga. 852 , 164 S.E. 817 (1932).

Sureties are chargeable with subsequent changes in the law. - By the proviso in paragraph (a)(3) of this section and similar provisions, a surety is given notice that on executing bond with the ordinary it would become liable for the faithful discharge of the duties of that officer under any law subsequently passed, and also that under some latter statute it might become liable for more than the injury actually sustained. It thus consented to become liable along with the officer whose duties and responsibilities were subject to change by law, thereby contracting for the future, to the extent of such changes as would be germane. National Sur. Corp. v. Gatlin, 192 Ga. 293 , 15 S.E.2d 180 (1941).

Liability for wrongful acts of police officer. - The sureties upon the official bond of a police officer are liable for wrongful acts only when performed by virtue of office, or under color of the police officer's office. Hodge v. United States Fid. & Guar. Co., 42 Ga. App. 84 , 155 S.E. 95 (1930).

Liability for wrongful acts of sheriff. - The sureties on the bonds of sheriffs of this state are liable to persons for injuries proximately resulting to them: (1) because of the failure of the sheriff to perform a duty imposed upon the sheriff by law; (2) because of the improper or neglectful performance of such a duty; and (3) for any wrongful act committed under color of the sheriff's office. Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121 , 55 S.E.2d 656 (1949).

Liability for wrongful acts of deputy sheriff. - A failure of a sheriff, by and through a deputy, to faithfully perform the duties of office constitutes a breach of the official bond given by the sheriff for the faithful performance of the duties of office, and a right of action against the surety for the breach of the bond arises ex contractu in favor of any person aggrieved by such breach of the bond. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934); Hawkins v. National Sur. Corp., 63 Ga. App. 417 , 11 S.E.2d 250 (1940).

The official bond given by a sheriff, conditioned for the faithful performance of the duties of office, obligates the surety thereon for any breach of official duty by the sheriff's deputies, and this includes deputies de facto. Powell v. Fidelity & Deposit Co., 45 Ga. App. 88 , 163 S.E. 239 (1932).

The sureties on the official bond of a sheriff are liable for a breach of its condition by a deputy sheriff as well as by the sheriff directly. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818 , 72 S.E.2d 813 (1952).

Plaintiff bound by election of remedy. - When the plaintiff had previously elected to sue on the bond of the sheriff, instead of on the deputy's bond, for the alleged wrongful acts of the sheriff and the deputy and had prosecuted that suit to judgment for an amount less than the penal sum of the sheriff's bond, as it did not appear that such judgment could not be satisfied (as in fact it had been), the plaintiff was bound by that election and was barred from maintaining a second present suit, on the deputy's bond, for the same damage and injury for which the plaintiff had previously recovered judgment against the surety on the sheriff's bond. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818 , 72 S.E.2d 813 (1952).

Extent of liability for compensated sureties. - The rule of "strict law" embodied in former Code 1933, § 103-103 (see now O.C.G.A. § 10-7-3 ), concerning the extent of a surety's liability, did not apply to compensated sureties. Busbee v. Reserve Ins. Co., 243 Ga. 371 , 254 S.E.2d 324 (1979).

Official action causing liability for surety. - When the director of the Board of Corrections failed to disgorge sums the director had received in the form of an unauthorized salary increase, this was an act for which surety was held liable under a bond specifying indemnification for "loss caused to the insured through the failure of any of the employees, acting alone or in collusion, with others, to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment during the bond." Busbee v. Reserve Ins. Co., 243 Ga. 371 , 254 S.E.2d 324 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 476, 489.

ALR. - Jurisdiction of action upon a bond of a public officer of another state or country, 26 A.L.R. 1001 .

Personal liability of public officer for refusing to grant application for license, 85 A.L.R. 298 .

Personal liability of officers to holders of invalid public money obligations, 87 A.L.R. 273 .

Liability on bond of public official or employee as affected by change in principal's duties, 94 A.L.R. 613 .

Liability of officer charged with duty of keeping record of instruments affecting title to or interest in property for mistakes or defects in respect to records, 94 A.L.R. 1303 .

Liability of public officer or his bond for the defaults and misfeasances of his clerks, assistants, or deputies, 102 A.L.R. 174 ; 116 A.L.R. 1064 ; 71 A.L.R.2d 1140.

Personal liability of public officer or sureties on his bond to property owner for failure to present, or delay in presenting, checks given in payment of taxes, 105 A.L.R. 711 .

Liability of sureties on bond of public officer as affected by fact that it was not signed by him, 110 A.L.R. 959 .

Liability of surety on official bond as affected by principal's immunity from liability for malicious prosecution as an officer charged with duty of enforcing criminal laws, 116 A.L.R. 1348 .

Personal liability of public officer or sureties on his bond for nonperformance or improper performance of a duty imposed upon a board of corporate body of which he is a member, 123 A.L.R. 756 .

Personal liability of public officials or bond for permitting insurance company or other corporation to engage or continue in business without complying with statutory requirements, 131 A.L.R. 275 .

Liability on bond of public officer for second or other successive term in respect of funds received by principal during prior term, 132 A.L.R. 1084 .

Conduct contemplated by statute which makes neglect of duty by public officer or employee a punishable offense, 134 A.L.R. 1250 .

Liability on general bond of public officer for acts covered by a special bond, 140 A.L.R. 1459 .

Liability of public officer and his sureties in respect of payments made without compliance with procedure prescribed for payment of claims, 146 A.L.R. 762 .

Public officer's bond as subject to forfeiture for malfeasance in office, 4 A.L.R.2d 1348.

Personal liability of tax collector of state or its subdivision for illegal taxes collected, 14 A.L.R.2d 383.

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

Liability of notary public or his bond for negligence in performance of duties, 44 A.L.R.3d 555.

Liability of notary public or his bond for wilful or deliberate misconduct in performance of duties, 44 A.L.R.3d 1243.

Uninvited entry into another's living quarters as invasion of privacy, 56 A.L.R.3d 434.

Governmental tort liability for injuries caused by negligently released individual, 6 A.L.R.4th 1155.

45-4-25. Actions on bonds of public officers authorized; jurisdiction.

Actions on bonds taken from public officers may be brought by any person aggrieved by the official misconduct of the officer, in his own name, in any court in this state having jurisdiction thereof, without an order for that purpose. No such action shall be instituted or maintained in any other state. Except as authorized in this Code section, actions on bonds taken from public officers shall be brought in the name of the Governor and by his written consent or by the written consent of the obligee named in such bond, for the use of such aggrieved person; provided, however, that no action on the bond of any public officer of the state to recover damages flowing to the state or the public on account of the official misconduct of such officer shall be instituted or maintained unless brought in the name of the Governor for the use of the state and by his written authorization. Any such action on the bond of any public officer of any county or other political subdivision of the state to recover damages flowing to such county or other political subdivision or the public shall not be instituted or maintained unless brought in the name of the obligee in such bond for the use of such political subdivision and by the written authorization of the governing body of such political subdivision.

(Ga. L. 1853-54, p. 57, § 1; Orig. Code 1863, § 14; Code 1868, § 12; Code 1873, § 12; Code 1882, § 12; Civil Code 1895, § 12; Civil Code 1910, § 12; Code 1933, § 89-420; Ga. L. 1959, p. 411, § 1.)

Cross references. - Substitution of parties in action against public officer when officer dies, resigns, etc., during pendency of action, § 9-11-25 .

Editor's notes. - Ga. L. 1959, p. 411, § 2, not codified by the General Assembly, provides that the Act shall be deemed to be remedial in nature and shall be given retrospective application. It shall apply to pending suits. The plaintiff in any action on the bond of any public officer of the State of Georgia then pending in any court outside of the State of Georgia may dismiss such action and renew the same in any court of this state having jurisdiction thereof within six months from March 18, 1959. In default thereof, the privilege granted by this section by the state is withdrawn and such action shall abate. Any such renewal action shall be deemed to have been filed on the same date as any such original suit.

JUDICIAL DECISIONS

This section applies to the bond of every public officer. Maryland Cas. Co. v. Smith, 56 Ga. App. 154 , 192 S.E. 449 (1937).

Who is required by general law to give a bond. - The provisions embraced in this section were intended to be applicable only to the public officers of this state who are required by general law to give bonds for the faithful performance of duties they owe to the public at large. National Sur. Co. v. Seymour, 177 Ga. 735 , 171 S.E. 380 (1933).

O.C.G.A. § 45-4-25 has no application to a bond required by a municipality alone. - The provisions embraced in former Code 1933, §§ 89-407 and 89-420 (see now O.C.G.A. §§ 45-4-23 and 45-4-25 ) were intended to be applicable only to the public officers of this state who are required by general law to give bonds for the faithful performance of duties they owe to the public at large. Former Code 1933, §§ 89-407 and 89-420 were not, therefore, to be regarded as having any application whatever to a bonded officer of a municipality who is required, by special legislation relating to that municipality alone, to give such a bond as the mayor and council may deem necessary to the proper protection of the city itself. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875 , 35 S.E.2d 474 (1945).

When the instrument sued on in an action against a municipal police officer for false arrest, is not a statutory official bond, and consequently can be enforced only according to the terms and obligations stated in the bond, the terms of the statute cannot be read into the bond so as to authorize a suit in favor of a member of the public. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875 , 35 S.E.2d 474 (1945) (decided under former Code 1933, § 89-418 as it appeared prior to 1975).

O.C.G.A. § 45-4-25 inapplicable to any bond not required by law at time of its creation. - Since the bond was not required by statute or law at the time of its creation, it could not and did not "stand in the place of the official bond," and a plaintiff cannot sue thereon in plaintiff's own name as the "person aggrieved." National Sur. Co. v. Seymour, 177 Ga. 735 , 171 S.E. 380 (1933).

Judgment against officer not prerequisite to joint suit against surety and officer. - A joint suit can be brought against a bond company and public officer without first obtaining a judgment against the tort-feasor, although there is no express provision authorizing a joint suit. Laster v. Maryland Cas. Co., 46 Ga. App. 620 , 168 S.E. 128 (1933).

An action on the bond against the officer and the surety is an action ex contractu. Cantrell v. National Sur. Co., 46 Ga. App. 202 , 167 S.E. 314 (1932).

Limitation on amount of liability of surety. - When a public officer damages another by the officer's acts colore officii or by official misconduct, the surety on official bond is not liable for any greater sum than the penal amount of the bond. Cantrell v. National Sur. Co., 46 Ga. App. 202 , 167 S.E. 314 (1932).

Summary execution against bank serving as county depository. - When a bond was executed by a bank which had been legally designated as a depository to receive money for a county in which the treasurer has been abolished, and the bond was conditioned upon the faithful discharge of its duties as county depository and made payable to the ordinary of the county, the commissioner could issue a summary execution in the name of the county, against the bank as the depository and the sureties upon the bond, upon the failure of the bank to pay over county funds belonging to the county which had been deposited in the bank as the county depository. Carter v. Veal, 42 Ga. App. 88 , 155 S.E. 64 (1930).

Cited in American Sur. Co. v. Robinson, 53 F.2d 22 (5th Cir. 1931); Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Fleming v. United States Fid. & Guar. Co., 146 F.2d 128 (5th Cir. 1944); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401 , 163 S.E.2d 834 (1968); Busbee v. Reserve Ins. Co., 243 Ga. 371 , 254 S.E.2d 324 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 480 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 489, 490, 491.

ALR. - Jurisdiction of action upon a bond of a public officer of another state or country, 26 A.L.R. 1001 .

Liability of public officer or his bond to public body in respect of fees or charges which he illegally or improperly collected from members of public, 99 A.L.R. 647 .

Suit against public officer to recover possession of property as suit against state or federal government, 160 A.L.R. 332 .

What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.

45-4-26. Action on deputy's bond.

Any person who claims damages of any principal officer for the act of his deputy may, at his option, bring an action on the deputy's bond instead of on that of the principal, in the same manner as an action may be brought on the principal's bond.

(Orig. Code 1863, § 158; Code 1868, § 153; Code 1873, § 164; Code 1882, § 164; Civil Code 1895, § 260; Civil Code 1910, § 295; Code 1933, § 89-427.)

JUDICIAL DECISIONS

Election by plaintiff of which bond to proceed upon. - One who is aggrieved by the official misconduct of a deputy sheriff may at their option sue either on the sheriff's bond or on the deputy's bond. Aldridge v. Wooten, 68 Ga. App. 887 , 24 S.E.2d 700 (1943).

A plaintiff, alleging injury and damage by the wrongful acts of a sheriff and the sheriff's deputy under color of their offices, must elect to proceed either upon the sheriff's bond or upon the deputy's, and a plaintiff could not sue on the bonds of both officers in the same suit. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818 , 72 S.E.2d 813 (1952).

The bond of a public officer is a contract of suretyship. Such a contract is to be strictly construed in the interest of the surety. It follows, therefore, that the plaintiff cannot proceed against both contracts of suretyship, the one executed with the sheriff and the one executed with the deputy, but such plaintiff must elect upon which contract to proceed. Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121 , 55 S.E.2d 656 (1949).

Election by plaintiff bars a subsequent action for the same injury. - If the plaintiff having exercised an option or having made an election to sue on the sheriff's bond instead of on that of the deputy, and having obtained satisfaction of the judgment rendered in that suit, the plaintiff cannot maintain a second suit on the deputy's bond for the same injury or damage. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818 , 72 S.E.2d 813 (1952).

Cited in Creaser v. Durant, 197 Ga. 531 , 29 S.E.2d 776 (1944).

RESEARCH REFERENCES

ALR. - Liability of public officer or his bond for the defaults and misfeasances of his clerks, assistants, or deputies, 1 A.L.R. 222 ; 102 A.L.R. 174 ; 116 A.L.R. 1064 ; 71 A.L.R.2d 1140.

Suit against public officer to recover possession of property as suit against state or federal government, 160 A.L.R. 332 .

What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.

45-4-27. Effect of recovery on bond upon subsequent proceedings.

Official bonds of public officers shall not be discharged by a single recovery, but proceedings against the officer or his sureties or both may be had from time to time until the whole penalty is exhausted; and said bonds are joint and several whether or not so set forth.

(Laws 1847, Cobb's 1851 Digest, p. 502; Code 1863, § 159; Code 1868, § 154; Code 1873, § 165; Code 1882, § 165; Civil Code 1895, § 261; Civil Code 1910, § 296; Code 1933, § 89-422.)

JUDICIAL DECISIONS

Cited in Maryland Cas. Co. v. Salmon, 45 Ga. App. 173 , 164 S.E. 80 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 368.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 493.

45-4-28. Officer's liability when bond exhausted or invalid and when acting without bond.

When the penalty of the bond is exhausted, the officer himself shall still be liable for the same measure of damages as upon his bond; and he shall likewise be liable for any damage he may do in undertaking to discharge the duties of an office without having given the necessary bond or having given one that is invalid in whole or in part.

(Orig. Code 1863, § 160; Code 1868, § 155; Code 1873, § 166; Code 1882, § 166; Civil Code 1895, § 262; Civil Code 1910, § 297; Code 1933, § 89-423.)

JUDICIAL DECISIONS

Plaintiff's recovery not limited to amount of bond. - The public officer would be personally liable in tort for any official misconduct or acts colore officii whereby the plaintiff was damaged, and the plaintiff would not be restricted in a recovery to the amount of the officer's official bond. Cantrell v. National Sur. Co., 46 Ga. App. 202 , 167 S.E. 314 (1932).

Cited in Irwin v. Arrendale, 117 Ga. App. 1 , 159 S.E.2d 719 (1967).

OPINIONS OF THE ATTORNEY GENERAL

Personal liability beyond amount of bond. - A sheriff would be personally liable in the event of a judgment entered against the sheriff in excess of the amount of the official bond. 1975 Op. Att'y Gen. No. U75-61.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 356, 363, 364, 492 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 476 et seq.

ALR. - Personal liability of public officer or sureties on his bond to property owner for failure to present, or delay in presenting, checks given in payment of taxes, 105 A.L.R. 711 .

Suit against public officer to recover possession of property as suit against state or federal government, 160 A.L.R. 332 .

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

45-4-29. Measure of damages in actions on official bonds.

The measure of damages recoverable in actions upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of injury actually sustained, including the reasonable expenses of the action to the plaintiff and the costs of court. In all cases when little or no damage is actually sustained and the officer has not acted in good faith, the jury may find for the plaintiff an amount as exemplary damages which, taking all the circumstances together, shall not be excessive or oppressive.

(Orig. Code 1863, § 162; Code 1868, § 157; Code 1873, § 168; Code 1882, § 168; Civil Code 1895, § 264; Civil Code 1910, § 299; Code 1933, § 89-421; Ga. L. 1990, p. 8, § 45.)

History of section. - This section is derived partially from the decisions in Taylor v. Johnson, 17 Ga. 521 (1885); Dobbs v. Justices of Murray County, 17 Ga. 624 (1885).

Cross references. - Amount of judgments on bonds generally, § 9-12-13 .

Law reviews. - For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).

JUDICIAL DECISIONS

Plaintiff's recovery not limited to amount of officer's bond. - The public officer would be personally be liable in tort for any official misconduct or acts colore officii whereby the plaintiff was damaged and the plaintiff would not be restricted in a recovery to the amount of the officer's official bond. Cantrell v. National Sur. Co., 46 Ga. App. 202 , 167 S.E. 314 (1932).

Recovery of expenses limited to action under consideration. - Since this section provides for the awarding of expenses of the suit, including the costs of court, it is construed to mean the present damage suit under consideration, and not the previous litigation; therefore, the plaintiff could not lawfully recover for two items of costs in previous litigation. Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932).

Sureties liable for misconduct of deputies. - The words "misconduct of the officer" as used in this section mean not only the misconduct of the sheriff, but also the misconduct of the sheriff's deputies who are the general agents of the sheriff to do and perform all acts which by law appertain to the office, and since the doctrine of respondeat superior applies, the liabilities of the sureties on the sheriff's bond are measured by that of the principal. American Sur. Co. v. Smallon, 54 Ga. App. 45 , 186 S.E. 892 (1936).

Sureties not liable for mere penalties imposed for dereliction of duties. - The liability of sureties on official bonds does not ordinarily include liability for mere penalties imposed upon the principals for a dereliction of official duties, but is limited to injury sustained. National Sur. Corp. v. Gatlin, 192 Ga. 293 , 15 S.E.2d 180 (1941).

Measure of damages for sheriff's breach of official bond. - The measure of damages for the breach of the official bond of a sheriff is ordinarily the amount of injury actually sustained, including the reasonable expenses of the suit thereon and the costs of court. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843 , 151 S.E. 680 (1930).

Measure of damages includes necessary and reasonable attorney's fees. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843 , 151 S.E. 680 (1930).

No need to show bad faith for recovery of attorney's fees. - In a case arising under this section, it is unnecessary to show bad faith, or the like, as a condition to the recovery of attorney's fees. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843 , 151 S.E. 680 (1930).

In a suit on a bond of a public officer for official misconduct, it is unnecessary to show bad faith or the like as a condition to the recovery of attorney's fees, as is generally required in contract actions by former Code 1933, § 20-1404 (see now O.C.G.A. § 13-6-11 ). Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607 , 23 S.E.2d 493 (1942).

What constitutes reasonable attorney fees is a question of fact. Scruggs v. Dorminey, 129 Ga. App. 453 , 199 S.E.2d 922 (1973).

County not entitled to recover attorney's fees. - Since it was not shown by the evidence that the county suffered any injury or loss because of having to pay attorney's fees, the county was not entitled to recover attorney's fees under this section. Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595 , 173 S.E. 720 (1934).

What amounts to bad faith. - Any arbitrary omission by the officer to do that which is required of the officer by law, or any conscious disregard of the limitation upon the officer's authority, would amount to bad faith within the meaning of that term as employed in this section. Copeland v. Dunehoo, 36 Ga. App. 817 , 138 S.E. 267 (1927).

Recovery of reasonable expenses as well as exemplary damages. - This section is susceptible of the construction that when exemplary damages are awarded there can still be a recovery for the reasonable expenses of the suit to the plaintiff, which necessarily includes attorney's fees. Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607 , 23 S.E.2d 493 (1942).

Attorneys' fees can be recovered in a suit for exemplary damages under this section. Sharpe v. Lowe, 214 Ga. 513 , 106 S.E.2d 28 (1958).

Instructions not prejudicial to defendant. - It is not prejudicial to the defendant for the court to charge the jury that to authorize a recovery for punitive or exemplary damages the jury must be satisfied that there was some wilful misconduct on the part of the officers, or that entire want of care by them which would give rise to the presumption of a conscious indifference to consequence, and that there must be evidence satisfactory to the jury either of malicious wantonness or of an oppression by the officers as against the plaintiff. American Sur. Co. v. Smallon, 56 Ga. App. 746 , 194 S.E. 35 (1937).

Cited in American Sur. Co. v. Citizens' Bank, 48 Ga. App. 448 , 172 S.E. 801 (1934); Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Carlan v. Fidelity & Cas. Co., 55 Ga. App. 271 , 190 S.E. 47 (1937); American Sur. Co. v. Smith, 55 Ga. App. 633 , 191 S.E. 137 (1937); Smith v. Glen Falls Indem. Co., 71 Ga. App. 697 , 32 S.E.2d 105 (1944); Fleming v. United States Fid. & Guar. Co., 146 F.2d 128 (5th Cir. 1944).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 492.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 481.

ALR. - Liability on bond of sheriff or other peace officer for unlawful search, 62 A.L.R. 855 .

Liability of surety on bond of law enforcement officer for punitive or exemplary damages, 64 A.L.R. 934 .

Personal liability of public officer or sureties on his bond to property owner for failure to present, or delay in presenting, checks given in payment of taxes, 105 A.L.R. 711 .

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

45-4-30. Applicability of chapter.

This chapter shall apply to the official bonds of all public officers of this state, including those whose offices may be established hereafter, unless the contrary is expressly provided.

(Orig. Code 1863, § 163; Code 1868, § 158; Code 1873, § 169; Code 1882, § 169; Civil Code 1895, § 265; Civil Code 1910, § 300; Code 1933, § 89-401.)

JUDICIAL DECISIONS

Cited in Matthews v. Rowell, 49 Ga. App. 673 , 176 S.E. 802 (1934); Sims v. United States Fid. & Guar. Co., 115 Ga. App. 71 , 153 S.E.2d 573 (1967).

RESEARCH REFERENCES

20C Am. Jur. Pleading and Practice Forms, Public Officers and Employees, § 72.

CHAPTER 5 VACATION OF OFFICE

Sec.

Cross references. - Recall of public officials holding elective office, Ga. Const. 1983, Art. II, Sec. II, Para IV.

Power of Governor to fill vacancies in office, Ga. Const. 1983, Art. V, Sec. II, Para. VIII.

Substitution of parties in action against public officer when officer dies, resigns, or otherwise leaves office during pendency of action, § 9-11-25 .

Substitute nominations to fill vacancies in party nominations upon death or disqualification, of nominee, § 21-2-134 .

Special elections and primaries, § 21-2-540 et seq.

Recall of public officers, § 21-4-1 et seq.

Delivery of books, papers, and other office property to successor to public office, § 45-6-7 et seq.

Powers and duties of Governor with regard to appointment of officers and filling of vacancies in office, § 45-12-50 et seq.

Law reviews. - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Recall election provisions 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.

45-5-1. When offices deemed vacated; filling vacancy; notice; appeal.

  1. All offices in the state shall be vacated:
    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.
  2. Upon the occurrence of a vacancy in any office in the state, the officer or body authorized to fill the vacancy or call for an election to fill the vacancy shall do so without the necessity of a judicial determination of the occurrence of the vacancy. Before doing so, however, the officer or body shall give at least ten days' notice to the person whose office has become vacant, except that such notice shall not be required in the case of a vacancy caused by death, final conviction of a felony, or written resignation. The decision of the officer or body to fill the vacancy or call an election to fill the vacancy shall be subject to an appeal to the superior court; and nothing in this subsection shall affect any right of any person to seek a judicial determination of the eligibility of any person holding office in the state. The provisions of this subsection shall apply both to vacancies occurring under this Code section and to vacancies occurring under other laws of this state.

    (Orig. Code 1863, § 131; Code 1868, § 126; Code 1873, § 135; Code 1882, § 135; Civil Code 1895, § 229; Civil Code 1910, § 264; Code 1933, § 89-501; Ga. L. 1986, p. 996, § 1.)

Cross references. - Vacating of offices by recall elections, T. 21, C. 4.

JUDICIAL DECISIONS

How vacancy occurs. - A vacancy may be caused either by a failure to elect the officer, the failure of the officer to qualify after election, or the officer's disqualification after both election and qualification. Odom v. Jones, 176 Ga. 147 , 167 S.E. 304 (1932).

Application to office in political party. - This section must be construed as applying to an office in a political body or political party. Belcher v. Harris, 228 Ga. 387 , 185 S.E.2d 771 (1971).

One resigns from an office, not a term of office. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 74 L. Ed. 2 d 504 (1982).

An incumbent state officer properly resigns whatever term is remaining by a letter to the Governor. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 72 L. Ed. 2 d 504 (1982).

Georgia law does not contemplate or require serial or multiple resignations for an incumbent officeholder who has been reelected to resign that officeholder's position. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 74 L. Ed. 2 d 504 (1982).

Officeholder elected to new term not yet entered upon need not submit two letters of resignation. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 74 L. Ed. 2 d 504 (1982).

Past offers to resign not continuing offers. - A recital that a named officer on different occasions "has stated to me, as Governor of Georgia, that if I desired to accept his resignation I could do so, and that he would 'go home,' " does not show a resignation, but merely discloses past offers to resign if the Governor then so desired. The statements so ascribed to the officer were not continuing offers, conditional or otherwise, and did not authorize future action thereon by the Governor. Patten v. Miller, 190 Ga. 123 , 8 S.E.2d 757 (1940).

Facts not constituting a resignation. - When an order of the Governor contained a specific recital of facts to show a resignation, and it appeared that the facts did not constitute a resignation in law, a declaration in the Governor's order that "the resignation aforesaid . . . is hereby accepted" does not show a vacancy created by the acceptance of a resignation. Patten v. Miller, 190 Ga. 123 , 8 S.E.2d 757 (1940).

Vacancy created by suspension of officer. - A county board of education had the right to suspend the county superintendent of schools for the commission of a crime involving moral turpitude. If convicted of the charge, such official would lose all rights to the office to which the official had been elected. If acquitted, the official might serve the remainder of the term for which elected. Parkerson v. Hart, 200 Ga. 660 , 38 S.E.2d 397 (1946).

Vacancies caused by change in residence. - Only in the case of an incumbent ceasing to be a resident of the State of Georgia does the office immediately become vacant. In all other cases, the office does not become vacant until the vacancy is judicially ascertained. Smith v. Ouzts, 214 Ga. 144 , 103 S.E.2d 567 (1958).

Change in residence by a justice of the peace. - A person holding the office of justice of the peace in this state does not vacate the office by ceasing to be a resident of the district for which the person was elected, if the person continues to reside within the state, and if the fact of cessation of residence has not been judicially ascertained. Long v. Carter, 39 Ga. App. 508 , 147 S.E. 401 (1929).

Change in residence by a county commissioner. - Although O.C.G.A. § 45-5-1(5) is applicable to county commissioners, when the commissioners are elected from districts by the entire electorate of the county their office is not vacated by removing their residence from the area from which they were elected and into another area of the county, in the absence of such a specific provision of the local Act creating the board. Chandler v. Strong, 233 Ga. 143 , 210 S.E.2d 690 (1974).

This section is mandatory and must be given effect, notwithstanding the hard consequences to the officer elect whose duty to the public was to give bond. Compton v. Hix, 184 Ga. 749 , 193 S.E. 252 (1937).

Disregard for the requirements of this section amounts to a forfeiture by the respondent of any claim to the office. This would be especially true when it appears that, due to the respondent's neglect and delay in filing any bond, another person has been named to the office and has qualified by taking the oath and making the bond required by law. Robert v. Steed, 207 Ga. 41 , 60 S.E.2d 134 (1950).

Vacancy created by failure to file official bond. - When an election for Commissioner of Roads and Revenues for Madison County, a legislative office, was held in November, at which an incumbent was reelected to such office, it was the incumbent's duty to file an official bond with the ordinary on or before January 1; and, upon the incumbent's own personal failure to do so, a vacancy in the office resulted. Compton v. Hix, 184 Ga. 749 , 193 S.E. 252 (1937).

No formal words of renunciation are contemplated as being required of the holder of an office where from any cause that person ceases to perform its duties. Parkerson v. Hart, 200 Ga. 660 , 38 S.E.2d 397 (1946); Thompson v. Nichols, 208 Ga. 147 , 65 S.E.2d 603 (1951).

Due process requirements for removal for abandonment. - When the Governor wishes to remove an incumbent constitutional officer for reason of abandonment, notice and hearing are required for due process. Partain v. Maddox, 227 Ga. 623 , 182 S.E.2d 450 (1971).

Due process requirements for removal for misconduct. - Under this section, a mere charge of misconduct in office on the part of the incumbent does not show abandonment; nor may the Governor, against the will of the incumbent, declare a vacancy upon any theory of abandonment until the fact is ascertained in a judicial proceeding. Patten v. Miller, 190 Ga. 123 , 8 S.E.2d 757 (1940); Partain v. Maddox, 227 Ga. 623 , 182 S.E.2d 450 (1971).

Abandonment caused by acquiescence in wrongful removal. - While acquiescence may be entirely different from abandonment, the abandonment of a public office may result from an acquiescence by the officer in wrongful removal or discharge; after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate rights may constitute an abandonment of the office, and the voluntary surrender of an office to another because of the erroneous belief that such other has been duly elected as successor to the surrendering officer may constitute an abandonment. Thompson v. Nichols, 208 Ga. 147 , 65 S.E.2d 603 (1951).

Quo warranto denied challenging appointment of judges. - Trial court's denial of the challenger's petition for a writ of quo warranto was affirmed because the newly created positions on the Georgia Court of Appeals qualified as vacancies under Ga. Const. 1983, Art. VI, Sec. VII, Para. III; thus, the governor had the authority to appoint judges to the vacancies created by amended O.C.G.A. § 15-3-1(a) . Clark v. Deal, 298 Ga. 893 , 785 S.E.2d 524 (2016).

Cited in Wiley v. Douglas, 168 Ga. 659 , 148 S.E. 735 (1929); Pearson v. Lee, 173 Ga. 496 , 160 S.E. 369 (1931); Morris v. Hartsfield, 186 Ga. 171 , 197 S.E. 251 (1938); Motes v. Davis, 188 Ga. 682 , 4 S.E.2d 597 (1939); Britton v. Bowden, 188 Ga. 806 , 5 S.E.2d 47 (1939); Lyons v. Brown, 201 Ga. 143 , 38 S.E.2d 837 (1946); Poole v. Duncan, 202 Ga. 255 , 42 S.E.2d 731 (1947); Hagood v. Hamrick, 223 Ga. 600 , 157 S.E.2d 429 (1967); Bible v. Marra, 226 Ga. 154 , 173 S.E.2d 346 (1970); Martin v. Moore, 232 Ga. 842 , 209 S.E.2d 182 (1974); City of Atlanta v. League of Women Voters of Atlanta-Fulton County, Inc., 244 Ga. 796 , 262 S.E.2d 77 (1979); League of Women Voters of Atlanta-Fulton County, Inc. v. City of Atlanta, 245 Ga. 301 , 264 S.E.2d 859 (1980); Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522 , 444 S.E.2d 877 (1994); Perdue v. Palmour, 278 Ga. 217 , 600 S.E.2d 370 (2004).

OPINIONS OF THE ATTORNEY GENERAL

No vacancy created by incumbent holding over. - Since none of the seven grounds mentioned in this section exist in the case of a hold-over, there is no vacancy in the office and the incumbent can legally perform the duties of the office until the incumbent's successor is appointed and qualified. 1963-65 Op. Att'y Gen. p. 216.

Withdrawal of resignation. - Unless a resignation is meant to be effective immediately (which a tender would not seem to be), it may be withdrawn before acceptance. 1963-65 Op. Att'y Gen. p. 581.

Illness of officer as ground for vacancy. - While illness of the officer is not specifically enumerated in the Georgia statute, in all probability the permanent illness of the officer might be construed by the Georgia courts to bring about a vacancy on the ground of incapacity; since it has been held that temporary imprisonment does not incapacitate, neither does temporary illness incapacitate for office. 1954-56 Op. Att'y Gen. p. 204.

State court judge must continue to maintain residency in county from which the judge is elected in order to retain the judge office and, if the judge fails to do so, then the office becomes vacant as a matter of law. 1995 Op. Att'y Gen. No. U95-6.

Determination of vacancy in office of justice of the peace. - Absence from the state, without change of residence, does not vacate the office of justice of the peace until the vacancy has been judicially determined by a court of competent jurisdiction, but change of residence to another state vacates the office. 1945-47 Op. Att'y Gen. p. 79.

When a justice of the peace removes from the militia district from which elected, the office becomes vacant. 1971 Op. Att'y Gen. No. U71-7.

Effect of member of county board of education living within city limits. - Members of a county board of education who because of an extension of the corporate limits of a city, find themselves residing within the territorial boundaries of an independent public school district, do not lose their membership on such board of education; they continue to hold office until removed by quo warranto proceedings. 1958-59 Op. Att'y Gen. p. 101.

Effect of county officer leaving area represented. - Construing this section, a county officer legally elected to office who thereafter leaves from the geographical area represented does not ipso facto cease to hold such office, but is at least a "de facto" officer, and so remains until there is a judicial ascertainment of that fact; the rule is otherwise when the officer moves outside the state. 1954-56 Op. Att'y Gen. p. 71; 1958-59 Op. Att'y Gen. p. 101.

A member of the county board of education does not become disqualified merely by moving into another militia district, unless another member of that county board also resides in that militia district, or unless an independent school system is located therein. 1952-53 Op. Att'y Gen. p. 64.

Elected at-large official moving from district qualified from. - A county commissioner, who qualifies from a particular district in a county and is elected at-large, who moves residence from the district from which the commissioner qualified to another district in the county does not create a vacancy in that office. 1985 Op. Att'y Gen. No. 85-36.

Relinquishment of rights as member of state board. - A member of a state board who has not protested the eligibility of one elected to succeed that member, and who has yet failed to attend the regular meetings of the board, has relinquished rights as a member. 1948-49 Op. Att'y Gen. p. 214.

Vacancy created by prospective resignation. - If a vacancy is created by the prospective resignation of a member of a local board of education, the board may move to fill that vacancy prior to the effective date of the resignation. 1999 Op. Att'y Gen. No. U99-8.

Absence from meetings as presumption of resignation. - The Board of Industry, Trade, and Tourism may include in its by-laws a provision specifying that any board member missing three or more consecutive meetings without discussing the reason for the absence with the chair will be presumed to have resigned and that the chair will notify the Governor of the resignation. 1991 Op. Att'y Gen. No. 91-18.

Reelection of Supreme Court Justice appointed to fill vacancy. - When the Governor appoints to fill a vacancy on the Supreme Court, the appointee must stand for reelection in the nonpartisan judicial primary and also during the next general election in November, which is more than six months after the appointment. 1992 Op. Att'y Gen. No. U92-7.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 110 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 106.

ALR. - Right to jury trial in proceeding for removal of public officer, 3 A.L.R. 232 ; 8 A.L.R. 1476 .

Right of public officer to resign, 19 A.L.R. 39 .

When resignation of public officer becomes effective, 95 A.L.R. 215 .

Power to suspend or lay off public officers or employees for a temporary period without pay as an economy and not a disciplinary measure, 111 A.L.R. 432 .

Induction or voluntary enlistment in military service as creating a vacancy in, or as ground of removal from, public office or employment, 143 A.L.R. 1470 ; 147 A.L.R. 1427 ; 148 A.L.R. 1400 ; 150 A.L.R. 1447 ; 151 A.L.R. 1462 ; 152 A.L.R. 1459 ; 154 A.L.R. 1456 ; 156 A.L.R. 1457 ; 157 A.L.R. 1456 .

Public officer's withdrawal of resignation made to be effective at future date, 82 A.L.R.2d 750.

45-5-2. Office to be vacated immediately upon final conviction of felony; filling of vacancy.

Upon final conviction of a felony, the office of any state officer shall be vacated immediately without further action. Said vacancy shall be filled in the manner provided by law for filling vacancies in such office caused by death or resignation.

(Code 1933, § 89-505, enacted by Ga. L. 1964, p. 689, § 1.)

Cross references. - Crimes and other actions giving rise to ineligibility of person for party nomination for or election to public office, § 21-2-8 .

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, § 204.

ALR. - Unfitness as affecting right to restoration by mandamus to office from which one has been illegally removed, 36 A.L.R. 508 .

Power to remove public officer without notice and hearing, 99 A.L.R. 336 .

Reversal of conviction of crime as affecting status of one removed from office, or whose license has been revoked because of the conviction, or facts involved in the prosecution, 106 A.L.R. 644 .

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.

Removal of public officers for misconduct during previous term, 42 A.L.R.3d 691.

45-5-3. Election or appointment of successor to fill unexpired terms.

  1. In those instances where the law applicable to an elective public office does not provide for filling a vacancy in such office and the Governor fills such vacancy pursuant to the authority of Article V, Section II, Paragraph VIII(a) of the Constitution, the vacancy shall be filled as follows:
    1. If the vacancy occurs during the final 27 months of a term of office, the Governor shall appoint a person to fill such vacancy for the remainder of the unexpired term of office; or
    2. If the vacancy occurs at any time prior to the time specified in paragraph (1) of this subsection, the Governor shall appoint a person to fill such vacancy until such vacancy is filled for the unexpired term of office at a special election provided for in subsection (b) of this Code section.
  2. When a special election is required to fill a vacancy for the unexpired term of office as provided by paragraph (2) of subsection (a) of this Code section, such special election shall be held on the same date as the general election which is first held following the date of the vacancy and in conjunction with such general election.
  3. It shall be the duty of the appropriate state or local election officials to call and conduct the special elections required by subsection (b) of this Code section in accordance with the applicable provisions of Chapter 2 of Title 21, known as the "Georgia Election Code." Any person elected to fill a vacancy pursuant to subsection (b) of this Code section shall possess the qualifications to seek and hold such office provided by law applicable to the office wherein the vacancy occurred.
  4. The provisions of this Code section shall not apply to a vacancy which occurs in any elective office of a municipality of this state.

    (Ga. L. 1872, p. 82, § 10; Code 1873, § 138; Code 1882, § 138; Civil Code 1895, § 230; Civil Code 1910, § 265; Code 1933, § 89-502; Ga. L. 1984, p. 1152, § 1; Ga. L. 1996, p. 166, § 2; Ga. L. 2018, p. 111, § 1/HB 907.)

The 2018 amendment, effective March 22, 2018, substituted "Paragraph VIII(a) of the Constitution," for "Paragraph VIII, subparagraph (a) of the Constitution and in those instances where the Governor fills a vacancy in the office of district attorney pursuant to Article VI, Section VIII, Paragraph I, subparagraph (a) of the Constitution," in the middle of subsection (a).

Cross references. - Designation of interim successors in event of unavailability of state officers following emergency or disaster, § 38-3-50 .

JUDICIAL DECISIONS

Cited in Hooper v. Almand, 196 Ga. 52 , 25 S.E.2d 778 (1943).

OPINIONS OF THE ATTORNEY GENERAL

Limitation on term of appointee. - This section is a general statute and a close perusal of the statute will reveal that it the statute merely a limitation upon the length of time that certain officials may be appointed; the statute does not authorize any official to appoint, but merely limits the term of those officers who do have statutory authority to appoint in specific instances. 1957 Op. Att'y Gen. p. 58.

Procedure for filling district attorney's office vacated by resignation. - A special election called by the Secretary of State is the proper procedure to fill the office of district attorney for the full four-year term beginning January 1, 1977, in the event the person elected to such office in the November 1976 general election has withdrawn. 1976 Op. Att'y Gen. No. 76-120.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 111 et seq., 148.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 97, 110, 112.

ALR. - Power of legislature to extend term of public office, 97 A.L.R. 1428 .

Election within contemplation of constitutional or statutory provisions relating to filling vacancy in public office occurring before expiration of regular term, 132 A.L.R. 574 .

Notice of election to fill vacancy in office at general election, 158 A.L.R. 1184 .

Vacancy in public office within constitutional or statutory provision for filling vacancy, where incumbent appointed or elected for fixed term and until successor is appointed or elected is holding over, 164 A.L.R. 1248 .

Power to appoint public officer for term commencing at or after expiration of term of appointing officer or body, 75 A.L.R.2d 1277.

45-5-3.1. Authority to fill vacancy absent quorum; appointment by Governor to fill vacancy.

  1. When any local or general law authorizes or requires the remaining members of the governing body of a political subdivision of this state to appoint a person to fill a vacancy occurring in that body, the absence of a quorum caused by any such vacancy or vacancies shall not impair the authority of a majority of the remaining members of such body to make that appointment.
  2. When any local or general law provides for the appointment, other than appointment by the Governor, of a person to fill a vacancy in an elective public office and such vacancy is not filled within 45 days after the vacancy occurs, the Governor shall appoint a person to fill such vacancy.  A person appointed by the Governor to fill a vacancy pursuant to this subsection shall serve until such time as that person would serve had the person been appointed as provided in that local or general law. (Code 1981, § 45-5-3.1 , enacted by Ga. L. 1992, p. 1006, § 1.)

45-5-3.2. Filling of vacancies in office of district attorney; special election.

