This following information is provided for general informational purposes only, does not constitute legal advice, and may not apply to your specific situation. Municipal officials should consult with their city attorney before taking any action based on the content of this publication.
Public Trusteeship
Trust is the key word that describes the appropriate relationship between elected officials in local government, other public officials, and their constituency. The Georgia Constitution states that:
All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public servants are both trustees and servants of the people and are at all times amenable to them. 1
Two roles for public officers are established by this constitutional language.
The public officer is a trustee of the people. As trustees, elected officers are entrusted with the power to govern and to manage public property, with the public as beneficiaries of that trust.2
The public officer is a servant of the people. As servants of the general public, these officers are charged with the responsibility of responding to the needs and wishes of the public.
Common Law or Court-Established Standards
Here, “common law” refers to the rules established when judges take factual situations and extract from them basic principles that govern the conduct of human affairs. This “common law” tradition is handed down from the English legal system and evolved well before there were detailed statutory provisions governing the conduct between people.
It is important for city officials to understand that an action which may not violate a specific criminal or civil statute on conflicts of interest may run afoul of broader ethical principles that have been established by court decisions.3 Georgia courts have made it clear that persons should not have the opportunity to be led into temptation to profit out of the public business that has been entrusted to them.
Not only can actions violate conflict-of-interest principles, circumstances and situations can create potential violations of the ethical principles applicable to the conduct of governmental affairs. The opportunity to profit from a situation plus an individual’s control over that situation are the elements that create an ethical violation. There is, then, an equation that every public officer should remember:
temptation to profit + opportunity to profit = impropriety
Statutory Restrictions
Georgia law has several statutory provisions regarding ethics in the conduct of government business, across both civil and criminal statutes. While the following list is not exhaustive, it is an overview of the most common statutes relevant to public officials.
Civil Statutes
Conflicts of Interest
It is improper and illegal for a member of a municipal council to vote on any question brought before the council in which he is personally interested.4
A “Personal interest” has been construed by the courts to mean a financial interest.5 It has been cited on a number of occasions by the Georgia courts to void municipal contracts. Additionally, there must be some opportunity for measurable profit to the individual arising from the transaction.
This includes examples such as a contract between a city and a private corporation in which one of the council members owned stock and a contract between the city and the mayor, even though the mayor did not vote or attempt to influence members of the council.6 The court has even construed this code section so broadly as to void a contract when the council member with the financial interest later resigned from the council and the contract was reconfirmed by the council after such resignation.7
Another statutory provision of interest to public officials is the code of ethics for governmental service.8 The code presents ten principles that are excellent guidelines for conduct by public officers and employees. However, there are no sanctions provided for violating any of the general principles outlined in this statute. Therefore, this code of ethics has only an advisory effect on public officers.
Incompatible Offices
Holding incompatible or inconsistent offices is another potential situation that can give rise to an ethical violation. A municipal official is ineligible to hold any other municipal office at the same time he or she serves as a member of the municipal governing body.9 Thus, a city official cannot also serve on a municipal planning commission, serve as city clerk, or hold office as city building inspector.10
A city official can also run afoul of principles of ethical conduct if his or her employment comes into conflict with duties as a public officer. For example, the Georgia Supreme Court has disapproved of an arrangement whereby a mayor of a city was hired to serve as the city manager of the city.11
This prohibition against incompatible offices, or holding incompatible employment, may be a significant problem in very small municipalities.
Georgia law does allow members of the governing authority of a municipality or county to serve as volunteer firefighters for that municipality or county so long as the individual serving in both capacities receives no compensation for services as a volunteer firefighter other than actual expenses incurred, a per diem for services, contributions to the Georgia Firefighters’ Pension Fund, workers’ compensation coverage or any combination thereof.12
Criminal Statutes
Sale of Property
Georgia criminal law prohibits the sale of real or personal property by a public officer or employee to a local government which the individual serves.13
There are exceptions, however, for sales of personal property which do not exceed a value of $800 per calendar quarter and for sales of personal property made pursuant to sealed competitive bids. There are also exemptions for the sales of real property (real estate), if there has been a disclosure to the grand jury or judge or probate court of the county in which the city is located at least 15 days prior to the date the contract or agreement becomes binding and the notice contains the required information.14
Abuse of Office
Other potential criminal law violations that can arise from public service include violation of oath of office, bribery, improper influencing of legislative action by a municipality, improperly influencing of the action of an officer or employee, and conspiracy to defraud.15
State law also addresses malpractice, partiality, and demanding more cost than that to which a public official is entitled, and those found guilty will be removed from office.16
Oath of Office: Any public officer who willfully and intentionally violates his or her oath of office is to be punished by imprisonment for not less than one or more than five years.17
Bribery: Bribery is committed by a public official when he or she directly or indirectly solicits, receives, or agrees to receive a “thing of value” while implying that doing so will influence his or her performance on some official action. Bribery is likewise committed when persons offer public officials any benefit to which they are not entitled with the purpose of influencing them in the performance of their duties.
