Georgia Advisory Opinions January 14, 2000: AGO 00-03 (January 14, 2000)

Opinion AGO 00-03.

You have asked my opinion as to whether a DeKalb County commissioner would vacate his office if and when he qualifies to run for the office of the County's chief executive officer (CEO). It is my opinion that a commissioner would vacate his office immediately if he qualifies to run for the CEO position, regardless of the provisions of a local law described in your request.

The underlying situation which gives rise to your request is this. DeKalb County is governed by a seven member commission and a chief executive officer, who is not a member of the commission itself. 1981 Ga. Laws 4304, 4305-09. The voters of the county at large elect the CEO to a four-year term of office. Id. at 4308, sec. 5. The county commissioners themselves also serve for terms of four years. Id. at 4307-08, sec. 3. The commissioner's terms do not run concurrently with each other, but are instead staggered so that they do not all expire at the same time. Id. The terms of office of these officers generally begin on January 1 following their election and run until December 31 four years later. Id.

A vacancy on the commission or in the office of the CEO, which occurs when at least 180 days remain in the term of the vacated office, is filled by a special election. Id. at 4309, sec. 6(b). Under these circumstances, within 15 days of the occurrence of the vacancy, the county election superintendent "shall issue the call for a special election to fill such vacancy for the unexpired term." Id. If the vacancy occurs when less than 180 days remain in the unexpired term of the office, then the commission itself is to appoint a qualified person to fill out the unexpired term in question. Id. at 4309, sec. 6(d).

There is also a specific local law provision dealing with members of the commission or the CEO qualifying to run for other elective offices. 1984 Ga. Laws 4916, 4917-18, § 4. Initially, this law provides that these officers must resign from office in order to be qualified to be a candidate for any other elective office, unless they are seeking to succeed themselves or the expiration date of their term of office is the same as the expiration date for the term of office they are seeking. Id. at 4917, § 4(a). The local law also provides that if such a resignation is required, then this "irrevocable resignation" must be submitted by April 1 of the year in which the election for the new office will occur. Id. at 4917, § 4(b).

However, this latter requirement regarding an "irrevocable resignation" is further qualified by a provision stating:

The April 1 date specified in subsection (b) of this section for irrevocable resignation from office shall be deemed to be the date of the creation of a vacancy, notwithstanding the fact that the resignation is not effective until the thirty-first day of December immediately following the date of the resignation. Notwithstanding the provisions of Section 6 of this Act, no special election shall be held to fill such vacancy, and such vacancy shall be filled for the unexpired term by nomination and election at the immediately following general primary and election in the same manner as nomination and election for a full term of office as a member of the Commission . . . .

Id. at 4918, § 4(c).

The factual situation has arisen where a current member of the Commission, whose term expires December 31, 2002, is contemplating qualifying to run for the office of CEO. Qualifying for the CEO's office ends April 28, 2000. Following the provisions of the local law, this commissioner could submit a resignation prior to April 1, 2000, but remain in office until December 31, 2000. The local law contemplates a special election would then be held in conjunction with the November 2000 general election to fill this vacancy, presumably with the person elected at that time taking office on January 1, 2001, to serve out the balance of the unexpired term of the commissioner who resigned. If elected to the CEO's office, the commissioner who resigned would then begin serving a term of office stretching from January 1, 2001, until December 31, 2004.

However, contrary to the provisions of the local law, the Georgia Constitution provides otherwise as to when the vacancy in the commissioner's office would occur. The Constitution has a specific provision addressing the legal effect of an elected official qualifying to run for another elective office. It provides:

The office of any state, county, or municipal elected office shall be declared vacant upon such elected official qualifying, in a general primary or general election, or special primary or special election, for another state, county, or municipal elective office . . . if the term of the office for which such official is qualifying for begins more than 30 days prior to the expiration of such official's present term of office. The vacancy created in any such office shall be filled as provided by this Constitution or any general or local law. This provision shall not apply to any elected official seeking or holding more than one elective office when the holding of such offices simultaneously is specifically authorized by law.

Ga. Const., Art. II, Sec. II, Para. V (emphasis added). Provisions of the State Constitution are supreme and take precedence over any act of the General Assembly or a local government. See Ga. Const., Art. I, Sec. II, Para. V. As such, this constitutional provision mandates that, as an absolute matter of law, an elected officer vacates his office immediately upon his qualifying to run for another elective office, where there is more than a 30 day overlap in the two terms of office involved and where there is no statutory provision permitting the officer to hold both offices at the same time.

Applying this provision to the DeKalb County factual situation, it is clear that the local law provides for a result that is in derogation of this constitutional mandate. If a DeKalb County commissioner, whose term ends in December 2002, qualifies in April 2000, to run for CEO, and the term of office for CEO runs until 2004, there is certainly more than a 30 day overlap in the two terms. There is no provision permitting a DeKalb County commissioner to simultaneously hold both positions. Therefore, as a matter of law, the commissioner will vacate his office at the time he qualifies in April 2000, to run for the CEO position and he cannot remain in office until December 31, 2000.