  1. In those instances where the Governor fills a vacancy in the office of district attorney pursuant to Article VI, Section VIII, Paragraph I(a) of the Constitution, the vacancy shall be filled by the Governor appointing a qualified individual to the office of district attorney who shall serve until January 1 of the year following the next state-wide general election which is more than six months after the date of the appointment of such individual, even if such period of time extends beyond the unexpired term of the prior district attorney.
  2. A special election shall be held on the same date as the state-wide November general election which is first held following the date of the vacancy which is more than six months after the appointment of an individual to fill the vacancy and shall be held in conjunction with such general election.
  3. It shall be the duty of the Secretary of State to call and conduct the special election required by subsection (b) of this Code section in accordance with the applicable provisions of Chapter 2 of Title 21, the "Georgia Election Code." Any individual elected at such special election pursuant to subsection (b) of this Code section shall possess the qualifications to seek and hold such office as provided by law.
  4. The individual elected in the special election conducted pursuant to subsection (b) of this Code section shall begin a new four-year term of office on January 1 immediately following such special election. (Code 1981, § 45-5-3.2 , enacted by Ga. L. 2018, p. 111, § 2/HB 907.)

Effective date. - This Code section became effective March 22, 2018.

45-5-4. Continuation in office of appointee during succeeding term.

Where any person is appointed to fill a vacancy in the office of judge, district attorney, or clerk of any court in this state under a law which provides that such appointee shall fill the unexpired term, if at the end of such unexpired term the person elected to fill such office shall not be qualified to take office, or if the person elected to fill such office shall have died prior to the end of such unexpired term, or if a vacancy shall occur from any other cause, then the person appointed to fill out such unexpired term shall continue in office during the term succeeding the one in which such vacancy occurred, in the absence of any other law for filling such term.

(Ga. L. 1911, p. 169, § 1; Code 1933, § 89-503.)

JUDICIAL DECISIONS

Cited in Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695 , 506 S.E.2d 116 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 121.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 146.

ALR. - Beginning or expiration of term of elective officer where no time is fixed by law, 80 A.L.R. 1290 ; 135 A.L.R. 1173 .

Right of one holding certificate of election to take office as against incumbent whose term has expired, notwithstanding election contest, 81 A.L.R. 620 .

Notice of election to fill vacancy in office at general election, 158 A.L.R. 1184 .

Power to appoint public officer for term commencing at or after expiration of term of appointing officer or body, 75 A.L.R.2d 1277.

45-5-5. To whom resignations to be made.

  1. The resignations of all state and county officers and senators and representatives of the State of Georgia in the United States Congress shall be made to the Governor. If the resignation is from an office which may not be filled by executive appointment of the Governor, the Governor shall, upon receiving the resignation, promptly notify the appropriate official of the state or county to fill the vacancy or to initiate the process for filling the vacancy according to law.
  2. The resignations of municipal officers shall be made to the governing authority of the municipality who shall fill the vacancies in accordance with law.

    (Orig. Code 1863, § 133; Code 1868, § 128; Code 1873, § 137; Code 1882, § 137; Civil Code 1895, § 232; Civil Code 1910, § 267; Code 1933, § 89-504; Ga. L. 1986, p. 996, § 2.)

JUDICIAL DECISIONS

Georgia law does not contemplate or require serial or multiple resignations for incumbent officeholder who has been reelected to resign that position. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 74 L. Ed. 2 d 504 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 114.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 215.

ALR. - Right of public officer to resign, 19 A.L.R. 39 .

Duress as ground for withdrawing or avoiding resignation from public office, 132 A.L.R. 975 .

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

  1. 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.
  2. 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.
  3. 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.
  5. 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.
  6. 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.
  7. 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.
  8. The provisions of this Code section shall not apply to any indictment handed down prior to January 1, 1985.
  9. 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.
  10. 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. 2 d 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. 2 d 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. 2 d 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.

45-5-6.1. Suspension and vacation of office of public officials convicted of felony.

  1. 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.
  2. Upon initial conviction of any public official for any felony in a trial court of this state or the United States, regardless of whether the public official has been suspended previously under Code Section 45-5-6, such public official shall be immediately and without further action suspended from office. While a public official is suspended from office under this Code section, he shall not be entitled to receive the compensation from his office. If 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 and 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.
  4. The provisions of this Code section shall not apply to any conviction rendered prior to January 1, 1987. (Code 1981, § 45-5-6.1 , enacted by Ga. L. 1986, p. 600, § 3; Ga. L. 1996, p. 748, § 26.)

RESEARCH REFERENCES

ALR. - What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 11 A.L.R.5th 52.

45-5-6.2. Suspension of "authority officials" upon indictment for felony; continued compensation; replacement officials.

  1. As used in this Code section, the term:
    1. "Authority official" means any appointed member of a governing body of a local authority.
    2. "Local authority" includes without limitation instrumentalities of one or more local governments created to fulfill a specialized public purpose or any other legally created organization that has authority to issue debt for a public purpose independent of a county or municipality. The term does not include state authorities. Such local authorities may have been created by local constitutional amendment, general statute, or local law.
  2. Unless otherwise provided by general law, upon indictment of an authority official for a felony offense by a grand jury of this state or by the United States, the governing authority of the county or municipality that appointed the authority official may, by resolution entered on the minutes of the governing authority, suspend the authority official from the appointed office immediately and without further action pending the final disposition of the case or until the expiration of his or her appointed term of office, whichever occurs first. During the term of the office to which such officer was appointed and in which the indictment occurred, if a nolle prosequi is entered, if the authority 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 authority official shall be immediately reinstated to the office from which he or she was suspended. If the local authority is a joint authority or regional authority with appointments from more than one county, municipality, or combination of counties and municipalities, the governing authority of the county or municipality which was responsible for the appointment shall be authorized to suspend the indicted authority official.
  3. If the suspended authority official is compensated for his or her duties on behalf of the local authority, the authority official shall continue to receive the compensation from his or her office until a conviction. After a conviction, the authority official shall not be entitled to receive the compensation from his or her office. If the authority official is reinstated to office, he or she shall be entitled to receive any compensation withheld under the provisions of this Code section. For the purpose of this Code section, a plea of nolo contendere shall be considered a conviction.
  4. For the duration of any suspension of any authority official under this Code section, a replacement official for the authority official 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. If no such general law, local law, ordinance, or resolution governing the filling of a temporary vacancy is applicable, then the governing authority of the county or city responsible for the initial appointment shall appoint a replacement officer for the authority official suspended. Upon final conviction and after exhaustion of all appeals, if any, the office of the authority official shall be vacated immediately without further action. Said vacancy shall be filled by the replacement official appointed pursuant to this subsection for the balance of the appointed term of the convicted authority official. (Code 1981, § 45-5-6.2 , enacted by Ga. L. 2001, p. 487, § 2.)

Cross references. - Indictments, T. 17, C. 7, Art. 3.

Miscellaneous offenses concerning public officers and employees, T. 45, C. 11.

Editor's notes. - Ga. L. 2001, p. 487, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Corruption Prevention Act'".

Ga. L. 2001, p. 487, § 6, not codified by the General Assembly, provides that the provisions of this Code section shall not apply to any indictment handed down prior to April 20, 2001.

Law reviews. - For article, "Local Government Law", see 53 Mercer L. Rev. 389 (2001).

45-5-7. Hearing of complaints against budget unit employees and proceedings thereupon; effect on tenure.

Upon information being received that any individual employed by the state government is guilty or is alleged to be guilty of irregularities, misconduct, malpractice, malfeasance, misfeasance, incompetence, incapability, or inefficiency in the conduct of his or her official duties, the head of the budget unit, department, or agency employing said person shall be notified of such charges; and if the head of the budget unit, department, or agency takes the position that the charges are unfounded and fails or refuses to discharge the individual against whom the complaint is lodged, it shall be the duty of the Governor to hear the complaint and if, in his opinion, the facts sustain the truth of the accusation, the individual shall stand discharged from state service. Nothing in this Code section shall affect the tenure of office of the elected officials of this state, nor the tenure of office of appointed officials of this state who have been confirmed by the Senate as required by law, nor the tenure of office of those employees who are subject to merit system laws and rules and regulations.

(Code 1933, § 40-424, enacted by Ga. L. 1962, p. 17, § 1.)

Cross references. - Restriction on power of Governor and Office of Planning and Budget to strike arbitrarily name of state employee from requisition for allotment of funds or from budget of budget unit, department, or agency of state government, § 45-12-94 .

RESEARCH REFERENCES

ALR. - Personal liability of public officer for removing another officer or discharging employee, 4 A.L.R. 1371 .

Conclusiveness of governor's decision in removing officers, 52 A.L.R. 7 ; 92 A.L.R. 998 .

CHAPTER 5A TEMPORARY DISABILITIES OF ELECTED CONSTITUTIONAL EXECUTIVE OFFICERS

Sec.

Editor's notes. - Ga. L. 1983, p. 1207, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article V, Section IV, Paragraph III of the Constitution of the State of Georgia."

45-5A-1. Certification of temporary disability by Supreme Court.

If, after hearing the evidence on the disability of an elected constitutional executive officer pursuant to Article V, Section IV of the Constitution of Georgia, the Supreme Court determines that such officer has a temporary disability, such court shall certify to the elected constitutional executive officers filing the petition that such executive officer has a temporary disability which prevents such officer from performing the duties of office.

(Code 1981, § 45-5A-1 , enacted by Ga. L. 1983, p. 1207, § 2.)

45-5A-2. Lieutenant Governor exercising powers and duties of Governor during temporary disability.

In case of the temporary disability of the Governor, the Lieutenant Governor shall exercise the powers and duties of the Governor as provided in Article V, Section I, Paragraph V of the Constitution of Georgia until such time as the temporary disability of the Governor ends. The Lieutenant Governor shall receive the same compensation as the Governor until such time as the temporary disability of the Governor ends.

(Code 1981, § 45-5A-2 , enacted by Ga. L. 1983, p. 1207, § 2.)

45-5A-3. President Pro Tempore of the Senate exercising powers and duties of Lieutenant Governor during temporary disability.

In case of the temporary disability of the Lieutenant Governor, the President Pro Tempore of the Senate shall exercise the powers and duties of the Lieutenant Governor and receive the same compensation as the Lieutenant Governor until such time as the temporary disability of the Lieutenant Governor ends.

(Code 1981, § 45-5A-3 , enacted by Ga. L. 1983, p. 1207, § 2.)

45-5A-4. Governor's appointment of persons to perform duties of other officers during temporary disability.

  1. In case of the temporary disability of the Secretary of State, the Attorney General, the State School Superintendent, the Commissioner of Insurance, the Commissioner of Agriculture, or the Commissioner of Labor, the Governor shall appoint a person to perform the duties of such elected constitutional executive officer until such time as the temporary disability of such officer ends.
  2. The person appointed to perform the duties of an elected constitutional executive officer as provided in subsection (a) of this Code section shall have the qualifications to hold such office, shall give bond with good security if required of a person elected to such office, and shall take the oath of office. The person appointed to serve in the office of an incapacitated elected constitutional executive officer named in subsection (a) of this Code section shall be subject to the confirmation of the Senate if the Senate is in session at the time of his appointment or convenes in session prior to the expiration of his appointment. Any such appointment made at times when the Senate is not in session shall be effective ad interim. The person appointed to perform the duties of an elected constitutional executive officer shall be authorized to perform every act and exercise every prerogative and discretion that a person holding such office is authorized to perform or exercise under existing law. Such person shall be entitled to receive the compensation as may be provided by law for such office during the period of incapacity of the elected constitutional executive officer. (Code 1981, § 45-5A-4 , enacted by Ga. L. 1983, p. 1207, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "Commissioner of Insurance" was substituted for "Insurance Commissioner" in subsection (a).

45-5A-5. Supreme Court to determine when temporary disability has ended; resumption of duties upon termination of temporary disability.

  1. The Supreme Court shall determine when the temporary disability of an elected constitutional executive officer has ended and when the officer shall resume the exercise of the powers of office. The Supreme Court may hold hearings for such purpose.
  2. Upon the Supreme Court certifying that the disability of an elected constitutional executive officer has ended, the appointment of the person performing the duties of such officer shall terminate. The elected constitutional executive officer shall thereafter assume and perform the duties of his office. (Code 1981, § 45-5A-5 , enacted by Ga. L. 1983, p. 1207, § 2.)

45-5A-6. Officer compensation during temporary disability.

Whenever an elected constitutional executive officer is unable to exercise the duties of office due to a temporary disability and another person exercises the duties of office as provided in this chapter, during the period of disability the elected constitutional executive officer shall be entitled to receive the compensation as may be provided by law for such office.

(Code 1981, § 45-5A-6 , enacted by Ga. L. 1983, p. 1207, § 2.)

CHAPTER 6 POWERS AND DUTIES GENERALLY

Sec.

45-6-1. "Books, papers, and other office property" defined.

As used in this chapter, the term "books, papers, and other office property" shall include, but not be limited to, all books, plates, pictures, photographs, films, engravings, paintings, drawings, maps, newspapers, magazines, pamphlets, broadsides, personal papers, organization records, documents, letters, public records, and microforms; sound recordings; audiovisual materials in any format; magnetic or other tapes; electronic data processing records; artifacts; or other documentary, written, or printed material, regardless of physical form or characteristics belonging to, on loan to, or otherwise in the custody of any public office.

(Code 1933, § 89-605.1, enacted by Ga. L. 1977, p. 567, § 1.)

45-6-2. Fiscal year for all state government units; accounting.

The fiscal year for this state and for all units of the state government shall commence on July 1 and end on June 30 of each year, and all public officers of this state shall keep their official accounts in accordance therewith. The fiscal year shall be uniform for all state departments, boards, bureaus, commissions, institutions, and other agencies.

(Ga. L. 1880-81, p. 29, § 1; Code 1882, § 79a; Civil Code 1895, § 202; Civil Code 1910, § 231; Code 1933, § 89-901; Ga. L. 1937, p. 456, §§ 1, 3.)

Cross references. - Establishment of fiscal year for counties and municipalities, § 36-81-3 .

OPINIONS OF THE ATTORNEY GENERAL

The words "all public officers of this state" includes public officers of local school districts. 1957 Op. Att'y Gen. p. 114.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 484 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1831.

45-6-3. Official reports to conform with fiscal year.

The year for official reports shall be coincident with the fiscal year, and it shall be the duty of the public officers of this state to make and publish in print or electronically annually their official reports for the period commencing on July 1 and ending on June 30 of each year, inclusive. All public officers shall conform to the fiscal year as established in Code Section 45-6-2 in reporting and recording the financial operations of their respective offices and departments.

(Ga. L. 1880-81, p. 29, § 2; Code 1882, § 79a; Civil Code 1895, § 233; Ga. L. 1903, p. 25, § 1; Civil Code 1910, § 268; Code 1933, § 89-902; Ga. L. 1937, p. 456, §§ 2, 4; Ga. L. 2010, p. 838, § 10/SB 388.)

45-6-4. Mailing of annual reports to General Assembly members.

  1. Each state agency, authority, office, board, department, or official directed by law to file or electing to file an annual report shall notify each member of the General Assembly in the manner which the reporting entity deems to be most effective and efficient that such report is available upon request on or before June 1 of each year, unless another date is provided for by law.
  2. Each state agency, authority, office, board, department, or official directed by law to provide or electing to provide the members of the General Assembly with any annual report, budget, or audit other than those referred to in subsection (a) of this Code section shall not be required to distribute copies of such materials to the members but shall notify the members of the availability of such materials in the manner which the reporting entity deems to be most effective and efficient.
  3. Each state agency, authority, office, board, department, or official shall be required to furnish to any member of the General Assembly any such annual report, budget, or audit referred to in this Code section upon request of any member of the General Assembly.

    (Ga. L. 1917, p. 998; Code 1933, § 40-1701; Ga. L. 1991, p. 1125, § 1; Ga. L. 2005, p. 1036, § 29/SB 49.)

45-6-5. Source of powers of public officers generally; estoppel.

Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.

(Civil Code 1895, § 268; Civil Code 1910, § 303; Code 1933, § 89-903.)

History of section. - This Code section is derived from the decision in Penitentiary Co. No. 2 v. Gordon, 85 Ga. 159 , 11 S.E. 584 (1890).

Cross references. - Liability of public agents on public contracts, § 10-6-88 .

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For annual survey on local government law, see 61 Mercer L. Rev. 255 (2009).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Teachers' retirement system is public body to which O.C.G.A. § 45-6-5 applies. Tate v. Teachers' Retirement Sys., 257 Ga. 365 , 359 S.E.2d 649 (1987).

City not liable on void contract. - A municipality cannot be held liable upon an implied contract for the value of any benefits received by it under a contract made with one of its officials when the municipality is expressly forbidden to make such a contract; such a contract, being void, cannot be ratified by an acceptance or use by the municipality of the benefits furnished thereunder. Caldwell v. City of Rome, 44 Ga. App. 665 , 162 S.E. 829 (1932).

Lien on property acquired by city at tax sale. - The title acquired by a city at a tax sale is the same as that any individual would have obtained; that is, it obtains title subject to the lien of the special assessment. It is authorized to convey no better title than it holds. It may not by merely reselling the property divest the lien of the assessment; for to allow this would provide a method for vitiating the provision making this lien "coequal" with the lien of other taxes. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Settlement agreement enforceable. - Trial court erred in denying a property owner's motion for summary judgment in a county breach of contract action because a settlement agreement between the parties was enforceable; the county attorney had authority to make the settlement offer on behalf of the county board, and while a vote in a public meeting was a required formality to effectuate the purchase, the board's failure to complete that formality when voting in the public meeting could not destroy an already existing settlement agreement. Old Peachtree Partners, LLC v. Gwinnett County, 315 Ga. App. 342 , 726 S.E.2d 437 (2012).

Ultra vires contract not enforceable under quantum meruit theory of recovery. - Appellate court erred by holding that an environmental engineering company could recover against a city on the company's quantum meruit claim because quantum meruit was not an available remedy against the city since the claim was based on a municipal contract that was ultra vires as the contract was never approved by city council. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19 , 743 S.E.2d 381 (2013).

Cited in Anchor Duck Mills v. Maddox, 171 Ga. 495 , 156 S.E. 192 (1930); Maddox v. Highway Iron Prods. Co., 172 Ga. 131 , 157 S.E. 269 (1931); Harrison v. Southern Ry., 44 Ga. App. 49 , 160 S.E. 656 (1931); Barber v. Robinson, 178 Ga. 721 , 174 S.E. 344 (1934); State Revenue Comm'n v. NABISCO, 179 Ga. 90 , 175 S.E. 368 (1934); Carter v. Johnson, 186 Ga. 167 , 197 S.E. 258 (1938); City of Jefferson v. Holder, 195 Ga. 346 , 24 S.E.2d 187 (1943); Thompson v. Talmadge, 201 Ga. 867 , 41 S.E.2d 883 (1947); Southern Ry. v. Wages, 203 Ga. 502 , 47 S.E.2d 501 (1948); Bagwell v. Cash, 207 Ga. 222 , 60 S.E.2d 628 (1950); Northington v. Candler, 211 Ga. 410 , 86 S.E.2d 325 (1955); Staub v. City of Baxley, 91 Ga. App. 650 , 86 S.E.2d 712 (1955); Hunter v. City of Atlanta, 212 Ga. 179 , 91 S.E.2d 338 (1956); McCallum v. Almand, 213 Ga. 701 , 100 S.E.2d 924 (1957); Board of Comm'rs v. Clay, 214 Ga. 70 , 102 S.E.2d 575 (1958); Laurens County v. Keen, 214 Ga. 32 , 102 S.E.2d 697 (1958); Russell v. City of Rome, 98 Ga. App. 653 , 106 S.E.2d 339 (1958); Atlantic Co. v. Moseley, 215 Ga. 530 , 111 S.E.2d 239 (1959); Peek v. City of Albany, 101 Ga. App. 564 , 114 S.E.2d 451 (1960); Day v. Kelley, 218 Ga. 688 , 130 S.E.2d 206 (1963); Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965); City of Jonesboro v. Shaw-Lightcap, Inc., 112 Ga. App. 890 , 147 S.E.2d 65 (1966); Sutton v. City of Cordele, 230 Ga. 681 , 198 S.E.2d 856 (1973); Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973); Stone Mt. Scenic R.R. v. Stone Mt. Mem. Ass'n, 230 Ga. 800 , 199 S.E.2d 216 (1973); Mousetrap of Atlanta, Inc. v. Blackmon, 129 Ga. App. 805 , 201 S.E.2d 330 (1973); Tift v. Tift County Bd. of Tax Assessors, 234 Ga. 155 , 215 S.E.2d 3 (1975); Johnson v. Caldwell, 148 Ga. App. 617 , 251 S.E.2d 837 (1979); City of Atlanta v. Bull, 161 Ga. App. 648 , 288 S.E.2d 335 (1982); Corey Outdoor Adv., Inc. v. Board of Zoning Adjustments, 254 Ga. 221 , 327 S.E.2d 178 (1985); Exposition Enters., Inc. v. George L. Smith II Ga. World Congress Ctr. Auth., 177 Ga. App. 211 , 338 S.E.2d 726 (1985); Jones v. Ward, 201 Ga. App. 757 , 412 S.E.2d 576 (1991); Hibbs v. City of Riverdale, 227 Ga. App. 889 , 490 S.E.2d 436 (1997); McDilda v. Board of Comm'rs, 230 Ga. App. 530 , 497 S.E.2d 25 (1998); Miller v. Clayton County, 271 Ga. 135 , 518 S.E.2d 402 (1999); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11th Cir. 2002); Kaplan v. City of Sandy Springs, 286 Ga. 559 , 690 S.E.2d 395 (2010); West v. Dooly County Sch. Dist., 316 Ga. App. 330 , 729 S.E.2d 469 (2012).

Powers of Public Officers

"Unconferred power" refers to powers of municipality rather than officer. - Except when the municipality's ability to exercise its governmental powers is itself threatened by the unauthorized action of a municipal officer, the term "unconferred power" as used in O.C.G.A. § 45-6-5 has traditionally been interpreted as referring to the powers of the municipality rather than the powers of the officer. Star Laundry, Inc. v. City of Warner Robins, 189 Ga. App. 839 , 377 S.E.2d 709 , rev'd on other grounds, 259 Ga. 348 , 381 S.E.2d 38 (1989).

Persons dealing with a public officer must take notice of the extent of the officer's powers at their peril. Wood v. Puritan Chem. Co., 178 Ga. 229 , 172 S.E. 557 (1934); Morris Plan Bank v. Simmons, 201 Ga. 157 , 39 S.E.2d 166 (1946); Malcolm v. Webb, 211 Ga. 449 , 86 S.E.2d 489 (1955); City of Calhoun v. Holland, 222 Ga. 817 , 152 S.E.2d 752 (1966).

The trial court properly entered judgment n.o.v. against plaintiffs, golf professionals who alleged that they had an oral contract with a city to provide services on the city's golf courses, which contract was breached when the golf courses were leased to another, since the plaintiffs failed to show that the alleged contract was authorized. Cole v. City of Atlanta, 195 Ga. App. 67 , 392 S.E.2d 283 (1990).

City attorneys are public officers within the meaning of O.C.G.A. § 45-6-5 and plaintiffs in an action against the city had a duty to apprise themselves of the attorneys' capacity to bind the city to a settlement contract; even though an express restriction on a city attorney's right to settle a cause of action, embodied in a municipal ordinance, was not communicated by the city or its attorney to plaintiffs, they were presumptively charged with knowledge of the ordinance. Black v. City of Atlanta, 61 F.3d 27 (11th Cir. 1995).

Trial court did not err in charging jury that the city attorney, as the city's agent, bound the city through the attorney's conduct, as the charge contained a correct statement of the law pursuant to O.C.G.A. § 45-6-5 and the city failed to point to a specific limitation on the city attorney's authority that would have required a different charge under the facts and theories of the case. City of Columbus v. Barngrover, 250 Ga. App. 589 , 552 S.E.2d 536 (2001).

Public administrative officers cannot change the laws. - The state is bound only by its laws, and everyone must take notice thereof and recognize that public administrative officers cannot change the laws. P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827 , 240 S.E.2d 208 (1977); Roberts v. Tomlinson, Inc., 242 Ga. 804 , 251 S.E.2d 543 (1979).

Allegation of agency insufficient. - While generally an allegation of agency is sufficient to withstand both general and special demurrer (now motion to dismiss), such is not true in cases involving the powers and duties of public officials when the agent is without authority of law to act. Ingalls Iron Works Co. v. City of Forest Park, 99 Ga. App. 706 , 109 S.E.2d 835 (1959).

Misrepresentations not generally basis for fraud action. - Misrepresentations by a public officer as to that officer's powers and as to questions of law generally do not give rise to an action for fraud. Garrison v. Department of Transp., 240 Ga. 840 , 242 S.E.2d 615 (1978).

County administrator incorrectly advised a former county employee that the employee would start receiving retirement benefits in nine years. As the administrator disregarded and deviated from the terms of the county retirement plan, rather than simply making a mistake during an otherwise authorized action under the plan, the administrator engaged in an ultra vires action that could not support the employee's promissory estoppel claim under O.C.G.A. § 13-3-44(a) . Mullis v. Bibb County, 294 Ga. App. 721 , 669 S.E.2d 716 (2008).

Power conferred by unconstitutional Act. - A power conferred by a legislative Act, which act violates the Constitution, is an "unconferred power" within the meaning of O.C.G.A. § 45-6-5 . Richmond County v. Pierce, 234 Ga. 274 , 215 S.E.2d 665 (1975).

Leasing of certain county property prohibited. - The county board cannot, in the absence of statutory authority, make a lease of any part of the county property used or useful for county purposes. Killian v. Cherokee County, 169 Ga. 313 , 150 S.E. 158 (1929).

City cannot compel general contractor to enter into subcontract with particular company. - Company listed as a "potential subcontractor" in a bid on a contract with a city could not reasonably rely on city officials' assertions that the city could, on the basis of the listing, compel the general contractor to enter into the subcontract with the company, since city officials cannot establish a duty on the part of the city when none exists by law. Southeast Grading, Inc. v. City of Atlanta, 172 Ga. App. 798 , 324 S.E.2d 776 (1984).

City attorney's authority limited by ordinance. - A public sector attorney's authority, like that of any other public officer, is defined and prescribed by law, including municipal ordinances; thus, a city and police officers who had entered a settlement agreement executed by city attorneys on their behalf were not estopped from challenging the agreement on the basis that a city ordinance restricted the apparent authority of the attorneys to execute the agreement, even though the ordinance was not specifically communicated to the opposing party. City of Atlanta v. Black, 265 Ga. 425 , 457 S.E.2d 551 (1995).

Actions by county attorney can bind county. - Although a county attorney did not have plenary authority over a matter involving a property owner's erection of a sign that exceeded the zoning height limitations and should have sought the approval of the County Board of Commissioners prior to entering into a consent order with respect to the dispute, the county was bound by the order after the attorney asserted that the attorney had the power and authority to enter the order and it was in the interests of public policy. Although O.C.G.A. § 45-6-5 does not confer plenary settlement authority over a public sector attorney, the attorney's actions in the circumstances justified the imposition of the attorney's actions on the county. DeKalb County v. DRS Invs., Inc., 260 Ga. App. 225 , 581 S.E.2d 573 (2003).

Individual employees cannot bind city without approval. - Actions of individual city officials who are not empowered to act on behalf of the city cannot be relied upon by others to commit the government's resources, regardless of good intentions; thus, to the extent that Walston & Assoc. v. City of Atlanta, 224 Ga. App. at 484 (1997); City of Dallas v. White, 182 Ga. App. at 783 (1987); and City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. at 47 (1982), stand for the proposition that quantum meruit recovery is allowed under such circumstances, those cases are overruled. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19 , 743 S.E.2d 381 (2013).

Promulgation of rules. - Even if a state department employee manual given to all employees did purport to establish procedural protections for employees, its promulgation was beyond the authority of the director of the department and could not bind the city. Sykes v. City of Atlanta, 235 Ga. App. 345 , 509 S.E.2d 395 (1998).

Estoppel

The public is not estopped by the unauthorized acts of its agents. County Comm'rs v. O'Neal, 38 Ga. App. 158 , 142 S.E. 914 (1928).

Public is not estopped by any subsequent acts of the board of commissioners in recognizing an old line between two districts as the correct dividing line, had the district lines been changed in compliance with the requirements of law. Camp v. Trapp, 209 Ga. 298 , 71 S.E.2d 534 (1952).

State cannot be estopped by the unauthorized actions of the state's agents or officials, be those actions negligent or intentional in character. P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827 , 240 S.E.2d 208 (1977).

Since the transfer of a prisoner was not made pursuant to any order of court, being the result of some informal arrangement between the state and federal officers, it is immaterial that the state officers may have acted improperly in this matter, since the state would not be bound by the act of such officers in releasing the prisoner without authority of law and the case is the same as though the prisoner had escaped from the custody of the state officers. Jordan v. State, 41 Ga. App. 779 , 154 S.E. 725 (1930).

When a state agent or official mistakenly paid medicaid benefits to a nursing home which had previously been given official notice by the state that medicaid participation benefits would be discontinued, the state was not estopped from recovering those benefits erroneously paid. Department of Pub. Health v. Perry, 123 Ga. App. 816 , 182 S.E.2d 493 (1971).

The state is not estopped by the unauthorized acts of its agents, whether those acts are negligent or intentional in nature. Ben Hill County Bd. of Educ. v. Davis, 270 Ga. 452 , 510 S.E.2d 826 (1999).

Because a mayor lacked authority to unilaterally bind the town to a contract with the contractor, any contract based on an authorization from the mayor was unauthorized; this foreclosed the contractor from asserting estoppel against the town. Griffin Bros., Inc. v. Town of Alto, 280 Ga. App. 176 , 633 S.E.2d 589 (2006).

State cannot be estopped by unauthorized statements. - No officer, agent, or employee of the state or the Highway Department is authorized to erroneously represent the state's ownership of land and bind the state by such misrepresentation. Waller v. State Hwy. Dep't, 218 Ga. 605 , 129 S.E.2d 772 (1963).

State is not estopped by statements made by the state veterinarian when the statements are not made in the exercise of any legal authority. Gill v. Cox, 163 Ga. 618 , 137 S.E. 40 (1927).

A county could not be estopped by the unauthorized actions of the human resources director in entering into an alleged settlement agreement pertaining to the termination of a police officer. Maner v. Chatham County, 246 Ga. App. 265 , 540 S.E.2d 248 (2000).

City was not estopped from exercising eminent domain powers on the basis of unauthorized statements of its agent to purchasers of city property about the city's intentions regarding condemnation. City of Marietta v. Edwards, 271 Ga. 349 , 519 S.E.2d 217 (1999).

State can only be estopped from asserting her right to her own property by legislative enactment or resolution. Standard Oil Co. v. State Revenue Comm'n, 179 Ga. 371 , 176 S.E. 1 (1934); Waller v. State Hwy. Dep't, 218 Ga. 605 , 129 S.E.2d 772 (1963); P.C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827 , 240 S.E.2d 208 (1977).

A governing authority may not be estopped regarding an ultra vires act. City of Warner Robins v. Rushing, 259 Ga. 348 , 381 S.E.2d 38 (1989).

City was not estopped from relying on a provision of the city charter authorizing nonrenewal of the term of the chief of police, even though the city had not abided by all the terms of its charter in the past. City of Buchanan v. Pope, 222 Ga. App. 716 , 476 S.E.2d 53 (1996).

In a case involving the performance of insurance consulting services pursuant to an oral agreement with city officers who did not have authority to make the agreement, the unauthorized nature of the contract precluded the consultants from asserting estoppel against the city. Walston & Assocs. v. City of Atlanta, 224 Ga. App. 482 , 480 S.E.2d 917 (1997).

City's annexation of county roads was not ultra vires, allowing defense of estoppel. - City's failure to finalize the city's annexation of county roads by adopting an ordinance, preparing a survey, and filing the annexation with the Georgia Secretary of State were errors of omission, not ultra vires actions contrary to former O.C.G.A. §§ 36-36-1 and 36-36-2 (see now O.C.G.A. §§ 36-36-2 0 and 36-36-21 ) which the city had no power to take. Therefore, O.C.G.A. § 45-6-5 did not preclude the city from contending that the county was estopped from challenging the annexation by the county's failure to object to the annexation for 20 years. City of Holly Springs v. Cherokee County, 299 Ga. App. 451 , 682 S.E.2d 644 (2009).

Detrimental reliance, which is a necessary element of any claim of equitable estoppel, is not a factor when estoppel cannot be applied as a matter of law. City of Warner Robins v. Rushing, 259 Ga. 348 , 381 S.E.2d 38 (1989).

Employees retirement system was estopped from denying benefits as established prior to a judge's retirement because the judge had relied upon the system's calculation of benefits prior to the time of submitting the judge's resignation and the calculated benefits were paid to the judge for a period of time after retirement. Quillian v. Employees' Retirement Sys., 259 Ga. 253 , 379 S.E.2d 515 (1989).

City not estopped from recovering water and sewer charges. - City was not estopped from recovering the difference between the amount charged customers for water and sewer services under an unauthorized agreement with the mayor, and the amount required by a new rate ordinance. City of Warner Robins v. Rushing, 259 Ga. 348 , 381 S.E.2d 38 (1989).

A voluntary payment of taxes returned in the wrong county is not a ground to estop the proper county from collecting the tax on that property wherein the personalty is used in business. Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1 , 102 S.E.2d 547 (1958).

Unauthorized waiver of sovereign immunity. - The compensation of some other person or persons for comparable injuries on the same county property, or the purchase of insurance for such purposes, does not create a cause of action in a plaintiff suing a city in a tort action. The defendant city would not be estopped by such unauthorized waiver of the sovereign immunity of the county. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

Right of officer to challenge unconstitutional law. - When a public officer can be held accountable for acting under an unconstitutional law, such officer should be able to challenge its constitutional validity, and should not be estopped to do so. Richmond County v. Pierce, 234 Ga. 274 , 215 S.E.2d 665 (1975).

Officer not entitled to rely on estoppel. - Board's action in rescinding a retired officer's prior credited service was not a recalculation, but an annulment of an entitlement that had no legal basis and was thus proper. The retired officer's entitlement to the prior service credit never vested, so the board lacked any power which was expressly conferred by law to award the pension based on that prior service, and the retired officer was not entitled to relief under the doctrine of estoppel. Dukes v. Board of Trs. for the Police Officers Pension Fund, 280 Ga. 550 , 629 S.E.2d 240 (2006).

Taxing authorities not estopped by delay in denying tax exemption. - Failure of the Board of Tax Assessors to disallow claim for exemption until applicant had paid the amount of taxes otherwise due, did not relieve the applicant from paying taxes on the amount finally disallowed as an exemption, the exemption being claimed for the years 1941 and 1942 and approved by the tax receiver, but disallowed by the tax assessors in 1943; the taxing authorities were not estopped by such delay. Harper v. Davis, 197 Ga. 762 , 30 S.E.2d 481 (1944).

OPINIONS OF THE ATTORNEY GENERAL

Powers limited to those defined by law. - Rule that the powers of public boards and officers are limited to those defined by law is of especial force when the action in question is a disbursement of public funds. 1971 Op. Att'y Gen. No. 71-9; 1979 Op. Att'y Gen. No. 79-73; 1991 Op. Att'y Gen. No. 92-1.

Rule that the powers of public boards and officers are limited to those defined by law is of especial force when the action in question is a disbursement of public funds. 1991 Op. Att'y Gen. No. 92-1.

A Regional Development Center has only such powers as are conferred upon it by the legislature, either expressly or by necessary implication. 1991 Op. Att'y Gen. No. 92-1.

Especially concerning the expenditure of public funds. - An appropriate starting point for any discussion of whether or not a public board or officer in Georgia is legally authorized to take a given action is the observation that the powers of public boards and officers are limited in this state to those defined by law, a rule which is of especial force when the questioned power relates to an expenditure of public funds; it has been said to justify such an expenditure there must be a provision of law clearly providing for or authorizing the expenditure. 1977 Op. Att'y Gen. No. 77-46.

No absolution of superintendent by school board. - Any purported absolution of a superintendent by a school board after a superintendent has expended public funds entrusted to the superintendent's care in a manner not authorized by law would almost certainly be held by the courts to be a nullity. 1971 Op. Att'y Gen. No. 71-12.

Legislative authority necessary to lease state property. - A state official should have some direct legislative authority before entering upon a long term lease of state property. 1945-47 Op. Att'y Gen. p. 11.

Absent legislative authority, the Commissioner of Agriculture may not lease right-of-way through a farmers market to a railroad. 1945-47 Op. Att'y Gen. p. 11.

Acquisition of land by county school board. - A county school board is not authorized to acquire land for the purpose of general construction and subsequent resale of the improved property. 1974 Op. Att'y Gen. No. 74-126.

Tax collector not estopped from collecting balance due. - Under this section, a tax collector, by accepting a check in less than the amount of taxes due by the taxpayer, is not estopped from collecting the balance. 1945-47 Op. Att'y Gen. p. 552.

State not estopped by unauthorized action of public officer. - The Insurance Commissioner does not have the authority to accept payment of taxes for a five-year period and sign a binding agreement that this amount satisfies all claims by the state against the insurer. 1969 Op. Att'y Gen. No. 69-396.

Sales of sand removed from realty in ordinary course of business were subject to sales tax and the fact that an agent of the Revenue Department previously advised the seller that such sales were not taxable did not estop the commissioner from asserting rights of the state to the tax due. 1962 Op. Att'y Gen. p. 545.

RESEARCH REFERENCES

ALR. - Validity of statute or ordinance vesting discretion in public officials without prescribing a rule of action, 12 A.L.R. 1435 ; 54 A.L.R. 1104 ; 92 A.L.R. 400 .

Malice as ground of attack on or relief from acts or regulations of public officers in exercise of discretionary powers, 57 A.L.R. 208 .

Custom or usage as enlarging statutory powers of public officer or excusing performance of his duties in a manner other than that prescribed by statute, 65 A.L.R. 811 .

Applicability of doctrine of estoppel against government and its governmental agencies, 1 A.L.R.2d 338.

Estoppel of state or local government in tax matters, 21 A.L.R.4th 573.

45-6-6. Office property kept by public officers subject to inspection.

All books, papers, and other office property kept by any public officer under the laws of this state may be copied or inspected subject to the requirements of Article 4 of Chapter 18 of Title 50.

(Laws 1831, Cobb's 1851 Digest, p. 196; Code 1863, § 16; Code 1868, § 14; Code 1873, § 14; Code 1882, § 14; Civil Code 1895, § 14; Civil Code 1910, § 14; Code 1933, § 89-601; Ga. L. 2012, p. 218, § 13/HB 397.)

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 139 (2012).

JUDICIAL DECISIONS

O.C.G.A. § 45-6-6 applicable to clerk of superior court. - This section does not specifically name the clerk of the superior court, but applies to the clerk as a public officer and the books in the clerk's office. Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 , 160 S.E. 620 (1931).

Clerk may not deny right of inspection. - This section does not declare that the clerk shall have discretion to deny the right of inspection, but it makes it mandatory that the clerk shall afford such right to all under the conditions prescribed by the law. Baldwin v. Ariail, 232 Ga. 376 , 207 S.E.2d 17 (1974).

Private corporation's right of inspection. - This section does not exclude corporations operating for private gain from the benefits and protection of the recording Acts, but extends to "all the citizens of this State." Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 , 160 S.E. 620 (1931).

Unauthorized copying of official records prohibited. - An attorney at law has not, either in the attorney's own right, or in behalf of a corporation represented by the attorney, the right, against the consent of the clerk of the superior court, and without paying the attorney's fees, to make copies of or abstracts from the books of record in the clerk's office for the purpose of compiling abstracts of titles to be used in a private abstract and land-title business carried on by such attorney or corporation. Booth v. Mitchell, 179 Ga. 522 , 176 S.E. 396 (1934).

Records not included within section. - The records and files of the Motor Vehicle Department listing all of the automobile owners of the state do not constitute "books" within the meaning of this section. Grizzard v. State Revenue Comm'n, 177 Ga. 845 , 171 S.E. 765 (1933).

OPINIONS OF THE ATTORNEY GENERAL

Grand jury lists are public records which are open to inspection. - Under Ga. L. 1959, p. 88, § 1 (see now O.C.G.A. §§ 45-6-6 and 50-18-70 ), grand jury lists are public records and as such are matters which are open to inspection by citizens of this state at a reasonable time and place; any citizen, even a newspaper publisher, may copy the grand jury list and also publish those lists in a newspaper, if the publisher so desires. 1967 Op. Att'y Gen. No. 67-371.

Records of actions are public records. - Actions on account, notes, mortgage foreclosures, and garnishments are "public records" within Ga. L. 1959, p. 88, § 1 (see now O.C.G.A. § 50-18-70 ) since they are required by law to be kept, as well as within former Code 1933, § 89-601 (see now O.C.G.A. § 45-6-6 ) since they are contained in books kept by a public officer under the laws of Georgia; therefore, as public records these matters should be open to inspection by citizens of this state at a reasonable time and place. 1967 Op. Att'y Gen. No. 67-340.

Licensing applications submitted to a state board are public records. - Licensure applications submitted to the State Board of Registration of Used Car Dealers and their necessary parts are public records and, therefore, applications and related material become state records open to public scrutiny when they are received by the board; financial statements submitted are a necessary part of this application and are, therefore, open for public inspection; and it would not be permissible for the board to return the financial statements to the applicant without subjecting them to public scrutiny. 1976 Op. Att'y Gen. No. 76-126.

