Public Trusteeship

Common Law or Court Established Standards

Statutory Restrictions

 
Georgia law has a number of statutory provisions regarding ethics in the conduct of government business. These provisions consist of both civil restrictions and criminal sanctions.
 
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” (O.C.G.A. § 36-30-6). This statutory provision is derived from an 1888 court decision and was carried forward from the Civil Code of 1895 to the present Official Code of Georgia Annotated. “Personal interest” has been construed by the courts to mean a financial interest (Story v. City of Macon, 205 Ga. 590,54 S.E.2d 396 (1949)). It has been cited on a number of occasions by the Georgia courts to void municipal contracts, 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 (Hardy v. City of Gainesville, 121 Ga. 327, 48 S.E. 921 (1904); City of Macon v. Huff, 60 Ga. 221 (1878)). 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 (Montgomery v. City of Atlanta, 162 Ga. 534, 134 S.E. 152 (1926)).
 
This statute and court decisions can present problems for a mayor and council. For example, do the courts mean that a mayor and council are unable to purchase General Motors police cars because the mayor owns 100 shares of General Motors stock or is employed by the local General Motors manufacturing plant? The answer is no; there must be some opportunity for measurable profit to the individual arising from the transaction (1982 Op. Att’y Gen. 82-82, p. 173).

Another example of an exception to this statutory provision is based on a case which challenged an ordinance naming a particular bank as the city depository for all municipal funds. The challenge was based upon the fact that the mayor of the city and one of its council members held positions of an officer and director of the depository bank. The Georgia Court of Appeals found that the arrangement did not violate the statute, under the theory that there was no financial profit to the individuals as a result of the bank being named as depository (Smith v. City of Winder, 22 Ga. App. 278, 96S.E. 14 (1918)). According to this decision, there was no financial profit because all of the municipal funds were demand deposits. Would the court reach the same conclusion based on these facts today, given the importance of deposits, including demand deposits, to local banks?
 
In fact, the State Attorney General answered this question in the negative in a letter drafted in 1997. In that case, a county commissioner was a minority stockholder, a member of the board of directors, and also the attorney for the bank with which the county did business. Additionally, the commissioner’s law partner was a member of the advisory board of and the attorney for another bank with which the county did business. The business the county did with the banks included depositing general operating funds in four different banks on a rotating basis and depositing surplus funds in the bank with the highest rate of return. The Attorney General agreed with the county attorney in this case that a conflict of interest existed in each instance based on these facts (Letter to the Honorable Robert S. Reeves, Chairman, Emanuel County Board of Commissioners from Attorney General Michael J. Bowers (March 31, 1997)). Note, however, that this opinion was only expressed in a letter and not in an official or unofficial opinion of the State Attorney General.
 
Another statutory provision of interest to public officials is the code of ethics for governmental service (O.C.G.A. § 45-10-1). The code presents ten principles that are excellent guidelines for conduct by public officers and employees. Two examples of these guidelines are (1) public officials should never use information coming to them confidentially in the performance of governmental duties as a means for making private profit, and (2) persons in government service should seek to find and employ more efficient and economical ways of getting tasks accomplished. 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 (O.C.G.A. § 36-30-4). Thus, a city official cannot also serve on a municipal planning commission, serve as city clerk, or hold office as city building inspector (1971 Op. Att’y Gen. U71-107; 1967 Op Att’y Gen. 67-36; 1962 Op. Att’y Gen., p. 333).
 
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 (Welsch v. Wilson, 218 Ga.843, 131 S.E.2d 194 (1963)). The mayor, a member of the governing body, was charged with overseeing the performance of the city manager. Thus, the mayor was placed in a position of judging his own performance as the city manager, which is not in the public interest. The mayor could not be both master and servant at the same time. This prohibition against incompatible offices, or holding incompatible employment, may be a significant problem in very small municipalities.
 
Another example of conflict between a public officer’s private employment interest and his “official” interest is found in a case involving a city attorney (Stephenson v. Benton, 250 Ga. 726, 300 S.E. 2d 803 (1983)). The city attorney challenged the mayor’s veto of his reappointment. While the court ruled in favor of the city attorney on the main issue, the opinion found that the lawyer for the city attorney was also the city recorder. As such, the city recorder should have been disqualified as the city attorney’s legal counsel. The court said that the city recorder, a public officer, was acting as an attorney for his own financial gain in initiating a lawsuit which sought to defeat the official actions of other public officers of the city which the recorder served.
 
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 of the foregoing (O.C.G.A. § 36-60-23). However, the statute is very clear that nothing in this law requires a city or county to make any of the payments or offer any of the benefits allowed by this statute.
 
Criminal Statutes
 
Sale of Property
Suppose Mayor Smith owns the only hardware store in town. As a matter of course, employees in the public works department of the city occasionally go to the hardware store to pick up small tools and other items necessary in carrying out the day-to-day department maintenance. Is this a permissible activity? 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 (O.C.G.A. § 16-10-6). A violation of the provision can result in imprisonments of not less than one to not more than five years. The statute recognizes 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. Thus, Mayor Smith would not be criminally liable for selling tools and other materials to the city if the transaction met either one of these exceptions to criminal law. Additionally, the law was amended in the 2010 session of the Georgia General Assembly to provide that any contract or transaction entered into in accordance with this provision of law shall be valid and shall not subject an elected officer, appointed officer, or employee to civil liability (O.C.G.A. § 16-10-6(d)).
 
