2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 5 - Vacation of Office
§ 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.)

- 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).

- 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. 2d 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. 2d 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. 2d 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. 2d 504 (1982).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 67 C.J.S., Officers and Public Employees, § 106.

- 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.