When the board's duties include keeping the applications and related materials. - The mere fact that a document is deposited or filed in a public office, or with a public officer, or is in the custody of a public officer, does not make it a public record; the crucial aspect which makes applications and related materials subject to public scrutiny is the necessity for a board to keep these documents in the discharge of their proper duty. 1976 Op. Att'y Gen. No. 76-126.

It is not proper for a county tax commissioner to store tax records in the commissioner's home. 1975 Op. Att'y Gen. No. U75-75.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 26 et seq.

C.J.S. - 76 C.J.S., Records, § 93 et seq.

ALR. - Restricting public access to judicial records of state courts, 84 A.L.R.3d 598.

Payroll records of individual government employees as subject to disclosure to public, 100 A.L.R.3d 699.

Warrantless search by government employer of employee's workplace locker, desk, or the like as violation of fourth amendment privacy rights - federal cases, 91 A.L.R. Fed 226.

45-6-7. Duty of incumbent to deliver office property to successor - Generally.

When any office is vacated, it is the duty of the incumbent, when requested, to deliver all books, papers, and other office property to his qualified successor.

(Orig. Code 1863, § 166; Code 1868, § 161; Code 1873, § 172; Code 1882, § 172; Civil Code 1895, § 269; Civil Code 1910, § 304; Code 1933, § 89-602.)

Cross references. - Provision in quo warranto judgment for delivery to proper officer of all books and papers belonging to the public office in question, § 9-6-66 .

JUDICIAL DECISIONS

Complete relief granted in equity. - Equity, having properly taken jurisdiction of the matter which was the gist of the injunction proceeding (prevention of discharged deputy from further performing duties of former office) had the right to give complete relief as to the incidental matters of possession of official keys and papers, irrespective of whether or not as to such incidental matters alone the petitioner would have had an adequate remedy at law by trover as to the keys, and by proceedings under this section as to the official papers. Denson v. Tarver, 186 Ga. 180 , 197 S.E. 242 (1938).

Cited in Altman v. Taylor, 178 Ga. 689 , 173 S.E. 828 (1934); Daniel v. Citizens & S. Nat'l Bank, 182 Ga. 384 , 185 S.E. 696 (1936).

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 37.

ALR. - Duty of outgoing officer to see that person to whom money or other property is turned over is a duly qualified successor, 106 A.L.R. 195 .

45-6-8. Duty of incumbent to deliver office property to successor - Retiring judicial or ministerial officers or state's attorneys.

Upon retiring from office, all judicial officers, ministerial officers, or state's attorneys who receive any books, papers, or other office property from the state shall deliver those materials over to their successors.

(Orig. Code 1863, § 170; Code 1868, § 165; Code 1873, § 176; Code 1882, § 176; Civil Code 1895, § 273; Civil Code 1910, § 308; Code 1933, § 89-606.)

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 37.

45-6-9. Duty of incumbent to deliver office property to successor - When incumbent deceased or cannot be found.

If a vacancy occurs because of death or if the incumbent cannot be found at the time a demand is made, it shall be the duty of any person having possession or control of any books, papers, or other office property or any part thereof to deliver it to the successor; and any rights and remedies shall be the same against such person as against the officer who is deceased or cannot be found.

(Orig. Code 1863, § 167; Code 1868, § 162; Code 1873, § 173; Code 1882, § 173; Civil Code 1895, § 270; Civil Code 1910, § 305; Code 1933, § 89-603.)

45-6-10. Duty of incumbent to deliver office property to successor - Failure to comply; search for and seizure of office property.

At the time appointed or at any other time to which the matter may be adjourned after a copy of the show cause order had been personally served on the person refusing to deliver the books, papers, and other office property, the judge shall proceed to inquire into the circumstances. If it appears that the books, papers, and other office property are withheld, the judge must order the same delivered immediately to the successor and on failure of the person so ordered to comply, the judge shall issue a warrant, directed to any officer of the county or of the adjoining county authorized to make an arrest, to arrest such person and commit him to jail, where he shall remain until he complies with said order or is otherwise discharged by law. At the same time and in the same way the judge shall command such officer to search such places as may be designated in the warrant for the books, papers, and other office property and to seize and bring them before him or some other official authorized to preside. If it appears that the books, papers, and other office property belong to the office, the judge shall cause them to be delivered to the successor. The payment of costs is in the discretion of the court. These proceedings do not interfere with Code Section 45-6-14 on this subject.

(Orig. Code 1863, § 169; Code 1868, § 164; Code 1873, § 175; Code 1882, § 175; Civil Code 1895, § 272; Civil Code 1910, § 307; Code 1933, § 89-605; Ga. L. 1984, p. 22, § 45.)

JUDICIAL DECISIONS

Order by superior court not reviewable. - The proceeding authorized by this section for the purpose of compelling the delivery of books, papers, or other property, is not, when instituted before a judge of the superior court, a proceeding in any superior court; and consequently no order passed by such officer upon such a proceeding is reviewable by a writ of error to the Supreme Court. Grimsley v. Morgan, 47 Ga. App. 183 , 170 S.E. 91 (1933); Chandler v. Barefield, 178 Ga. 265 , 172 S.E. 919 (1934).

45-6-11. Duty of incumbent to deliver office property to successor - Proceedings by successor.

If any person shall neglect or refuse to deliver books, papers, or other office property after demand has been made, the successor shall make complaint to the judge of the probate court of the county or to the judge of the superior court of the circuit in which the person refusing resides or, if neither can be had, to the judge of the superior court of an adjoining circuit; and if such officer is satisfied from the oath of complainant or otherwise that books, papers, or other office property are being withheld, he shall grant an order requiring the person so refusing to show cause, on a day and at a place named in such order, why he should not be compelled to deliver over such property.

(Ga. L. 1853-54, p. 27, § 1; Code 1863, § 168; Code 1868, § 163; Code 1873, § 174; Code 1882, § 174; Civil Code 1895, § 271; Civil Code 1910, § 306; Code 1933, § 89-604.)

JUDICIAL DECISIONS

Cited in Daniel v. Citizens & S. Nat'l Bank, 182 Ga. 384 , 185 S.E. 696 (1936); Patten v. Miller, 190 Ga. 105 , 8 S.E.2d 776 (1940).

45-6-12. Duty of incumbent to deliver office property to successor - Director of Division of Archives and History to act as agent when office abolished or no successor appointed.

The director of the Division of Archives and History, or his or her designee, is authorized to act as agent for any public officer or his or her successor in office, or in those cases where the office is abolished or no successor is appointed or elected, to recover books, papers, and other office property in the manner provided in Code Sections 45-6-10 and 45-6-11. The director may initiate such action on his or her own volition and succeeds to all rights and remedies as the successor in office would normally have in the property.

(Code 1933, § 89-605.1, enacted by Ga. L. 1977, p. 567, § 1; Ga. L. 2002, p. 532, § 8.)

45-6-13. Duty of incumbent to deliver office property to successor - Liability for costs of office property upon failure to deliver.

Upon failure to deliver any books, papers, or other office property after demand has been made by the incoming officer, the retiring judicial or ministerial officer shall be liable for three times the initial cost of such books, papers, or other office property, to be retained out of his salary, if a salaried officer, or if not a salaried officer and the said amount has not been retained, he shall be subject to action and recovery by his successor in the name of the state.

(Orig. Code 1863, § 171; Code 1868, § 166; Code 1873, § 177; Code 1882, § 177; Civil Code 1895, § 274; Civil Code 1910, § 309; Code 1933, § 89-607.)

JUDICIAL DECISIONS

Cited in Patten v. Miller, 190 Ga. 105 , 8 S.E.2d 776 (1940).

45-6-14. Duty of incumbent to deliver office property to successor - Failure to deliver office property.

After the expiration of his term, if any officer shall willfully and unlawfully withhold or detain from his successor the books, papers, or other office property belonging to his office or if he shall mutilate, destroy, take away, or otherwise prevent the complete possession by his successor of such books, papers, or other office property, then he shall be guilty of a misdemeanor.

(Laws 1833, Cobb's 1851 Digest, pp. 805, 806; Code 1863, § 4368; Code 1868, § 4406; Code 1873, § 4474; Code 1882, § 4474; Penal Code 1895, § 283; Penal Code 1910, § 287; Code 1933, § 89-9905.)

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 37.

CHAPTER 7 SALARIES AND FEES

Article 1

General Provisions.

Article 2

Reimbursement of Expenses.

Article 3

Salary Deductions.

Article 4

Disclosure of Professional Services Fees.

Article 5

State Commission on Compensation.

Article 6

Temporary Furloughs.

Cross references. - Authority of General Assembly to prescribe compensation and allowances for executive officers, Ga. Const. 1983, Art. V, Sec. III, Para. III.

ARTICLE 1 GENERAL PROVISIONS

OPINIONS OF THE ATTORNEY GENERAL

Waiver of compensation. - An elected public official cannot waive the compensation of that office established by law. 1985 Op. Att'y Gen. No. 85-13.

RESEARCH REFERENCES

ALR. - Constitutional provision against increasing compensation during term of office as applicable where new duties are imposed on officer after taking office, 51 A.L.R. 1522 ; 170 A.L.R. 1438 .

Validity and effect of agreement by public officer or employee to accept less than compensation or fees fixed by law, or of acceptance of reduced amount, 118 A.L.R. 1458 ; 160 A.L.R. 490 .

Constitutional or statutory limitation of compensation of public officer as applicable to one in governmental service who is paid in whole or part from funds not derived from taxation, 135 A.L.R. 1033 .

Constitutional provision against increase in compensation of public officer during term of office as applicable to statute providing for first time for compensation for office, 144 A.L.R. 685 .

Constitutional or statutory inhibition of change of compensation of public officer as applicable to one appointed or elected to fill vacancy, 166 A.L.R. 842 .

Payment of salary to de facto officer or employee as defense to action or proceeding by de jure officer or employee for salary, 64 A.L.R.2d 1375.

Payroll records of individual government employees as subject to disclosure to public, 100 A.L.R.3d 699.

45-7-1. Payment for personal services by state departments.

The director of the Office of Planning and Budget is authorized, in his discretion, to require any department of state government to calculate and to make payment for personal services on the basis of 26 pay periods per year.

(Ga. L. 1967, p. 125, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 275.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 374 et seq, 381 et seq.

45-7-2. Compensation of state official for serving in ex officio position.

No state official who receives, as a part of his compensation, pay for service on an ex officio office or position held by such officer shall receive any compensation for such service in any such ex officio office created subsequent to May 1, 1963, unless the statute creating the ex officio office shall specifically provide for compensation for the ex officio officer.

(Ga. L. 1963, p. 586, § 1.)

RESEARCH REFERENCES

ALR. - Compensation of public officers or employees for services rendered under an unconstitutional act, 101 A.L.R. 1417 .

Validity and effect of agreement by public officer or employee to accept less than compensation of fees fixed by law, or of acceptance of reduced amount, 160 A.L.R. 490 .

45-7-3. Compensation of state officials designated in Code Sections 45-7-4, 45-7-20, and 45-7-21; reimbursement of members of General Assembly serving on advisory boards and similar entities of the executive and judicial branches.

  1. Unless specifically stated otherwise, the state officials designated in Code Sections 45-7-4, 45-7-20, and 45-7-21 shall not receive from state funds any compensation, salary, contingent expense allowance, longevity pay, or allowance of any kind other than that specified or provided for in such Code sections. The annual salary for each such official shall be paid in equal monthly or semimonthly installments.
  2. Members of the General Assembly may be reimbursed from funds of the executive and judicial branches of state government for their service upon advisory or investigative boards, committees, commissions, and other similar entities of the executive and judicial branches, subject to the following conditions:
    1. Such reimbursement shall be limited to actual expenses incurred or to actual travel expenses incurred and a per diem allowance not to exceed the per diem allowance paid to members of the General Assembly for service on interim committees of the General Assembly, provided that a mileage allowance for use of a personal motor vehicle may be substituted for actual expenses incurred in the use of the vehicle; and
    2. No such reimbursement shall be paid to any member of the General Assembly for any day upon which the member of the General Assembly receives compensation or reimbursement from the legislative branch of state government.

      Members of the General Assembly are expressly authorized to receive reimbursement as provided for in this subsection, and the executive and judicial branches of state government are expressly authorized to pay reimbursement as provided for in this subsection.

      (Ga. L. 1973, p. 701, § 1; Ga. L. 1978, p. 4, § 1; Ga. L. 1988, p. 284, § 1.)

Cross references. - Acceptance of other compensated office or appointment by member of General Assembly, Ga. Const. 1983, Art. III, Sec. II, Para. IV.

JUDICIAL DECISIONS

Purpose of Ga. L. 1978, p. 4, §§ 1 and 4 (see now O.C.G.A. §§ 45-7-3 and 45-7-21 ) is to set limitations on current earnings and expenses of those in high governmental office and not to penalize those who assume such office by requiring forfeiture of a previously accrued payment obligation of the state. State v. O'Neal, 155 Ga. App. 870 , 273 S.E.2d 631 (1980).

Applicability to officer already in office. - During officer's tenure as Commissioner of Department of Administrative Services, appellee was subject to limitations regarding compensation contained in Ga. L. 1978, p. 4, §§ 1 and 4 (see now O.C.G.A. §§ 45-7-3 and 45-7-21 ), notwithstanding that appellee assumed office several months prior to enactment of legislation governing compensation. State v. O'Neal, 155 Ga. App. 870 , 273 S.E.2d 631 (1980).

OPINIONS OF THE ATTORNEY GENERAL

A public official subject to the Compensation Act, cannot be paid for accumulated annual leave. 1979 Op. Att'y Gen. No. 79-34.

Estate cannot be paid for annual leave. - The estate of a constitutional officer whose salary is set by the Compensation Act, cannot be paid for any amount of the officer's accrued leave. 1979 Op. Att'y Gen. No. 79-34.

Compensatory time restrictions. - Compensatory time cannot be earned, credited, or granted to state constitutional officers and officials whose compensation is set by the State Compensation Act, 1985 Op. Att'y Gen. No. 85-6.

For disposition of accrued leave when commissioner of natural resources resigned to become commissioner of labor, see 1985 Op. Att'y Gen. No. 85-59.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 271 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 374 et seq, 381 et seq.

ALR. - Validity of agreement by public officer or employee to accept less than compensation or fees fixed by law, 70 A.L.R. 972 ; 118 A.L.R. 1458 ; 160 A.L.R. 490 .

Right of public officers or employees to preference or priority in payment of their salaries or fees and expenses, 92 A.L.R. 635 .

Validity of contract by officer with public for rendition of new or special services to be paid for in addition to regular compensation, 159 A.L.R. 606 .

Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.

45-7-4. Annual salaries of certain state officials; cost-of-living adjustments.

  1. The annual salary of each of the state officials listed below shall be as follows:            (1) Governor ..........................................$175,000.00                  An allowance in an amount specified in the appropriations Act shall also be provided for the operation of the Governor's mansion.            (2) Lieutenant Governor .................................54,920.00            (3) Adjutant general                  The adjutant general shall continue to receive the pay and allowances under the same procedure as provided by law.            (4) Commissioner of Agriculture ........................100,429.00            (5) Attorney General ...................................114,633.00            (6) Reserved.            (7) Commissioner of Insurance ..........................100,396.00            (8) Reserved.            (9) Commissioner of Labor ..............................100,418.00                  The above amount of salary for the Commissioner of Labor shall include any compensation received from the United States government and the amount of state funds paid shall be reduced by the amount of compensation received from the United States government.           (10) Reserved.           (11) Each member of the Public Service  Commis-                sion ................................................96,655.00            (12) Reserved.           (13) State School Superintendent ........................102,708.00           (14) Secretary of State .................................102,708.00           (15) Reserved.           (16) Reserved.           (17) Reserved.           (18) Each Justice of the Supreme Court ..................175,600.00           (19) Each Judge of the Court of Appeals .................174,500.00               (19.1) Judge of the Georgia State-wide Business Court ...174,500.00           (20) Each superior court judge ..........................126,265.00           (21) Each district attorney .............................120,072.00           (22) Each member of the General Assembly .................16,200.00             (A) Reserved.             (B) Each member of the General Assembly shall also receive the allowances provided by law. The amount of the daily expense allowance which each member is entitled to receive under the provisions of Code Section 28-1-8 shall be as provided in that Code section. The mileage allowance for the use of a personal car on official business shall be the same as that received by other state officials and employees.             (C) In addition to any other compensation and allowances authorized for members of the General Assembly, each member may be reimbursed for per diem differential and for actual expenses incurred in the performance of duties as a member of the General Assembly in an amount not to exceed $7,000.00 per year. Expenses reimbursable up to such amount shall be limited to one or more of the following purposes: lodging, meals, per diem differential, postage, personal services, printing and publications, rents, supplies (including software), telecommunications, transportation, utilities, purchasing or leasing of equipment, and other reasonable expenditures directly related to the performance of a member's duties. If equipment purchased by a member has a depreciated value of $100.00 or less when such member leaves office, the equipment does not need to be returned to the state. No reimbursement shall be made for any postage which is used for a political newsletter. No reimbursement shall be paid for lodging or meals for any day for which a member receives the daily expense allowance as provided in this paragraph. Eligible expenses shall be reimbursed following the submission of vouchers to the legislative fiscal office in compliance with the requirements of this subparagraph and subject to the provisions of subparagraph (E) of this paragraph. Such vouchers shall be submitted in such form and manner as prescribed by the Legislative Services Committee pursuant to subparagraph (E) of this paragraph, provided that each such voucher shall be accompanied by a supporting document or documents, or legible copies thereof, showing payment for each expense claimed or an explanation of the absence of such documentation; in addition, each such voucher shall include a certification by the member that the information contained in such voucher and supporting document or documents, or legible copies thereof, is true and correct and that such expenses were incurred by the member. The provisions of Code Section 16-10-20 shall be applicable to any person submitting such certified vouchers and supporting documents or copies the same as if the General Assembly were a department or agency of state government. No such voucher or supporting document shall be required for per diem differential.             (D) The amount of per diem differential which may be claimed for each day under subparagraph (C) of this paragraph shall be the difference between the daily expense allowance authorized for members of the General Assembly and $119.00; provided, however, that the General Appropriations Act for any fiscal year may increase such amount of $119.00 per day to an amount not in excess of the federal per diem rate then in effect for the state capital as specified by the General Services Administration. Per diem differential shall be paid by the legislative fiscal office to the member upon the member's notification to the legislative fiscal office of the days for which the daily expense allowance was received for which the member wishes to claim the per diem differential, and the legislative fiscal office shall keep a record of the days for which per diem differential is so claimed and paid.             (E) For the purposes of this paragraph, a year shall begin on the convening date of the General Assembly in regular session each year and end on the day prior to the convening of the General Assembly in the next calendar year. Any voucher or claim for any reimbursement for any year as defined in this paragraph shall be submitted no later than the fifteenth of April immediately following the end of such year. No reimbursement shall be made on any voucher or claim submitted after that date. Any amounts remaining in such expense account at the end of the first year of the two-year biennium may be claimed for expenses incurred during the second year of the two-year biennium. Any amounts remaining in any expense account which are not so claimed by April 15 of the year following the second year of the biennium and any amounts claimed which are returned as hereafter provided for in this paragraph shall lapse and shall be remitted by the legislative fiscal office to the general fund of the state treasury. Any former member of the General Assembly may be reimbursed for expenses incurred while a member of the General Assembly upon compliance with the provisions of this paragraph. The Legislative Services Committee is empowered to provide such procedures as it deems advisable to administer the provisions of this paragraph, including, but not limited to, definitions of the above list of items for which reimbursement may be made; provided, however, that the term "other reasonable expenditures directly related to the performance of a member's duties" shall be as defined by policies adopted by the Speaker of the House of Representatives and by the Senate Administrative Affairs Committee as to reimbursement of such expenditures incurred by members of the House and Senate, respectively; and provided, further, that the amount of expenses which may be reimbursed within the limits of subparagraph (C) of this paragraph for travel outside the state may be as provided by policies adopted by the Speaker of the House of Representatives and by the Senate Administrative Affairs Committee as to such expenditures of members of the House and Senate, respectively. The Legislative Services Committee is further empowered to prescribe the form of the voucher or claim which must be submitted to the legislative fiscal office. In the event of any disagreement as to whether any reimbursement shall be made or any allowance shall be paid, the Legislative Services Committee shall make the final determination; except that in the event of any disagreement as to whether any reimbursement under subparagraph (C) of this paragraph shall be made for other reasonable expenses directly related to the performance of a member's duties or for travel outside the state, the Speaker of the House of Representatives shall make the final determination as to such expenses incurred by a member of the House, and the Senate Administrative Affairs Committee shall make the final determination as to such expenses incurred by a member of the Senate. In the event any reimbursement is made or any allowance is paid and it is later determined that such reimbursement or payment was made in error, the person to whom such reimbursement or payment was made shall remit to the legislative fiscal office the amount of money involved. In the event any such person refuses to make such remittance, the legislative fiscal office is authorized to withhold the payment of any other moneys to which such person is entitled until the amount of such reimbursement or payment which was made in error shall be realized.           (23) Speaker of the House of Representatives .............17,800.00                  The Speaker of the House of Representatives shall also receive the salary and allowances authorized as a member of the General Assembly. Upon the taking of office by the members of the General Assembly on the convening day of the regular session of the General Assembly in 1983, the annual salary of the Speaker of the House of Representatives shall become $22,800.00. After such date, the Speaker shall also receive as additional salary a sum equal to the amount of salary over $30,000.00 per annum which is received by the Lieutenant Governor as of that date or thereafter; and the salary of the Speaker shall be adjusted at the beginning of each term so as to include such additional sum.           (24) President Pro Tempore of the Senate ..................4,800.00                  The President Pro Tempore of the Senate shall also receive the salary and allowances authorized as a member of the General Assembly.           (25) Speaker Pro Tempore of the House of Representatives ..4,800.00

    The Speaker Pro Tempore of the House of Representatives shall also receive the salary and allowances authorized as a member of the General Assembly.

  2. As an adjustment except as qualified below as to members and member-officers of the General Assembly, the annual salary of each state official whose salary is established by Code Section 45-7-3, this Code section, and Code Sections 45-7-20 and 45-7-21, including members of the General Assembly, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the Speaker Pro Tempore of the House of Representatives, may be increased by the General Assembly in the General Appropriations Act by a percentage not to exceed the average percentage of the increase in salary as may from time to time be granted to employees of the executive, judicial, and legislative branches of government. However, any increase for such officials shall not include within-grade step increases for which employees subject to compensation plans authorized and approved in accordance with Code Section 45-20-4 are eligible. Any increase granted pursuant to this subsection shall become effective at the same time that funds are made available for the increase for such employees, except increases for members and member-officers of the General Assembly. That portion of the increase determined by the Legislative Services Committee to reflect a cost-of-living increase based upon objective economic criteria shall become effective for members and member-officers at the same time that funds are made available for the increase for such employees. The balance of the increase for members and member-officers of the General Assembly shall become effective on the convening of the next General Assembly in January of the next odd-numbered year. The Office of Planning and Budget shall calculate the average percentage increase.
  3. The annual salary being received on June 30, 1980, shall be increased by 8 percent for each state official listed in subsection (a) of this Code section who:
    1. Is not a member of the General Assembly; and
    2. Is not a contributing member of a state retirement system and, therefore, does not benefit by or participate in any program whereunder a portion of the employee contributions to the state retirement system are made on behalf of the employee by the employer.

      (Ga. L. 1973, p. 701, § 2; Ga. L. 1978, p. 4, § 2; Ga. L. 1978, p. 902, § 1; Ga. L. 1980, p. 756, § 1; Ga. L. 1980, p. 758, § 1; Ga. L. 1980, p. 925, § 19; Ga. L. 1981, p. 894, § 1; Ga. L. 1982, p. 1255, § 1; Ga. L. 1983, p. 3, § 34; Ga. L. 1983, p. 719, § 1; Ga. L. 1983, p. 1401, § 20; Ga. L. 1983, p. 1831, §§ 1-3; Ga. L. 1984, p. 22, § 45; Ga. L. 1984, p. 444, § 1; Ga. L. 1984, p. 717, § 1; Ga. L. 1984, p. 808, §§ 1, 2; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 493, § 1; Ga. L. 1985, p. 524, § 1; Ga. L. 1985, p. 672, §§ 1, 2; Ga. L. 1986, p. 877, § 1; Ga. L. 1988, p. 154, § 1; Ga. L. 1988, p. 284, § 2; Ga. L. 1989, p. 212, § 1; Ga. L. 1989, p. 579, § 5; Ga. L. 1991, p. 1363, § 1; Ga. L. 1992, p. 6, § 45; Ga. L. 1994, p. 851, §§ 1, 2; Ga. L. 1994, p. 1065, § 1; Ga. L. 1995, p. 10, § 45; Ga. L. 1995, p. 1018, §§ 1, 2; Ga. L. 1996, p. 1302, § 2; Ga. L. 1999, p. 910, § 4; Ga. L. 1999, p. 1213, §§ 5, 6, 7; Ga. L. 1999, p. 1242, §§ 2, 2.1; Ga. L. 2001, p. 783, § 1; Ga. L. 2002, p. 415, § 45; Ga. L. 2006, p. 414, § 5/HB 268; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-69/HB 642; Ga. L. 2015, p. 919, § 1-9/HB 279; Ga. L. 2017, p. 579, §§ 1-1, 2-1, 2-2/HB 202; Ga. L. 2018, p. 1112, § 45/SB 365; Ga. L. 2019, p. 845, § 1-2/HB 239; Ga. L. 2019, p. 1056, § 45/SB 52.)

The 2015 amendment, effective January 1, 2016 substituted "175,600.00" for "139,418.00" in paragraph (a)(18); substituted "174,500.00" for "138,556.00" in paragraph (a)(19), substituted "126,265.00" for "99,862.00", and deleted "Each superior court judge shall also receive any supplement paid to such judge by the county or counties of such judge's judicial circuit as may be provided for by law. Each superior court judge shall also receive reimbursement of travel expenses as provided by law." in paragraph (a)(20); and substituted "120,072.00" for "107,905.00", and deleted "Each district attorney shall also receive any supplement paid to such district attorney by the county or counties of such district attorney's judicial circuit as may be provided for by law. Each district attorney shall also receive reimbursement of travel expenses as provided by law." in paragraph (a)(21). See editor's note for effective date.

The 2017 amendment, effective January 14, 2019, substituted "$175,000.00" for "$60,000.00" in paragraph (a)(1); and, effective July 1, 2017, substituted the present provisions of subparagraph (a)(22)(C) for the former provisions, which read: "In addition to any other compensation and allowances authorized for members of the General Assembly, each member may be reimbursed for per diem differential and for actual expenses incurred in the performance of duties within the state as a member of the General Assembly in an amount not to exceed $7,000.00 per year. Expenses reimbursable up to such amount shall be limited to one or more of the following purposes: lodging, meals, per diem differential, postage, personal services, printing and publications, rents, supplies (including software), telecommunications, trans- portation, utilities, and purchasing or leasing of equipment. If equipment purchased by a member has a depreciated value of $100.00 or less when such member leaves office, the equipment does not need to be returned to the state. No reimbursement shall be made for any postage which is used for a political newsletter. No reimbursement shall be paid for lodging or meals for any day for which a member receives the daily expense allowance as provided in this paragraph. Such expenses shall be reimbursed upon the submission of sworn vouchers to the legislative fiscal office. Such sworn vouchers shall be accompanied by a supporting document or documents showing payment for each expense claimed or an explanation of the absence of such documentation. No sworn voucher or supporting document shall be required for per diem differential."; in subparagraph (a)(22)(E), substituted the present provisions of the seventh sentence for the former provisions, which read: "The Legislative Services Committee is empowered to provide such procedures as it deems advisable to administer the provisions of this paragraph, including, but not limited to, definitions of the above list of items for which reimbursement may be made and the form of the voucher or claim which must be submitted to the legislative fiscal office." and added the exception at the end of the ninth sentence; and, in the first sentence of subsection (b), substituted "an adjustment" for "a cost-of-living adjustment" at the beginning and deleted "general" preceding "increase in salary" near the end. See Editor's notes for applicability.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "the Speaker of the House of Representatives shall make" for "the Speaker of the House shall make" in the ninth sentence of subparagraph (a)(22)(E).

The 2019 amendments. The first 2019 amendment, effective May 7, 2019, added paragraph (a)(19.1). The second 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, substituted "two-year biennium" for "two year biennium" in two places in the fourth sentence of subparagraph (a)(22)(E).

Cross references. - Reimbursement of superior court judges for travel and other expenses, §§ 15-6-30 et seq.

Additional compensation of district attorneys, and as to reimbursement of district attorneys and assistant district attorneys for travel expenses, § 15-18-10 .

Further provisions regarding salary and allowances of members of General Assembly, Speaker of House of Representatives, and other officers, § 28-1-8 .

Requirements regarding introduction of bills changing compensation for state officials or department or agency heads, § 28-5-1 et seq.

Reimbursement of expenses of state officials generally, § 45-7-20 et seq.

Recommendations of amount of compensation to be established by law for constitutional state officers, § 45-7-90 et seq.

Legal mileage allowance, § 50-19-7 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "government" was substituted for "Government" in two places in paragraph (a)(9) of subsection (a).

Pursuant to Code Section 28-9-5, in 1991, the comma was deleted following "General Assembly" near the middle of subsection (b).

Pursuant to Code Section 28-9-5, in 1992, "Code Section 45-7-3, this Code section, and Code Sections 45-7-20 and 45-7-21" was substituted for "Code Sections 45-7-3, this Code section, 45-7-20, and 45-7-21" in subsection (b).

Editor's notes. - Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

Ga. L. 1988, p. 284, § 3, not codified by the General Assembly, provided that the 1988 amendment would become effective on the convening date of the 1989 regular session of the General Assembly. The session convened on January 9, 1989.

Ga. L. 1989, p. 212, § 2, not codified by the General Assembly, provides that for purposes only of the general appropriations Act for the year beginning July 1, 1989, the cost-of-living adjustment provisions of subsection (b) of Code Section 45-7-4 shall not apply with respect to Justices of the Supreme Court and Judges of the Court of Appeals.

Ga. L. 1991, p. 1363, § 2, not codified by the General Assembly, provides that the 1991 amendment shall apply with respect to claims for expense reimbursements submitted on or after April 16, 1991.

Ga. L. 1996, p. 6, § 45, not codified by the General Assembly, provides: "(1) Notwithstanding the reenactment of the Official Code of Georgia Annotated by Section 54 of this Act, the increase in the amount of daily expense allowances for each member of the General Assembly which is contained in the third undesignated paragraph [now subparagraph (B)] of paragraph (22) of subsection (a) of Code Section 45-7-4, relating to annual salaries of certain state officials, shall not become effective until the date specified in the 1995 Act amending such language. Until such time, such undesignated paragraph shall read as it formerly existed."

Ga. L. 1996, p. 1302, § 3, not codified by the General Assembly, provides, in part, that the amount of daily expense allowance shall remain $59.00 until the convening date of the 1997 regular session of the General Assembly and that on and after such date the allowance shall be $75.00.

Ga. L. 1999, p. 1213, § 10, not codified by the General Assembly, provides that: "If the appropriations Act of the fiscal year beginning July 1, 1999, and ending June 30, 2000, provides a percentage increase in salary for the officials affected by this Act, as authorized in subsection (b) of Code Section 45-7-4, such percentage increase shall be cumulative and in addition to the increases provided under Section 5 (paragraphs (4) through 21 of subsection (a) of Code Section 45-7-4) of this Act."

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Ga. L. 2015, p. 919, § 4-1(b), not codified by the General Assembly, provides that: "(b)(1) Part I of this Act shall become effective only if funds are appropriated for purposes of Part I of this Act in an appropriations Act enacted at the 2015 regular session of the General Assembly.

"(2) If funds are so appropriated, then Part I of this Act shall become effective on July 1, 2015, for purposes of making the initial appointments of the Court of Appeals Judges created by Part I of this Act, and for all other purposes, Part I of this Act shall become effective on January 1, 2016.

"(3) If funds are not so appropriated, then Part I of this Act shall not become effective and shall stand repealed on July 1, 2015." Funds were appropriated at the 2015 session of the General Assembly.

Ga. L. 2017, p. 579, § 4-1/HB 202, not codified by the General Assembly, provides that the amendment of subparagraphs (a)(22)(C) and (a)(22)(E) and subsection (b) shall apply to expenses incurred on or after July 1, 2017.

Law reviews. - For article discussing judicial compensation, see 14 Ga. St. B.J. 110 (1978). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).

JUDICIAL DECISIONS

Superior court judge was state employee. - Trial court did not err in determining that a deceased Georgia superior court judge was a State of Georgia employee but not a county employee for purposes of the exclusive remedy provision under O.C.G.A. § 34-9-11(a) of the Georgia Workers' Compensation Act in a claim by the judge's widow against county sheriffs, arising from the murder of the judge while in a courtroom, as the judge was vested with the judicial power of the State of Georgia under Ga. Const. 1983, Art. VI, Sec. I, Para. I and was defined as a "state official" pursuant to O.C.G.A. § 45-7-4(a)(20) for compensation purposes; the fact that the county asserted that the widow could obtain workers compensation benefits and that it offered her the judge's funeral expenses, both of which sums the widow refused, or that it contributed a supplemental amount to the judge's salary, did not make the judge a county employee. Freeman v. Barnes, 282 Ga. App. 895 , 640 S.E.2d 611 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Taxation of expense allowances. - Amounts paid to state officials for expenses are part of such official's gross income and are taxable to the extent that they are not used for such official business purposes. 1969 Op. Att'y Gen. No. 69-190.

Certain salary increases considered cost-of-living increases. - Salary increases appropriated under general salary increase section of appropriations Act are considered cost-of-living increases. In other words, salary increases granted to state employees under state merit system effective July 1, 1980, are considered cost-of-living increases. 1980 Op. Att'y Gen. No. 80-129.

Effect of "general" salary increases for employees. - The appropriation for the 1993-94 fiscal year authorizing pay raises for employees and state officers, but excluding members of the General Assembly, is consistent with state law and the Lieutenant Governor is entitled to receive a cost-of-living adjustment (COLA). 1993 Op. Att'y Gen. No. U93-13.

Intent of subsection (c) was to increase take-home income of certain state employees and officials by requiring an employer to pay a large portion of contribution previously paid by a member to state retirement programs. 1980 Op. Att'y Gen. No. 80-129.

Effect of O.C.G.A. § 45-7-4(c) on salary of district attorney. - Subsection (c) of this section was intended to increase the salary of a district attorney, whose salary is set by this section by eight percent if that district attorney did not receive advantage of employer pick-up of contributions to district attorney's retirement system. 1980 Op. Att'y Gen. No. 80-129.

Eight percent salary increase calculated on basis of pre-July 1, 1980, salary. - Eight percent salary increase received by members of Employees' Retirement System who attain 34 years of creditable service and elect to discontinue employee contributions during fiscal year 1981 should be calculated on salary received by such members as of June 30, 1980, prior to 1.75 percent salary increase granted on July 1, 1980. 1980 Op. Att'y Gen. No. 80-139.

Calculation of commissioner of revenue's salary on July 1, 1983. - With respect to the present commissioner of revenue, the proper calculation of the commissioner's salary on July 1, 1983, would be as follows: (1) statutory salary as of July 1, 1983, is $49,900 pursuant to O.C.G.A. § 45-7-5(a)(12); (2) to this amount should be added eight percent of salary as of June 30, 1980, pursuant to the provisions of O.C.G.A. § 45-7-5(c); and (3) the four percent cost-of-living increase provided by the "General Appropriations Act", Ga. L. 1983, p. 1603, should then be calculated on and added to this base to reach the correct total salary which became effective on July 1, 1983. 1983 Op. Att'y Gen. No. U83-45.

Lieutenant Governor's salary. - The Lieutenant Governor, as an officer whose salary is set by O.C.G.A. § 45-7-5 , must be given the percentage increase or $1000 maximum. The salary of the Speaker, however, must be adjusted at the beginning of the next term to include the increase given the Lieutenant Governor. 1992 Op. Att'y Gen. No. U92-19.

Percentage increases for members of General Assembly. - The members of the General Assembly must be given one-half the percentage increase given employees of the executive, judicial, and legislative branches when the employees receive it. 1992 Op. Att'y Gen. No. U92-19.

Increase in salary supplement for superior court judges. - A county commission may increase the annual salary supplement for superior court judges beyond the minimum provided for by local legislation. 1996 Op. Att'y Gen. No. U96-2.

Reimbursed items are property of the state. - Items purchased by legislators for the performance of duties as a member of the General Assembly, for which legislators are reimbursed pursuant to O.C.G.A. § 45-7-5(a)(22), are property of the state and may not be retained by legislators as personal property. 1992 Op. Att'y Gen. No. 92-33.

Unauthorized disposal of reimbursement items. - The Legislative Services Committee does not have the authority to dispose of the items purchased pursuant to the reimbursement provisions of O.C.G.A. § 45-7-5(a)(22), since the General Assembly has specifically empowered the Department of Administrative Services to dispose of state surplus property under O.C.G.A. § 50-5-140 et seq. 1994 Op. Att'y Gen. No. U94-3.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 278.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 382, 388.

ALR. - Validity of waiver of, or agreement to waive, disability benefit, annuity, pension, or bonus incident to public office or employment, 125 A.L.R. 728 .

Validity and effect of agreement by public officer or employee to accept less than compensation of fees fixed by law, or of acceptance of reduced amount, 160 A.L.R. 490 .

Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.

45-7-5. Compensation of Lieutenant Governor.

The Lieutenant Governor shall be compensated in the amount and manner provided in Code Sections 45-7-3 and 45-7-4. He shall also be entitled to reimbursement for actual transportation costs while traveling by public carrier and the legal mileage rate for the use of a personal automobile while on official business, together with the actual cost of meals and lodging while on official state business, as provided in Code Section 45-7-20.

(Ga. L. 1967, p. 106, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Governor, § 3. 63C Am. Jur. 2d, Public Officers and Employees, § 278.

C.J.S. - 67 C.J.S., Officers, §§ 374, 377, 382. 81A C.J.S., States, § 206.

45-7-6. Members of boards and other public entities not to be paid for more than one meeting per day.

No member of a public agency, board, bureau, commission, authority, or body who is paid on a per meeting basis shall be paid for more than one meeting in any one calendar day.

(Ga. L. 1976, p. 166, § 1.)

RESEARCH REFERENCES

ALR. - Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.

45-7-7. Compensation and allowances of certain officials not to be changed without giving public notice.

  1. The compensation or allowances of the officials listed in subsection (b) of this Code section shall not be changed by the governing board or body having the authority to do so unless public notice of such proposed action and amount shall have been given at least 30 days prior to the date such board or body shall consider such action and unless notice of such proposed change shall have likewise been given to the Governor by the board or body at least 30 days prior to the date of such proposed change.
  2. Subsection (a) of this Code section shall apply to the compensation and allowances of the commissioner of community affairs, the director of the Employees' Retirement System of Georgia, the director of the State Forestry Commission, the director of the Georgia Bureau of Investigation, the executive director of the Georgia Franchise Practices Commission, the commissioner of human services, the commissioner of economic development, the commissioner of natural resources, the commissioner of public safety, the chancellor of the University System of Georgia, the president or executive director of the Georgia Student Finance Commission, the executive director of the State Soil and Water Conservation Commission, the executive secretary-treasurer of the Teachers Retirement System of Georgia, the commissioner of transportation, and the executive director of the Georgia Government Transparency and Campaign Finance Commission.

    (Ga. L. 1979, p. 392, §§ 1, 2; Ga. L. 1988, p. 269, § 28; Ga. L. 1989, p. 1641, § 10; Ga. L. 2002, p. 415, § 45; Ga. L. 2004, p. 690, § 15; Ga. L. 2005, p. 599, § 8/SB 146; Ga. L. 2009, p. 453, § 2-4/HB 228; Ga. L. 2010, p. 1173, § 27/SB 17.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, an apostrophe was deleted following "Teachers" in subsection (b).

Editor's notes. - Ga. L. 1989, p. 1641, § 18, not codified by the General Assembly, provides that: "In the event of any substantive conflict between this Act and any other Act of the 1989 General Assembly, such other Act shall control over this Act."

Ga. L. 2010, p. 1173, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Government Transparency and Campaign Finance Act of 2010.'"

Ga. L. 2010, p. 1173, § 30, not codified by the General Assembly, provides, in part, that the amendment to this Code section applies to all reports filed on and after January 10, 2011.

OPINIONS OF THE ATTORNEY GENERAL

Requirements of notice given to public and to Governor. - This section requires that, prior to a change in the compensation or allowances of any of the designated officials, notice must be given to the public and to the Governor. These notices must: (1) be given by the board or body having the authority to effect the compensation change; (2) advise of the proposed action (compensation change) and the amount; and (3) be given at least 30 days prior to the date on which the board or body shall consider the proposed change. 1979 Op. Att'y Gen. No. 79-31.

Sufficient compliance with notice requirements. - Given the public nature of the board of trustees, and its meetings and records, the board will sufficiently comply with the public notice requirement of O.C.G.A. § 45-7-7 if a public announcement is made at a public meeting of the board, which would then be entered in the public minutes of the board. 1979 Op. Att'y Gen. No. 79-31.

Implied requirement in notice to Governor. - The portion of this section requiring notice to the Governor does not use the words "and amount" which are found in the language requiring notice to the public. However, a reasonable interpretation of the intent of Ga. L. 1979, p. 392 would hold that the Governor should also be advised of the amount of the proposed change. 1979 Op. Att'y Gen. No. 79-31.