I understand that the county attorney has taken a different position in the interpretation of the Constitution and this local law. That office has focused on the issue of when a vacancy is created, noting that the local law requires a commissioner to submit a resignation prior to qualifying to run for CEO. 1984 Ga. Laws 4918, § 4(c). The local law then provides that this resignation date is "deemed to be the date of the creation of a vacancy, notwithstanding the fact that the resignation is not effective until the thirty-first day of December immediately following the date of resignation." Id. Having therefore resigned prior to qualifying, the county attorney reasons that the constitutional provision regarding the vacating of an office is inapplicable and a commissioner can continue to serve in that office until the end of the year.

You and your office have rejected this interpretation of the law. As explained herein, I too must join in your interpretation of these various legal provisions. The Constitution mandates that an elected official vacates his office immediately upon qualifying for another elected office under the circumstances described above. Ga. Const., Art. II, Sec. II, Para. V. There is no room in this constitutional mandate for a local statutory exception permitting an elected officer to continue to serve past this qualifying date, regardless of how a local law may attempt to characterize his prior resignation. The Constitution itself, by operation of law, removes that official immediately from his office.

This outcome is not changed by any of the local law provisions that attempt to circumscribe this constitutional mandate. Instead, the answer to this question is determined solely by looking at the underlying terms of office held and sought by the commissioner in question. The "term" of the office belongs to the office itself, and not to the particular incumbent who happens to be currently occupying that office. See, e.g., Hornsby v. Campbell, 267 Ga. 511 (1997) (city solicitor vacated her office by qualifying to run for district attorney); 1992 Op. Att'y Gen. 92-11 (special election required to fill unexpired term of Commissioner of Labor); 1992 Op. Att'y Gen. 92-12 ("term of office" as used in the Recall statute applies to the original term of office of an official and does not again apply to a person elected or appointed to fill a vacancy in that office); 1986 Op. Att'y Gen. 86-31 (under the Constitution, judicial appointees are specifically provided with a new term of office); 1986 Op. Att'y Gen. 86-17 (County Board of Education member vacates office by qualifying for another office where more than a 30 day overlap in terms); 1985 Op. Att'y Gen. U85-33 (member of General Assembly would vacate office when qualified to run for Mayor of Atlanta). Here there are four-year terms of office in question and the two terms of these offices overlap in a method not permitted by the Constitution, resulting in an automatic vacation of office by the commissioner in question.

To conclude otherwise would also be to ignore the requirements of O.C.G.A. § 1-3-11, which provides:

No office to which a person has been elected shall be abolished nor the term of the office shortened or lengthened by local or special Act during the term for which such person was elected unless the same shall be approved by the people of the jurisdiction affected in a referendum on the question.

Id. (emphasis added). The purpose of this statutory provision, which was included in previous state constitutions, was "to correct an evil often practiced . . ., the use of local legislation specifically directed to amending or abolishing the term of a specified elective office to remove an incumbent or prolong his tenure." Lee v. City of Villa Rica, 264 Ga. 606, 608 n. 6 (1994) (quoting City of Mountain View v. Clayton County, 242 Ga. 163, 165-66(2) (1978)) (emphasis added). See also Fulton v. Baker, 261 Ga. 710, 713 (1991).

The only way to harmonize the provision of the DeKalb County local legislation permitting a commissioner to remain in office after qualifying for another office and the constitutional provision mandating a person vacate their office upon qualifying is to conclude that the local legislation actually cuts short the term of the commissioner's office, so that there is no overlap of terms in excess of 30 days. However, this clearly cannot be. Not only does O.C.G.A. § 1-3-11 prohibit the shortening of a term without a referendum, but also the local law itself makes clear that this does not happen. Under the local law, once a vacancy is created on the commission, either by resignation or operation of law, a successor is either elected or appointed to serve the balance of the unexpired term in question. 1981 Ga. Laws 4309, sec. 6. Clearly, the local law does not intend to change the underlying term of office of the commissioner who is qualifying to run for the CEO's position.

Finally, I believe that this constitutional provision also carries with it a sound public policy pronouncement, reviewed and approved by the people of this State in the adoption of our Constitution. An elected official is ordinarily to dedicate himself to the service of only one office at a time. When he chooses to seek another elected position, the people have provided that he must do so at the price of vacating his current office and giving another person the opportunity to serve out the balance of that term.

As such, while the DeKalb County local law might very well require a sitting commissioner to resign prior to qualifying to run for any other elective office, the local law cannot extend his tenure in office beyond his qualifying to run for another elective office. Instead, if the DeKalb County commissioner in question qualifies in April to run for the CEO position, that commissioner will, as a matter of law, immediately vacate his office. That vacancy can then be filled in accordance with the specific provisions of the local law and the applicable state law.

Prepared by:

DENNIS R. DUNN

Deputy Attorney General

1 Georgia law provides that local law may establish the method of filling a vacancy on a county commission. O.C.G.A. § 36-5-21(b). 2There is no question that a resignation can be made prospectively and that, once accepted, the resignation is irrevocable. See 1999 Op. Att'y Gen. U99-8.