The law, however, does acknowledge that a public official may be reimbursed for certain expenses and may accept certain promotional, honorary, and other token gifts without committing bribery.18
Other than those benefits of public office that are expressly authorized and established by law, no public official is entitled to request or receive—from any source, directly or indirectly—anything of value in exchange for the performance of any of his or her duties of office. A bribe or payoff, for example, given to a public official under the guise of a campaign contribution is still a bribe. The mere fact that a contribution has been reported as a campaign contribution would not change its character as a bribe.
State law also defines two additional and more targeted forms of bribery related to selling influence: when a public official asks for or receives something of value in return for (1) procuring or attempting to procure passage or defeat of an ordinance, resolution, or other municipal legislation or (2) attempting to influence official action of any other public officer or employee of the city.19
State law also defines two additional and more targeted forms of bribery related to selling influence: when a public official asks for or receives something of value in return for (1) procuring or attempting to procure passage or defeat of an ordinance, resolution, or other municipal legislation or (2) attempting to influence official action of any other public officer or employee of the city.20
Improper Influence: Public officials are guilty of extortion when they demand or receive, under color of office, money, fees, or other things of value that they are not entitled to or which represent more value than is due them. A public officer found guilty of extortion must be removed from office.21 It is also unlawful for a public official to coerce or attempt to coerce, directly or indirectly, any other public official or employee to pay, lend, or contribute any sum of money or anything else of value to any person, organization, or party for political purposes.22
Conspiracy to Defraud: A public official or other person commits the offense of conspiracy to defraud a political subdivision when he or she conspires or agrees with another to commit theft of property that belongs to a local government or that is under the control of a public official in his or her official capacity.23
A public officer or any other person who steals, alters, forges, defaces, or falsifies any records or documents, including minutes or digital records, shall be guilty of a felony if convicted and be subject to imprisonment for two to ten years. Under this statute, willfully removing public records from the premises of the public office with the intention of concealing it or keeping it for one’s personal use is considered stealing the public records.24
Campaign Finance Disclosure and Personal Finance Disclosure
Details on the state law applicable to campaign financing and disclosure are beyond the scope of this chapter, but each municipal official should become familiar with the requirements on campaign contribution limitations, disclosure, and reporting of campaign activities required by this statute.25 Allegations of violations can also become powerful tools when used by an individual against an opponent in an election.
To ensure compliance with state law, municipal officials should read the materials provided by the State Ethics Commission and the Elections Division of the Office of the Secretary of State.
In addition to campaign finance disclosures, municipal elected officials and candidates for such offices must file personal financial disclosure reports with the Commission.26 Starting in 2027, the filing of these personal financial disclosures will be the responsibility of the public officer or candidate themselves.27
Georgia law forbids the expenditure of public funds to influence the outcome of an election.28 Articles in a city newsletter which could be construed as attempts to influence the way citizens vote on an upcoming referendum question can violate this law. Expenditure of private funds to influence voters on a referendum question can only be done by a campaign committee which registers and files financial reports as required in the Ethics in Government Act.
Conflicts of Interest in Zoning
Local government officials with a financial interest, or with a family member with a financial interest, in zoning decisions are required to provide disclosure of that interest.29 The local government official is disqualified from taking any action on behalf of him- or herself or any other person to influence action on the application for rezoning.
Members of the family who can trigger the disclosure requirement for a city official include a spouse, mother, father, brother, sister, son, or daughter of the official.30 Knowingly failing to comply with these requirements or knowingly violating the other provisions of this law can result in conviction of a misdemeanor.31
Ethics Provisions in Charters and Ordinances
In addition to the ethics laws and criminal statutes applicable to municipal officials, a city may have additional ethics constraints and methods of airing ethics grievances in the city charter or in municipal ordinances. To the extent that there is already state law on the same subject, the state law will control. However, local ethics ordinances and ethics boards can serve as an effective way for local residents and electors to hold municipal officials accountable at the local level.