Terminal annual leave. - When commissioner of natural resources resigned to become commissioner of labor, the commissioner was entitled to collect terminal annual leave from the department of natural resources. 1985 Op. Att'y Gen. No. 85-59.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 291 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 397.

45-7-8. Officer dismissal for charging or taking fees not allowed or for services not performed.

Any public officer who shall charge or take fees not allowed by law or for service not performed shall, on conviction or proof thereof, be dismissed from office.

(Laws 1792, Cobb's 1851 Digest, p. 357; Code 1863, § 3634; Code 1868, § 3659; Code 1873, § 3710; Code 1882, § 3710; Penal Code 1895, § 1098; Penal Code 1910, § 1125; Code 1933, § 89-702.)

Cross references. - Acceptance of other compensated office or appointment by member of General Assembly, Ga. Const. 1983, Art. III, Sec. II, Para. IV.

JUDICIAL DECISIONS

Section indicative of public policy. - When proceedings were not brought under former Code 1933, § 89-702 (see now O.C.G.A. § 45-7-8 ) but were instituted under former Code 1933, § 24-2724 (see now O.C.G.A. § 15-6-82 ), relating to removal of clerks for cause, former Code 1933, § 89-702 was at least indicative of the policy of this state that public officers shall not charge or take fees not allowed by law. Adamson v. Leathers, 60 Ga. App. 382 , 3 S.E.2d 871 (1939).

Wrongful acts constituting malpractice in office. - Any county commissioner who knowingly and willfully assists another public officer in charging and receiving unlawful fees was guilty of malpractice in office and of violating the provisions of former Code 1933, §§ 89-9907, 89-9908 (see now O.C.G.A. § 45-11-4 ). Cargile v. State, 67 Ga. App. 610 , 21 S.E.2d 326 (1942).

OPINIONS OF THE ATTORNEY GENERAL

Arrest fees for sheriff. - A sheriff is not entitled to an arresting fee for an arrest made by the county police, when the sheriff does not participate in the arrest, but sheriffs are entitled to an arresting fee when they arrest in an arrest made by the Georgia State Patrol. 1945-47 Op. Att'y Gen. p. 96.

Arrest fees for game warden. - When a game warden arrests a violator of the game and fish laws, the arrest fees go into the general funds of court. 1948-49 Op. Att'y Gen. p. 231.

Voluntary contributions to board's expenses not to be encouraged. - Neither the State Board of Examiners in Optometry (now the State Board of Optometry), nor any member thereof should encourage voluntary contributions to assist in meeting the expenses incurred in the administration of the affairs of the board. 1945-47 Op. Att'y Gen. p. 504.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 233, 406, 409.

ALR. - Liability of public officer or his bond to public body in respect of fees or charges which he illegally or improperly collected from members of public, 99 A.L.R. 647 .

Removal of public officers for misconduct during previous term, 42 A.L.R.3d 691.

45-7-9. Compensation for line-of-duty injuries of full-time state employees; exceptions.

  1. As used in this Code section, the term:
    1. "Agency" means every state department, agency, board, bureau, commission, and authority, except the Department of Transportation.
    2. "Full-time" means an employee who regularly works 30 hours or more each week.
    3. "Injured in the line of duty" means an injury which arises out of or in the course of employment. Going to or from work shall not be considered in the line of duty.
    4. "State employee" means a full-time employee of an agency.
  2. Any state employee who becomes physically disabled as a result of a physical injury incurred in the line of duty and caused by a willful act of violence committed by a person other than a fellow employee shall be entitled to receive compensation as provided in this Code section.
  3. Any person injured in the line of duty as provided in subsection (b) of this Code section shall continue to receive his regular compensation for the period of time that the employee or officer is physically unable to perform the duties of his employment; provided, however, that such benefits provided in this Code section shall not be granted for injuries resulting from a single incident for more than a total of 180 working days. An employee, firefighter, or officer shall be required to submit to his department head satisfactory evidence of such disability.
  4. Benefits made available under this Code section shall be subordinate to any workers' compensation benefits which the employee is awarded and shall be limited to the difference between the amount of workers' compensation benefits actually paid and the amount of the employee's regular compensation.
  5. Any employee of the Department of Corrections, employee of the Department of Community Supervision, employee of the State Board of Pardons and Paroles, employee of the Department of Natural Resources, employee of the Department of Revenue, or law enforcement officer who qualifies for disability allowances pursuant to Code Section 47-2-221 shall not be entitled to any benefits provided in this Code section.
  6. This Code section shall not apply to employees of the Department of Transportation covered by Code Section 32-2-7 . (Code 1981, § 45-7-9 , enacted by Ga. L. 1986, p. 1491, § 1; Ga. L. 1988, p. 738, § 1; Ga. L. 1992, p. 2966, § 1; Ga. L. 2002, p. 660, § 4(15); Ga. L. 2002, p. 1259, § 11(15); Ga. L. 2015, p. 422, § 5-93/HB 310.)

The 2015 amendment, effective July 1, 2015, inserted "employee of the Department of Community Supervision," in subsection (e).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, the definitions in subsection (a) were alphabetized.

Editor's notes. - Ga. L. 1992, p. 2966, § 4, not codified by the General Assembly, provides that: "Section 1 of this Act shall be repealed in its entirety 30 days after it becomes effective upon its approval by the Governor or upon its becoming law without such approval; provided, however, that any benefit granted prior to the repeal of the Act shall continue to exist beyond the date of such repeal." The Governor approved this Act on May 4, 1992.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

ARTICLE 2 REIMBURSEMENT OF EXPENSES

Cross references. - Motor vehicles and aircraft for use by state officials, T. 50, C. 19.

45-7-20. Reimbursement of travel costs for certain officials.

Except as provided in Code Section 45-7-21, each state official designated in Code Section 45-7-4 shall be reimbursed from state funds for actual transportation costs while traveling by public carrier, the legal mileage rate for use of a personal automobile, and the actual cost of lodging and meals while away from his office on official state business. This Code section shall not apply to the adjutant general, superior court judges, district attorneys, members of the General Assembly, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the Speaker Pro Tempore of the House of Representatives, all of whose expenses and allowances shall be paid as provided for in Code Section 45-7-4. This Code section shall not apply to the Lieutenant Governor during sessions of the General Assembly. During such sessions, the Lieutenant Governor shall receive the same expense allowance per day as that received by a member of the General Assembly, plus reimbursement for actual transportation costs while traveling by public carrier and the legal mileage rate for use of a personal automobile. No official provided for in Code Sections 45-7-3, 45-7-4, this Code section, and 45-7-21 shall be reimbursed from state funds for any transportation, mileage, lodging, or meals for which he is reimbursed from funds other than state funds.

(Ga. L. 1973, p. 701, § 3; Ga. L. 1978, p. 4, § 3; Ga. L. 1984, p. 22, § 45.)

Cross references. - Contingent expense and travel allowances for reporters of superior courts, § 15-14-6 .

Legal mileage rate, § 50-19-7 .

Editor's notes. - Resolution Act No. 48 (Senate Resolution No. 101), approved April 19, 1979 (Ga. L. 1979, p. 1365), relating to the development, issuance, review, and revision of employee travel reimbursement policies by the Department of Audits and the Office of Planning and Budget, was repealed by Ga. L. 2005, p. 694, § 41.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 386, 388.

ALR. - Per diem compensation of public officer, 1 A.L.R. 276 .

Allowance of mileage or traveling expenses to officer as affected by the use of his vehicle for transportation, 112 A.L.R. 172 .

Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.

45-7-21. Expense allowance and travel cost reimbursement for members of certain boards and commissions.

  1. Each member of the boards and commissions enumerated in this Code section shall receive the same expense allowance per day as that received by a member of the General Assembly for each day such member of a board or commission is in attendance at a meeting of such board or commission, plus reimbursement for actual transportation costs while traveling by public carrier or the legal mileage rate for the use of a personal automobile in connection with such attendance. The expense allowance and reimbursement provided for in this Code section shall be paid in lieu of any per diem, allowance, or other remuneration now received by any such member for such attendance. The existing law relative to any limitation on the number of meeting days and remuneration for service on committees or subcommittees of any such board or commission shall remain in effect. The boards and commissions to which this Code section shall be applicable are as follows:
    1. State Board of Education;
    2. Board of Regents of the University System of Georgia;

      (2.1) Board of Community Supervision;

      (2.2) Board of Public Safety;

    3. Board of Corrections;
    4. Board of Economic Development;
    5. Board of Natural Resources;
    6. Georgia Emergency Communications Authority;
    7. Dental Education Board;
    8. Georgia Student Finance Commission;
    9. Veterans Service Board;
    10. Georgia Agricultural Exposition Authority;
    11. Georgia Board of Health Care Workforce;
    12. Georgia Music Hall of Fame Authority;
    13. Georgia Sports Hall of Fame Authority;
    14. Georgia Rail Passenger Authority;
    15. State Board of the Technical College System of Georgia; and
    16. Civil War Commission.

    (a.1) Each member of any state board whose membership is elected wholly by votes of the members of the House of Representatives and Senate shall receive the same per diem and transportation costs as that received by a member of the General Assembly for each day of actual attendance at meetings of such board and the committee meetings of such boards.

  2. Whenever this Code section or any other law of this state provides that members of any board, commission, or other body shall receive the same daily expense allowance as members of the General Assembly, whether by specific reference to this Code section or any other law or by a more general reference, the members of such board, commission, or other body shall receive a daily expense allowance of $105.00. Such $105.00 amount shall apply for members of such boards, commissions, and other bodies, regardless of whether the amount actually received by members of the General Assembly under Code Section 28-1-8 is more or less than $105.00. The provisions of this subsection shall control over any conflicting provisions of any other earlier enacted law.

    (Ga. L. 1973, p. 701, § 4; Ga. L. 1978, p. 4, § 4; Ga. L. 1984, p. 427, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 10, § 45; Ga. L. 1989, p. 1641, § 11; Ga. L. 1990, p. 6, § 2; Ga. L. 1990, p. 1320, § 1; Ga. L. 1993, p. 809, § 2; Ga. L. 1994, p. 1251, § 2; Ga. L. 1995, p. 1041, § 2; Ga. L. 1999, p. 721, § 1.1; Ga. L. 1999, p. 1242, § 3; Ga. L. 1999, p. 1249, § 2; Ga. L. 2000, p. 1344, § 1; Ga. L. 2001, p. 924, § 1; Ga. L. 2004, p. 690, § 16; Ga. L. 2007, p. 47, § 45/SB 103; Ga. L. 2011, p. 459, § 4/HB 509; Ga. L. 2011, p. 632, § 3/HB 49; Ga. L. 2015, p. 422, § 5-94/HB 310; Ga. L. 2016, p. 282, § 1/SB 417; Ga. L. 2018, p. 689, § 3-2/HB 751; Ga. L. 2019, p. 224, § 2/SB 207; Ga. L. 2019, p. 311, § 1/HB 392; Ga. L. 2019, p. 919, § 2-3/HB 553.)

The 2015 amendment, effective July 1, 2015, added paragraph (a)(2.1).

The 2016 amendment, effective July 1, 2016, substituted "Reserved" for "State Transportation Board" in paragraph (a)(6) and added subsection (a.1).

The 2018 amendment, effective January 1, 2019, substituted the present provisions of paragraph (a)(6) for the former provisions, which read: "Reserved." See Editor's notes for applicability.

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, substituted "Georgia Board of Health Care Workforce" for "Georgia Board for Physician Workforce" in paragraph (a)(11). The second 2019 amendment, effective July 1, 2019, added paragraph (a)(2.2). The third 2019 amendment, effective July 1, 2019, deleted former paragraph (a)(15), which read: "Georgia Tobacco Community Development Board;"; redesignated former paragraphs (a)(16) and (a)(17) as present paragraphs (a)(15) and (a)(16), respectively; added "and" at the end of paragraph (a)(15); deleted "; and" at the end of paragraph (a)(16); and deleted former paragraph (a)(18), which read: "The delegation from the State of Georgia to the Southern Dairy Compact Commission".

Cross references. - Expense allowance authorized for delegation to the Southern Dairy Compact Commission, § 2-20-1 .

Daily expense allowance authorized for members of General Assembly, § 45-7-4(a)(22).

Legal mileage allowance, § 50-19-7 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, in subsection (a), paragraph (16) as enacted by Ga. L. 1999, p. 1249, § 2, was redesignated as paragraph (17), "and" was deleted from the end of paragraph (15), and "; and" was substituted for a period at the end of paragraph (16).

Editor's notes. - Resolution Act No. 48 (Senate Resolution No. 101), approved April 19, 1979 (Ga. L. 1979, p. 1365), relating to the development, issuance, review, and revision of employee travel reimbursement policies by the Department of Audits and the Office of Planning and Budget, was repealed by Ga. L. 2005, p. 694, § 41.

Ga. L. 1989, p. 1641, § 18, not codified by the General Assembly provides that: "In the event of any substantive conflict between this Act and any other Act of the 1989 General Assembly, such other Act shall control over this Act."

Ga. L. 2018, p. 689, § 4-1/HB 751, not codified by the General Assembly, provides that: "(b) The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015). For note on 1999 amendment to this Code section, see 16 Ga. St. U.L. Rev. 1 (1999).

JUDICIAL DECISIONS

Purpose of Ga. L. 1978, p. 4, §§ 1 and 4 (see now O.C.G.A. §§ 45-7-3 and 45-7-21 ) is to set limitations on current earnings and expenses of those in high governmental office and not to penalize those who assume such office by requiring forfeiture of previously accrued payment obligation of the state. State v. O'Neal, 155 Ga. App. 870 , 273 S.E.2d 631 (1980).

Applicability to officers already in office. - During tenure as Commissioner of Department of Administrative Services, appellee was subject to limitations regarding compensation contained in Ga. L. 1978, p. 4, §§ 1 and 4 (see now O.C.G.A. §§ 45-7-3 and 45-7-21 ), notwithstanding that the appellee assumed office several months prior to enactment of legislation governing compensation. State v. O'Neal, 155 Ga. App. 870 , 273 S.E.2d 631 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Provisions for per diem allowances to be read in pari materia. - The statutory provision, Ga. L. 1955, p. 309, § 15 (see now O.C.G.A. § 12-6-3 ), for per diem subsistence allowances and mileage allowances to the Forestry Commission members does not refer to other specifically named commissions or boards, but says only that the per diem subsistence and mileage allowances shall not exceed those authorized by law for other commissions or boards; therefore, the Forestry Commission should set the allowable rate of daily subsistence allowance in accordance with Ga. L. 1973, p. 701, § 4 (see now O.C.G.A. § 45-7-21 ) and, in reading the applicable provisions in pari materia, the Forestry Commission is authorized to set the per diem subsistence allowance for members in such amount as it may choose, but not in excess of the amount specified in Ga. L. 1973, p. 701, § 4 for each day of actual attendance at meetings of the Forestry Commission. 1978 Op. Att'y Gen. No. 78-26.

State Transportation Board. - Members of the State Transportation Board of Georgia are entitled to receive, as the daily expense allowance allocated them by O.C.G.A. § 45-7-21 , their actual expenses for attendance at meetings which are held out-of-state. 1994 Op. Att'y Gen. No. 94-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 386, 388.

ALR. - Power of administrative officer or board in respect of compensation of public officer or employee under a statute fixing maximum or minimum compensation, 70 A.L.R. 1050 .

Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.

45-7-22. Reimbursement for relocation expenses - Authorization generally.

Notwithstanding any law, rule, or regulation to the contrary, a state department may reimburse an employee of state government for expenses incurred for transportation of household goods and expenses incident to a change of residence from one part of the state to another as a result of an action of the state department requiring such relocation when such action is in the best interest of the department; provided, however, that the Department of Economic Development may also reimburse an employee of that department for transportation of household goods and expenses incident to a change of residence to a foreign country as a result of an action of that department requiring such relocation when such action is in the best interest of that department.

(Ga. L. 1973, p. 708, § 1; Ga. L. 1981, p. 429, § 1; Ga. L. 1989, p. 1641, § 12; Ga. L. 2004, p. 690, § 17.)

Editor's notes. - Ga. L. 1989, p. 1641, § 18, not codified by the General Assembly, provides that: "In the event of any substantive conflict between this Act and any other Act of the 1989 General Assembly, such other Act shall control over this Act."

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 45-7-22 covers expenses of transfers both to and from foreign countries. - Under O.C.G.A. § 45-7-22 the General Assembly intended to pay both moving expenses for employee when the employee is transferred to a foreign country and again when the employee is transferred back and each transfer is a separate move. 1981 Op. Att'y Gen. No. 81-42.

Employee may be required to commit to remain employed for one year after move. - Department of Industry and Trade [now Department of Industry, Trade, and Tourism] is authorized to pay reasonable moving expenses for its employees who are transferred at convenience of department to a foreign country for both move to foreign country and for move back to Georgia so long as employee signs written commitment to remain in employ of department for at least one year after a reimbursable move. 1981 Op. Att'y Gen. No. 81-42.

Unauthorized procedure for reimbursement of expenses. - A "per diem allowance" of $20.00 per day to public officers and employees against relocation expenses is not a reimbursement of expenses incurred, as provided for in O.C.G.A. § 45-7-22 , and consequently such a procedure is not authorized by the underlying statutory authority. 1973 Op. Att'y Gen. No. 73-115.

Reimbursement of expenses of moving a mobile home. - While the cost of moving a mobile home may not be reimbursed as an expense incident to a change of residence, the Office of Planning and Budget has the authority to determine whether the expense of moving a mobile home as an adjunct to moving household goods is normal and reasonable and, if it finds it is, to establish rules authorizing the reimbursement of expenses so incurred. 1973 Op. Att'y Gen. No. 73-171.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 388.

45-7-23. Reimbursement for relocation expenses - Conditions.

Before the reimbursement of expenses to transferred employees may take place, the following conditions must be satisfied:

  1. The department which employs the person transferred must certify that the move was in the best interest of the department and that the expenses incurred are reasonable and proper; and
  2. The employee must sign an agreement that he will remain employed by the department in the location to which the move was made for a period of not less than one year following the effective date of the move, unless separated or transferred for reasons beyond his control and acceptable to the department concerned. In case of violation of such agreement, any funds expended by the state for expense reimbursement will be recoverable from the employee concerned as a debt due the state.

    (Ga. L. 1973, p. 708, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Transfer to foreign country and transfer back to Georgia constitute separate moves. - Under O.C.G.A. § 45-7-23 , the General Assembly intended to pay both moving expenses for employee when the employee is transferred to a foreign country and again when transferred back and each transfer is a separate move. 1981 Op. Att'y Gen. No. 81-42.

Employee may be required to commit to remain employed for one year after move. - Department of Industry and Trade [now Department of Industry, Trade, and Tourism] is authorized to pay reasonable moving expenses for its employees who are transferred at convenience of department to a foreign country for both move to foreign country and for move back to Georgia so long as employee signs written commitment to remain in employ of department for at least one year after a reimbursable move. 1981 Op. Att'y Gen. No. 81-42.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 388.

45-7-24. Reimbursement for relocation expenses - Rules, regulations, and policies.

The Office of Planning and Budget shall establish such rules, regulations, and policies as are necessary to administer such a program of reimbursement for all state employees.

(Ga. L. 1973, p. 708, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 388.

45-7-25. Advance travel funds - Employee trust accounts authorized.

Each department, agency, institution, and board of the state is authorized to establish employee trust accounts as are necessary to account for state funds which are advanced to employees for travel purposes in the conduct of official state business and as are necessary to carry out the intent and purpose of this Code section and Code Sections 45-7-26 through 45-7-28.

(Ga. L. 1973, p. 842, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Authorized purposes not unconstitutional. - The use of public funds for the purposes authorized under Ga. L. 1973, p. 842, §§ 1 through 4 (see now O.C.G.A. §§ 45-7-25 through 45-7-28 ) does not violate Ga. Const. 1945, Art. VII, Sec. I, Para. II (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI) or Ga. Const. 1945, Art. VII, Sec. III, Para. IV (see Ga. Const. 1983, Art. VII, Sec. IV, Para. VIII). 1973 Op. Att'y Gen. No. 73-87.

Authorized purposes do not constitute a gratuity or a loan. - The procedures authorized by Ga. L. 1973, p. 842, §§ 1 through 4 (see now O.C.G.A. §§ 45-7-25 through 45-7-28 ) do not constitute either a gratuity or a loan to an employee; payments to an employee to compensate the employee for expenses to be incurred in rendering services to the state clearly do not constitute a gratuity when the employee is accountable for failure to employ the funds for that purpose; nor do such payments constitute a loan simply because there is a requirement that the employee account for such funds. 1973 Op. Att'y Gen. No. 73-87.

Liability of employee for default on accounting obligation. - A default by an employee in obligation to account for the funds advanced to the employee for the purposes stated in Ga. L. 1973, p. 842, § 1 (see now O.C.G.A. § 45-7-25 ) is a failure "faithfully to account for all moneys coming into (his) hands," and thus is a claim cognizable under the bond required by former Code 1933, § 89-806 and Ga. L. 1964, p. 282, § 1 (see now O.C.G.A. §§ 45-8-2 and 45-8-8 ); in the event the employee was not bonded as required by former Code 1933, § 89-906 O.C.G.A. § 45-8-2 ), then the limitation of liability with respect to the principal and surety on the bond of the head of that state department contained in Ga. L. 1964, p. 282, § 1 was no longer applicable and the historical rules of liability would in that event apply to the department head and surety. 1973 Op. Att'y Gen. No. 73-87.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 386, 388.

45-7-26. Advance travel funds - Rules and regulations for accounting of funds.

The director of the Office of Planning and Budget shall develop the necessary rules, regulations, and procedures to govern the advance of state funds to employees prior to travel in the conduct of official state business and to provide for proper accounting of the state funds advanced to such employees on a timely basis following such employees' return from travel status.

(Ga. L. 1973, p. 842, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Authorized purposes not unconstitutional. - The use of public funds for the purposes authorized under Ga. L. 1973, p. 842, §§ 1 through 4 (see now O.C.G.A. §§ 45-7-25 through 45-7-28 ) does not violate Ga. Const. 1945, Art. VII, Sec. I, Para. II (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI) or Ga. Const. 1945, Art. VII, Sec. III, Para. IV (see Ga. Const. 1983, Art. VII, Sec. IV, Para. VIII). 1973 Op. Att'y Gen. No. 73-87.

Authorized purposes do not constitute a gratuity or a loan. - The procedures authorized by Ga. L. 1973, p. 842, §§ 1 through 4 (see now O.C.G.A. §§ 45-7-25 through 45-7-28 ) do not constitute either a gratuity or a loan to an employee; payments to an employee to compensate the employee for expenses to be incurred in rendering services to the state clearly do not constitute a gratuity when the employee is accountable for the employee's failure to employ the funds for that purpose; nor do such payments constitute a loan simply because there is a requirement that the employee account for such funds. 1973 Op. Att'y Gen. No. 73-87.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 386, 388.

45-7-27. Advance travel funds - Accounting and reimbursement of unused funds.

Each employee granted an advance of state funds under this Code section and Code Sections 45-7-25, 45-7-26, and 45-7-28 shall be the custodian of state funds entrusted to him, shall file an accounting of such funds, and shall reimburse unused travel advances as required by the rules and regulations adopted by the director of the Office of Planning and Budget.

(Ga. L. 1973, p. 842, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 386, 388.

45-7-28. Advance travel funds - Lien when employee fails to file accounting or reimburse funds.

Should any employee granted a travel advance under this Code section and Code Sections 45-7-25 through 45-7-27 fail to file an accounting and reimbursement as provided by the rules and regulations adopted by the director of the Office of Planning and Budget, the head of each agency shall file with the director of the Office of Planning and Budget a certification of the amount so advanced, which shall then become a lien against any and all funds or moneys due the employee from the state or from the Employees' Retirement System of Georgia or the Teachers Retirement System of Georgia.

(Ga. L. 1973, p. 842, § 4; Ga. L. 1990, p. 8, § 45.)

OPINIONS OF THE ATTORNEY GENERAL

Authorized purposes not unconstitutional. - TThe use of public funds for the purposes authorized under Ga. L. 1973, p. 842, §§ 1 through 4 (see now O.C.G.A. §§ 45-7-25 through 45-7-28 ) does not violate Ga. Const. 1945, Art. VII, Sec. I, Para. II (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI) or Ga. Const. 1945, Art. VII, Sec. III, Para. IV (see Ga. Const. 1983, Art. VII, Sec. IV, Para. VIII). 1973 Op. Att'y Gen. No. 73-87.

Authorized purposes do not constitute a gratuity or a loan. - The procedures authorized by O.C.G.A. §§ 45-7-25 through 45-7-28 do not constitute either a gratuity or a loan to an employee; payments to an employee to compensate the employee for expenses to be incurred in rendering services to the state clearly do not constitute a gratuity where the employee is accountable for failure to employ the funds for that purpose; nor do such payments constitute a loan simply because there is a requirement that the employee account for such funds. 1973 Op. Att'y Gen. No. 73-87.

Liability of employee for default on accounting obligation. - A default by an employee in obligation to account for the funds advanced to the employee for the purposes stated in O.C.G.A. § 45-7-25 is a failure "faithfully to account for all moneys coming into (his) hands," and thus is a claim cognizable under the bond required by O.C.G.A. §§ 45-8-2 and 45-8-8 ; in the event the employee is not bonded as required by O.C.G.A. § 45-8-2 , then the limitation of liability with respect to the principal and surety on the bond of the head of that state department contained in O.C.G.A. § 45-8-8 is no longer applicable and the historical rules of liability would in that event apply to the department head and surety. 1973 Op. Att'y Gen. No. 73-87.

Employees' Retirement System assets cannot be encumbered by lien to secure unreimbursed travel advance. - None of the assets of the Employees' Retirement System, including funds held in members' annuity savings fund accounts, can be encumbered by a lien created to secure unreimbursed travel advance; however, such a lien can attach to other funds due employee by state. 1980 Op. Att'y Gen. No. 80-114.

45-7-28.1. Employee travel reimbursement; rules and regulations to be issued by the Department of Audits and Accounts and the Office of Planning and Budget.

Repealed by Ga. L. 2005, p. 694, § 35/HB 293, effective July 1, 2005.

Editor's notes. - This Code section was based on Ga. L. 1979, p. 1365; Code 1981, § 45-7-28.1 , enacted by Ga. L. 1982, p. 3, § 45; Ga. L. 1990, p. 8, § 45.

Ga. L. 2013, p. 141, § 45/HB 79, repealed the reservation of this Code section, effective April 24, 2013.

45-7-29. Reimbursement for expenses of lodging and air fare - Supporting documentation required.

  1. No official or employee of the executive, legislative, or judicial branch of state government shall be reimbursed from public funds for expenses for lodging and air fare incurred in the performance of his duties unless a bill, receipt, or similar supporting document showing payment therefor or an explanation of the absence of such documentation shall be submitted when applying for reimbursement.
  2. The requirements of subsection (a) of this Code section shall be in addition to any other requirements relative to reimbursement for any expenses incurred by any such official or employee in the performance of his duties which are now or hereafter provided for by law. The requirements of subsection (a) of this Code section also shall not preclude the promulgation by any agency of the executive, legislative, or judicial branch of state government of any rule or regulation or policy relative to reimbursement for any expenses.

    (Ga. L. 1978, p. 1919, § 1.)

Editor's notes. - Resolution Act No. 48 (Senate Resolution No. 101), approved April 19, 1979 (Ga. L. 1979, p. 1365), relating to the development, issuance, review, and revision of employee travel reimbursement policies by the Department of Audits and the Office of Planning and Budget, was repealed by Ga. L. 2005, p. 694, § 41.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 287 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 388.

ALR. - Public officer's right and duties in respect of mileage and other allowances incident to duties of his office but which represented no actual expense or outlay by him, 81 A.L.R. 493 .

45-7-30. Reimbursement for expenses of first-class air fare.

Except as provided in this Code section, no state official or employee, when traveling by commercial air carrier on a first-class basis, shall be reimbursed for that portion of the first-class air fare which exceeds the amount of the fare of the next lowest fare for the flight on which such official or employee is traveling. This shall not prohibit the reimbursement for the entire cost of first-class air fare under any of the following conditions:

  1. Space is not otherwise available;
  2. A licensed medical practitioner certifies that because of a person's mental or physical condition specific air travel arrangements are required; or
  3. The commissioner of public safety certifies that specific air travel arrangements are necessary for security reasons.

    (Ga. L. 1978, p. 1919, § 2.)

Editor's notes. - Resolution Act No. 48 (Senate Resolution No. 101), approved April 19, 1979 (Ga. L. 1979, p. 1365), relating to the development, issuance, review, and revision of employee travel reimbursement policies by the Department of Audits and the Office of Planning and Budget, was repealed by Ga. L. 2005, p. 694, § 41.

RESEARCH REFERENCES

ALR. - Public officer's rights and duties in respect of mileage and other allowances incident to duties of his office but which represented no actual expense or outlay by him, 81 A.L.R. 493 .

45-7-31. Reimbursement for expenses - Per diem allowances.

This Code section and Code Sections 45-7-29, 45-7-30, and 45-7-32 shall not apply to per diem allowances authorized by law for officials or employees.

(Ga. L. 1978, p. 1919, § 3.)

Editor's notes. - Resolution Act No. 48 (Senate Resolution No. 101), approved April 19, 1979 (Ga. L. 1979, p. 1365), relating to the development, issuance, review, and revision of employee travel reimbursement policies by the Department of Audits and the Office of Planning and Budget, was repealed by Ga. L. 2005, p. 694, § 41.

RESEARCH REFERENCES

ALR. - Public officer's rights and duties in respect of mileage and other allowances incident to duties of his office but which represented no actual expense or outlay by him, 81 A.L.R. 493 .

45-7-32. Unlawful use of travel advance received from public funds for nongovernmental purposes; fraudulent request for reimbursement of expenses; penalty for violations.

  1. It shall be unlawful for any person to use any travel advance received from public funds for nongovernmental purposes or to submit or approve, knowingly or through willful and wanton neglect, a fraudulent request to the state for reimbursement of expenses.
  2. Any person who, in violation of subsection (a) of this Code section, uses any travel advance for nongovernmental purposes or submits or approves, knowingly or through willful and wanton neglect, a fraudulent request for reimbursement of expenses valued in the aggregate at less than $500.00 shall be guilty of a misdemeanor of a high and aggravated nature which shall be punishable by not more than 12 months' imprisonment and a fine not to exceed $5,000.00. In addition to the foregoing criminal penalties, any such person shall also be subject to immediate termination of state employment and shall owe restitution to the state equal to the amount of such misappropriated travel advances or fraudulent reimbursements, plus interest to be assessed at a rate of 12 percent per annum to be calculated from the date each misappropriated travel advance or fraudulent reimbursement payment was made.
  3. Any person who, in violation of subsection (a) of this Code section, uses any travel advance for nongovernmental purposes or submits or approves knowingly, or through willful and wanton neglect, a fraudulent request for reimbursement of expenses valued in the aggregate at $500.00 or more shall be guilty of a felony which shall be punishable by not less than one nor more than 20 years' imprisonment and a fine not to exceed $50,000.00 or triple the amount of such misappropriated travel advances or fraudulent reimbursement payments, whichever is greater. In addition to such criminal penalties, any such person shall also be subject to immediate termination of state employment and shall owe restitution to the state equal to the amount of such misappropriated travel advances or fraudulent reimbursements, plus interest to be assessed at a rate of 12 percent per annum to be calculated from the date each misappropriated travel advance or fraudulent reimbursement payment was made.

    (Ga. L. 1978, p. 1919, § 4; Ga. L. 2008, p. 776, § 3/HB 1113.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, in subsection (a), a comma was deleted following "funds" and in subsection (b), a comma was deleted following "expenses" in the first sentence.

Editor's notes. - Ga. L. 2008, p. 776, § 4, not codified by the General Assembly, provides that: "For the purpose of promulgating rules and regulations, policies, procedures, and manuals, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. For all other purposes, this Act shall become effective on July 1, 2008, and shall apply to all transactions occurring on and after such date." The Governor approved this Act on May 14, 2008.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. - Offenses arising under O.C.G.A. § 45-7-32(a) are designated as offenses for which those charged are to be fingerprinted. 2009 Op. Att'y Gen. No. 2009-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 369.

C.J.S. - 67 C.J.S., Extortion, § 388.

45-7-33. Reimbursement for expenses in filing application for commercial driver's license.

Notwithstanding any law, rule, or regulation to the contrary, a state department may reimburse an employee of state government for expenses incurred in filing an application for obtaining a commercial driver's license as such application fee is set forth in Article 7 of Chapter 5 of Title 40.

(Code 1981, § 45-7-33 , enacted by Ga. L. 1990, p. 131, § 1; Ga. L. 2002, p. 415, § 45.)

45-7-34. Rules and regulations for administering reimbursement programs.

The Office of Planning and Budget shall establish such rules, regulations, and policies as are necessary to administer such a program of reimbursement for all state employees.

(Code 1981, § 45-7-34 , enacted by Ga. L. 1990, p. 131, § 1.)

ARTICLE 3 SALARY DEDUCTIONS

45-7-50. Deductions for United States savings bonds.

The disbursing or fiscal officer of any state department, board, bureau, commission, agency, municipality, county, or other political subdivision thereof may deduct from the salary of any employee of this state, county, municipality, or political subdivision thereof such amount as the employee shall authorize in writing for the purchase of United States savings bonds for the employee. The written authorization shall be filed with the disbursing or fiscal officer of such state department, board, bureau, commission, agency, municipality, or county, and he shall make such rules and regulations governing the purchase of the bonds as he may deem necessary, which rules and regulations shall be incorporated in the employee's written authorization. The authorization of the employee may be withdrawn by the employee at any time upon filing written notice of withdrawal with said disbursing or fiscal officer.

(Ga. L. 1950, p. 323, § 1.)

RESEARCH REFERENCES

C.J.S. - 51B C.J.S., Labor Relations, §§ 1246, 1247, 1248, 1249.

45-7-51. Deductions for payment of insurance premiums.

  1. Any department or agency of the state is authorized to deduct voluntarily designated amounts from the salaries or wages of its full-time employees for the purpose of payment of insurance premiums to a designated insurance company or designated insurance companies which are licensed to do business in Georgia by the Commissioner of Insurance. No such deduction shall be made without the approval of the head of the department or agency employing the designating employee. No such deductions shall be made unless at least 15 percent of the full-time employees of a department or agency request such deductions which are to be paid to a particular insurance company. No such deductions shall be made without individual written requests of the employees, which requests shall designate the exact amount which is to be deducted. Any employee who consents to such a deduction is authorized to terminate the deduction upon two weeks' written notice. Each department head may discontinue allowing such deductions upon reasonable notice to the company and his employees.
  2. The fiscal authorities or other employees of the various departments or agencies of the state will not incur any liability for errors or omissions made in the performance of the payroll deduction agreement between the department or agency and the employees, provided that no fiscal authority or employee of this state is protected from criminal or civil liability for conversion, theft by conversion, theft by taking, theft by extortion, theft by deception, or any other intentional misappropriation of the moneys or property of another for his own use.

    (Ga. L. 1976, p. 1603, § 1; Ga. L. 1990, p. 8, § 45.)

OPINIONS OF THE ATTORNEY GENERAL

Distinction between section's optional life insurance program and state deferred compensation law. - State deferred compensation law pertains to deferred compensation plan which is aimed primarily at deferring compensation and taxable event of receiving compensation until later time. This section creates an optional life insurance program, which is to be administered by each separate agency, whereas deferred compensation plan is to be administered by State Personnel Board. Accordingly, there is no conflict between the two programs and both may exist simultaneously. 1980 Op. Att'y Gen. No. 80-6.

RESEARCH REFERENCES

C.J.S. - 51B C.J.S., Labor Relations, §§ 1246, 1247, 1248, 1249.

ALR. - Right to use public funds to carry insurance for public officers or employees, 16 A.L.R. 1089 ; 27 A.L.R. 1267 .

Insurable interest of public in life of officer or employee, 62 A.L.R. 133 .

45-7-52. Deductions for payments to credit unions.

  1. Any department or agency of the state is authorized to deduct designated amounts from the salaries or wages of its employees for the purpose of payment of deposits or indebtedness to a department or agency credit union if such department or agency credit union is a corporation and existing under the laws of this state. No such deduction shall be made without the approval of the head of the department or agency. No such deductions shall be made without the written request of the employee, which request shall designate the exact amount which is to be deducted. Any employee who has consented to a deduction is authorized to withdraw from such plan upon two weeks' written notice.
  2. The fiscal authorities or other employees of the various departments or agencies will not incur any liability for errors or omissions made in the performance of the agreement between the department or agency and the employee.

    (Ga. L. 1964, p. 255, §§ 1, 2.)

Cross references. - Credit unions generally, § 7-1-630 et seq.

OPINIONS OF THE ATTORNEY GENERAL

No state department, board, or agency can lawfully deduct labor union dues from a public employee's salary regardless of whether those dues are paid directly to the union or through a collection agency, like the departmental credit union. 1976 Op. Att'y Gen. No. 76-119.

RESEARCH REFERENCES

Am. Jur. 2d. - 48 Am. Jur. 2d, Labor and Labor Relations, § 2841 et seq.

C.J.S. - 51B C.J.S., Labor Relations, §§ 1246, 1247, 1248, 1249.

45-7-53. Deductions for payment of parking and van pool fees.

  1. Any department, agency, authority, or commission of the state is authorized to deduct designated amounts from the salaries or wages of its employees for the purpose of payment of capitol hill parking and van pool fees. No such deduction shall be made without the approval of the head of the department, agency, authority, or commission and the Georgia Building Authority. No such deduction shall be made without the written request of the employee, which request shall designate the exact amount which is to be deducted. Any employee who has consented to a deduction is authorized to withdraw from such plan upon one month's written notice.
  2. The fiscal authorities or other employees of the various departments, agencies, authorities, or commissions will not incur any liability for errors or omissions made in the performance of the agreement between the department, agency, authority, or commission and the employee.

    (Ga. L. 1980, p. 1049, §§ 1, 2.)

45-7-54. Voluntary contributions by state government employees through payroll deductions to certain not for profit organizations.

  1. Any department, agency, authority, or commission of the state is authorized to deduct designated amounts from the salaries or wages of its employees and remit such moneys to not for profit organizations, associations, or corporations providing tangible services and benefits to state government or its employees. Except as provided in subsection (b) of this Code section, no such deduction shall be made unless at least 2,500 of the full-time employees of the state request such deduction. Where 2,500 or more full-time employees of the state request payroll deduction services to any not for profit organization, association, or corporation having among its objectives educational, legislative, or professional development activities related to promoting and enhancing the efficiency, productivity, and welfare of state government services or of state government employees, then the state shall provide such deductions as an additional employment benefit to its employees.
  2. Where 500 or more full-time state employees who are employed in the Division of Family and Children Services or in the law enforcement, corrections officer, or registered nursing disciplines request payroll deduction services to any not for profit association having among its specific objectives (1) professional development activities related to such employment, (2) the provision of assistance to or on behalf of persons who are killed, injured, in need of medical attention, or otherwise in need of assistance while engaged in such employment or as a result of such employment, or (3) promoting or enhancing law enforcement, corrections, or registered professional nursing in the State of Georgia, then the state shall provide such deductions as an additional employment benefit to its employees. This provision shall not be interpreted to require the agency or state to provide the funds for any employee's dues or contributions.
  3. The commissioner of administrative services shall have the authority to administer this Code section and to determine and compel compliance with its provisions.
  4. No deduction shall be made under this Code section without the express written and voluntary consent of the employee. Each such request shall designate the exact amount to be deducted. Any employee who consents to such deduction is authorized to terminate the deduction with two weeks' written notice to the department, agency, authority, or commission.
  5. No deduction shall be made under this Code section to any organization, association, or corporation which engages in collective bargaining with the state or encourages its members to strike or stop work.
  6. Each department, agency, authority, or commission of the state shall collect from the deductions withheld a cost of administration fee not to exceed 1 percent of the total deduction collected.
  7. No person shall disclose to any other person the name of any employee deducting amounts, or the organizations, associations, or corporations designated, except as is necessary to accomplish the purpose of this article or as otherwise authorized in writing by the individual employee.
  8. Departments, agencies, authorities, and commissions and their employees shall not incur any liability for errors or omissions made in performance of the payroll deduction agreement between the state and the employee, provided that this Code section does not confer immunity from criminal or civil liability for conversion, theft by conversion, theft by taking, theft by extortion, theft by deception, or any other intentional misappropriation of the money or property of another. (Code 1981, § 45-7-54 , enacted by Ga. L. 1994, p. 699, § 1; Ga. L. 1995, p. 831, § 1; Ga. L. 2002, p. 415, § 45; Ga. L. 2005, p. 466, § 1/HB 183; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-70/HB 642.)

Cross references. - Deductions for contributions or dues to interdisciplinary charitable associations, § 20-3-83 .

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

OPINIONS OF THE ATTORNEY GENERAL

Additional voluntary salary deduction programs. - A not-for-profit organization whose membership dues are currently being deducted under O.C.G.A. § 45-7-54 is authorized to have other voluntary member tangible benefits approved for automatic payroll deduction. 1996 Op. Att'y Gen. No. U96-11.

45-7-55. Deductions for transit passes and other fare media.

