2021 Georgia Code
Title 21 - Elections
Chapter 4 - Recall of Public Officers
§ 21-4-3. Definitions

As used in this chapter, the term:

1. "Elected county school board members" and "elected county school superintendents" shall be considered county officers.
2. "Elected education board members" and "elected school superintendents" of any independent school system shall be considered municipal officers.
3. "Election superintendent" means:
   1. In the case of any elected state officers, the Secretary of State;
   2. In the case of any elected county officers, the county board of elections, if a county has such, or the judge of the probate court, provided that, if such judge of the probate court is the officer sought to be recalled, then the election superintendent shall be the clerk of the superior court; and
   3. In the case of any elected municipal officers, the municipal clerk or municipal board of elections or municipal election superintendent, if the municipality has such a board or election officer.

   (3.1) "Elective office" means an office filled by the exercise of the franchise of vote by electors in a general or special election as defined under the laws of this state.

4. "Elector" means any person who possesses all of the qualifications for voting now or hereafter prescribed by the laws of this state and who has registered in accordance with Chapter 2 of this title.
5. "Electoral district" means the area in which the electors reside who are qualified to vote for any of the candidates offering for a particular office.
6. "Failure to perform duties prescribed by law" means the willful neglect or failure by an official to perform a duty imposed by statute.
7. "Grounds for recall" means:
   1. That the official has, while holding public office, conducted himself or herself in a manner which relates to and adversely affects the administration of his or her office and adversely affects the rights and interests of the public; and
   2. That the official:
      1. Has committed an act or acts of malfeasance while in office;
      2. Has violated his or her oath of office;
      3. Has committed an act of misconduct in office;
      4. Is guilty of a failure to perform duties prescribed by law; or
      5. Has willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed.

      Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official.

   (7.1) "Legal sufficiency" means, solely as applied to the duties or functions of the election superintendent, a determination of the completeness of an application for a recall petition or a recall petition and a determination that an application for a recall petition or a recall petition contains a sufficient number of valid signatures. Such determinations shall not include any review of the sufficiency of the ground or grounds for the recall and the fact or facts upon which such ground or grounds are based.

8. "Misconduct in office" means an unlawful act committed willfully by an elected public official or a willful violation of the code of ethics for government service contained in Code Section 45-10-1.
9. "Official sponsors" or "sponsors" means the electors who circulate or file an application for a recall petition who were registered and eligible to vote in the last general or special election for the office held by the officer sought to be recalled and who reside in the electoral district of the officer sought to be recalled.

(Code 1981, §21-4-3, enacted by Ga. L. 1989, p. 1721, § 1; Ga. L. 1990, p. 1939, § 1; Ga. L. 1991, p. 133, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2014, p. 866, § 21/SB 340.)

- Ga. L. 1990, p. 1939, § 8, not codified by the General Assembly, provides that the Act shall only apply to recall proceedings under Chapter 4 of Title 21 which are instituted on or after July 1, 1990.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, cases decided prior to the 1989 revision of this chapter are included in the annotations for this Code section.

- The provision of O.C.G.A. § 21-4-3(7)(B)(i) that an official "has committed an act or acts of malfeasance while in office" is not unconstitutionally vague; the legislature enacted the section with knowledge of the definition of "malfeasance in office" as contained in case law. Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

Conduct of a public official who participates in a closed meeting that is required by law to be open can become a "ground for recall" under the Recall Act, O.C.G.A. § 21-4-1 et seq., if the circumstances of that participation come within the definition of "grounds for recall." Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

- If one or more of the statutory grounds for recall set forth in O.C.G.A. § 21-4-3(7)(B) are alleged in the recall application, then the ground or grounds for recall are legally sufficient. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

Since the factual allegations were either a mere conclusion, lacking reasonable particularity, or failed to allege conduct which would constitute one of the statutory grounds for recall, they were legally insufficient to support grounds for recall. Brooks v. Branch, 262 Ga. 658, 424 S.E.2d 277 (1993).

- Applications seeking the recall of city officials were insufficient within the meaning of O.C.G.A. § 21-4-3(7)(B) in that there was nothing in the applications from which the public could determine that the allegations, even if taken as true, amounted to acts of misconduct or malfeasance. Davis v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994).

Cited in Cone v. Johnson, 251 Ga. 371, 306 S.E.2d 244 (1983).

RESEARCH REFERENCES

ALR.

- Sufficiency of particular charges as affecting enforceability of recall petition, 114 A.L.R.5th 1.

Sufficiency of technical and procedural aspects of recall petitions, 116 A.L.R.5th 1.