GMA offers their “Certified City of Ethics” program to support and empower cities in providing clear guidance for their city leadership. Each city designated as a Certified City of Ethics will receive a plaque and a logo which can be incorporated into city stationery, road signs and other materials at the city’s discretion. In addition, GMA will send press releases to the local media notifying them that the city has earned this designation. GMA recommends that cities review the sample ordinance and resolution available in GMA’s publication Ethics in Government: Charting the Right Course and visit the GMA website for more information on the Certified Cities of Ethics program.
Federal Laws
Federal law enforcement agencies address criminal acts of public officials as one of three basic categories:
- Criminal Action Statutes: refer to general criminal laws that define and prohibit behavior as criminal. While these statutes are not specifically targeted at public officials, any citizen, including public officials and employees, may be charged with their violation.
- Corrupt Act Statutes: two of the core corrupt act statutes employed to address state and local corruption are the Hobbs Act and Program Fraud statutes.32 These statutes cover extortion, bribery, and misuse of federal funds.
- Honest Services Statutes: apply when fraud occurs through the use of either the U.S. mail, the internet, telephones, or an interstate common carrier such as FedEx or UPS.33
Additionally, the False Claims Act (FCA) carries both civil and criminal penalties, and is violated when a false, fictitious, or fraudulent claim is presented to the federal government that the person presenting it knows to be false through actual knowledge, deliberate ignorance, or reckless disregard.34 Local governments are considered persons that can be held liable under the FCA.35
End Notes
1 Ga. Const. Art. I, § 2 ¶1
2 Malcom v. Webb, 211 Ga. 449 (1955)
3 Trainer v. City of Covington, 183 Ga. 759, 189 S.E. 842 (1937); 1998 Op. Att’y Gen. No. U98-8
4 O.C.G.A. § 36-30-6
5 Story v. City of Macon, 205 Ga. 590,54 S.E.2d 396 (1949)
6 Hardy v. City of Gainesville, 121 Ga. 327, 48 S.E. 921 (1904); City of Macon v. Huff, 60 Ga. 221 (1878)
7 Montgomery v. City of Atlanta, 162 Ga. 534, 134 S.E. 152 (1926)
8 O.C.G.A. § 45-10-1
9 O.C.G.A. § 36-30-4
10 1971 Op. Att’y Gen. U71-107; 1967 Op Att’y Gen. 67-36; 1962 Op. Att’y Gen., p. 333
11 Welsch v. Wilson, 218 Ga.843, 131 S.E.2d 194 (1963)
12 O.C.G.A. § 36-60-23
13 O.C.G.A. § 16-10-6
14 O.C.G.A. § 16-10-6(c)(3)
15 O.C.G.A. §§ 16-10-1, 16-10-2, 16-10-4, 16-10-5, 16-10-21
16 O.C.G.A. § 45-11-4
17 O.C.G.A. § 16-10-1
18 O.C.G.A. § 16-10-2
19 O.C.G.A. § 16-10-4 et seq.
20 O.C.G.A. § 16-10-4 et seq.
21 O.C.G.A. § 45-11-5
22 O.C.G.A. § 45-11-10
23 O.C.G.A. § 16-10-21
24 O.C.G.A. § 45-11-1
25 O.C.G.A. §§ 21-5-30 through 21-5-53
26 O.C.G.A. § 21-5-50(a)(3.1) and (O.C.G.A. § 21-5-50(f)
27 O.C.G.A. §21-5-50(a)(3.1)
28 O.C.G.A. § 21-5-30.2
29 O.C.G.A. § 36-67A-2
30 O.C.G.A. § 36-67A-1(6)
31 O.C.G.A. § 36-67A-4
32 Gabriel, “Role of the FBI in State and Local Government Corruption”
33 Gabriel, “Role of the FBI in State and Local Government Corruption”; 18 U.S.C.A. §§ 1341, 1343, 1346
34 31 U.S.C.A. §§ 3729-3733; 18 U.S.C.A. § 287
35 Cook County, Ill. v. United States ex rel. Chandler, 123 S.Ct. 1239 (2003)