  1. It is the purpose of this Code section to permit voluntary deductions from wages or salaries of employees of the State of Georgia for the purchase of transit passes and other fare media for the benefit of these employees and the State of Georgia through a process which involves minimal disruption of work time and provides reasonable assurance to the employees of reliable transportation to and from work.
  2. Any department, agency, authority, or commission of the state is authorized to participate in any program to provide a mass transit employee benefit to its employees and may, but need not, bear all or a portion of the cost of such fare media from funds specifically appropriated for this purpose.
  3. Any such participating state entity is authorized to deduct designated amounts from the wages or salaries of its employees for the purpose of facilitating employee purchase of transit passes and other fare media. No such deduction shall be made without the approval of the head of the participating state entity. No such deduction shall be made without the written request of the employee, who may withdraw that person's request upon one month's written notice.
  4. The fiscal authorities or other employees of any participating state entity will not incur any liability for errors or omissions made in the performance of the mass transit employee benefit program. (Code 1981, § 45-7-55 , enacted by Ga. L. 1995, p. 831, § 1.1.)

45-7-56. Deductions for purchase of personal computing and computer related equipment.

  1. As used in this Code section, the term "local unit of administration" means any county or independent board of education.
  2. It is the purpose of this Code section to permit voluntary deductions from wages or salaries of employees of the State of Georgia and local units of administration for the purchase of personal computing and computer related equipment through an employee purchase program facilitated by and through the Georgia Technology Authority and for the purchase of consumer offerings through an employee purchase program facilitated by and through the Department of Administrative Services.
  3. Any department, agency, authority, or commission of the state or any local unit of administration is authorized to deduct designated amounts from the wages or salaries from its employees for the purpose of facilitating employee purchases of personal computing and computer related equipment through an employee purchase program facilitated by and through the Georgia Technology Authority and for the purpose of facilitating employee purchases of consumer offerings through an employee purchase program facilitated by and through the Department of Administrative Services. No such deduction shall be made under this Code section without the express written and voluntary consent of the employee. Each such request shall designate the exact amount to be deducted. Any employee who has consented to a deduction is authorized to withdraw from such salary reduction with two weeks' written notice; provided, however, that such withdrawal shall not relieve any employee of any outstanding indebtedness incurred under such purchase program.
    1. The fiscal authorities or other employees of the various departments or agencies of this state will not incur any liability for errors or omissions made in the performance of the agreement between the state and the employee.
    2. The fiscal authorities or other employees of local units of administration will not incur any liability for errors or omissions made in the performance of the agreement between the local unit of administration and the employee.
    3. Notwithstanding the provisions of paragraphs (1) and (2) of this subsection, this Code section does not confer immunity from criminal or civil liability for conversion, theft by conversion, theft by taking, theft by extortion, theft by deception, or any other intentional misappropriation of the money or property of another.
  5. If a state employee or public school employee leaves employment for any reason and a balance is owing for the computer, equipment, or consumer offering, then, in that event, the state or board of education or the state retirement system shall have the right to deduct the balance owing from any funds under the control of the state or board of education or state retirement system to which said employee would otherwise be entitled. (Code 1981, § 45-7-56 , enacted by Ga. L. 2001, p. 867, § 2; Ga. L. 2002, p. 415, § 45; Ga. L. 2015, p. 1411, § 1/HB 551.)

The 2015 amendment, effective July 1, 2015, added "and for the purchase of consumer offerings through an employee purchase program facilitated by and through the Department of Administrative Services" at the end of subsection (b); added "and for the purpose of facilitating employee purchases of consumer offerings through an employee purchase program facilitated by and through the Department of Administrative Services" at the end of the first sentence in subsection (c); and substituted "computer, equipment, or consumer offering," for "computer or equipment," in subsection (e).

45-7-57. Deduction from wages for contributions into savings trust accounts.

  1. Any department, agency, authority, commission, or other instrumentality of the state is authorized to deduct designated amounts from the wages or salaries of its employees and remit such moneys to one or more savings trust accounts established under Article 11 of Chapter 3 of Title 20.
  2. No payroll deduction shall be made under this Code section without the employee's written and voluntary consent designating the exact amount to be deducted.
  3. Any employee who has authorized a deduction under this Code section is authorized to end such salary deduction upon written notice to the employer.
  4. The fiscal authorities or other employees of the various departments, agencies, authorities, commissions, or other instrumentalities of this state shall incur no liability for errors or omissions made in the administration of payroll deductions authorized under this Code section. (Code 1981, § 45-7-57 , enacted by Ga. L. 2004, p. 594, § 1.)

ARTICLE 4 DISCLOSURE OF PROFESSIONAL SERVICES FEES

45-7-70. Purpose of article.

It is in the best interests of a free society that citizens be fully informed as to the conduct of their government and that those who serve the public by performing services requiring special qualification, training, or knowledge and the exercise of discretion or judgment be known and identified. To ensure that the public may better evaluate the stewardship of elected and appointed officials in the use of public funds for the purchase of professional services from other than full-time employees, it is appropriate that disclosure be made of the use of professional personnel and of the fees and reimbursement paid for such services and incidental expenses.

(Ga. L. 1976, p. 978, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 26 et seq.

C.J.S. - 76 C.J.S., Records, §§ 8, 74 et seq., 112 et seq.

45-7-71. Professional services fees to be identified in financial records.

In the fiscal and financial records of any state agency which are submitted for audit to the state auditor, any fees for services or reimbursable expenses charged to any authority created, authorized, or otherwise provided for by state law or charged to any board, bureau, commission, committee, department, institution, office, retirement system, or any other agency of the state by any consultant, architect, or attorney at law shall be identified by type of fee or expense and the purpose for which paid, to whom paid, and the dates when such payment or payments of fees and expenses were made. Salaries paid and reimbursement of expenses made to professional persons employed on a full-time basis by the authorities or state agencies are not included within the reporting requirement set forth in this Code section.

(Ga. L. 1976, p. 978, § 2.)

45-7-72. Statements or reports to Attorney General and state auditor.

A copy of each statement or report, referred to in Code Section 45-7-71, of any authority or state agency in which a fee or expense paid to a consultant or member of a profession is identified and reported shall be provided to the Attorney General and the state auditor unless such statement or report is otherwise required by law to be provided to the Attorney General or the state auditor.

(Ga. L. 1976, p. 978, § 3; Ga. L. 1984, p. 851, § 1.)

45-7-73. State auditor to prescribe form and date for submission of reports.

Where necessary to accomplish the purposes of this article, the state auditor shall by rule or regulation prescribe the form in which the reports of professional services shall be made by the authority or state agency. The state auditor shall also establish dates for the submission of the reports required by this article.

(Ga. L. 1976, p. 978, § 4.)

45-7-74. State auditor to provide report of fees to various state officials.

The state auditor shall annually provide to the Governor, to each house of the General Assembly, to the Attorney General, and to the Secretary of State a report in which the accumulated totals of payments of fees and expenses to members of professions are set forth, identifying:

  1. The person or persons to whom such payments were made;
  2. The professions of such person or persons;
  3. The totals of such payments; and
  4. The authority or state agency which has retained such professional person or persons.

    (Ga. L. 1976, p. 978, § 5.)

ARTICLE 5 STATE COMMISSION ON COMPENSATION

45-7-90. Creation; purpose.

A State Commission on Compensation is established for the purpose of assisting the General Assembly in setting the compensation of constitutional state officers, including members of the General Assembly and full-time heads of state agencies, authorities, boards, bureaus, commissions, committees, and departments whose compensation is set by the Constitution, by law, or by Act of the General Assembly.

(Ga. L. 1971, p. 103, § 1; Ga. L. 1982, p. 3, § 45; Ga. L. 2017, p. 579, § 3-1/HB 202.)

Editor's notes. - Ga. L. 2017, p. 579, § 3-1/HB 202, effective May 9, 2017, reenacted this Code section without change.

OPINIONS OF THE ATTORNEY GENERAL

Public officers covered by commission. - For a listing of state officials and board members whose compensation is set by the State Commission on Compensation. See 1972 Op. Att'y Gen. No. 72-121.

Includes superior court judges. - Superior court judges' salaries are within the purview of the recommendation of the State Commission on compensation. 1971 Op. Att'y Gen. No. 71-173.1.

Secretarial services for superior court judges not covered by commission. - The recommendation to provide allocations for secretarial services to superior court judges is not directly within the statutory authority of the commission, but could be made on an informal basis. 1971 Op. Att'y Gen. No. 71-173.1.

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 20 et seq. 63C Am. Jur. 2d, Public Officers and Employees, § 276.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 226. 73 C.J.S., Public Administrative Law and Procedure, §§ 4, 18.

45-7-91. Composition; qualifications, appointment, vacancies of members.

  1. As used in this article, the term "commission" means the State Commission on Compensation.
  2. The commission shall be composed of seven members who shall serve for terms of four years and until their successors shall have been appointed and qualified. No person shall be qualified for appointment to office as a member of the commission if he or she is an officer or employee of the state at the time of his or her selection for appointment nor shall such officer's or employee's spouse, child, stepchild, parent, stepparent, grandparent, grandchild, sibling, or the spouse of such individuals be qualified for such appointment. Three members shall be appointed by the Governor, at least one of whom shall be regularly engaged in the field of business finance or business management. Two members shall be appointed by the Lieutenant Governor. Two members shall be appointed by the Speaker of the House of Representatives.
  3. Should any vacancy on the commission occur from death, resignation, or otherwise, the appointing authority shall appoint a successor member to serve during the unexpired term.

    (Ga. L. 1971, p. 103, § 2; Ga. L. 2017, p. 579, § 3-1/HB 202.)

The 2017 amendment, effective May 9, 2017, added subsection (a); designated the existing provisions of this Code section as subsections (b) and (c); in subsection (b), substituted "seven members" for "12 members" in the first sentence, in the second sentence, inserted "or she" and inserted "or her" in the middle, and added "nor shall such officer's or employee's spouse, child, stepchild, parent, stepparent, grandparent, grandchild, sibling, or the spouse of such individuals be qualified for such appointment" at the end, substituted "Three members" for "Four members" at the beginning of the third sentence, deleted ", at least one of whom shall be experienced in labor management relations" at the end of the fourth and fifth sentences, and deleted the former last sentence, which read: "Four members shall be appointed by the Justices of the Supreme Court, at least one of whom shall be authorized to practice law in this state.".

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, the single quote at the end of subsection (a) was deleted.

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 31 et seq. 63C Am. Jur. 2d, Public Officers and Employees, §§ 57, 62, 88, 105 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 161 et seq. 73 C.J.S., Public Administrative Law and Procedure, § 69.

45-7-92. Oath; expenses of members; meetings generally.

Members of the commission shall take an oath to uphold the Constitution and laws of the United States and of the State of Georgia and shall receive a daily expense allowance and reimbursement for transportation costs as provided for in Code Section 45-7-21. All expenses incurred by the commission in the performance of its duties shall be paid from funds available to the General Assembly. The commission shall meet no more than 15 days in any year.

(Ga. L. 1971, p. 103, § 3; Ga. L. 1988, p. 297, § 1; Ga. L. 2017, p. 579, § 3-1/HB 202.)

The 2017 amendment, effective May 9, 2017, in the first sentence, substituted "a daily expense allowance and reimbursement for transportation costs as provided for in Code Section 45-7-21" for "a salary of $59.00 per day for each day of service and such expenses and allowances while performing their duties of office as are refundable to state employees" and, in the last sentence, deleted "30 days during the year it is established and no more than" preceding "15 days" and deleted "thereafter" at the end.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 124, 125, 278 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 70, 374 et seq.

45-7-93. Organizational meeting; employment of staff.

The commission shall meet immediately after a majority of its members have taken the oath of office, shall select from the members one of their members to serve as chairperson, and shall adopt such rules and procedures as may be deemed necessary for the expeditious accomplishment of the obligations of the commission. The commission shall be authorized to employ staff personnel as necessary to accomplish commission objectives.

(Ga. L. 1971, p. 103, § 4; Ga. L. 2017, p. 579, § 3-1/HB 202.)

The 2017 amendment, effective May 9, 2017, substituted "members to serve as chairperson" for "number to serve as chairman" in the middle of the first sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 127 et seq.

C.J.S. - 73 C.J.S., Public Administrative Law and Procedure, §§ 15, 16, 17.

ALR. - Per diem compensation of public officer, 1 A.L.R. 276 .

45-7-94. Commission to make comparative study of compensation.

The commission shall make a study of the compensation currently being paid by the state to all constitutional state officers, including members of the General Assembly and all full-time heads of state agencies, authorities, boards, bureaus, commissions, committees, and departments whose compensation is set by the Constitution of Georgia, by law, or by an Act of the General Assembly; and the commission shall compare such compensation with that currently being received by officers and employees serving in comparable positions with the federal government, this state, other states, local governments, and in industry, business, and the professions. In making this comparative study, the commission shall utilize all available data pertaining to prevailing market rates and relating to the costs and standards of living of persons in comparable positions.

(Ga. L. 1971, p. 103, § 5; Ga. L. 2017, p. 579, § 3-1/HB 202.)

Editor's notes. - Ga. L. 2017, p. 579, § 3-1/HB 202, effective May 9, 2017, reenacted this Code section without change.

45-7-95. Commission to file written report of recommended compensation.

The commission shall file a written report based upon its studies in which a recommended compensation shall be stated for each constitutional state officer, including members of the General Assembly and all full-time heads of state agencies, authorities, boards, bureaus, commissions, committees, and departments whose compensation is set by the Constitution of Georgia, by law, or by Act of the General Assembly. A copy of such report shall be filed with the Governor, Lieutenant Governor, Speaker of the House of Representatives, Clerk of the House of Representatives, Secretary of the Senate, and legislative counsel. The commission shall file the written report at least 90 days prior to the convening of the General Assembly in regular session at which the general appropriations bill is first considered. The written report of the commission shall be filed, notwithstanding a determination by the commission that no compensation increase or decrease is recommended.

(Ga. L. 1971, p. 103, § 6; Ga. L. 2017, p. 579, § 3-1/HB 202.)

The 2017 amendment, effective May 9, 2017, deleted the former subsection (a) designation; in the second sentence, substituted "such report" for "said report" near the beginning, inserted "and" preceding "legislative counsel", and deleted ", Chief Justice of the Supreme Court, and Chief Judge of the Court of Appeals" at the end; substituted "90 days" for "30 days" in the third sentence; and deleted former subsection (b), which read: "Whenever a written report of the commission's compensation plan is filed, a bill shall be prepared suitable for introduction in either the Senate or House of Representatives containing the compensation recommended by the commission; and such bill shall be introduced at the next session of the General Assembly convening after the filing of said written report. Such bill and the compensation contained therein, in order to become effective, shall receive the same number of readings and go through and be subject to the same procedure as required by the Constitution of Georgia for any other bill; provided, however, that the bill relative to the commission's compensation plan, whether introduced in the House or the Senate, or both, shall be automatically engrossed by both the House and the Senate, and any such bill shall not be changed in either the House or the Senate after its introduction.".

OPINIONS OF THE ATTORNEY GENERAL

Authority to make recommendations concerning longevity allowances. - The authority of the State Commission on Compensation to make recommendations concerning compensation extends to the longevity allowances. 1971 Op. Att'y Gen. No. 71-173.1.

Informal recommendation for secretarial services. - The recommendation to provide allocations for secretarial services to superior court judges is not directly within the statutory authority of the commission, but could be made on an informal basis. 1971 Op. Att'y Gen. No. 71-173.1.

45-7-96. Construction of article.

It is the intention of the General Assembly that this article shall not be construed so as to authorize the commission to reduce the compensation of constitutional state officers below that established by the Constitution of Georgia or so as to deprive the General Assembly of plenary power to enact laws affecting compensation in accordance with the Constitution of Georgia.

(Ga. L. 1971, p. 103, § 7; Ga. L. 2017, p. 579, § 3-1/HB 202.)

Editor's notes. - Ga. L. 2017, p. 579, § 3-1/HB 202, effective May 9, 2017, reenacted this Code section without change.

ARTICLE 6 TEMPORARY FURLOUGHS

45-7-110. Criteria for order; notice; applicability; effect of other laws; effect on retirement or pension system; repealer.

Repealed by Ga. L. 1991, Ex. Sess., p. 87, § 1, effective March 31, 1993.

Editor's notes. - This Code section was based on Ga. L. 1991, Ex. Sess., p. 87, § 1, and Ga. L. 1993, p. 91, § 45.

CHAPTER 8 ACCOUNTING FOR PUBLIC FUNDS

Sec.

Cross references. - Submission by judges of probate court, county treasurers, or others of returns stating amount of money belonging to county, and as to grand jury examination of such returns, § 36-1-7 .

Disaster Volunteer Leave Act, § 38-3-90 et seq.

RESEARCH REFERENCES

ALR. - Power of board or officials to depart from literal requirements in respect of deposits or loans of public funds in their control, 104 A.L.R. 623 .

Statutes relating to embezzlement or other offense in respect of public money with safekeeping of which a public officer is charged, as applicable to employee or subordinate, 144 A.L.R. 590 .

45-8-1. Definitions.

As used in this chapter, the term:

  1. "Collecting officer" means any person who is either generally or specifically elected, appointed, or employed, in whole or in part, to collect any tax, revenue, or other moneys on behalf of the state or any of its political subdivisions or on behalf of any board, commission, bureau, or department thereof. The term shall not mean any state, municipality, or county tax collector or revenue agent pursuant to Title 48.
  2. "Commissioner" means the commissioner of banking and finance.
  3. "County authority" means the judge of the probate court or the board of county commissioners or other tribunal, body, or officer having jurisdiction over the fiscal affairs of the county.
    1. "Covered depository" means:
      1. Any depository whose total assets exceed $50 billion as of the latest Consolidated Report of Condition and Income filed by the depository with the Federal Deposit Insurance Corporation and has qualified to serve as a depository for state funds pursuant to Code Section 50-17-50; or
      2. A depository whose total assets are less than $50 billion as of the latest Consolidated Report of Condition and Income filed by the depository with the Federal Deposit Insurance Corporation, has qualified to serve as a depository for state funds pursuant to Code Section 50-17-50, and has elected to participate in the multibank pooled method.
    2. A covered depository in operation as of January 1, 2016, may continue to secure public body deposits using the dedicated method, the single bank method, or both methods until policies and procedures have been approved by the State Depository Board regarding the multibank pooled method, which shall occur no later than July 1, 2017.
  5. "Custodian" means the state treasurer, any Federal Reserve Bank, or any Federal Home Loan Bank approved by the state treasurer, or any bank, savings association, or trust company that:
    1. Is organized and existing under the laws of this state, any other state, or the United States;
    2. Has executed all forms required under this chapter or any rule adopted under this chapter;
    3. Agrees to be subject to the jurisdiction of the courts of this state or of courts of the United States which are located within this state for the purpose of any litigation arising out of this chapter; and
    4. Has been approved by the state treasurer to act as a custodian;

      and which holds a pool of collateral for public deposits established by a depository pursuant to Code Section 45-8-13.

  6. "Daily pool balance" means the daily balance of deposits of public funds held by a depository which balance is secured by the single bank pooled method as specified in paragraph (2) of subsection (b) of Code Section 45-8-13, or the multibank pooled method as specified in paragraph (2) of subsection (c) of Code Section 45-8-13. Insured deposits and deposits of public funds for which no collateral is required under subsection (b) or (d) of Code Section 45-8-12 or special deposits and operating funds for which collateral has been duly waived pursuant to subsection (b) of Code Section 45-8-11 or paragraph (3) of Code Section 50-17-53 shall be excluded from the balance of deposits of public funds for purposes of determining the daily pool balance.
  7. "Default" includes, without limitation, the failure or refusal of a depository holding funds of a public body to pay any check or warrant drawn upon sufficient and collected funds by any public body depositor or to return any deposit on demand or at maturity together with interest as agreed; the issuance of an order by any supervisory authority restraining such depository from making payments of deposit liabilities; or the appointment of a receiver for such depository.
  8. "Depository" means any bank designated, named, or appointed from time to time:
    1. By the State Depository Board as qualified to serve as a depository of state funds pursuant to Code Section 50-17-50;
    2. By county authorities or others as depositories for county and other public funds pursuant to Code Section 45-8-14; or
    3. By collecting officers and officers holding public funds as a depository for public funds pursuant to Code Section 45-8-11.
  9. "Officer to hold public funds" means not only the state treasurer, municipality or county treasurers, the State School Superintendent, municipality or county school superintendents, and treasurers of school districts, but also every other person, by whatever name or title called, who shall be either generally or specially elected, appointed, or employed with the duty, in whole or in part, to receive, hold, or disburse any public money or revenue on behalf of the state or any of its political subdivisions or on behalf of any board, commission, bureau, or department.
  10. "Proper authority" means the officer, board, commission, or other tribunal or body having the jurisdiction to act in the particular matter.
  11. "Public body" means not only the state, municipalities, counties, school districts, drainage districts, and other districts created for special purposes, but also every other political subdivision of the state and every board, bureau, commission, and department of the state or any subdivision thereof, as the context may require.
  12. "State authority" means the officer or officers or board, bureau, commission, or other person or persons who, in their official capacity, shall have, according to the laws of this state, the duty or jurisdiction to act on behalf of the state in the particular matter.

    (Ga. L. 1933, p. 78, § 2; Code 1933, § 89-801; Ga. L. 1993, p. 1402, § 18; Ga. L. 1997, p. 868, § 1; Ga. L. 2010, p. 863, §§ 3, 4/SB 296; Ga. L. 2011, p. 752, § 45/HB 142; Ga. L. 2016, p. 249, § 1/SB 283.)

The 2016 amendment, effective April 26, 2016, for purposes of promulgating rules and regulations and for all other purposes effective July 1, 2016, rewrote this Code section.

JUDICIAL DECISIONS

Probate judge as officer included in definitions. - The ordinary (now probate judge) is a "collecting officer" for the county within the meaning of O.C.G.A. § 45-8-1 when the ordinary collects fees for marriage licenses. The ordinary is an "officer to hold public funds" for the county within the meaning of O.C.G.A. § 45-8-1 when the ordinary holds 20 percent of the fees collected separately from the remainder of the fees and when the ordinary disburses to the Probate Courts Retirement Fund, in behalf of the county, the 20 percent withheld. Holcombe v. Gunby, 241 Ga. 105 , 243 S.E.2d 65 (1978).

45-8-2. Bonds - Requirement of officers holding state funds; requirement of additional bond or security; declaring office vacant upon failure to give additional security; reduction of bonds; substitution of new bonds.

  1. The state authorities shall require all collecting officers and all officers to hold public funds, so far as relates to moneys or revenues of the state, to give bond, on or before entering on the duties of their office, appointment, or employment, with good security for the faithful performance of the duties of their office and faithfully to account for all moneys coming into their hands, together with such other conditions as the laws may require as to the official bond of the particular officer in question.
  2. If the state authority having supervision or control over the officer or the conduct of his office shall deem at any time that the bond given by such officer is insufficient in amount or is inadequate as to security, he shall notify such officer to give an additional bond or to increase the security. If within the time required by such state authority the officer fails to give the additional bond or to make adequate the security, the state authority shall, if the same be an office the incumbent of which such state authority has the jurisdiction or power to remove, declare the office vacant. If it is an office the incumbent of which such state authority does not have the power to remove, the state authority shall report the same to the Governor; and thereupon, if it be an office the incumbent of which the Governor has power to remove for cause, the Governor, after giving such officer opportunity to be heard, shall have the power to declare the office vacant. If it relates to an officer who can be removed only by impeachment proceedings, the Governor shall report the same to the General Assembly. The Governor shall have concurrent jurisdiction with all other proper authorities to require any collecting officer or any officer to hold public funds to give additional bond or security.
  3. The Governor or other proper state authority shall have the jurisdiction and authority to allow any collecting officer or any officer to hold public funds of the state to reduce his bond by an order discharging the existing bonds of such officer from future liability and the giving of a new bond by said officer in the reduced amount which shall not be below the amount required of such officer as a minimum by the laws of this state.
  4. The Governor or other proper state authority shall have the jurisdiction and authority to allow any such officer to substitute a new bond for his existing bond or bonds and to discharge the existing bond or bonds as to future liability by an order to that effect.

    (Ga. L. 1933, p. 78, § 3; Code 1933, § 89-806.)

Cross references. - Giving of bonds by public officers generally, T. 45, C. 4.

JUDICIAL DECISIONS

Cited in Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Liability of employee for failure to account. - A default by an employee in the employee's obligation to account for the funds advanced to the employee for the purposes stated in Ga. L. 1973, p. 842, § 1 (see now O.C.G.A. § 45-7-25 ) was a failure "faithfully to account for all moneys coming into (his) hands," and thus was a claim cognizable under the bond required by former Code 1933, § 89-806 and Ga. L. 1964, p. 282, § 1 (see now O.C.G.A. §§ 45-8-2 and 45-8-8 ); in the event the employee is not bonded as required by former Code 1933, § 89-806, then the limitation of liability with respect to the principal and surety on the bond of the head of that state department contained in Ga. L. 1964, p. 282, § 1 was is no longer applicable and the historical rules of liability would in that event apply to the department head and surety. 1973 Op. Att'y Gen. No. 73-87.

Requiring additional bond from school superintendent. - A county board of education may require a county school superintendent to give an additional bond or to increase the security if in the opinion of the board the present bond is insufficient in amount or is inadequate as to security. 1957 Op. Att'y Gen. p. 105.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 351, 352.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 473.

45-8-3. Bonds - Requirement of officers holding other than state funds; increase, reduction, or discharge of bonds.

All municipality or county authorities and all other proper authorities shall, as to collecting officers and officers to hold public funds other than those dealt with in Code Section 45-8-2, have the jurisdiction and authority to require bonds of such officers, of the same kind as is prescribed in Code Section 45-8-2, and shall have the same power and authority to require such officers to increase their bonds or the security thereon, to permit the reduction of such bonds, and to give discharge to existing bonds as to future liability upon new bonds being given, all in like manner as is set forth in Code Section 45-8-2.

(Ga. L. 1933, p. 78, § 3a; Code 1933, § 89-807.)

OPINIONS OF THE ATTORNEY GENERAL

Requiring additional bond from school superintendent. - A county board of education may require a county school superintendent to give an additional bond or to increase the security if in the opinion of the said board the present bond is insufficient in amount or is inadequate as to security. 1957 Op. Att'y Gen. p. 105.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 351, 352.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 474.

45-8-4. Bonds - Declaring office vacant upon officer's failure to give additional security.

If any such officer is required to give additional bond or security pursuant to Code Section 45-8-3 and fails to do so within the time required, the proper authority shall:

  1. Declare the office vacant, if such proper authority has the power of removal over such office; or
  2. If such proper authority does not have the power of removal, it shall report the same to the Governor or officer having power of removal, who, after giving the delinquent officer opportunity to be heard, shall have the power to declare the office vacant.

    (Ga. L. 1933, p. 78, § 4; Code 1933, § 89-808.)

OPINIONS OF THE ATTORNEY GENERAL

Requiring additional bond from school superintendent. - A county board of education may require a county school superintendent to give an additional bond or to increase the security if in the opinion of the said board the present bond is insufficient in amount or is inadequate as to security. 1957 Op. Att'y Gen. p. 105.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 163, 172.

45-8-5. Bonds - Fixing of amount and approval.

The amount of the bonds of collecting officers and officers to hold public funds shall be in the amount fixed by the proper authority, unless the amount is fixed by existing general laws, and shall be approved by the proper authority and filed as required by law. Except as otherwise provided in this Code section, the proper authority to fix the amount of bonds and to approve the same is the officer or officers upon whom those duties are imposed by existing laws. Where the law does not designate what officer shall perform these duties, the proper authority shall be the officer, board, bureau, or commission having supervision over the particular office or officer. Municipality or county authorities shall be deemed the proper authorities as to fixing the amount and approving bonds of municipality or county treasurers and those acting as substitutes for municipality or county treasurers under local laws and as to all other collecting officers and officers holding public funds, so far as relates to municipality or county taxes or revenue, and shall be deemed the proper authority as to requiring additional bonds or strengthening security on bonds, as to allowing reduction or substitution of bonds, and as to discharging bonds from future liability, so far as relates to such officers.

(Ga. L. 1933, p. 78, § 5; Code 1933, § 89-809.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 136.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 473, 474, 480, 482.

45-8-6. Bonds - Liability of new or additional bond for defaults occurring prior to and subsequent to effective date.

Where any collecting officer, officer to hold public funds, bank, or depository gives an additional bond or adds new security during his term, the bond in force at the time and securities thereon shall be liable for defaults occurring prior to the time the additional bond or security is given; and the existing bond or security and the additional bond or security shall be jointly, severally, and concurrently liable for subsequent defaults. If the order requiring a new bond so provides, the sureties on the old bond or bonds shall be discharged from future liability and the new bond alone shall be liable therefor. However, if the new bond so provides, it may assume concurrent liability with the old bond as to defaults occurring prior to the date of its being given, or, if the officer having the duty of approving the bond so consents, the new bond may assume sole liability from a date prior to the time of its being filed and the old bond or bonds may be discharged from liability from the date as of which such new bond is operative.

(Ga. L. 1933, p. 78, § 14; Code 1933, § 89-835.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 130, 359.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 485.

45-8-7. Bonds - Interest against principal and surety upon breach of bond; additional penalty for bad faith; attorneys' fees.

Upon breaches of the bond of any officer, bank, or depository, interest shall run against the principal on the bond at the rate of 7 percent per annum from the date of the breach and against the surety at the same rate from the date of the demand on the surety. If the breach shall involve dishonesty on the part of the officer or bank, the official or county authority having jurisdiction to cite the officer, or any court acquiring jurisdiction over the subject matter, may, as against the offending principal in the bond, impose an additional penalty of not more than 10 percent of the amount of the loss and a reasonable sum for attorneys' fees. This penalty and award of attorneys' fees may also be imposed upon the surety by any court acquiring jurisdiction of the subject matter, in the event it is shown that the surety has acted in bad faith and has been vexatiously litigious or that it has filed defensive proceedings for delay only. Existing laws imposing higher rates of interest or penalties upon principals or sureties upon any of such bonds are superseded by this Code section.

(Ga. L. 1933, p. 78, § 12; Code 1933, § 89-833.)

JUDICIAL DECISIONS

This section requires a demand on the surety to initiate the running of interest against it but does not prescribe a specific form of demand. In the absence of specific statutory or contractual requirement it is only necessary to constitute a demand that the surety be notified that immediate payment of the debt is requested. There is no requirement here of demand on the principal to initiate the running of interest against the principal, and the evident purpose of the statutory requirement of demand on the surety is to give such surety an opportunity to immediately reimburse the county for any loss within the terms of the bond occasioned by the breach of principal, without subjecting it to the payment of interest prior to the time the county notifies it that immediate payment of such obligation is requested. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

No interest may be charged for period preceding demand. - When there was no evidence in the record of any demand upon the surety of the tax commissioner prior to the date of the execution, an execution against the surety could not properly be issued for interest alleged to have accrued prior to the date thereof. Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

Recordation of execution insufficient as demand. - Simply issuing the execution and recording it on the execution docket was not sufficient to constitute the demand on the surety which this section requires. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

Cited in Rice v. Board of Comm'rs of Rds. & Revenue, 107 Ga. App. 207 , 129 S.E.2d 401 (1963).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 354 et seq., §§ 493, 494.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 482, 486, 487.

45-8-8. Bonds - When principal and surety not liable.

  1. Neither the principal nor the surety on any bond of any collecting officer or any officer to hold public funds shall be liable for the failure of such officer to account for any public money coming into his hands which he shall have deposited in any designated depository or, if the proper authority shall have failed to designate a depository, in any bank selected by him, if it was deposited in the name of the public body to which it belongs, in his own name in his official title or with his official capacity disclosed, or if the bank receiving the same shall otherwise have notice of the public nature of the deposit, provided that said failure to account is attributable solely to the failure or insolvency of such depository.
  2. Neither the principal nor the surety on the bond of the head of any state department or agency shall be liable for the failure of an employee of any such department or agency to account for any public money coming into the hands of such employee, if such employee is bonded in an amount deemed adequate by the head of the department or agency and the state auditor and the bond complies with this chapter.

    (Ga. L. 1933, p. 78, § 13; Ga. L. 1964, p. 282, § 1.)

JUDICIAL DECISIONS

Bond relieved when public funds deposited officially. - A county treasurer is required to deposit the county money in a bank and to have it give bond to secure the deposit, and, if it is deposited officially or if the bank knows it to be a public deposit, the treasurer's bond is thereby relieved. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Cited in Landrum v. Thomas, 52 Ga. App. 257 , 183 S.E. 140 (1935); Weems v. Glenn, 199 Ga. App. 388 , 34 S.E.2d 511 (1945).

OPINIONS OF THE ATTORNEY GENERAL

Limitation on liability of principal and surety inapplicable when principal not bonded. - A default by an employee in an obligation to account for the funds advanced to the employee for the purposes stated in Ga. L. 1973, p. 842, § 1 (see now O.C.G.A. § 45-7-25 ) was a failure "faithfully to account for all moneys coming into (his) hands," and thus was a claim cognizable under the bond required by former Code 1933, § 89-806 and Ga. L. 1964, p. 282, § 1 (see now O.C.G.A. §§ 45-8-2 and 45-8-8 ); in the event the employee is not bonded as required by former Code 1933, § 89-806, then the limitation of liability with respect to the principal and surety on the bond of the head of that state department contained in Ga. L. 1964, p. 282, § 1 was no longer applicable and the historical rules of liability would in that event apply to the department head and surety. 1973 Op. Att'y Gen. No. 73-87.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 351 et seq., 363, et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 486.

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 93 A.L.R. 819 ; 155 A.L.R. 436 .

Constitutionality of statutes relieving officer or public depository, or his surety, from liability for loss of public funds, 96 A.L.R. 295 .

45-8-9. Bonds - Limitation of actions on bonds.

No action on the bond of any collecting officer, officer to hold public funds, bank, or depository shall be maintained unless the action or proceeding is begun within six years from the date the alleged cause of action accrued; nor shall any action be maintained against any surety because of an alleged breach of the bond, unless, within three years from the date the alleged cause of action accrues, an action is begun against the surety or a citation is issued against the surety by the official, municipality, or county authority having jurisdiction to cite or an execution is issued against the surety as provided for in Code Section 45-8-25.

(Ga. L. 1933, p. 78, § 11; Code 1933, § 89-832.)

JUDICIAL DECISIONS

Statute of limitations begins to run from time of breach of duty. - The cause of action had its inception and the statute of limitations began to run from the time there was a breach of duty on the part of the Tax Commissioner (now State Revenue Commissioner). Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

Surety has the right to plead the statute as a bar to recovery. - Under this section, a surety on an officer's bond had the right to plead, as a reason why an execution should not proceed against it, that the cause of action accrued more than three years before the date of such execution. Bibb County v. Winslett, 191 Ga. 860 , 14 S.E.2d 108 (1941).

Surety is not liable on untimely claims. - Since the Tax Commissioner (now State Revenue Commissioner) had not filed a report or made an accounting for 1953 taxes on or before April 20, 1954, and it is apparent that the commissioner's failures constituted a breach of the official duty for which the commissioner and the surety on the commissioner's official bond would both be liable, a cause of action in this matter accrued on April 20, 1954, and the execution issued on May 21, 1957, was barred by the statute of limitations to the extent that it sought to enforce liability against the surety for amounts withheld for 1953. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

Cited in Laurens County v. Keen, 214 Ga. 32 , 102 S.E.2d 697 (1958); Holcombe v. Gunby, 241 Ga. 105 , 243 S.E.2d 65 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 455 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 494.

45-8-10. Deposit of funds in banks or depositories - Requirement generally.

All funds belonging to the state or to any of its bureaus, commissions, boards, or departments shall be deposited in designated state depositories. Every collecting officer and every officer to hold public funds who receives any money belonging to any public body shall promptly deposit the money in a designated state depository.

(Ga. L. 1933, p. 78, § 6; Code 1933, § 89-810.)

Cross references. - State depositories, § 50-17-50 et seq.

JUDICIAL DECISIONS

Bond relieved when public funds deposited officially. - A county treasurer is required to deposit the county money in a bank and to have it give bond to secure the deposit, and, if it is deposited officially or if the bank knows it to be a public deposit, the treasurer's bond is thereby relieved. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Cited in Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937); Harrison v. May, 228 Ga. 684 , 187 S.E.2d 673 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Deposit of funds exceeding insured amount. - The collecting officer or officer holding the funds of a hospital authority may deposit funds of the authority in a local bank or banks notwithstanding the fact that the amount of the funds so deposited may exceed Federal Deposit Insurance Corporation insurance on the account, if the authority requires the depository to give bond or make deposit of securities in trust to secure such deposits, pursuant to former Code 1933, §§ 89-810 and 89-812 (see now O.C.G.A. §§ 45-8-13 and 45-8-10 ). 1969 Op. Att'y Gen. No. 69-500.

A credit union is not a proper depository for public funds belonging to or in the custody of a municipal corporation inasmuch as a credit union is not a bank. 1974 Op. Att'y Gen. No. 74-41.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 263, 345, 348.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 396.

45-8-11. Deposit of funds in banks or depositories - Authority of officers holding public funds to determine amounts to be deposited; waiver of requirement for depository to give security.

  1. Every collecting officer and officer holding public funds shall be authorized to determine, from time to time, in respect to all public funds held by such officer, any and all of the following:
    1. The maximum amount of public money which may be deposited in a particular depository;
    2. The maximum and minimum proportion of public funds which may be maintained in a particular depository; and
    3. The amount of public funds to be deposited in particular depositories as time deposits and the periods of such deposits.
  2. All depositories shall give security for deposits of public funds. However, a collecting officer or officer holding public funds may, in his discretion, waive the requirement for security in the case of operating funds placed in demand deposit checking accounts.
  3. This Code section shall not apply to collecting officers and officers holding public funds pursuant to Article 3 of Chapter 17 of Title 50, relating to state depositories.

    (Code 1933, § 89-810.2, enacted by Ga. L. 1980, p. 969, § 1.)

45-8-12. Deposit of funds in banks or depositories - Depository to give bond; pledge of securities in lieu of bond; acceptance of federal insurance as security; combination of securities; aggregate amount of bond.

  1. The collecting officer or officer holding public funds may not have on deposit at any one time in any depository for a time longer than ten days a sum of money belonging to the public body when such depository has not given a bond to the public body as set forth in this Code section. The bond to be given by depositories, where such bonds are required, shall be a surety bond signed by a surety company duly qualified and authorized to transact business within this state in a sum as so required. In lieu of such a surety bond, the depository may pledge to the public body as security any one or more of the obligations enumerated in Code Section 50-17-59, relating to the bond required to secure state deposits and securities in lieu of bond.
  2. The collecting officer or officer holding public funds shall accept the guarantee or insurance of accounts by the Federal Deposit Insurance Corporation to secure public funds on deposit in depositories to the extent authorized by federal law governing the Federal Deposit Insurance Corporation.
  3. A depository may secure deposits made with it partly by surety bond, partly by deposit of any one or more of the obligations referred to in subsection (a) of this Code section, partly by the guarantee or insurance of accounts by the Federal Deposit Insurance Corporation, or by any combination of these methods. Except for covered depositories, the aggregate of the face value of such surety bond and the market value of securities pledged shall be equal to not less than 110 percent of the public funds being secured after the deduction of the amount of deposit insurance.
  4. Notwithstanding any other provisions of this Code section, a depository may deduct the face amount of direct loans from deposits of a public body before being required to secure such deposits by a surety bond, deposit insurance, securities, or any combination thereof.
  5. This Code section shall not apply to collecting officers and officers holding public funds pursuant to Article 3 of Chapter 17 of Title 50, relating to state depositories.

    (Code 1933, § 89-810.2, enacted by Ga. L. 1980, p. 969, § 1; Ga. L. 1987, p. 905, § 1; Ga. L. 1987, p. 1334, § 1; Ga. L. 1994, p. 499, § 1; Ga. L. 2016, p. 249, § 2/SB 283.)

The 2016 amendment, effective April 26, 2016, for purposes of promulgating rules and regulations and for all other purposes effective July 1, 2016, in subsection (b), substituted "by the Federal Deposit Insurance Corporation" for "of the Federal Deposit Insurance Corporation and the guarantee or insurance of accounts of the Federal Savings and Loan Insurance Corporation" in the middle and deleted "and the Federal Savings and Loan Insurance Corporation" following "Corporation" at the end; and, in subsection (c), substituted "of accounts by the Federal Deposit Insurance Corporation" for "referred to in subsection (b) of this Code section" in the first sentence and substituted "Except for covered depositories, the" for "The" at the beginning of the second sentence.

45-8-13. Deposit of funds in banks or depositories - Deposit of securities by banks or depositories; contract as to interest or compensation.

  1. Any depository in this state is authorized to give such bond or to secure deposits of public funds by deposits of securities, whether the securities are owned by the depository into which the public funds are deposited or are owned by another bank, and the proper authorities are authorized to make contracts with depositories as to interest or compensation of the depository.
  2. Depositories that are not covered depositories may secure deposits of public funds using the dedicated method, the single bank pooled method, or both methods, as enumerated in this subsection:
    1. Under the dedicated method, a depository shall secure the deposits of each of its public body depositors separately. It is intended that the dedicated method is the method permitted under Code Section 45-8-12 and that this method will not be affected by this subsection; or
    2. Under the single bank pooled method, a depository shall secure deposits of public funds of public bodies which have deposits with it through a pool of collateral established by the depository with a custodian for the benefit of public bodies having deposits with such depository as set forth in Code Section 45-8-13.1. If a depository elects the single bank pooled method, it may use the single bank pooled method with some public body depositors and the dedicated method with other public body depositors.
  3. Covered depositories shall secure public funds from public bodies as provided in this subsection:
    1. Establish a pool of collateral with a custodian for the benefit of public bodies having deposits with such covered depository as set forth in Code Section 45-8-13.1;
    2. Secure deposits made with it partly by surety bond, partly by deposit of any one or more of the obligations referred to in subsection (a) of Code Section 45-8-12, partly by the guarantee or insurance of accounts by the Federal Deposit Insurance Corporation, any obligation authorized pursuant to the policies and procedures of the State Depository Board, or by any combination of these methods. The aggregate of the face value of such surety bond and the market value of securities pledged shall be a percent of the public funds being secured after the deduction of the amount of deposit insurance as established quarterly pursuant to a formula proposed by the commissioner and adopted by the State Depository Board based on the ratings of the covered depository from one or more nationally recognized rating services. The commissioner is authorized to propose to the State Depository Board multiple tiers of collateralization requiring different percentages of securities to be pledged to secure deposited public funds; and
    3. Under the multibank pooled method, each covered depository shall guarantee the deposits of a public body against loss caused by the default of other depositories within the multibank pool.

      (Ga. L. 1933, p. 78, § 6; Code 1933, § 89-812; Ga. L. 1993, p. 929, § 3; Ga. L. 1994, p. 97, § 45; Ga. L. 1997, p. 868, § 2; Ga. L. 2016, p. 249, § 3/SB 283.)

The 2016 amendment, effective April 26, 2016, for purposes of promulgating rules and regulations and for all other purposes effective July 1, 2016, in subsection (b), inserted "that are not covered depositories" near the beginning, and substituted ", the single bank pooled method, or both methods," for "or the pooled method" near the end; in paragraph (b)(1), inserted "body" near the end of the first sentence; in paragraph (b)(2), inserted "single bank" three times and inserted "body" twice; and rewrote subsection (c).

JUDICIAL DECISIONS

Bond relieved when public funds deposited officially. - A county treasurer is required to deposit the county money in a bank and to have it give bond to secure the deposit, and, if it is deposited officially or if the bank knows it to be a public deposit, the treasurer's bond is thereby relieved. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Cited in Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937).

OPINIONS OF THE ATTORNEY GENERAL

Funds of a local housing authority held exclusively for a public purpose were public funds within the meaning of former Code 1933, §§ 89-812 and 89-813 (see now O.C.G.A. §§ 45-8-13 and 45-8-15 ). 1957 Op. Att'y Gen. p. 7.

Requirements when amount deposited exceeds amount insured. - The collecting officer or officer holding the funds of a hospital authority may deposit funds of the authority in a local bank or banks notwithstanding the fact that the amount of the funds so deposited may exceed Federal Deposit Insurance Corporation insurance on the account, if the authority requires the depository to give bond or make deposit of securities in trust to secure such deposits pursuant to former Code 1933, §§ 89-810 and 89-812 (see now O.C.G.A. §§ 45-8-10 and 45-8-13 ). 1969 Op. Att'y Gen. No. 69-500.

Banks holding public moneys are required to secure the money by giving bond or depositing securities in trust whether or not specifically requested to do so by public authorities. 1962 Op. Att'y Gen. p. 24.

Approved securities are the same whether the funds are state or local. - Since the policy of protecting public funds was presumably the same whether the funds were state funds or subdivision funds, the list in former Code 1933, § 100-108 (see now O.C.G.A. § 50-17-59(a) ) should govern for purposes of former Code 1933, § 89-812 (see no O.C.G.A. § 45-8-13 ). 1979 Op. Att'y Gen. No. 79-12.

Obligations of a public housing authority are approved securities. - A state bank may purchase obligations of a public housing agency and pledge them as security for the repayment of a deposit of funds made with the bank by the housing agency provided the purchase of such obligations does not exceed 10 percent of the capital and unimpaired surplus of the bank. 1957 Op. Att'y Gen. p. 7.

45-8-13.1. Depositories using pooled method of securing deposits of public funds; qualifications; rights and responsibilities of state treasurer; establishing policies and procedures.

  1. Only depositories which have met the qualifications imposed by this Code section may use a pooled method. If a depository elects a pooled method, it shall notify the state treasurer in writing of its desire to utilize a pooled method and the proposed effective date thereof and provide to the state treasurer executed copies of the custodial agreement, resolution, and other agreements and data as may be required by the state treasurer. Upon meeting the qualifications of this Code section, the state treasurer shall issue a certificate of qualification, and such bank or trust company shall become a depository permitted to use a pooled method.
  2. The aggregate of the market value of the securities pledged to secure a pool of public funds under the single bank pooled method shall be not less than 110 percent of the daily pool balance. The aggregate of the market value of the securities pledged to secure a pool of public funds under the multibank pooled method shall be not less than the percent established by the State Depository Board for the multibank pooled method provided for in paragraph (2) of subsection (c) of Code Section 45-8-13, which shall be neither less than 25 percent nor greater than 125 percent. Notwithstanding these parameters for the multibank pool, the aggregate market value of securities pledged shall be not less than 100 percent for amounts greater than 20 percent of the total daily pool balance held by any one covered depository. The State Depository Board, upon the recommendation of the state treasurer, in consultation with the commissioner, shall have the authority to increase the percent collateralization of any covered depository to a maximum of 125 percent at any time as economic conditions warrant.
    1. A depository may not retain any deposit of public funds which is required to be secured unless, within ten days thereafter or such shorter period as has been agreed upon by the depository and the state treasurer, it has deposited for the benefit of the pool eligible collateral equal to its required collateral pursuant to this Code section.
    2. For reporting purposes, each depository using a pooled method shall determine the market value of its collateral. Each depository shall provide such monthly reports to the state treasurer as the state treasurer shall require.
    3. A depository may not substitute or withdraw collateral previously pledged as part of a pool without the prior approval of the state treasurer. The state treasurer shall grant such approval if:
      1. In the case of substitution of collateral, the market value of the substituted collateral is equal to or greater than the market value of the collateral withdrawn; and
      2. In the case of withdrawal of collateral:
        1. The depository certifies in writing that such withdrawal will not reduce its collateral below its required collateral; and
        2. This certification is substantiated by a statement of the depository's current daily pool balance that indicates that after withdrawal such deposits will continue to be secured to the full extent required by law.
  4. The state treasurer shall be authorized to delegate to any bank, savings association, trust company, or other qualified firm, corporation, or association which is authorized to transact business in the State of Georgia such of its rights and responsibilities with respect to a pooled method as the state treasurer deems appropriate including, without limitation, the right to approve or disapprove any substitutions or withdrawals permitted under this Code section. Fees and expenses of the bank, savings association, trust company, or other qualified firm, corporation, or association to which the state treasurer delegates his or her rights and responsibilities under this subsection shall be paid by the depositories using a pooled method.
  5. The state treasurer, upon a default by a depository using a pooled method, shall request immediate delivery of such part of the pooled, pledged collateral as may be needed to hold the state treasurer or any public body depositor harmless from losses incurred by the default. The state treasurer shall have full discretion as to the amounts and securities to be delivered. The state treasurer shall sell as much of the collateral as is needed to provide cash to cover the amount of the default and expenses resulting therefrom. From the proceeds of the sale of such collateral, the state treasurer shall pay any amounts owing to public body depositors who participated in the pooled fund of the defaulting depository. Public body depositors whose deposits are secured by a single bank pool of a defaulting depository shall look solely to the assets of such pool and to the assets of the defaulting depository and shall have no claim, ex contractu or otherwise, against the state, other depositories, or the assets of pools created by other depositories. Public body depositors whose deposits are secured in a multibank pool of a defaulting covered depository shall look to the assets of the defaulting covered depository. If such assets are insufficient to cover amounts owing to public body depositors, the state treasurer shall assess all covered depositories, except the defaulting covered depository, on a pro rata basis based upon a covered depository's percentage remaining share of the deposit of the public body; and a public body depositor shall have no claim, ex contractu or otherwise, against the state, depositories outside the multibank pool, or the assets of pools in a defaulting depository created outside the multibank pool. The failure of a covered depository to satisfy an assessment from the state treasurer in a timely manner shall be an event of default.
  6. In addition to all of the rights provided to the state treasurer in this chapter, the state treasurer shall have the following powers:
    1. To adopt such rules and prescribe such forms as may be necessary to accomplish the purposes of this chapter;
    2. To decline, accept, or reduce the reported value of collateral, as circumstances may require, in order to ensure the pledging of sufficient marketable collateral to meet the purposes of this chapter;
    3. To suspend or disqualify any custodian or depository that has violated any provision of this chapter or any rule adopted pursuant to this chapter;
    4. To require depositories to furnish detailed monthly reports of deposits from public bodies held by the depository, including depositor names and addresses, deposit amounts, and any additional information requested by the state treasurer;
    5. To confirm deposits of funds by a public body to the extent possible under current law; and
    6. To monitor and confirm, as often as deemed necessary by the state treasurer, the pledged collateral held by third-party custodians.
  7. Neither the provisions of this chapter nor the exercise of any right or duty by the state treasurer or the commissioner authorized or permitted by Code Section 45-8-13 or this Code section shall be construed as a waiver of sovereign immunity.
  8. Pursuant to Code Section 50-17-53 and the other powers of the State Depository Board, the State Depository Board may establish policies and procedures related to the operation of a multibank pool, including, but not limited to, defining eligible collateral, establishing collateral limits, adopting the schedule of fees charged to covered depositories, establishing a formula to calculate different collateralization tiers, and reporting requirements. (Code 1981, § 45-8-13.1 , enacted by Ga. L. 1997, p. 868, § 3; Ga. L. 2010, p. 863, § 4/SB 296; Ga. L. 2011, p. 752, § 45/HB 142; Ga. L. 2016, p. 249, § 4/SB 283.)

The 2016 amendment, effective April 26, 2016, for purposes of promulgating rules and regulations and for all other purposes effective July 1, 2016, substituted "a pooled" for "the pooled" throughout this Code section; in subsection (b), inserted "under the single bank pooled method" in the first sentence and added the last three sentences; in paragraph (c)(1), substituted "state treasurer" for "public depositors secured by the pool"; rewrote subsection (e); in paragraph (f)(4), substituted "deposits from public bodies held by the depository, including depositor names and addresses, deposit" for "public deposits held by depositors' names, addresses,"; in paragraph (f)(5), substituted "funds by a public body" for "public funds"; inserted "or the commissioner" in subsection (g); and added subsection (h).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1997, "chapter" was substituted for "Act" in subsection (g).

Pursuant to Code Section 28-9-5, in 1998, "this Code section" was substituted for "45-8-13.1" in subsection (g).

45-8-14. Depositories for county and school district moneys.

The governing authority of each county shall designate one or more solvent banks, insured federal savings and loan associations, or insured state chartered building and loan associations as depositories of all county moneys. The board of education of each county school district and of each independent school district shall designate one or more solvent banks, insured federal savings and loan associations, or insured state chartered building and loan associations as depositories of all school district moneys.

(Ga. L. 1933, p. 78, § 6; Code 1933, § 89-811; Ga. L. 1975, p. 696, § 1; Ga. L. 1994, p. 412, § 1.)

JUDICIAL DECISIONS

Cited in Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937).

OPINIONS OF THE ATTORNEY GENERAL

Right to specify depository for school funds. - County commissioners do have the legal right to specify the bank to be used as a depository for school funds. 1965-66 Op. Att'y Gen. No. 65-15.

Exercise of right by those other than county authorities. - The statutory authority of the governing authorities of a county to designate the depository to be used by the county board of education applies to all school funds under the jurisdiction and control of the school board; the county board of education and other specified persons in this section may designate such a depository only when the county authorities fail to designate a depository. 1967 Op. Att'y Gen. No. 67-103.

Transfer of school funds when depository redesignated. - When a depository has been selected by the school board due to failure of the county authorities to act, and the county authorities at some later date then do decide to specify a depository for the school fund, the county school board should, if an immediate transfer would for some reason interfere with school operations, be given a reasonable time to transfer such funds, so as not to interfere with education in the county. 1965-66 Op. Att'y Gen. No. 65-15.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 348.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 396.

45-8-14.1. Funds held by depository; policies and procedures; effective date.

  1. For the purposes of this chapter, funds shall be considered to be held by a depository, regardless of whether or not such funds are subsequently distributed among one or more federally insured banks or savings and loan associations, provided that:
    1. The funds are initially deposited in a depository whose deposits are insured by the Federal Deposit Insurance Corporation;
    2. Such depository arranges for depositing the funds in one or more federally insured banks or savings and loan associations insured by the Federal Deposit Insurance Corporation, wherever located;
    3. The full amount of the principal and accrued interest of each financial deposit instrument is insured by the Federal Deposit Insurance Corporation; and
    4. Any third-party service provider facilitating the placement of deposits in accordance with this Code section is approved by the State Depository Board.
  2. Pursuant to Code Section 50-17-53 and the other powers of the State Depository Board, the State Depository Board shall establish policies and procedures related to the approval of third-party service providers and the ongoing monitoring of participation in deposit placement programs in accordance with this Code section. The State Depository Board shall establish such policies and procedures no later than December 31, 2019. (Code 1981, § 45-8-14.1 , enacted by Ga. L. 2019, p. 335, § 1/SB 157.)

Effective date. - This Code section became effective May 2, 2019.

45-8-15. Deposit of funds in banks or depositories - Lien in favor of public body on bank assets; deposit as trust fund.

Upon any deposit of public funds being made in any bank, whether designated as a depository or not, there shall arise in favor of the public body to which such fund belongs a lien on all the assets of said bank, superior to all other liens, for the amount of such funds. Upon being deposited in any bank, all funds of any public body shall be deemed to be held as a trust fund.

(Ga. L. 1933, p. 78, § 6; Code 1933, § 89-813.)

JUDICIAL DECISIONS

"Any bank". - The language "any bank" in this section includes a private as well as a regularly chartered bank. State v. Parramore, 214 Ga. 578 , 106 S.E.2d 1 (1958).

Property not constituting asset of bank. - Property, title to which has been conveyed by the bank to secure debts incurred in the regular course of the bank's business, is not an asset of the bank under the meaning of this section. State v. Parramore, 214 Ga. 578 , 106 S.E.2d 1 (1958).

Fund collected by state agent as superior lien. - When the claim of the state was not for "debts due for taxes, state and federal," but was based upon a fund collected by the state through its automobile tag agent and deposited in a private bank under the name of the tag agent, the state occupied the position of "debts due depositors" with "a lien on all the assets of said bank, superior to all other liens, for amount of such funds." State v. Parramore, 214 Ga. 578 , 106 S.E.2d 1 (1958).

Cited in Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937).

OPINIONS OF THE ATTORNEY GENERAL

The funds of a local housing authority held exclusively for a public purpose were public funds within the meaning of former Code 1933, §§ 89-812 and 89-813 (see now O.C.G.A. §§ 48-5-13 and 45-8-15 ). 1957 Op. Att'y Gen. p. 7.

Purchase of obligations of public housing agency by depository bank. - A state bank may purchase obligations of a public housing agency and pledge the obligations as security for the repayment of a deposit of funds made with the bank by the housing agency provided the purchase of such obligations does not exceed 10 percent of the capital and unimpaired surplus of the bank. 1957 Op. Att'y Gen. p. 7.

45-8-16. Deposit of funds in banks or depositories - Deposits showing officer's official title deemed public funds.

Money of any public body deposited in any bank by any collecting officer or officer to hold public funds, though deposited in his own name, shall, if the account stands in his name in his official capacity or is marked with words or abbreviations showing his official title or if the bank otherwise knows that it is public money, be deemed to be funds of a public body within the scope of this chapter.

(Ga. L. 1933, p. 78, § 6; Code 1933, § 89-814.)

JUDICIAL DECISIONS

Bond relieved when county funds deposited officially. - A county treasurer is required to deposit the county money in a bank and to have it give bond to secure the deposit, and, if it is deposited officially or if the bank knows it to be a public deposit, the treasurer's bond is thereby relieved. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Cited in Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937).

45-8-17. Deposit of funds in banks or depositories - Liability.

No proper authority, including the state treasurer, nor any member of a board or tribunal constituting such a proper authority shall, where acting in good faith, incur any liability by reason of designating any depository, permitting deposits of public funds to be collateralized by the direct method or the pooled method, administering or regulating the pooled method, or taking any other official action required of such proper authority under this chapter.

(Ga. L. 1933, p. 78, § 6; Code 1933, § 89-815; Ga. L. 1997, p. 868, § 4; Ga. L. 2010, p. 863, § 4/SB 296.)

JUDICIAL DECISIONS

Cited in Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Whipple v. American Sur. Co., 92 F.2d 673 (5th Cir. 1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 345 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 310.

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 93 A.L.R. 819 ; 155 A.L.R. 436 .

45-8-18. Investment of surplus funds in war bonds or other obligations by treasurer of governmental entity.

  1. The treasurer of any municipality or county or board of trustees of any independent school district may invest any surplus funds in his hands, or any special funds held or being accumulated for any special purpose, or any funds on hand not required for the operation of the municipality, county, or school district for the current fiscal year. He may invest such funds in war bonds or other valid obligations of the United States government, repayable at face value or better, when such investment is authorized by the mayor and general council, county commission, judge of the probate court, board of trustees, or other authority in charge of the affairs of said municipality, county, or independent school district, provided funds accumulated for any special purpose shall be invested only in securities whose maturity date is prior to the date when such funds shall be needed for said special purposes or which are redeemable prior thereto without penalty or loss of principal.
  2. Any bonds or other securities purchased or held pursuant to subsection (a) of this Code section shall be held subject to the same conditions as those attached to the funds from which same were purchased.

    (Ga. L. 1943, p. 453, §§ 1, 2.)

Law reviews. - For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

OPINIONS OF THE ATTORNEY GENERAL

Investment of funds granted to municipalities. - The General Assembly intended the funds granted to the municipalities to be special funds and did not intend to restrict the funds so as to prohibit their temporary investment so long as the investment does not interfere in any way with the expedient use of the funds for the purpose provided in the Act, and the maturity date of the government obligations does not extend beyond the date when such funds shall be needed for these purposes. 1965-66 Op. Att'y Gen. No. 65-35.

The use of the word "bonds" as used in this section should be construed to include the obligation to repay the principal as well as the obligation to pay any interest or premium; any interest earned by the investment of the funds granted to the municipalities by the state are subject to the same conditions as those attached to the funds from which the bonds were purchased. 1965-66 Op. Att'y Gen. No. 65-35.

RESEARCH REFERENCES

ALR. - Rights and liabilities of municipality as to interest earned on improvement assessments or other special funds collected or held by it, 143 A.L.R. 1341 .

45-8-19. Jurisdiction to cite defaulting officers, depositories, or sureties for accounting and to issue execution.

Jurisdiction to cite defaulting collecting officers, officers to hold public funds, depositories, or the sureties on their bonds for an accounting and to issue executions against them is conferred and vested as follows:

  1. As to state officials and their sureties, assistants, and employees of any state office and their sureties, and depositories of the funds of the state or any of its bureaus, commissions, boards, or departments, and their sureties, in the Governor;
  2. As to other collecting officers and officers to hold public funds, so far as relates to taxes, revenues, or funds of the state or any of its bureaus, commissions, boards, or departments, in the state revenue commissioner;
  3. As to collecting officers and officers to hold public funds, so far as relates to revenues or funds of a municipality or county, or any board, bureau, or other tribunal or body exercising jurisdiction solely in such county, or of any school district, drainage district, or any other district in such county, and as to banks or depositories in which the revenues or other funds or any of these have been deposited, and as to the sureties on the bonds of any of said officers, banks, or depositories, in the county authority of said county or the governing body of the municipality;
  4. In any case not covered by paragraph (1), (2), or (3) of this Code section, in the comptroller general.

    (Ga. L. 1933, p. 78, § 8; Code 1933, § 89-817; Ga. L. 2013, p. 141, § 45/HB 79.)

OPINIONS OF THE ATTORNEY GENERAL

Additional duties imposed on officials. - Since the duty to comply with the deposit security law falls upon institutions under the supervision of the Department of Banking and Finance, the department is obligated to take whatever steps are necessary to ensure that violations are cured and not repeated. This obligation is in addition to the obligations imposed upon the Comptroller General and other officials by this section. 1979 Op. Att'y Gen. No. 79-12.

45-8-20. Citation of officer, bank, or depository to show cause; service of notice.

If it shall become known to the official or authority having jurisdiction to cite for accounting that a collecting officer or officer to hold public funds has been guilty of any default or breach of duty as to any tax, revenue, or public funds; or that any bank or depository in which any tax, revenue, or other public funds have been deposited has failed in business or has failed to pay over on demand any such fund so deposited with it, or, whether default is alleged or not, upon the surety on any bond of the kind dealt with in this chapter, whether of an officer, bank, or depository, filing with such official or authority having jurisdiction to cite for accounting a petition asking for the settlement of the accounts of such principal, it is the duty of such official or authority to cite such officer, bank, or depository and their sureties to come before the official or authority having jurisdiction over the accounting, on a day named, to make an accounting or settlement and to show cause why execution should not issue, if any default be found. Such official shall cause such citation to be served at least ten days before the hearing, unless such service be waived, or the respondents consent in writing to shorter notice. It is not necessary to issue or serve the citation or notice to or upon any principal or surety who has filed or has joined in filing the petition for citation, nor is it necessary personally to serve such citation upon any officer or other person who, by absconding, absence from the state, or otherwise, prevents personal service; but it is sufficient in such cases to perfect service by leaving a copy of the citation at the most notorious place of abode of such absconding or absent person.

(Ga. L. 1933, p. 78, § 9a; Code 1933, § 89-818.)

JUDICIAL DECISIONS

Judgment and execution not void for lack of notice. - Conceding that the commissioners intended to give notice under former Code 1933, § 89-818 (see now O.C.G.A. § 45-8-20 ), any failure to do so would not void the judgment and execution, which they were authorized to, and did in fact, issue under the provisions of former Code 1933, § 89-824 (see now O.C.G.A. § 45-8-25 ). Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

Cited in Bibb County v. Winslett, 191 Ga. 860 , 14 S.E.2d 108 (1941); Laurens County v. Keen, 214 Ga. 32 , 102 S.E.2d 697 (1958).

OPINIONS OF THE ATTORNEY GENERAL

Additional duties imposed on officials. - Since the duty to comply with the deposit security law falls upon institutions under the supervision of the Department of Banking and Finance, the department is obligated to take whatever steps are necessary to ensure that violations are cured and not repeated. This obligation is in addition to the obligations imposed upon the Comptroller General and other officials by this section. 1979 Op. Att'y Gen. No. 79-12.

45-8-21. Right to appear at hearing.

Any citizen or taxpayer or any public body interested in the fund in question may appear and be heard before the official or authority at the time and place of hearing.

(Ga. L. 1933, p. 78, § 9b; Code 1933, § 89-819.)

45-8-22. Cited official, bank, or depository to file statement of accounts; preparation of statement by citing official or authority; entry of judgment or order in nature of judgment; settling accounts.

At the time and place fixed for the hearing or at an adjournment or continuance thereof, the officer, bank, or depository cited shall file under oath a statement of accounts. If such officer, bank, or depository shall fail to submit such a statement, the citing official or county or municipal authority shall prepare one from the best information at hand. After giving opportunity to the parties at interest to be heard, the official or county or municipal authority shall proceed to render a judgment or order in the nature of a judgment in which, if no default is found, it shall be so stated; and, if default is found, it shall state the amount of the same and order execution to issue therefor.

(Ga. L. 1933, p. 78, § 9c; Code 1933, § 89-820; Ga. L. 1990, p. 8, § 45.)

45-8-23. Authority to issue subpoenas; punishment for contempt for refusal to obey.

Authority is conferred upon the official or county or municipal authority having jurisdiction in the matter to issue subpoenas and to compel the attendance of witnesses and production of books and documents on behalf of any party. If any person shall disobey any such subpoena or order to produce, the official or county or municipal authority shall certify the refusal to the judge of the superior court of the county where the hearing is held, who shall punish the offender as for contempt of the superior court.

(Ga. L. 1933, p. 78, § 9d; Code 1933, § 89-821; Ga. L. 1990, p. 8, § 45.)

45-8-24. Joinder of parties in proceedings for accounting; power of authorities to determine liability.

In any proceeding for accounting under this chapter, there may be joined originally or by amendment, either before or after appeal, all such officers, depositories, banks, and securities on bonds of any of them as shall be necessary or proper for the full determination of any matter in controversy, and especially, but without limiting the generality of the foregoing, for determining the respective liabilities as between an officer and some other officer, between an officer and a bank or depository, between them or any of them and the sureties of any of them, or between sureties of any of them. The proper authority or any court which shall have acquired jurisdiction in any proceeding for accounting by appeal or otherwise shall have the jurisdiction to determine completely the respective liabilities of the parties as among themselves, as well as the liability of any officer, bank, or depository and the sureties, to the public body or bodies involved. The jurisdiction given in this chapter shall extend not only to the compelling of an officer and his sureties to account for taxes or other public money which he has in fact collected, but for money which it was his duty to collect and which, in the exercise of good faith and ordinary diligence, he should have collected; and such jurisdiction may be exercised against any public officer who has received or collected the money of any public body, whether or not it was a part of his official duty to receive it or collect it.

(Ga. L. 1933, p. 78, § 9i; Code 1933, § 89-826.)

45-8-25. Issuance of execution against defaulting officer, bank, depository, or surety; enforcement; proceedings to arrest enforcement; burden of proof at trial; parties; effect of admission of correctness by defendant in execution.

The official or county or municipal authority having jurisdiction to cite for accounting may, without issuing or serving a citation or notice, issue or cause to be issued an execution against any defaulting collecting officer, officer to hold public funds, or any bank or depository in which public funds have been deposited and the sureties on the bonds of any of them for default as to any of the matters as to which such officer, bank, depository, or surety might be cited, and for the amount of the loss sustained by the public body or public bodies alleged in such execution to be sustained through such default. Such execution shall be prima-facie evidence of the facts therein recited, including the amount of loss sustained, and shall be enforceable as an execution for said amount; provided, however, that the enforcement of such execution may be arrested by proceedings in equity, or, after levy, by affidavit of illegality in which the defendant in fi. fa. whose property has been levied on shall deny liability for the amount set out in such execution or some part thereof. The affidavit of illegality shall be returned by the levying officer to the superior court of the county in which the alleged defaulting officer resides. On the trial of the case, whether in equity or on affidavit of illegality, the burden of proof shall be on the official or authority issuing the execution. Any other person, corporation, or public body at interest may on his or its own motion or on motion of either party to the cause be made a party thereto and be bound by the final judgment. Such an execution shall become final process against any defendant in execution named therein who shall endorse thereon in writing his admission of the correctness of the same and an agreement that the same shall proceed against him as final process, but such admission shall not be binding on anyone except the person or corporation signing the same.

(Ga. L. 1933, p. 78, § 9g; Code 1933, § 89-824; Ga. L. 1990, p. 8, § 45.)

JUDICIAL DECISIONS

Authority to issue ex parte an execution. - When the dispute is one of law and not of fact, the commissioners are authorized to issue ex parte an execution for the amounts shown to have been retained by the tax commissioner in the commissioner's reports. Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

Execution not void for failure to give notice. - Conceding that the commissioners intended to give notice under former Code 1933, § 89-824 (see now O.C.G.A. § 45-8-20 ), any failure to do so would not void the judgment and execution, which they were authorized to, and did in fact, issue under the provisions of former Code 1933, § 89-824 (see now O.C.G.A. § 45-8-25 ). Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

Execution prima facie evidence of facts. - This section provides that the county authority having jurisdiction to cite for an accounting may, without issuing or serving citation or notice, issue or cause to be issued an execution against any officer and the sureties on official bond for the amount alleged in the execution, which shall be prima facie evidence of the facts. Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

Burden of proof shifted to officer cited in execution. - The law presumes, when a fi. fa. is issued against a county tax collector, that the amount named therein is due by the officer, and the burden is on the tax collector to show that the fi. fa. is invalid or inoperative in whole or in part, notwithstanding any provision in this section. When the fi. fa. is introduced in evidence, the burden of proof shifts from the official issuing the execution to the tax collector. Adamson v. Turner, 192 Ga. 54 , 14 S.E.2d 445 (1941).

Recordation of execution insufficient as demand on surety. - Simply issuing the execution and recording it on the execution docket was not sufficient to constitute the demand on the surety which this section requires. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

Cited in Bibb County v. Winslett, 191 Ga. 860 , 14 S.E.2d 108 (1941); Cain v. Lumpkin County, 229 Ga. 274 , 190 S.E.2d 910 (1972).

45-8-26. Action by bond obligee before citation or execution.

Nothing in this chapter shall be construed as preventing the obligee in any bond of any collecting officer, officer to hold public funds, or any bank or depository in which public funds have been deposited from maintaining an action at law or in equity thereon when the official or county or municipal authority having jurisdiction to issue a citation has not begun a proceeding thereon by ordering a citation or execution to issue.

(Ga. L. 1933, p. 78, § 9h; Code 1933, § 89-825; Ga. L. 1990, p. 8, § 45.)

45-8-27. Procedure for accounting when officer succeeds himself.

When any officer to whom this chapter relates shall succeed himself in office or has been elected to succeed himself in office or has been elected to succeed himself in a subsequent term, such officer or the surety on his bond either for the current term or for the term which has or shall have expired, or for a term about to begin, may file with the official or the county or municipal authority having jurisdiction to cite for accounting a petition asking that an accounting be had as to the acts of such officer during the term which has ended or is about to end. Such official or county or municipal authority shall then cause a citation to issue and be served on the officer and the sureties on his bonds for both terms, except such of them as shall be party to or join in the petition; and such further proceedings shall be had as are provided for in Code Section 45-8-20 in cases of citation for accounting. In the order or judgment rendered by the official or county or municipal authority conducting the accounting, or, in case of appeal, in the judgment of the court, the condition of the accounts of such officers shall be stated as between the two terms and as between the sureties for the respective terms; and the order or judgment shall set the terms upon compliance with which the sureties on the bond for the expired or expiring term shall be discharged or liability as to taxes, revenues, and public moneys satisfied; and it shall also settle and determine between the sureties in the respective bonds the matters for which each is or may be liable.

(Ga. L. 1933, p. 78, § 9f; Code 1933, § 89-823; Ga. L. 1990, p. 8, § 45.)

JUDICIAL DECISIONS

Cited in Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

45-8-28. Personal representative of insane or deceased officer as party to proceedings.

Whenever any of the officers with whom this chapter deals becomes non compos mentis or dies, the guardian or personal representative of such insane or deceased officer shall be a sufficient party to any proceeding in this chapter, in lieu of such insane or deceased officer.

(Ga. L. 1933, p. 78, § 16; Code 1933, § 89-837.)

45-8-29. Effect of judgment or execution as lien; transfer of judgment or execution; enforcement by transferee; effect of sale or transfer of assets by bank to innocent purchaser for value.

Any judgment or execution issued in pursuance of this chapter or in any action against the principal or surety upon any bond of any of the officers, banks, or depositories dealt with in this chapter shall have the effect of preserving and shall be a means of enforcing the liens created by the laws of this state, including this chapter, upon the property and assets of the principal and sureties on the bonds of officers and depositories and the assets of banks. Upon the payment of the amount of such judgment or execution by any surety or other person, either the official or county or municipal authority issuing the same or any officer authorized to levy the execution shall, at the request of the person or corporation making the payment, transfer the judgment or execution to such person or corporation or his or its order, and the transferee shall be entitled to enforce the same and the lien therein represented, provided that, in order to preserve the lien as against subsequent bona fide purchasers for value, the judgment or execution shall be entered on the general execution docket as if it were a common law execution. Any sale or transfer of any part of its assets by a bank to an innocent purchaser for value in the ordinary course of business prior to the institution of a proceeding against said bank, through which the lien may be preserved or enforced, shall pass to the purchaser or transferee such assets free from the lien created in this Code section.

(Ga. L. 1933, p. 78, § 15; Code 1933, § 89-836; Ga. L. 1990, p. 8, § 45.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 480, 495.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 295.

45-8-30. Release of property of county officers from state lien - Authorization.

The judge of the probate court, sitting for county purposes, or the board of county commissioners, or such other county governing authority in this state has the discretionary power and authority to release a given portion of the property of a municipal or county treasurer, tax collector, or tax commissioner from the lien of the state or county or municipality in question against the property of such officers on their respective bonds.

(Ga. L. 1951, p. 751, § 1; Ga. L. 1990, p. 8, § 45.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1155.

45-8-31. Release of property of county officers from state lien - Procedure generally.

The officer desiring the release of a portion of his property shall file a petition in writing with the governing authority of the municipality or county in which he functions. The petition shall describe the property sought to be released and the reasons of the applicant for desiring the release, such as whether the applicant desires to sell the property or borrow money on the security thereof; and it shall give the name of the purchaser or the lender as the case may be. After consideration, the said governing authority may in its discretion grant the release in question, evidencing assent to the release by a writing in the nature of a release or quitclaim deed, to which a copy of the resolution or order of sanction shall be attached as a part thereof; or, after consideration, the application may in the discretion of said authority be rejected.

(Ga. L. 1951, p. 751, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1155.

45-8-32. Release of property of county officers from state lien - Deadline to consummate proposed sale or loan.

In the event the release is granted, it is not incumbent upon the person named in the application as the purchaser or lender on the security of the property in question to inquire into the merits of the application; but the proposed sale or loan must be consummated within 60 days from the date of the authorization of the release, otherwise on the expiration of the sixtieth day it shall become void and ineffectual.

(Ga. L. 1951, p. 751, § 3.)

45-8-33. Effect of chapter upon liability of officers to private persons.

This chapter is not intended to affect any liability which any of the officers to whom this chapter is applicable may incur to any private person.

(Ga. L. 1933, p. 78, § 17; Code 1933, § 89-803.)

CHAPTER 9 INSURING AND INDEMNIFICATION OF PUBLIC OFFICERS AND EMPLOYEES

Article 1

State Officers and Employees.

Article 2

Members of Governing Bodies of

Municipalities, Counties, and

Other Public

Bodies.

Article 3

Employees Operating State Motor Vehicles.

Article 4

Indemnification of Public Officers and Employees Generally.

Article 4A

Indemnification of Public School Teachers and Employees.

Article 5

Law Enforcement Officers,

Firemen, Prison Guards,

and Publicly Employed

Emergency Medical

Technicians.

Part 1

G EORGIA STATE INDEMNIFICATION FUND .

Part 2

T EMPORARY DISABILITY COMPENSATION PROGRAM .

Article 5A

Indemnification of Public School Teachers and Employees [Redesignated].

Article 6

Consolidation of Unemployment Compensation Claim Matters

under Commissioner of

Administrative

Services.

Cross references. - Compensation of employees of state institutions who contract tuberculosis or infectious hepatitis, T. 31, Ch. 29 .

RESEARCH REFERENCES

ALR. - Construction and application of aviation exclusion clauses in public liability or homeowners' insurance policies, 39 A.L.R.4th 201.

What is "aircraft" or the like within meaning of exclusion or exception clause of insurance policy, 39 A.L.R.4th 214.

ARTICLE 1 STATE OFFICERS AND EMPLOYEES

45-9-1. General provisions.

  1. In addition to any other compensation which may be paid to an officer, official, or employee of any agency, board, bureau, commission, department, or authority of the executive, judicial, or legislative branch of government of this state, each such agency, board, bureau, commission, department, or authority is authorized, in its discretion, to purchase policies of liability insurance or contracts of indemnity or to formulate sound programs of self-insurance utilizing funds available to such agency, board, bureau, commission, department, or authority, insuring or indemnifying such officers, officials, or employees to the extent that they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith. Such policies of liability insurance, contracts of indemnity, or programs of self-insurance may also provide for reimbursement to an officer, official, or employee of any agency, board, bureau, commission, department, or authority of this state for reasonable legal fees and other expenses incurred in the successful defense of any criminal proceeding, including, but not limited to, any criminal cause of action, suit, investigation, subpoena, warrant, request for documentation or property, or threat of such action whether formal or informal where such action arises out of the performance of his or her official duties. In addition, in the case of an officer, official, or employee who is required to maintain a professional license, such reimbursement may also be provided for legal fees and other expenses so incurred in the successful defense of a charge arising out of the performance of his or her official duties in proceedings before a professional licensing board, disciplinary board or commission, or other similar body. Legal fees and other expenses shall be subject to adjustment by and the approval of the Attorney General.
  2. Such agencies, boards, bureaus, commissions, departments, or authorities may expend federal and state or other available funds for such purposes. The amount of such insurance or indemnity shall also be in the discretion of such agency, board, bureau, commission, department, or authority.
  3. For the purpose of this article, the term "agency" shall specifically include, but shall not be limited to, public retirement systems of state-wide application established by the laws of this state, but shall not include counties or municipalities; provided, however, that the employees of community service boards, county departments of health, and county departments of family and children services as well as the members of the boards of said departments shall be considered to be state employees or officials for the purpose of this article. In order to facilitate the administration of liability coverage or other insurance coverages provided the community service boards, the Department of Behavioral Health and Developmental Disabilities shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of family and children services, the Department of Human Services shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services. In order to facilitate the administration of liability coverage or other insurance coverages provided county departments of health, the Department of Public Health shall designate a central office which shall be responsible for obtaining, submitting, and collecting all underwriting information and insurance premiums requested and assessed by the Department of Administrative Services.

    (Ga. L. 1977, p. 1051, § 1; Ga. L. 1979, p. 674, § 1; Ga. L. 1981, p. 1383, § 1; Ga. L. 1987, p. 993, § 1; Ga. L. 1994, p. 1717, § 3; Ga. L. 2008, p. 230, § 1/SB 175; Ga. L. 2009, p. 453, § 1-49/HB 228; Ga. L. 2011, p. 99, § 85/HB 24; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981). For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For annual survey of local government law, see 43 Mercer L. Rev. 317 (1991). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Scope of O.C.G.A. § 45-9-1 . - O.C.G.A. § 45-9-1 only authorizes the purchase of liability insurance or formulation of plans of self-insurance to insure public officers or employees of the agency, board, bureau, commission, department, or authority of the state to the extent that they are not immune from liability. The statute does not authorize the purchase of insurance by an agency specifically for the agency as the entity enjoys immunity from suit unless the immunity has been waived. Davis v. State, 211 Ga. App. 285 , 439 S.E.2d 40 (1993).

O.C.G.A. § 45-9-1 only authorizes the purchase of liability insurance covering agency officers, officials, and employees, and not for the agency itself. Donaldson v. DOT, 212 Ga. App. 240 , 441 S.E.2d 473 (1994).

O.C.G.A. § 45-9-1(d) does not prohibit discovery by a tort plaintiff of liability insurance policies purchased by a government agency for its employees. Pate v. Caballero, 253 Ga. 787 , 325 S.E.2d 375 (1985).

Self-insurance plans. - Under O.C.G.A. § 45-9-1 , and O.C.G.A. §§ 45-9-20 and 45-9-21 , dealing with liability insurance for government employees and officials, only state self-insurance plans constitute a waiver of sovereign immunity. There is no statutory provision for a county to set up a self-insurance plan. Logue v. Wright, 260 Ga. 206 , 392 S.E.2d 235 (1990); Pizza Hut of Am., Inc. v. Hood, 198 Ga. App. 112 , 400 S.E.2d 657 (1990), cert. denied, 198 Ga. App. 897 , 400 S.E.2d 657 (1991).

County hospital authority is not authorized to establish a self-insurance fund. Hospital Auth. v. Litterilla, 199 Ga. App. 345 , 404 S.E.2d 796 (1991).

Cited in Kurtz v. Williams, 188 Ga. App. 14 , 371 S.E.2d 878 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Scope of probation supervisors' liability. - Notwithstanding the waiver of sovereign immunity to the extent of any liability insurance provided, the potential liability of probation supervisors supervising court-ordered community service by probationers (a discretionary function as opposed to a ministerial duty) is only for conduct which is willful, wanton, or outside the scope of authority of the supervisor. 1983 Op. Att'y Gen. No. 83-18.

Payment of attorney's fees prior to action not authorized. - O.C.G.A. § 45-9-1 does not authorize a public body to pay one of its employees' attorney's fees, which were incurred prior to the commencement of a civil, criminal, or quasi-criminal action against the employee arising out of the performance of the employee's duties. 1995 Op. Att'y Gen. No. 95-38.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 186, 187.

ALR. - Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties, 71 A.L.R.3d 6.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

45-9-2. Members of organized militia serving on state active duty.

Members of the organized militia who are serving on state active duty upon orders of the Governor may be provided protection against personal liability for damages sustained by third parties and arising out of the performance of such members' duties while serving on state active duty. At the option of the adjutant general, members of the organized militia who are performing their duties in connection with domestic action projects may also be provided protection against personal liability for damages sustained by third parties arising out of the performance of such members' duties. The commissioner of administrative services shall prescribe the terms and conditions under which such personnel may be covered by any liability insurance policy or contract of indemnity or other like or similar programs administered by the commissioner pursuant to this article to provide such protection.

(Ga. L. 1980, p. 1358, § 1; Ga. L. 1990, p. 8, § 45.)

45-9-3. Insurance and other protections afforded personnel employed by district attorney.

Personnel employed by the district attorneys of the state, irrespective of the source of the funds used to pay such personnel, may be covered by any liability insurance policy or contract of indemnity, reimbursement, or other like or similar programs administered by the commissioner pursuant to this article and, for the purpose of this article, such personnel employed by a district attorney shall be considered to be state employees. The commissioner of administrative services shall prescribe the terms and conditions under which any liability insurance policy or contract of indemnity, reimbursement, or other like or similar programs administered by the commissioner pursuant to this article shall be made available to personnel employed by a district attorney. The cost of such liability insurance policy or contract of indemnity, reimbursement, or other like or similar programs shall be paid by the Prosecuting Attorneys' Council of the State of Georgia out of such funds as may be appropriated to or otherwise available for the operations of district attorneys.

(Ga. L. 1980, p. 399, § 1; Ga. L. 2004, p. 988, § 3.)

45-9-3.1. Immunity from liability for law enforcement officers directing or escorting funeral processions.

Repealed by Ga. L. 1990, p. 1319, § 1, effective July 1, 1990.

Editor's notes. - This Code section was based on Ga. L. 1987, p. 993, § 2. The provisions of former Code Section 45-9-3.1 have been added to Code Section 40-6-76 as subsection (h) by Ga. L. 1990, p. 1319, § 2.

45-9-4. Purchase of insurance or indemnity contracts; self-insurance program; Hazardous Materials Liability Reserve Fund; insurer insolvency; Liability coverage to nonprofit agencies and employees contracting with state agencies.

  1. When the commissioner of administrative services determines that an adequate number of agencies, boards, bureaus, commissions, departments, or authorities of this state have requested the commissioner to do so, the commissioner shall have the authority to purchase policies of liability insurance, reinsurance, or contracts of indemnity insuring or indemnifying the officers, officials, or employees of such agencies, boards, bureaus, commissions, departments, or authorities against personal liability for damages arising out of the performance of their duties or in any way connected therewith, under a master policy or on a blanket coverage basis with or without deductibles or excess coverage. The commissioner may provide for endorsements for contractual liability and, where necessary or convenient to the public functions of the state, the commissioner may also provide for additional insureds. In such event, the commissioner may alternatively retain all moneys paid to the Department of Administrative Services as premiums on such policies of liability insurance or contracts of indemnity, all moneys received as interest, and all moneys received from other sources to set up and maintain a reserve fund for the payment of such liability under, and the expenses necessary to administer properly, a self-insurance program. If the commissioner decides to institute a self-insurance program, the commissioner shall establish and maintain a reserve fund for the payment of liabilities arising out of claims against officers, officials, and employees of the state and for any additional insureds. The commissioner shall also charge to state entities such premiums, deductibles, and other payments taking into account any direct appropriations as shall be necessary to maintain the soundness of the insurance or self-insurance programs established under this Code section. The commissioner is further authorized to establish incentive programs, including differential premium rates based on participation in loss control programs established by the department, increased or decreased deductibles based on participation in loss control programs established by the department, and the imposition of fines and penalties. If any premiums, deductibles, fines, or penalties are unpaid, the department is authorized to deduct any unpaid amounts from the nonpaying agency's or authority's continuation budget subject to the approval of the Office of Planning and Budget and deposit those funds into the liability trust fund provided for in this Code section. Any amounts held by the commissioner which are available for investment shall be paid over to the Office of the State Treasurer. The state treasurer shall deposit such funds in a trust account for credit only to the self-insurance program. The state treasurer shall invest these funds subject to the limitations of Code Section 50-5A-7 and Chapter 17 of Title 50. All income derived from such investments shall accrue to the self-insurance program. When moneys are paid over to the Office of the State Treasurer, as provided in this subsection, the commissioner shall submit an estimate of the date such funds shall no longer be available for investment. When the commissioner wishes to withdraw funds from the trust account provided for in this Code section, he or she shall submit a request for such withdrawal, in writing, to the state treasurer.
  2. On April 19, 1994, the commissioner of administrative services shall transfer all funds from the Hazardous Materials Liability Reserve Fund into the State Tort Claims Trust Fund established pursuant to Article 2 of Chapter 21 of Title 50.
  3. If the insurer of any liability policy purchased for the benefit of the officers and employees of the state or state authorities shall become or has become insolvent, be placed into receivership, be subject to any other delinquency or bankruptcy proceeding, cancel its policies, or take or have taken against it like actions, the commissioner of administrative services may protect such employees against loss by such means as he may determine, including without limitation undertaking to cover, insure, or self-insure the corresponding liabilities and expenses, including without limitation claims, contingent claims, and incurred but unreported claims. However, the commissioner shall incur no obligation beyond the funds then available for commitment to the obligation. For these purposes the commissioner may proceed against such insurer, its receiver, or other representative and any other appropriate person by means of the state's own claim or by assignment, subrogation, or otherwise.
  4. The commissioner of administrative services is authorized in his discretion either to purchase commercial insurance coverage or to self-insure under an existing self-insurance trust fund all foster parents and foster children participating in programs sponsored by the Department of Human Services or in the care and custody of the Department of Human Services upon a request from the commissioner of human services. The commissioner of administrative services will establish appropriate premiums and limits applicable to such requested insurance coverage. The Department of Human Services is authorized to pay the premiums for such insurance from available appropriated funds or other available sources of funds.
  5. If requested by the Georgia State Financing and Investment Commission, the commissioner of administrative services is authorized, at the commissioner's discretion, to establish a consolidated insurance program to furnish general liability insurance, workers' compensation insurance, builders' risk insurance, or general liability and workers' compensation and builders' risk insurance for all contractors on a construction project (wrap up).  The premium for such insurance shall be paid from funds appropriated by the General Assembly to construct the project, and, at the completion of a project, any savings attributable to the consolidated insurance program less administrative costs shall be returned by the Department of Administrative Services to the Georgia State Financing and Investment Commission.
  6. The commissioner of administrative services is authorized in his or her discretion either to purchase commercial insurance coverage or to self-insure under an existing self-insurance trust fund all attention and contract homeparents and those youth participating in programs sponsored by the Department of Juvenile Justice or in the care and custody of the Department of Juvenile Justice upon a request from the commissioner of juvenile justice.  The commissioner of administrative services shall establish appropriate premiums and limits applicable to such requested insurance coverage.  The Department of Juvenile Justice is authorized to pay the premiums for such insurance from available appropriated funds or other available sources of funds.
  7. The policy of insurance provided for in this Code section may also provide liability coverage to nonprofit agencies and their employees, which agencies have contracted with the Department of Juvenile Justice, the Department of Transportation, the Department of Behavioral Health and Developmental Disabilities, or the Department of Human Services to furnish certain services; provided, however, that such liability coverage shall be limited to damages arising out of the authorized use of a state-owned vehicle or a vehicle funded pursuant to subsection (a) of Code Section 49-2-13.1 by an employee of such nonprofit agency during the course of such person's employment with such nonprofit agency and the cost of such insurance furnished to any such nonprofit agency and its employees shall be allocated to and paid by such agency before any coverage shall be effective. For the purpose of this Code section, "nonprofit agency" means any nonprofit or charitable organization, association, corporation, partnership, or other entity registered pursuant to Section 501(c)(3) of the Internal Revenue Code.

    (Ga. L. 1977, p. 1051, § 2; Ga. L. 1986, p. 150, § 1; Ga. L. 1987, p. 3, § 45; Ga. L. 1988, p. 1714, § 1; Ga. L. 1991, p. 1154, § 1; Ga. L. 1992, p. 2966, § 2; Ga. L. 1993, p. 416, § 1; Ga. L. 1994, p. 1717, § 4; Ga. L. 1997, p. 1453, §§ 1, 2; Ga. L. 2000, p. 1474, § 5; Ga. L. 2008, p. 245, §§ 1, 2/SB 425; Ga. L. 2009, p. 453, §§ 2-2, 2-4/HB 228; Ga. L. 2010, p. 286, § 20/SB 244; Ga. L. 2010, p. 863, §§ 2, 3/SB 296; Ga. L. 2014, p. 866, § 45/SB 340.)

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "State Financing" for "State Finance" near the beginning and near the end of subsection (e).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1994, "On April 19, 1994, the commissioner of administrative services" was substituted for "On the effective date of this Act, the commissioner of the Department of Administrative Services" in subsection (b).

Pursuant to Code Section 28-9-5, in 1995, "commissioner of administrative services" was substituted for "commissioner of the Department of Administrative Services" throughout subsections (d) and (e).

JUDICIAL DECISIONS

Cited in Price v. Department of Transp., 182 Ga. App. 353 , 356 S.E.2d 45 (1987); Price v. Department of Transp., 257 Ga. 537 , 361 S.E.2d 146 (1987).

RESEARCH REFERENCES

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties, 71 A.L.R.3d 6.

45-9-4.1. Participation in self-insurance by Georgia Correctional Industries Administration; extension of coverage to officers, officials, and employees.

The Georgia Correctional Industries Administration, as a body corporate and politic, and as an instrumentality and public corporation of this state, may, at its discretion, participate in any program of self-insurance administered by the commissioner of administrative services pursuant to Code Section 45-9-4; and the commissioner of administrative services is authorized to extend liability coverage under such program of self-insurance to the officers, officials, or employees of the Georgia Correctional Industries Administration in the same manner as is presently or may hereafter be provided for officers, officials, or employees of any agency, board, bureau, commission, department, or authority pursuant to Code Section 45-9-4.

(Code 1981, § 45-9-4.1 , enacted by Ga. L. 1985, p. 1117, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "Code Section 45-9-4" was substituted for "said Code section" at the end of this Code section.

45-9-4.2. Liability coverage for nonprofit agencies providing services to the developmentally disabled.

  1. For the purposes of this Code section, the term "nonprofit agency" means a nonprofit or charitable organization, association, corporation, partnership, or other entity registered pursuant to Section 501(c)(3) of the Internal Revenue Code.
  2. Nonprofit agencies and their employees, which agencies have contracted with the Department of Behavioral Health and Developmental Disabilities to furnish certain services to the developmentally disabled or have subcontracted with similar nonprofit agencies for the same, shall be provided protection against personal liability for damages sustained by third parties arising out of the provision of authorized services to the developmentally disabled by an employee of such agency during the course of such person's employment with such nonprofit agency. The commissioner of administrative services shall prescribe the terms and conditions under which such nonprofit agencies and their employees shall be covered by any liability insurance policy or contract of indemnity or similar program administered by the commissioner pursuant to this article to provide such protection, provided the cost of such insurance, indemnity, or similar program furnished to any such nonprofit agency and its employees shall be allocated to and paid by such agency. (Code 1981, § 45-9-4.2 , enacted by Ga. L. 1990, p. 1836, § 1; Ga. L. 2008, p. 245, § 3/SB 425; Ga. L. 2009, p. 453, §§ 3-2, 3-5/HB 228.)

U.S. Code. - Section 501(c)(3) of the Internal Revenue Code, referred to in subsection (a), is codified as 26 U.S.C. § 501(c)(3).

JUDICIAL DECISIONS

O.C.G.A. § 45-9-4.2 does not provide immunity but rather provides for the protection against personal liability for damages sustained by third parties and, if no liability has been established, the application of O.C.G.A. § 45-9-4.2 is premature. Washington v. Department of Human Resources, 241 Ga. App. 319 , 526 S.E.2d 354 (1999).

45-9-5. Article not waiver of immunity from action or provision of liability insurance protection.

Nothing in this article shall constitute a waiver of the immunity of the state from any action. The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution.

(Ga. L. 1977, p. 1051, § 3; Ga. L. 1986, p. 150, § 2.)

Law reviews. - For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For article, "Local Government Tort Liability: the Summer of '92," see 9 Ga. St. U.L. Rev. 405 (1993).

JUDICIAL DECISIONS

Waiver of sovereign immunity. - Establishment of comprehensive general liability trust fund for Department of Public Safety employees, covering negligence in performance of official acts, constituted a waiver of sovereign immunity to the extent of the available insurance in the case of an accident resulting from a high-speed chase by police. Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300 , 357 S.E.2d 569 (1987), cert. denied, 484 U.S. 998, 108 S. Ct. 685 , 98 L. Ed. 2 d 638 (1988).

Although O.C.G.A. § 45-9-5 expresses a legislative intent that sovereign immunity of the state is not to be waived through the furnishing of insurance authorized by O.C.G.A. § 45-9-4 , the language of the Constitution (Ga. Const. 1983, Art. I, Sec. II, Para. IX) forces the court to reach a contrary result. Price v. Department of Transp., 257 Ga. 537 , 361 S.E.2d 146 (1987).

Fired state employee's monetary claims against a state agency in federal court under the Age Discrimination in Employment Act, Title I of the Americans with Disabilities Act, and 42 U.S.C. § 1981 were dismissed because the General Assembly had not waived its sovereign immunity under the Eleventh Amendment by enacting the Fair Employment Practices Act, O.C.G.A. § 45-9-5 , which permitted a state agency to purchase insurance on behalf of the agency's employees; passage of § 45-9-5 did not amount to the State of Georgia's waiver of the state's sovereign immunity in federal court because sovereign immunity could never be implicitly waived. Jackson v. Oconee Cmty. Serv. Bd., F. Supp. 2d (M.D. Ga. June 8, 2006).

Cited in Price v. Department of Transp., 182 Ga. App. 353 , 356 S.E.2d 45 (1987).

RESEARCH REFERENCES

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 A.L.R. Fed. 851.

ARTICLE 2 MEMBERS OF GOVERNING BODIES OF MUNICIPALITIES, COUNTIES, AND OTHER PUBLIC BODIES

45-9-20. Insurance or contracts of indemnity; actions against insurers or indemnitors.

In addition to any other compensation which may be paid to members of the governing bodies of municipalities, counties, and other public bodies, and to supervisors, administrators, employees, or other elected or appointed public officers, each municipality, county, and other public body of this state is authorized, in its discretion, to purchase policies of liability insurance or contracts of indemnity insuring or indemnifying the members of such governing bodies and such supervisors, administrators, employees, or other elected or appointed officers against personal liability for damages arising out of the performance of their duties or in any way connected therewith, whether based upon negligence, violation of contract rights, or violation of civil, constitutional, common law, or other statutory rights, whether state, federal, or local. Such municipalities, counties, and other public bodies may expend state, federal, and local funds for such purposes. The amount of such insurance or indemnity shall also be in the discretion of the governing body of such municipality, county, or other public body. No action shall be maintained against the person or company issuing such insurance or contracting for such indemnity until final judgment has first been entered against the individual covered by such policy or contract.

(Ga. L. 1974, p. 702, § 1; Ga. L. 2011, p. 99, § 86/HB 24.)

Cross references. - Liability of public agents on public contracts, § 10-6-88 .

Law reviews. - For article considering the public official's potential liability for funds, losses and torts, and suggesting insurance coverage, see 11 Mercer L. Rev. 288 (1960). For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Legislative intent. - It is the intent of O.C.G.A. §§ 45-9-20 through 45-9-23 , with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties, and to defend actions in which such damages are sought, in those instances in which a defense of sovereign or official immunity is unavailable. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

Self-insurance plans. - Under O.C.G.A. §§ 45-9-1 , 45-9-20 , and 45-9-21 , dealing with liability insurance for government employees and officials, only state self-insurance plans will waive sovereign immunity. There is no statutory provision for a county to set up a self-insurance plan. Logue v. Wright, 260 Ga. 206 , 392 S.E.2d 235 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 186, 226.

ALR. - Right to use public funds to carry insurance for public officers or employees, 27 A.L.R. 1267 .

Power of municipal corporation to take out liability insurance, 33 A.L.R. 717 .

Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties, 71 A.L.R.3d 6.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

45-9-21. Defense of civil, criminal, or quasi-criminal actions in lieu of insurance.

  1. In lieu of obtaining the insurance or indemnity referred to in Code Section 45-9-20 or in addition thereto, such municipalities, counties, and other public bodies may, in their discretion, as a part of the compensation and terms of employment of members of the governing bodies of such municipalities, counties, and other public bodies, and of supervisors, administrators, employees, or other elected or appointed officers, adopt policies whereby the municipality, county, and other public body will undertake to defend all or specified civil, criminal, or quasi-criminal actions brought or maintained against members of the municipality, county, or other public body, or against supervisors, administrators, employees, or other elected or appointed municipal or county officers, arising out of the performance of their duties or in any way connected therewith, whether based upon negligence, violation of contract rights, or violation of civil, constitutional, common law, or statutory rights.
  2. The governing authority of a municipality, county, or other public body shall not be authorized to furnish a defense to any person charged with a criminal offense involving theft, embezzlement, or other like crime with respect to the property or money of or in which said governmental entity has an interest.
  3. Notwithstanding the provisions of subsection (b) of this Code section, the governing authority of a municipality, county, or other public body shall be authorized to reimburse any person charged with a criminal offense involving theft, embezzlement, or other like crime with respect to the property or money of or in which said governmental entity has an interest for all or a part of the cost of the defense of such person if such person is found not guilty of such crime or if the charges against such person are dismissed or nolle prossed.
  4. A municipality, county, or other public body may expend state, federal, and local funds to effectuate the provisions of this Code section, including, but not limited to, attorney's fees, court costs, deposition costs, witness fees and compensation, and all other like costs, expenses, and fees.
    1. As used in this subsection, the term "county officer" means the sheriff, the judge of the probate court, the clerk of the superior court, and the tax commissioner or tax collector and tax receiver of a county.
    2. In any civil case in which the county attorney has a conflict of interest which would ethically prevent the county attorney from representing both the county, the governing authority of the county, or another county officer or employee and the county officer, upon a determination by the chief judge of the superior court of the circuit in which the county is located that an ethical conflict exists, the county officer shall be authorized to employ individual legal counsel to represent such county officer in such matter. The governing authority of the county shall pay the reasonable fees of such individual counsel and all applicable court costs, deposition costs, witness fees and compensation, and all other like reasonable costs, expenses, and fees; provided, however, that such attorneys' fees shall be no more than the rate paid to the county attorney for similar representation or in accordance with a schedule of rates for outside counsel adopted by the governing authority, if any. Such fees and costs shall be authorized by the chief judge of the superior court of the circuit in which the county is located. This subsection shall not apply unless the governing authority of the county has first denied a written request by a county officer for counsel.

      (Ga. L. 1974, p. 702, § 3; Ga. L. 1991, p. 1821, § 1; Ga. L. 1995, p. 1063, § 1.)

Law reviews. - For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

O.C.G.A. § 45-9-21 constitutional. - O.C.G.A. § 45-9-21 on its face is not unconstitutional as being violative of the due process clause of either the federal Constitution or the Georgia Constitution. Horn v. City of Atlanta, 236 Ga. 247 , 223 S.E.2d 647 (1976).

Legislative intent. - It is the intent of O.C.G.A. §§ 45-9-20 through 45-9-23 , with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties, and to defend actions in which such damages are sought, in those instances in which a defense of sovereign or official immunity is unavailable. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

City not required to defend employees. - O.C.G.A. § 45-9-21 does not "require" the city to defend any civil action against its employees, but merely permits it to do so, pursuant to an adopted policy, as a part of the compensation paid by the employer to the employee. Horn v. City of Atlanta, 236 Ga. 247 , 223 S.E.2d 647 (1976).

Municipal court judges are not county officers. - Municipal court judges are not "county officers" entitled to have the county pay attorney fees pursuant to O.C.G.A. § 45-9-21(e)(2). Ward v. City of Cairo, 276 Ga. 391 , 583 S.E.2d 821 (2003).

Discretion in selecting what actions to defend. - The phrase "in their discretion" indicates a legislative intent to give counties considerable latitude in determining what actions will be defended. A resolution of county commissioners to pay attorney fees in the defense of two "specified" cases against a sheriff is within the authority given under O.C.G.A. § 45-9-21 . Haywood v. Hughes, 238 Ga. 668 , 235 S.E.2d 2 (1977).

When a local ordinance provided defense and indemnification to county employees who were the subject of lawsuits, but such coverage could be terminated by the county attorney, there was no abuse of discretion found by the county attorney's termination of an employee's coverage since the employee gave inaccurate or false responses to interrogatories and deposition questions regarding a prior position that the employee held; pursuant to O.C.G.A. § 45-9-21(a) , the county attorney's decision was based on a reasoned, articulated basis, the omission by the employee was deemed material, and it was determined that the information was deliberately withheld. Baker v. Gwinnett County, 267 Ga. App. 839 , 600 S.E.2d 819 (2004).

Employment of counsel. - A county governing authority has the implicit power to employ counsel for county officers. Stephenson v. Board of Comm'rs, 261 Ga. 399 , 405 S.E.2d 488 (1991).

County governing authority's employment of counsel to represent a superior court clerk did not violate Ga. Const. 1983, Art. IX, Sec. II, Paras. I(c)(1) or (7), which preclude the authority from exercising any power in a manner affecting "any elective county office" or "any court or the personnel thereof." Stephenson v. Board of Comm'rs, 261 Ga. 399 , 405 S.E.2d 488 (1991).

County's duty to pay attorney fees. - When an official, acting in official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official's attorney fees. Haralson County v. Kimball, 243 Ga. App. 559 , 533 S.E.2d 762 (2000).

Statutory law authorized local governments and other "public bodies" to adopt employment policies whereby the local government agreed to provide representation to the local government's employees if a conflict of interest existed and the matter did not involve property or money in which the governmental unit had an interest; since the sheriff was a local governmental unit employee who the trial court properly certified had a conflict of interest over the county commission's adoption of a budget that harmed the sheriff's department and that matter did not involve the government's property or money, the trial court properly ruled that the sheriff had a right to have counsel appointed for the sheriff, and have the sheriff's attorney's fees and expenses paid, on the sheriff's challenge to that budget. Bd. of Comm'rs v. Saba, 278 Ga. 176 , 598 S.E.2d 437 (2004).

Cited in Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150 , 223 S.E.2d 133 (1976); Nash v. Pierce, 238 Ga. App. 466 , 519 S.E.2d 462 (1999); City of Stockbridge v. Stuart, 329 Ga. App. 323 , 765 S.E.2d 16 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 187.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2023.

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

45-9-22. Payment of claims or judgment against members of municipal, county, or other public body.

  1. Any municipality, county, or other public body may, in its discretion, adopt a policy establishing the terms and conditions under which it may pay part or all of any claim or civil judgment rendered against any person whose defense such municipality, county, or other public body is authorized to undertake under Code Section 45-9-21. Any such disbursement shall be deemed to be for public purposes and may be paid from state, federal, or local funds. No attempt shall be made at the trial of any action brought against a person covered under this Code section to suggest the fact that the municipality, county, or public body will be responsible for any judgment therein.
  2. The failure to adopt a policy as provided in this Code section prior to making any payments authorized by this Code section shall not invalidate any such payments if the governing authority of the municipality, county, or public body shall, within a reasonable time after the fact of such failure has been brought to its attention, adopt a policy as provided in this Code section.

    (Ga. L. 1978, p. 1380, § 1.)

JUDICIAL DECISIONS

Legislative intent. - It is the intent of the Code sections comprising Article 2, O.C.G.A. § 45-9-20 et seq., with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties, and to defend actions in which such damages are sought, in those instances in which a defense of sovereign or official immunity is unavailable. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

RESEARCH REFERENCES

ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436 .

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438 .

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

Payment of attorney's services in defending action brought against officials individually as within power or obligation of public body, 47 A.L.R.5th 535.

45-9-23. Waiver of immunity from action.

Nothing in this article shall be construed as waiving any immunity or privilege of any kind now or hereafter enjoyed by any municipality, county, or other public body or by any member of the governing body thereof or by any supervisor, administrator, employee, or other elected or appointed officer or by any other public body, board, agency, or political subdivision of this state.

(Ga. L. 1974, p. 702, § 2; Ga. L. 1982, p. 3, § 45; Ga. L. 1987, p. 3, § 45.)

Cross references. - Liability of public agents on public contracts, § 10-6-88 .

Liability of municipal corporations for acts or omissions generally, T. 36, C. 33.

Law reviews. - For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979).

JUDICIAL DECISIONS

Legislative intent. - It is the intent of the Code sections comprising Article 2, O.C.G.A. § 45-9-20 et seq, with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties, and to defend actions in which such damages are sought, in those instances in which a defense of sovereign or official immunity is unavailable. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

General rule concerning extent of public officer's immunity. - It is the general rule that public officers, when acting in good faith and within the scope of their duty, are not liable to private action, but this immunity is not extended to them when they do things not authorized by law, or act in a wanton or malicious way and with intent to injure the property of another. Haze Edwards Elec. Co. v. Turvey, 153 Ga. App. 173 , 264 S.E.2d 706 (1980).

General rule concerning county immunity. - It is the general rule that a county when exercising governmental functions and acting as an agency of the state is not liable, in the absence of a statute imposing liability, for its failure to perform a duty or for its negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner. Miree v. U.S., 242 Ga. 126 , 249 S.E.2d 573 (1978).

Defense and indemnification fund for personnel. - County's establishment and maintenance of the defense and indemnification fund for its personnel does not constitute a waiver of its sovereign immunity. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

RESEARCH REFERENCES

ALR. - Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 A.L.R. Fed. 851.

ARTICLE 3 EMPLOYEES OPERATING STATE MOTOR VEHICLES

Cross references. - Motor vehicle accident insurance generally, T. 33, C. 34.

Purchase and use of state motor vehicles, § 50-19-1 et seq.

45-9-40 through 45-9-43.

Reserved. Repealed by Ga. L. 2008, p. 245, § 4, effective July 1, 2008.

Editor's notes. - This article consisted of Code Sections 45-9-40 , 45-9-40 .1, and 45-9-41 through 45-9-43 and was based on Ga. L. 1972, p. 347, §§ 1, 2; Ga. L. 1973, p. 1296, § 1; Ga. L. 1978, p. 256, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1988, p. 310, § 1; Ga. L. 1990, p. 915, § 2; Ga. L. 1994, p. 307, § 1; Code 1981, § 45-9-40.1, enacted by Ga. L. 1994, p. 1717, § 5; Ga. L. 1997, p. 1453, § 1.

ARTICLE 4 INDEMNIFICATION OF PUBLIC OFFICERS AND EMPLOYEES GENERALLY

45-9-60. Indemnification of public officers or officials subjected to liability; opinion of Attorney General or Governor that liability not breach of duty.

In the event that a public officer or official has a money judgment returned against him in an action or is otherwise subjected to monetary liability by an aggrieved party, by his bond carrier, or both as a result of an act of omission or commission of a subordinate employee of the public officer or official and in the event that said public officer or official shall, as a result of such action, be required to expend his personal moneys, said officer or official shall be indemnified out of funds otherwise available to the public official's or officer's department or office, provided that authorization for such indemnification payment by the department or office shall be contingent on issuance of an official opinion of the Attorney General declaring that the judgment against or liability of the public officer or official was not due to an act of omission or commission of the public officer or official which constituted a breach of a duty imposed by law on the officer or official. In the event that the Attorney General is the public official seeking indemnification under this article, the Governor shall make the determination as to whether or not the liability of the Attorney General was due to an act of omission or commission of the Attorney General which constituted a breach of a duty imposed by law.

(Ga. L. 1975, p. 674, § 2; Ga. L. 1990, p. 8, § 45.)

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 187.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2023.

ALR. - Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

Payment of attorney's services in defending action brought against officials individually as within power or obligation of public body, 47 A.L.R.5th 535.

45-9-61. Benefit derived under article declared to be compensation.

Any benefit occasioned by a public officer or official by virtue of this article is declared to be and is a portion of the compensation due the public officer or official for the services rendered to the state.

(Ga. L. 1975, p. 674, § 3.)

45-9-62. Applicability of article.

This article shall apply to:

  1. All public officers and officials of this state who hold state-wide offices and who are required by law to be bonded; and
  2. Alleged acts of omission or commission which occurred prior to July 1, 1976.

    (Ga. L. 1975, p. 674, §§ 1, 4.)

ARTICLE 4A INDEMNIFICATION OF PUBLIC SCHOOL TEACHERS AND EMPLOYEES

Cross references. - Plan for public school teachers, § 20-2-880 et seq.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Article 5A as enacted by Ga. L. 2000, p. 768, § 3, was redesignated as Article 4A.

Editor's notes. - Ga. L. 2000, p. 768, § 3, provides that this article became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 2001) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

45-9-70. Purpose of article.

The purpose of this article is to provide by law for the indemnification with respect to the death or permanent disability of public school teachers and public school employees who are killed or permanently disabled by an act of violence in the line of duty on or after July 1, 2001.

(Code 1981, § 45-9-70 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-100, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-70.

Law reviews. - For note on 2000 enactment of this article, see 17 Ga. St. U.L. Rev. 270 (2000).

45-9-71. Definitions.

As used in this article, the term:

  1. "Act of violence" means a willful act of violence committed by a person other than a fellow public school teacher or public school employee.
  2. "Commission" means the Georgia Public School Personnel Indemnification Commission.
  3. "In the line of duty" means while on duty and performing services for and receiving compensation from the public school district which employs such public school teacher or public school employee.
  4. "Permanent disability" means disability due to:
    1. Loss of both eyes or blindness in both eyes with only light perception;
    2. Loss or loss of use of both hands;
    3. Loss or loss of use of both legs;
    4. Loss of a lower extremity or residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without resort to a wheelchair; or
    5. Organic brain damage resulting from direct physical trauma incurred after July 1, 2001, which so affects the mental capacity as to preclude ability to function productively in any employment.
  5. "Public school employee" has the meaning provided by Code Section 20-2-910.
  6. "Public school teacher" has the meaning provided by Code Section 20-2-880 . (Code 1981, § 45-9-71 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-101, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-71.

45-9-72. Establishment of indemnification program.

  1. There is established a program to provide for indemnification with respect to the death or permanent disability of any public school teacher or public school employee who is killed or permanently disabled by an act of violence in the line of duty on or after July 1, 2001.
  2. Such program shall be administered by the Georgia Public School Personnel Indemnification Commission. (Code 1981, § 45-9-72 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-102, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-72.

45-9-73. Indemnification commission created; composition; assignment to Department of Administrative Services for administrative purposes.

There is created the Georgia Public School Personnel Indemnification Commission which shall be composed of the Governor, the State School Superintendent, the Secretary of State, the Commissioner of Insurance, the chairperson of the State Board of Education, the commissioner of public health, and one public school teacher and one public school employee to be appointed by the Governor and serve at the pleasure thereof. The Governor shall be the chairperson of the commission and the commission shall be assigned to the Department of Administrative Services for administrative purposes.

(Code 1981, § 45-9-73 , enacted by Ga. L. 2000, p. 768, § 2; Ga. L. 2009, p. 453, § 1-6/HB 228; Ga. L. 2011, p. 705, § 6-5/HB 214.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-103, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-73.

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

45-9-74. Commission to promulgate rules and regulations; use of personnel and resources of other agencies.

The commission is authorized to promulgate rules and regulations relative to the program of indemnification. Such rules and regulations may provide for initial investigation of claims and the issuance of subpoenas to facilitate such investigation, special masters, hearings, procedures for applications for indemnification, and all other matters so as to enable the commission to carry out its duties fairly, properly, and equitably. The chairperson of the commission shall be authorized to contact other state agencies for the purpose of using the personnel and resources of such agencies to assist the commission in carrying out its duties.

(Code 1981, § 45-9-74 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-104, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-74.

45-9-75. Georgia Public School Personnel Indemnification Fund - Creation; general provisions.

There is created a fund to be known as the Georgia Public School Personnel Indemnification Fund. The custodian of the Georgia Public School Personnel Indemnification Fund shall be the Department of Administrative Services. The Department of Administrative Services shall administer the Georgia Public School Personnel Indemnification Fund and may invest the resources of the fund in the same manner and fashion that an insurer authorized to issue contracts of life insurance is authorized to invest its resources. The Department of Administrative Services shall be further authorized to intermingle the resources of the Georgia Public School Personnel Indemnification Fund with the resources of any other funds or accounts which have similar restrictions on the investments which may be made with such funds; provided, however, that separate bookkeeping accounts on each such fund shall be maintained.

(Code 1981, § 45-9-75 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-105, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-75.

45-9-76. Georgia Public School Personnel Indemnification Fund - Revenues from sale of license plates; funds from other sources.

The Georgia Public School Personnel Indemnification Fund shall consist of revenues derived from the sale of special and distinctive motor vehicle license plates honoring Georgia educators issued prior to June 30, 2010 as provided by paragraph (7) of subsection (l) of Code Section 40-2-86. In addition, the Department of Administrative Services is authorized to accept for deposit in the Georgia Public School Personnel Indemnification Fund any other funds from any other source. All revenue or other funds received by the Georgia Public School Personnel Indemnification Fund shall not lapse.

(Code 1981, § 45-9-76 , enacted by Ga. L. 2000, p. 768, § 2; Ga. L. 2010, p. 9, § 1-84/HB 1055.)

45-9-77. Georgia Public School Personnel Indemnification Fund - Authority of Department of Administrative Services.

The Department of Administrative Services is authorized, subject to the limitations contained in this article:

  1. To pay the appropriate indemnification to the persons eligible for indemnification under this article or to the estate of such persons as provided in this article from the proceeds of the Georgia Public School Personnel Indemnification Fund;
  2. To make such payments as may be necessary to defray the expenses and costs incurred by the commission in administering this article; and
  3. With the approval of the commission, to utilize the resources of the Georgia Public School Personnel Indemnification Fund to purchase insurance to provide for such indemnification. (Code 1981, § 45-9-77 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-107, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-77.

45-9-78. Payment of indemnification for death or disability generally; designation of method of payment; procedure for making payments.

  1. The indemnification shall be paid by the commission when a public school teacher or public school employee who in the line of duty:
    1. Is killed or receives bodily injury which results in death within 12 months thereafter, if such death occurs from an act of violence and if such death is not the result of suicide and if such bodily injury is not intentionally self-inflicted; or
    2. Is permanently disabled, if the permanent disability occurs from an act of violence and if the permanent disability is not intentionally self-inflicted.
  2. For any compensable claim filed under this article, payment shall be made as follows:
    1. In the case of permanent disability, the eligible disabled person pursuant to this article may elect payment of $75,000.00 in equal installments over a period of five years or a payment in lump sum which shall consist of $75,000.00 reduced to its present value upon the basis of interest calculated at the rate of 6 percent per annum; and
    2. In the case of death, payment shall be made to the estate of a person who is eligible for indemnification under this article as follows: the executor or administrator may elect payment of $75,000.00 in equal installments over a period of five years or a payment in lump sum which shall consist of $75,000.00 reduced to its present value upon the basis of interest calculated at the rate of 6 percent per annum.
  3. After determining that a public school teacher or public school employee has been killed or permanently disabled by an act of violence in the line of duty and that he or she or his or her estate beneficiary is entitled to indemnification under this article, the commission, within ten days after the end of the fiscal year in which such claim was filed and subject to the provisions of Code Section 45-9-79 , shall forward a certified copy of the order granting such payment, which order shall include the person to whom such payment shall be made and the method of payment, to the commissioner of administrative services who is authorized to make the appropriate payments from funds made available for the purpose of carrying out this article. (Code 1981, § 45-9-78 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-108, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-78.

Pursuant to Code Section 28-9-5, in 2000, "Code Section 45-9-79" was substituted for "Code Section 45-9-109" in subsection (c).

45-9-79. Insufficient funds; procedure for making payments.

If the moneys provided by this article are not sufficient at any time to enable the commission to pay each person his or her benefits in full under this article, then those persons entitled to benefits whose claims were filed in the same fiscal year shall be paid an equal amount, if any, which, in the opinion of the commission, the fund may provide. In no such event shall the state or commission or any member of the commission be liable to any person for any deficiencies in payments under this article.

(Code 1981, § 45-9-79 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.

45-9-79.1. Application for indemnification.

  1. An application for indemnification with respect to a claim filed under this article for permanent disability of a public school teacher or public school employee shall be submitted by that person unless the person is mentally incompetent, in which case the application may be made on such person's behalf by the parent, spouse, guardian, or other authorized individual. An application for indemnification with respect to a claim filed under this article for the death of a public school teacher or public school employee shall be submitted by the individual authorized to administer the estate.
  2. An application for indemnification with respect to the death or permanent disability of a public school teacher or public school employee who is killed or permanently disabled by an act of violence in the line of duty on or after July 1, 2001, must be made within 24 months after the date of the death or disability. (Code 1981, § 45-9-79.1 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109.1, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.1.

45-9-79.2. Indemnification not taxable.

It is the intent of the General Assembly that indemnification paid pursuant to this article shall not be taxable within this state for any purpose.

(Code 1981, § 45-9-79.2 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109.2, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.2.

45-9-79.3. Indemnification not to be awarded when penal violation caused or contributed to death or disability.

No indemnification shall be awarded to any person otherwise entitled thereto who violates a penal law of this state if such violation caused or contributed to the death or disability of the person.

(Code 1981, § 45-9-79.3 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109.3, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.3.

45-9-79.4. Annual report to General Assembly.

The commission shall annually file a report of its activities with the General Assembly, which report shall include the amount of funds paid under the program of indemnification. It shall also include a copy of each order providing for payment or a summary of each such order giving all pertinent details.

(Code 1981, § 45-9-79.4 , enacted by Ga. L. 2000, p. 768, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109.4, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.4.

45-9-79.5. Giving false information or testimony; liability to state.

  1. Any person who shall knowingly give false information or false testimony causing or intended to cause the payment of indemnification which would not otherwise be justified under this article shall be guilty of a misdemeanor.
  2. Any such person convicted under subsection (a) of this Code section shall be liable to the state for any funds paid as a result of such false information or testimony. (Code 1981, § 45-9-79.5 , enacted by Ga. L. 2000, p. 768, § 2.)

Cross references. - Perjury, § 16-10-70 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-109.5, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-79.5.

ARTICLE 5 LAW ENFORCEMENT OFFICERS, FIREMEN, PRISON GUARDS, AND PUBLICLY EMPLOYED EMERGENCY MEDICAL TECHNICIANS

Cross references. - Indemnification of law enforcement officers, firemen, prison guards, and publicly employed emergency medical technicians who are or were killed or permanently disabled in the line of duty, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.

Offenses of aggravated assault and aggravated battery on peace officers and correctional officers, §§ 16-5-21 , 16-5-24 .

Educational grants to children of law enforcement officers, firemen, and prison guards killed or disabled in line of duty, § 20-3-450 et seq.

Compensation of persons for injuries suffered while preventing crime or aiding officers of the law, § 28-5-100 et seq.

Workers' compensation generally, T. 34, C. 9.

Editor's notes. - Ga. L. 2000, p. 283, § 3, designated Code Sections 45-9-80 through 45-9-91 of Article 5 as Part 1 of said Article, which became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters of the state at the 2000 November general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

OPINIONS OF THE ATTORNEY GENERAL

Liberal construction. - The Indemnification Law, O.C.G.A. § 45-9-80 et seq., is remedial in nature; its purpose is to confer a benefit upon survivors of those killed or permanently disabled while performing law enforcement (or other applicable) duties. With such a purpose, the law should be liberally construed. 1983 Op. Att'y Gen. No. 83-12.

Uniformed officers in Motor Carrier Certification and Enforcement Division. - Uniformed officers in Motor Carrier Certification and Enforcement Division, Georgia Public Service Commission, are not entitled to receive indemnification pursuant to this article with respect to death occurring in line of duty. 1980 Op. Att'y Gen. No. 80-119.

Effect of Officers Standards and Training Act. - The General Assembly does not want the requirements of Police Officers Standards and Training Act (now the Georgia Peace Officer Standards and Training Act), O.C.G.A. § 35-8-1 et seq., grafted on to the Indemnification Law, O.C.G.A. § 45-9-80 et seq. 1983 Op. Att'y Gen. No. 83-12.

PART 1 G EORGIA STATE INDEMNIFICATION FUND

Editor's notes. - Ga. L. 2000, p. 283, § 3, designated Code Sections 45-9-80 through 45-9-91 of Article 5 as Part 1 of said Article, which became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters of the state at the 2000 November general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Law reviews. - For note on 2000 amendments of O.C.G.A. §§ 45-9-80 to 45-9-91 , see 17 Ga. St. U.L. Rev. 270 (2000).

45-9-80. Purpose of part.

Reserved. Repealed by Ga. L. 2008, p. 470, § 1, effective July 1, 2008.

Code Commission notes. - Ga. L. 2008, p. 470, § 1, reenacted Article 5 and omitted Code Section 45-9-80. Pursuant to Code Section 28-9-5, in 2008, this Code section has been treated as repealed.

Editor's notes. - This Code section was based on Ga. L. 1978, p. 1914, § 1; Ga. L. 1980, p. 700, § 1; Ga. L. 1987, p. 822, § 1; Ga. L. 1991, p. 1312, § 1; Ga. L. 2000, p. 283, § 1; Ga. L. 2002, p. 1259, § 1.

Ga. L. 2008, p. 470, § 1, did not reenact and did not strike Code Section 45-9-80 in this article.

Ga. L. 2013, p. 141, § 45/HB 79, reserved the designation of this Code section, effective April 24, 2013.

45-9-81. Definitions.

As used in this part, the term:

  1. "Commission" means the Georgia State Indemnification Commission.
  2. "Department" means the Department of Administrative Services.
  3. "Emergency management rescue specialist" means any person licensed as an emergency management rescue specialist pursuant to Code Section 38-3-36.
  4. "Emergency medical technician" includes only persons who:
    1. Are certified as emergency medical technicians, paramedics, or cardiac technicians under Chapter 11 of Title 31; and
    2. Are employed in the capacity for which they are so certified by a department, agency, authority, or other instrumentality of state or local government.
    1. "Firefighter" means any person who is employed as a professional firefighter on a full-time or part-time basis by any municipal, county, or state government fire department employing three or more firefighters and who has the responsibility of preventing and suppressing fires, protecting life and property, enforcing municipal, county, and state fire prevention codes, enforcing any law pertaining to the prevention and control of fires or who performs any acts or actions while on duty or when responding to a fire or emergency during any fire or other emergency or while performing duties intended to protect life and property.
    2. "Firefighter" shall also mean any individual serving as an officially recognized or designated member of a legally organized volunteer fire department, or any employee of the State Forestry Commission whose job duties include fire mitigation, who performs any acts or actions while on duty or when responding to a fire or emergency during any fire or other emergency or while performing duties intended to protect life and property.
    3. "Firefighter" shall also mean any individual employed by a person or corporation which has a contract with a municipal corporation or county to provide fire prevention and fire-fighting services to such municipal corporation or county and any such individual is employed on a full-time basis of at least 40 hours per week and has the responsibility of preventing and suppressing fires, protecting life and property, enforcing municipal or county fire prevention codes, enforcing any municipal or county ordinances pertaining to the prevention and control of fires or who performs any acts or actions while on duty or when responding to a fire or emergency during any fire or other emergency or while performing duties intended to protect life and property.
  6. "In the line of duty" means:
    1. With respect to an emergency medical technician or an emergency management rescue specialist, while on duty and when responding to or returning from an emergency or performing duties at the scene of an emergency or transporting a person to a medical facility for emergency treatment or returning therefrom;
    2. With respect to a volunteer firefighter, while on duty and when responding to or returning from a fire or other emergency or performing duties during any fire or other emergency or performing duties intended to protect life and property including, without limitation, actual participation in a training exercise;
    3. With respect to a law enforcement officer or firefighter, while on duty and performing services for and receiving compensation from the law enforcement and fire service agency which employs such officer or firefighter, while off duty when responding to any situation which would save a life or preserve the peace, or while preventing or attempting to prevent the commission of a crime or fire. A law enforcement officer or firefighter who is performing duties for and receiving compensation from a private employer at the time of such officer's or firefighter's death or bodily injury causing total permanent disability or partial permanent disability shall not be considered in the line of duty if the officer or firefighter is entitled to workers' compensation benefits from the private employer or the private employer's insurer;
    4. With respect to a prison guard, while on duty and performing services for and receiving compensation from the public agency which employs such prison guard; or
    5. With respect to a state highway employee, while on duty and performing any work necessary for the construction, maintenance, or operation of a roadway on or within the public roads of the state as defined in paragraph (24) of Code Section 32-1-3 when such employee is killed or permanently disabled as the result of working under hazardous conditions in close proximity to moving traffic or equipment.

      Such term shall not mean commuting to or from work or commuting to or from training.

  7. "Law enforcement officer" means any agent or officer of this state, a political subdivision or municipality of this state, or an authority of this state or a political subdivision of this state who, as a full-time or part-time employee, is vested either expressly by law or by virtue of public employment or service with authority to enforce the criminal or traffic laws with the power of arrest and whose duties include the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime. Such term also includes the employees designated by the commissioner of juvenile justice pursuant to paragraph (2) of subsection (i) of Code Section 49-4A-8 who have the duty to investigate and apprehend delinquent children, or the supervision of delinquent children under intensive supervision in the community, and any child with a pending juvenile court case alleging the child to be a child in need of services who has escaped from a facility under the jurisdiction of the Department of Juvenile Justice or who has broken the conditions of supervision. Such term also includes members of the Georgia National Guard, the composition of which is set forth in Code Section 38-2-3, who have been called into active state service by the Governor.
  8. "Organic brain damage" means direct physical trauma to the brain which so affects the mental capacity as to preclude function productively in any employment.
  9. "Partial permanent disability" means disability due to:
    1. Loss of the use of one eye or blindness in one eye with only light perception;
    2. Loss of one hand;
    3. Loss of one leg; or
    4. Loss of a lower extremity or the residual effect of an organic disease or injury which so affects the functions of balance or propulsion as to preclude locomotion without the use of a wheelchair for all but very short distances.
  10. "Prison guard" means any person employed by the state or any political subdivision thereof whose principal duties relate to the supervision and incarceration of persons accused or convicted of the violation of the criminal laws of this state or any political subdivision thereof. Such term shall also mean any community supervision officer who is required to be certified under Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act," and whose principal duties directly relate to the supervision of probationers or parolees. Such term also means any person employed by the state or any political subdivision thereof whose principal duties include the supervision of youth who are charged with or adjudicated for an act which if committed by adults would be considered a crime.
  11. "State highway employee" means an employee of the Georgia Department of Transportation who receives compensation directly therefrom and regularly engages in duties necessary for the construction, maintenance, or operation of roadways on or within the public roads of this state as defined in paragraph (24) of Code Section 32-1-3.
  12. "Total permanent disability" means disability due to:
    1. Loss of both eyes or blindness in both eyes with only light perception;
    2. Loss or loss of use of both hands;
    3. Loss or loss of use of both legs;
    4. Loss of a lower extremity or the residual effect of an organic disease or injury which so affects the functions of balance or propulsion as to preclude locomotion without resort to a wheelchair at all times; or
    5. Organic brain damage.

      (Ga. L. 1978, p. 1914, § 2; Ga. L. 1980, p. 700, § 2; Ga. L. 1981, p. 477, § 1; Ga. L. 1983, p. 651, § 1; Ga. L. 1983, p. 1303, § 1; Ga. L. 1983, p. 1469, § 1; Ga. L. 1984, p. 762, §§ 1, 2; Ga. L. 1986, p. 1478, § 1; Ga. L. 1987, p. 822, § 2; Ga. L. 1988, p. 1923, § 10; Ga. L. 1990, p. 488, § 1; Ga. L. 1990, p. 646, § 1; Ga. L. 1991, p. 771, § 1; Ga. L. 1991, p. 1312, § 2; Ga. L. 1992, p. 1983, § 22; Ga. L. 1994, p. 1149, § 1; Ga. L. 1995, p. 877, § 1; Ga. L. 1996, p. 950, § 1; Ga. L. 1997, p. 1453, §§ 1, 2; Ga. L. 1998, p. 264, §§ 2, 3; Ga. L. 2000, p. 283, § 1; Ga. L. 2000, p. 951, § 12-10; Ga. L. 2002, p. 415, § 45; Ga. L. 2002, p. 660, § 1; Ga. L. 2002, p. 1259, §§ 2, 3; Ga. L. 2005, p. 334, § 27-1/HB 501; Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2009, p. 8, § 45/SB 46; Ga. L. 2013, p. 141, § 45/HB 79; Ga. L. 2013, p. 294, § 4-50/HB 242; Ga. L. 2014, p. 382, § 2/SB 324; Ga. L. 2015, p. 422, § 5-95/HB 310; Ga. L. 2016, p. 846, § 45/HB 737.)

The 2014 amendment, effective July 1, 2014, inserted ", or the supervision of delinquent children under intensive supervision in the community," in the middle of the second sentence of paragraph (7).

The 2015 amendment, effective July 1, 2015, in the second sentence of paragraph (10), substituted "community supervision officer" for "probation supervisor or parole officer" near the beginning and substituted "supervision of probationers or parolees" for "supervision of adult probationers or adult parolees" at the end.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised language in the second sentence of paragraph (10).

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the first 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provided that the second 2000 Act which amended this Code section became fully effective July 1, 2001, but authorized administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

JUDICIAL DECISIONS

Fact that appellants may have been employees in their position as city policemen does not necessarily contraindicate their status as officeholders in that same position. Fowler v. Mitcham, 249 Ga. 400 , 291 S.E.2d 515 (1982).

OPINIONS OF THE ATTORNEY GENERAL

District attorney does not fit under any definition of law enforcement officer or peace officer in this state. 1980 Op. Att'y Gen. No. U80-33.

State court marshals. - A determination of whether state court marshals may be considered "law enforcement officers" for purposes of O.C.G.A. § 45-9-80 , et seq., the State Indemnification Act, must be made on a county-by-county basis. 1983 Op. Att'y Gen. No. 83-13.

RESEARCH REFERENCES

Am. Jur. 2d. - 41 Am. Jur. 2d, Indemnity, § 1.

45-9-82. Establishment of indemnification program.

  1. There is established a program to provide for indemnification with respect to the:
    1. Death of any law enforcement officer, firefighter, or prison guard who is or has been killed in the line of duty subsequent to January 1, 1973;
    2. Permanent disability of any law enforcement officer, firefighter, or prison guard who is or has been permanently disabled in the line of duty subsequent to January 1, 1973;
    3. Death or permanent disability of any emergency medical technician who is killed or permanently disabled or who has been killed or permanently disabled in the line of duty subsequent to January 1, 1977;
    4. Death or permanent disability of any emergency management rescue specialist who is killed or permanently disabled on or after January 1, 1991; and
    5. Death or permanent disability of any state highway employee who is killed or permanently disabled in the line of duty on or after January 1, 1990.
  2. Such program shall be administered by the department, subject to review by the commission.

    (Ga. L. 1978, p. 1914, § 3; Ga. L. 1980, p. 700, § 3; Ga. L. 1987, p. 822, § 3; Ga. L. 1991, p. 1312, § 3; Ga. L. 2002, p. 660, § 4(16); Ga. L. 2002, p. 1259, §§ 4, 11(16); Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-83. Indemnification commission created; composition; assignment to Department of Administrative Services for administrative purposes; meetings.

There is created the Georgia State Indemnification Commission which shall be composed of the Governor, the executive director of the Peace Officer Standards and Training Council, the executive director of the Georgia Firefighter Standards and Training Council, the commissioner of public safety, the commissioner of transportation, the commissioner of corrections, the commissioner of community supervision, the commissioner of public health, one law enforcement officer who shall be a member of the Peace Officers' Association of Georgia appointed by the Governor from a list of five candidates provided by such organization, and one firefighter who shall be a member of the Georgia State Firemen's Association appointed by the Governor from a list of five candidates provided by such organization. The Governor shall be the chairperson of the commission, and the commission shall be assigned to the department for administrative purposes. The commission shall meet at least semiannually upon the call of the Governor.

(Ga. L. 1978, p. 1914, § 4; Ga. L. 1984, p. 762, § 3; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 10, § 45; Ga. L. 1987, p. 822, § 4; Ga. L. 1988, p. 13, § 45; Ga. L. 2002, p. 1259, § 5; Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2009, p. 453, § 1-6/HB 228; Ga. L. 2011, p. 705, § 6-5/HB 214; Ga. L. 2015, p. 422, § 5-96/HB 310.)

The 2015 amendment, effective July 1, 2015, in this Code section, inserted "the commissioner of community supervision," near the middle of the first sentence, and inserted a comma following "chairperson of the commission" in the second sentence.

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

45-9-84. Appeals of department decisions; use of personnel and resources of other agencies.

The commission is authorized to consider appeals of decisions of the department to correct errors made by the department in approving or denying any claim filed pursuant to this article. The commission may modify or override the decision of the department upon a showing of an error of material fact or an abuse of discretion. The department and the commission shall be authorized to contact other state agencies for the purpose of using the personnel and resources of such agencies to assist the commission in carrying out its duties.

(Ga. L. 1978, p. 1914, § 6; Ga. L. 1981, p. 477, § 3; Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-84.1. Georgia State Indemnification Fund - Creation; administration; investment fund paid over to Office of the State Treasurer.

There is created a fund to be known as the Georgia State Indemnification Fund. The custodian of the Georgia State Indemnification Fund shall be the department. The department shall administer the Georgia State Indemnification Fund and shall approve or deny claims for compensation filed pursuant to this article; provided, however, that any decision of the department shall be subject to review by the commission as provided in Code Section 45-9-84. Any amounts held by the Georgia State Indemnification Fund which are available for investment shall be paid over to the Office of the State Treasurer. The state treasurer shall deposit such funds in a trust account for credit only to the Georgia State Indemnification Fund. The state treasurer shall invest such funds subject to the limitations of Code Section 50-5A-7 and Chapter 17 of Title 50. All income derived from such investments shall accrue to the Georgia State Indemnification Fund. When moneys are paid over to the Office of the State Treasurer, as provided in this Code section, the commissioner shall submit an estimate of the date such funds shall no longer be available for investment. When the commissioner wishes to withdraw funds from the trust account provided for in this Code section, he or she shall submit a request for such withdrawal, in writing, to the state treasurer.

(Ga. L. 1981, p. 477, § 2; Ga. L. 1990, p. 8, § 45; Ga. L. 1993, p. 1402, § 19; Ga. L. 2000, p. 1474, § 6; Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2010, p. 863, §§ 2, 3/SB 296.)

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-84.2. Georgia State Indemnification Fund - Authorization for appropriation of moneys to the fund; moneys from other sources.

The General Assembly is authorized to appropriate funds to be placed in the Georgia State Indemnification Fund for the purpose of providing for indemnification with respect to the death or disability of any law enforcement officer, firefighter, or prison guard who is or has been killed or permanently disabled in the line of duty subsequent to January 1, 1973, the death or disability of any emergency medical technician who is killed or permanently disabled or has been killed or permanently disabled in the line of duty subsequent to January 1, 1977, the death or disability of any emergency management rescue specialist who is killed or permanently disabled on or after January 1, 1991, and the death or disability of any state highway employee who is or has been killed or permanently disabled in the line of duty subsequent to January 1, 1990, as well as defraying the expenses and costs incurred by the department and the commission in the administration of this part. In addition, the department is authorized to accept for deposit in the Georgia State Indemnification Fund any other funds from any other source. All funds appropriated to the Georgia State Indemnification Fund shall be presumptively concluded to have been committed to the purpose for which they have been appropriated and shall not lapse.

(Ga. L. 1981, p. 477, § 2; Ga. L. 1987, p. 822, § 5; Ga. L. 1991, p. 1312, § 4; Ga. L. 1993, p. 1402, § 19; Ga. L. 2000, p. 283, § 1; Ga. L. 2002, p. 660, § 4(17); Ga. L. 2002, p. 1259, §§ 6, 11(17); Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-84.3. Georgia State Indemnification Fund - Authority of department as to payments from fund.

The department is authorized, subject to the limitations contained in this part:

  1. To pay the appropriate indemnification to the persons eligible for indemnification under this part from the proceeds of the Georgia State Indemnification Fund;
  2. To make such payments as may be necessary to defray the expenses and costs incurred by the department and the commission in administering this part; and
  3. With the approval of the commission, to utilize the resources of the Georgia State Indemnification Fund to purchase insurance to provide for such indemnification.

    (Ga. L. 1981, p. 477, § 2; Ga. L. 1993, p. 1402, § 19; Ga. L. 1995, p. 877, § 2; Ga. L. 2000, p. 283, § 1; Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-85. Payment of indemnification for death or disability; procedure for making payments; appeal.

  1. Indemnification shall be paid under this article as follows:
    1. In the case of a partial permanent disability suffered in the line of duty by a law enforcement officer, firefighter, emergency medical technician, emergency management rescue specialist, state highway employee, or prison guard, the eligible disabled person may elect payment of $35,000.00 paid in equal monthly installments for five years or a lump sum of such amount reduced to its present value upon the basis of interest calculated at the rate of 6 percent per annum;
    2. In the case of a total permanent disability suffered in the line of duty by a law enforcement officer, firefighter, emergency medical technician, emergency management rescue specialist, state highway employee, or prison guard, the injured person may elect to receive a payment of $75,000.00 paid in equal monthly installments for five years or a lump sum of such amount reduced to its present value upon the basis of interest calculated at the rate of 6 percent per annum; or
    3. In the case of death or organic brain damage suffered in the line of duty by a law enforcement officer, firefighter, emergency medical technician, emergency management specialist, state highway employee, or prison guard, payment shall be made to the surviving unremarried spouse or the dependents of the spouse or deceased person as shown in his or her most recent tax return or to the legal guardian of the organically brain damaged person. The surviving unremarried spouse, dependents, or the legal guardian may elect to receive payment in a lump sum payment of $150,000.00 paid in equal monthly installments for five years or a lump sum of such amount reduced to its present value upon the basis of interest calculated at the rate of 6 percent per annum.
  2. After the department, or the commission upon review of a denial by the department, determines that a law enforcement officer, firefighter, emergency medical technician, emergency management rescue specialist, prison guard, or state highway employee has suffered a total permanent disability, a partial permanent disability, organic brain damage, or death in the line of duty, the department shall be authorized to make the appropriate payments as provided in subsection (a) of this Code section.
  3. If the department denies a claim, any person seeking benefits pursuant to this part may appeal the department's decision to the commission. Any such appeal shall be filed with the commission within 60 days of receipt of the department's decision and shall identify the errors in the department's decision. Appeals shall be considered by the commission at the commission's semiannual meeting as provided in Code Section 45-9-84.

    (Ga. L. 1978, p. 1914, § 5; Ga. L. 1980, p. 700, § 4; Ga. L. 1987, p. 822, § 6; Ga. L. 1991, p. 1312, § 5; Ga. L. 1993, p. 1402, § 19; Ga. L. 1994, p. 97, § 45; Ga. L. 1995, p. 877, § 3; Ga. L. 2000, p. 283, § 1; Ga. L. 2002, p. 660, § 4(18); Ga. L. 2002, p. 1259, §§ 7, 11(18); Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2011, p. 593, § 1.1/HB 156; Ga. L. 2017, p. 500, § 4-1/SB 160.)

The 2017 amendment, effective July 1, 2017, substituted "$150,000.00" for "$100,000.00" in the last sentence of paragraph (a)(3).

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

Ga. L. 2011, p. 593, § 2/HB 156, not codified by the General Assembly, provides that: "(a) It is the intent of the General Assembly that the revised indemnification amounts for state highway employees shall be applicable to all incidents involving state highway employees occurring on or after January 1, 2011.

"(b) The retroactive application of these changes with regard to state highway employees is based on the authority of Ga. Laws 2000, p. 2007, Section 1, adding Article III, Section VI, Paragraph VI(g) of the Georgia Constitution."

Ga. L. 2017, p. 500, § 1-1/SB 160, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Back the Badge Act of 2017.'"

Law reviews. - For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 89 (2017).

OPINIONS OF THE ATTORNEY GENERAL

Law enforcement officers. - A person who ostensibly appears to be a law enforcement officer and who is killed while on duty, but who has not complied with the "Peace Officer Standards and Training Act", is nonetheless a law enforcement officer for the purposes of state indemnification. 1983 Op. Att'y Gen. No. 83-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 41 Am. Jur. 2d, Indemnity, § 3 et seq.

C.J.S. - 42 C.J.S., Indemnity, § 2.

45-9-86. Application for indemnification.

  1. An application for indemnification with respect to a claim for total permanent disability or partial permanent disability of a law enforcement officer, firefighter, prison guard, emergency medical technician, emergency management rescue specialist, or state highway employee shall be submitted by that person unless the person is mentally incompetent, in which case the application may be made on such person's behalf by his or her legal guardian.
  2. An application for indemnification with respect to a claim for the death of a law enforcement officer, firefighter, prison guard, emergency medical technician, emergency management rescue specialist, or state highway employee shall be submitted by or on behalf of the surviving unremarried spouse or dependents eligible under this part.
  3. An application for indemnification with respect to death, organic brain damage, total permanent disability, or partial permanent disability must be made within 24 months after the date of the incident giving rise to the death, organic brain damage, or disability.

    (Ga. L. 1978, p. 1914, § 7; Ga. L. 1980, p. 700, § 5; Ga. L. 1981, p. 477, § 4; Ga. L. 1985, p. 413, § 1; Ga. L. 1987, p. 822, § 7; Ga. L. 1991, p. 771, § 2; Ga. L. 1991, p. 1312, § 6; Ga. L. 1995, p. 877, §§ 4, 5; Ga. L. 2002, p. 660, § 4(19); Ga. L. 2002, p. 1259, §§ 8, 11(19); Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 1987, p. 822, § 8, not codified by the General Assembly, provided that: "If any provision of this Act [which amended Code Sections 45-9-80 through 45-9-83, 45-9-84.2, 45-9-85, and 45-9-86] is held to be invalid or inoperative for any reason, the remaining provisions of this Act shall be deemed to be void and of no effect it being the legislative intent that this Act as a whole would not have been adopted had any provision not been included."

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

RESEARCH REFERENCES

Am. Jur. 2d. - 41 Am. Jur. 2d, Indemnity, § 31 et seq.

C.J.S. - 42 C.J.S., Indemnity, §§ 13, 53.

45-9-86.1 and 45-9-86.2

Repealed by Ga. L. 2008, p. 470, § 1/SB 254, effective July 1, 2008.

Editor's notes. - These Code sections, concerning the time limit on applications for indemnification relative to death of part-time law enforcement officer killed in line of duty and the time limitation on applications for indemnification relative to law enforcement officers, firefighters, and prison guards permanently disabled due to organic brain damage, were based on Ga. L. 1981, p. 477, § 5; Ga. L. 1983, p. 651, § 2; Ga. L. 2002, p. 660, § 4(20); Ga. L. 2002, p. 1259, § 11(20).

45-9-87. Indemnification not taxable.

It is the intent of the General Assembly that indemnification paid pursuant to this part shall not be taxable within this state for any purpose.

(Ga. L. 1980, p. 1343, § 1; Ga. L. 2000, p. 283, § 1; Code 1981, § 45-9-87 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

This Code section formerly pertained to the state's subrogration to cause of action for death or disability upon payment of indemnification. The former Code section was based on Ga. L. 1978, p. 1914, § 9; Ga. L. 1980, p. 700, § 6.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-88. Indemnification not to be awarded when penal violation, suicide, intentionally self-inflicted injuries, natural causes, or performance of certain routine duties caused or contributed to death or disability.

  1. No indemnification shall be awarded to any person otherwise entitled thereto who violates a penal law of this state which violation caused or contributed to the death or disability of the officer.
  2. Notwithstanding any other provision of this article, no payment shall be authorized if death, organic brain damage, total permanent disability, or partial permanent disability occurs from suicide, intentionally self-inflicted injuries, natural causes, or the performance of routine duties which would not be considered strenuous or dangerous by a reasonable person; provided, however, that this subsection shall not preclude the department or the commission from considering competent, independent medical evidence as to whether a heart attack that occurs shortly after fighting a fire was caused by the strain of fighting the fire. (Ga. L. 1978, p. 1914, § 8; Code 1981, § 45-9-88 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

RESEARCH REFERENCES

Am. Jur. 2d. - 41 Am. Jur. 2d, Indemnity, § 1 et seq.

C.J.S. - 42 C.J.S., Indemnity, §§ 8, 9, 19, 20, 21.

ALR. - Misconduct as affecting right to pension or retention of position in retirement system, 76 A.L.R.2d 566.

45-9-89. Annual report to General Assembly.

The commission shall annually file a report of its activities with the General Assembly, which report shall include the amount of funds paid under the program of indemnification. It shall also include a copy of each order providing for payment or a summary of each such order giving all pertinent details.

(Ga. L. 1978, p. 1914, § 10; Code 1981, § 45-9-89 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-90. Giving false information or testimony.

  1. Any person who shall knowingly give false information or false testimony causing or intended to cause the payment of indemnification which would not otherwise be justified under this part shall be guilty of a misdemeanor.
  2. Any such person convicted under subsection (a) of this Code section shall be liable to the state for any funds paid as a result of such false information or testimony. (Ga. L. 1978, p. 1914, § 11; Ga. L. 2000, p. 283, § 1; Code 1981, § 45-9-90 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Editor's notes. - Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that the 2000 amendment became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 369.

C.J.S. - 67 C.J.S., Extortion, § 257.

45-9-91. Redesignated.

Editor's notes. - Ga. L. 2008, p. 470, § 1, effective July 1, 2008, redesignated former Code Section 45-9-91 as present Code Section 45-9-90.

PART 2 T EMPORARY DISABILITY COMPENSATION PROGRAM

Editor's notes. - Ga. L. 2000, p. 283, § 3, not codified by the General Assembly, provided that this part became effective July 1, 2001, only upon ratification of a constitutional amendment by the voters at the 2000 November general election. The constitutional amendment (Ga. L. 2000, p. 1999) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

45-9-100. Purpose.

The purpose of this part is to implement the constitutional amendment ratified November 7, 2000, authorizing the General Assembly to provide a program of compensation for law enforcement officers who become physically disabled, but not permanently disabled, as a result of physical injury incurred in the line of duty and caused by a willful act of violence and for firefighters who become physically disabled, but not permanently disabled, as a result of physical injury incurred in the line of duty while fighting a fire, which program shall entitle an injured law enforcement officer or firefighter to receive monthly compensation from the state in an amount equal to such person's regular compensation for the period of time that the law enforcement officer or firefighter is physically unable to perform the duties of his or her employment, not exceeding 12 months, and to provide certain exceptions and limitations with respect to such program of compensation.

(Code 1981, § 45-9-101 , enacted by Ga. L. 2000, p. 283, § 2; Ga. L. 2002, p. 660, § 4(21); Ga. L. 2002, p. 1259, § 11(21); Code 1981, § 45-9-100 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, former Code Section 45-9-100, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-70, and the Code Section 45-9-100 designation was reserved.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-101. Definitions.

As used in this part, the term:

  1. "Commission" means the Georgia State Indemnification Commission created in Code Section 45-9-83.
  2. "Department" means the Department of Administrative Services.
  3. "Firefighter" means:
    1. Any person who is employed as a professional firefighter on a full-time or part-time basis by any municipal, county, or state government fire department certified in writing by the Georgia Firefighter Standards and Training Council pursuant to Code Section 25-3-22 employing three or more firefighters and who has the responsibility of preventing and suppressing fires, protecting life and property, enforcing municipal, county, and state fire prevention codes, enforcing any law pertaining to the prevention and control of fires or who performs any acts or actions while on duty or when responding to a fire or emergency during any fire or other emergency or while performing duties intended to protect life and property;
    2. Any individual serving as an officially recognized or designated member of a legally organized volunteer fire department certified in writing by the Georgia Firefighter Standards and Training Council pursuant to Code Section 25-3-22 who performs any acts or actions while on duty and when responding to a fire or emergency during any fire or other emergency or while performing duties intended to protect life and property; or
    3. Any employee at the State Forestry Commission whose job duties include fire mitigation.
  4. "Full-time" means an employee who regularly works 30 hours or more each week.
  5. "In the line of duty" means:
    1. With respect to a volunteer firefighter, while on duty and performing duties during any fire or other emergency or performing duties intended to protect life and property; or
    2. With respect to a law enforcement officer or firefighter, while on duty and performing services for and receiving compensation from the law enforcement or fire service agency which employs such officer or firefighter, while off duty and responding to any situation which would save a life or preserve the peace, or while preventing or attempting to prevent the commission of a crime or fire. A law enforcement officer or firefighter who is performing duties for and receiving compensation from a private employer at the time of such officer's or firefighter's bodily injury, but not permanent disability, shall not be considered in the line of duty if the officer or firefighter is entitled to workers' compensation benefits from the private employer or the private employer's insurer.
  6. "Injured in the line of duty" means an injury which arises out of or in the course of employment in the line of duty; or, with respect to a firefighter of a legally organized volunteer fire department, such term means an injury while on duty and when responding to a fire or emergency with the volunteer fire department during any fire or other emergency or while performing duties intended to protect life and property. Going to or from work shall not be considered in the line of duty; and going to a legally organized volunteer fire department to begin a service of duty or traveling from such a fire department after duties have been completed or traveling from the scene of a fire, emergency, or other location where duties were being performed and have been completed shall not be considered in the line of duty.
  7. "Law enforcement officer" means any agent or officer of this state, or a political subdivision or municipality thereof, who, as a full-time or part-time employee, is vested either expressly by law or by virtue of public employment or service with authority to enforce the criminal or traffic laws and whose duties include the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime. Such term also includes the employees designated by the commissioner of community supervision who have the duty to supervise children adjudicated for a Class A designated felony act or Class B designated felony act after release from restrictive custody, as such terms are defined in Code Section 15-11-2, and the commissioner of juvenile justice pursuant to paragraph (2) of subsection (i) of Code Section 49-4A-8 who have the duty to investigate and apprehend delinquent children, or the supervision of delinquent children under intensive supervision in the community, and any child with a pending juvenile court case alleging the child to be a child in need of services who has escaped from a facility under the jurisdiction of the Department of Juvenile Justice or who has broken the conditions of supervision. Such term also includes members of the Georgia National Guard, the composition of which is set forth in Code Section 38-2-3, who have been called into active state service by the Governor.
  8. "Volunteer firefighter" means a person who is appointed and regularly enrolled as a volunteer with a legally organized fire department; who, as a volunteer firefighter, has and primarily performs the principal responsibility of preventing or suppressing fires; and who satisfies the requirements specified in subparagraph (a)(1)(D) of Code Section 25-3-23 . (Code 1981, § 45-9-102 , enacted by Ga. L. 2000, p. 283, § 2; Ga. L. 2002, p. 415, § 45; Ga. L. 2002, p. 660, § 2; Ga. L. 2002, p. 1259, § 9; Ga. L. 2003, p. 772, § 1; Ga. L. 2005, p. 334, § 27-2/HB 501; Code 1981, § 45-9-101 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2009, p. 8, § 45/SB 46; Ga. L. 2013, p. 141, § 45/HB 79; Ga. L. 2013, p. 294, § 4-51/HB 242; Ga. L. 2014, p. 382, § 3/SB 324; Ga. L. 2015, p. 422, § 5-97/HB 310.)

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "State Forestry Commission" for "Georgia Forestry Commission" in the middle of subparagraph (3)(C) and substituted "the commissioner of juvenile justice" for "commissioner of juvenile justice of the Department of Juvenile Justice" in the middle of the second sentence of paragraph (7). The second 2013 amendment, effective January 1, 2014, in the second sentence of paragraph (7), deleted "of the Department of Juvenile Justice" preceding "pursuant to", substituted "who have" for ", which employees have", substituted "delinquent children and any child with a pending juvenile court case alleging the child to be a child in need of services who has" for "delinquent and unruly children who have" and substituted "who has broken" for "who have broken". See editor's note for applicability.

The 2014 amendment, effective July 1, 2014, inserted ", or the supervision of delinquent children under intensive supervision in the community," in the middle of the second sentence of paragraph (7).

The 2015 amendment, effective July 1, 2015, inserted "the commissioner of community supervision who have the duty to supervise children adjudicated for a Class A designated felony act or Class B designated felony act after release from restrictive custody, as such terms are defined in Code Section 15-11-2, and" near the middle of paragraph (7). See editor's note for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-101, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-71.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

45-9-102. Payment of compensation; limitation; benefits subordinate to workers' compensation benefits; appeal of decision.

  1. Any law enforcement officer who becomes physically disabled, but not permanently disabled, on or subsequent to July 1, 2001, as a result of a physical injury incurred in the line of duty and caused by a willful act of violence committed by a person other than a fellow employee shall be entitled to receive compensation as provided in this Code section. Any firefighter who becomes physically disabled, but not permanently disabled, on or subsequent to July 1, 2001, as a result of a physical injury incurred in the line of duty while fighting a fire shall be entitled to receive compensation as provided in this Code section. The compensation shall be paid to eligible applicants by the commission from funds appropriated to the commission for such purpose.
  2. Except as otherwise provided in this part, any law enforcement officer or firefighter injured in the line of duty as provided in subsection (a) of this Code section shall receive monthly compensation from the department in an amount equal to such person's regular compensation for the period of time that the law enforcement officer or firefighter is physically unable to perform the duties of his or her employment; provided, however, that such benefits provided pursuant to this Code section for injuries resulting from a single incident shall not be granted for more than a total of 12 months. For purposes of this subsection, the regular compensation of a volunteer firefighter covered under subparagraph (B) of paragraph (3) of Code Section 45-9-101 shall be deemed to be the Georgia average weekly earnings of production workers in manufacturing industries for the immediately preceding calendar year as published by the Georgia Department of Labor. A law enforcement officer or firefighter shall be required to submit to the department satisfactory evidence of such disability. A volunteer firefighter shall not be considered disabled once he or she is able to perform the duties of his or her regular employment or equivalent thereof.
  3. Benefits made available under this Code section shall be subordinate to any workers' compensation benefits, disability and other compensation benefits from the person's employer which the law enforcement officer or firefighter is awarded and shall be limited to the difference between the amount of workers' compensation benefits and other compensation benefits actually paid and the amount of the law enforcement officer's or firefighter's regular compensation; provided, however, that benefits shall never exceed the person's regular compensation minus the maximum weekly workers' compensation benefit level for that person whether or not workers' compensation is available. For the purposes of this subsection, the regular compensation of a firefighter covered under subparagraph (2)(B) of Code Section 45-9-102 shall be deemed to be the Georgia average weekly earnings of production workers in manufacturing industries for the immediately preceding calendar year as published by the Georgia Department of Labor.
  4. A law enforcement officer or firefighter who collects benefits pursuant to this Code section shall not be entitled to any benefits under Code Section 45-7-9.
  5. A law enforcement officer or firefighter who is disabled and who receives indemnification under Part 1 of this article as a result of an incident shall not be entitled to any compensation under this Code section for the disability resulting from the same incident. A law enforcement officer or firefighter who initially receives benefits under this Code section but who is determined subsequently to be entitled to benefits under Part 1 of this article with respect to the same incident or whose beneficiary is determined subsequently to be entitled to benefits under Part 1 of this article shall be entitled only to the amount equal to the benefits to which the person would be entitled under Part 1 reduced by the total amount of benefits received under this Code section.
  6. After the department, or the commission upon review of a denial by the department, determines that a law enforcement officer has been temporarily disabled due to a willful act of violence or that a firefighter has been temporarily disabled while fighting a fire and is entitled to indemnification under this part, the department shall be authorized to make the appropriate payments to the temporarily disabled law enforcement officer or firefighter.
  7. If the department denies a claim, any person seeking benefits pursuant to this part may appeal the department's decision to the commission. Any such appeal shall be filed with the commission within 60 days of receipt of the department's decision and shall identify the errors in the department's decision. Appeals shall be considered by the commission at the commission's semiannual meeting as provided in Code Section 45-9-84 . (Code 1981, § 45-9-103 , enacted by Ga. L. 2000, p. 283, § 2; Ga. L. 2002, p. 415, § 45; Ga. L. 2002, p. 660, § 3; Ga. L. 2002, p. 1259, § 10; Ga. L. 2003, p. 772, § 2; Code 1981, § 45-9-102 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254; Ga. L. 2016, p. 846, § 45/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "subparagraph (B) of paragraph (3)" for "subparagraph (2)(B)" in the second sentence of subsection (b).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-102, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-72.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-103. Submission of application.

An application for compensation with respect to a claim filed on or after July 1, 2001, for the temporary disability of a law enforcement officer or firefighter shall be submitted by that person within 60 days from the date of the incident resulting in disability.

(Code 1981, § 45-9-104 , enacted by Ga. L. 2000, p. 283, § 2; Ga. L. 2002, p. 660, § 4(22); Ga. L. 2002, p. 1259, § 11(22); Ga. L. 2005, p. 723, § 1/HB 240; Code 1981, § 45-9-103 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-103, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-73.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-104. Compensation not to be awarded when penal violation, intentionally self-inflicted injuries, natural causes, or performance of certain routine duties caused or contributed to disability.

  1. No compensation shall be awarded to any person otherwise entitled thereto who violates a penal law of this state which violation caused or contributed to the disability of the law enforcement officer or firefighter.
  2. Notwithstanding any other provision of this article, no payment shall be authorized if disability occurs from intentionally self-inflicted injuries or natural causes or while performing routine duties which would not be strenuous or dangerous if performed by persons of average physical abilities. (Code 1981, § 45-9-105 , enacted by Ga. L. 2000, p. 283, § 2; Ga. L. 2002, p. 660, § 4(23); Ga. L. 2002, p. 1259, § 11(23); Code 1981, § 45-9-104 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-104, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-74.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

45-9-105. Giving false information or testimony; penalty.

  1. Any person who shall knowingly give false information or false testimony causing or intending to cause the payment of compensation which would not otherwise be justified under this part shall be guilty of a misdemeanor.
  2. Any such person convicted under subsection (a) of this Code section shall be liable to the state for any funds paid as a result of such false information or testimony. (Code 1981, § 45-9-106 , enacted by Ga. L. 2000, p. 283, § 2; Code 1981, § 45-9-105 , as redesignated by Ga. L. 2008, p. 470, § 1/SB 254.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-105, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-75.

Editor's notes. - Ga. L. 2008, p. 470, § 2/SB 254, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all incidents occurring on or after July 1, 2008.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - A violation of O.C.G.A. § 45-9-106(a) is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

45-9-106. Redesignated.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Code Section 45-9-106, as enacted by Ga. L. 2000, p. 768, § 2, was redesignated as Code Section 45-9-76.

Editor's notes. - Ga. L. 2008, p. 470, § 1/SB 254, effective July 1, 2008, redesignated former Code Section 45-9-106 as present Code Section 45-9-105.

ARTICLE 5A INDEMNIFICATION OF PUBLIC SCHOOL TEACHERS AND EMPLOYEES

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, Article 5A, as enacted by Ga. L. 2000, p. 768, § 3, was redesignated as Article 4A.

ARTICLE 6 CONSOLIDATION OF UNEMPLOYMENT COMPENSATION CLAIM MATTERS UNDER COMMISSIONER OF ADMINISTRATIVE SERVICES

45-9-110. Authorization for consolidation; billing procedure; reserve fund; investment of funds; contracting for services; unemployment compensation benefits to certain county employees.

  1. The commissioner of administrative services shall have the authority to consolidate the processing of and response to unemployment compensation claims being performed on July 1, 1985, by each individual agency, department, board, bureau, commission, and authority of the state along with the payment to the Department of Labor of this state of all moneys due and owing as a result of paid unemployment compensation claims and shall bill each department, agency, board, bureau, commission, or authority of the state for claims paid and for the reasonable cost of administering the program.
  2. The commissioner may retain all moneys paid to the Department of Administrative Services in response to such billings, all moneys received as interest, and all moneys received from other sources to set up and maintain a reserve fund for the purpose of making payments to the Department of Labor of this state and defraying the expenses necessary to administer the program. The commissioner shall invest any such moneys in the same manner as other moneys in his possession.
  3. The commissioner is authorized, in his discretion, to contract for any or all of the services necessary to carry out the functions enumerated in this article.
  4. The commissioner of administrative services shall have the authority to provide unemployment compensation benefits insurance to all of the county departments of health, county departments of family and children services, and community service boards. The commissioner of public health shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from county departments of health and remit the premium to the Department of Administrative Services. The commissioner of human services shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from county departments of family and children services and remit the premium to the Department of Administrative Services. The commissioner of behavioral health and developmental disabilities shall establish a procedure to provide the Department of Administrative Services all of the underwriting information required, including but not limited to payroll data each quarter for the service centers, and shall collect the unemployment premium from community service boards and remit the premium to the Department of Administrative Services. All of the county departments of health, county departments of family and children services, and community service boards shall participate in such unemployment compensation benefit insurance program. (Code 1981, § 45-9-110 , enacted by Ga. L. 1985, p. 973, § 1; Ga. L. 1994, p. 1717, § 6; Ga. L. 1999, p. 81, § 45; Ga. L. 2009, p. 453, § 1-50/HB 228; Ga. L. 2011, p. 705, § 6-5/HB 214.)

Law reviews. - For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Effect on administration of unemployment insurance program. - The obligation of the Georgia Department of Labor to administer the Unemployment Insurance Program in Georgia will not be impaired by virtue of O.C.G.A. § 45-9-110 , because that section merely creates a separate fund for use by the Department of Administrative Services in processing and responding to unemployment compensation claims on behalf of the state and the state's agencies. 1986 Op. Att'y Gen. No. U86-13.

CHAPTER 10 CODES OF ETHICS AND CONFLICTS OF INTEREST

Article 1

Codes of Ethics.

Article 2

Conflicts of Interest.

Part 1

G ENERAL PROVISIONS .

Part 2

Contracts of Officers of State

Institutions with State

Institutions.

Part 3

C ONTRACTS OF COUNTY COMMISSIONERS WITH COUNTY .

Part 4

H OLDING OF ADDITIONAL OFFICES BY NONELECTIVE STATE OFFICERS OR EMPLOYEES .

Part 5

F AMILY MEMBERS OF PUBLIC EMPLOYEES .

Part 6

L EGISLATIVE ETHICS .

Cross references. - Ethics in Government, T. 21, C. 5.

Conflict of interest in zoning actions, T. 36, C. 67A.

OPINIONS OF THE ATTORNEY GENERAL

General Assembly member may work for city as attorney or on contract. - There is no per se conflict of interest if a member of the General Assembly also serves as either a city or county attorney, or performs contract work for a city or county within that legislator's district. 1984 Op. Att'y Gen. No. U84-34.

ARTICLE 1 CODES OF ETHICS

45-10-1. Code of ethics for government service generally - Establishment and text.

There is established for and within the state and for and in all governments therein a code of ethics for government service which shall read as follows:

CODE OF ETHICS FOR GOVERNMENT SERVICE

Any person in government service should:

I. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or government department.

II. Uphold the Constitution, laws, and legal regulations of the United States and the State of Georgia and of all governments therein and never be a party to their evasion.

III. Give a full day's labor for a full day's pay and give to the performance of his duties his earnest effort and best thought.

IV. Seek to find and employ more efficient and economical ways of getting tasks accomplished.

V. Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not, and never accept, for himself or his family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties.

VI. Make no private promises of any kind binding upon the duties of office, since a government employee has no private word which can be binding on public duty.