Another exemption from the criminal law provision prohibiting an employee or officer from selling property to the city for which the employee or officer works is made for sales of real property. A sale of real property by a city official to his or her own city is not a violation of the criminal law 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. This notice must show the name of the interested person, his or her position in the political subdivision or agency, and the purchase price and location of the property being purchased by the city (O.C.G.A. § 16-10-6(c)(3)).
 
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 (O.C.G.A. §§ 16-10-1, 16-10-2, 16-10-4, 16-10-5, 16-10-21). 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. According to the state bribery statute, accepting one or more of the following items does not in and of itself constitute bribery:

• Food or beverage consumed at a single meal or event
• Legitimate salary, benefits, fees, commissions, or expenses associated with a public official’s nonpublic business
• An award, plaque, certificate, memento, or similar item given in recognition of the public official’s civic, charitable, political, professional or public service
• Food, beverages, and registration at group events to which all members of the governing authority are invited
• Actual and reasonable expenses for food, beverages, travel, lodging, and registration for a meeting that are provided to a public official so that he or she may participate or speak at the meeting
• A commercially reasonable loan made in the ordinary course of business
• Any gift with a value less than $100
• Promotional items generally distributed to the general public or to public officials
• A gift from a member of the public official’s immediate family, or
• Food, beverage, or expenses afforded public officials, members of their immediate families, or others that are associated with normal and customary business or social functions and activities (O.C.G.A. § 16-10-2). 

Any person convicted of bribery is subject to a fine of not more than $5,000 or imprisonment for not less than one or more than 20 years or both (O.C.G.A. § 16-10-2). In sum, 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 v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert, denied, 494 U.S. 1057 (1990)).
 
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 (O.C.G.A. § 16-10-4 et seq.). Upon conviction, the officer may be punished by imprisonment of not less than one or more than five years.
 
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 (O.C.G.A. § 45-11-5). 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. A person engaging in coercion is guilty of a misdemeanor (O.C.G.A. § 45-11-10).
 
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 (O.C.G.A. § 16-10-1). 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. Conviction calls for imprisonment of not less than one to not more than five years (O.C.G.A. § 16-10-21). Also, a city official who receives, takes, or contracts to receive or take, either directly or indirectly, any part of the pay or profit arising out of a public works contract is guilty of a misdemeanor (O.C.G.A. § 36-91-21(g)).
 
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 (O.C.G.A. § 45-11-1).
 
In addition to the infractions described above, state law also addresses malpractice, partiality, and demanding more cost than that to which a public official is entitled. Any local elected official charged with the foregoing may be indicted by the grand jury. If a true bill is returned by the grand jury and the public official is found guilty in a criminal proceeding, the official will be subject to fine, imprisonment, or both, at the discretion of the court. In addition, the official will be removed from office (O.C.G.A. § 45-11-4).
 
Campaign Financial Disclosure, Personal Financial Disclosure and Lobbying
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 (O.C.G.A. §§ 21-5-30 through 21-5-53). Violation of the campaign finance disclosure law can result in punishment for a misdemeanor. 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 Georgia Government Transparency and Campaign Finance Commission and the Elections Division of the Office of the Secretary of State.
 
Candidates for municipal office are required to file campaign contribution and expenditure disclosure reports with the municipal clerk, the chief executive officer if there is no clerk or, if provided by contract, with the county election superintendent (O.C.G.A. § 21-5-34(a)(4)). The local officer who receives that report then must file it electronically with the Georgia Government Transparency and Campaign Finance Commission. In each nonelection year, the reports must be filed locally by the candidate on January 31 and June 30 (O.C.G.A. § 21-5-34(c)(1)). In each election year, the reports must be filed on January 31, March 31, June 30, September 30, October 25, and December 31 as well as six days before any run-off in which the candidate is listed on the ballot (O.C.G.A. § 21-5-34(c)(2)). If the candidate is listed on the ballot for a special run-off or special election, a report must be filed 15 days prior to that run-of or election (O.C.G.A. § 21-5-34(c)(4)).
 
However, candidates for elected municipal office who do not intend to accept more than $2,500 for the campaign or to spend more than $2,500 in an election cycle may file a declaration of such intent with the appropriate local filing officer and avoid having to file campaign finance disclosure reports. If the candidate exceeds the $2,500 limit but does not exceed $5,000, the candidate must file June 30 and December 31 disclosures. If the candidate exceeds $5,000, the candidate must file all reports (O.C.G.A. §§ 21-5-34(d.1)(1) through (3)).
 
For each campaign disclosure report that is filed late, the Commission will impose a late fee of $125. An additional late fee of $250 will be imposed on the 15^th day after the due date and yet another late fee of $1,000 will be imposed on the 45^th day after the report was due (O.C.G.A. § 21-5-34(k)).
 
In addition to campaign finance disclosures, municipal elected officials and candidates for such offices must file personal financial disclosure reports with the Commission. For officials holding office, such reports must be filed between January 1 and July 1 of each non-election year; all municipal candidates for office must file no later than 15 days after qualifying to run for office (O.C.G.A. § 21-5-50(a)(3.1)). Late filing of personal financial disclosure reports is subject to the same schedule of late fees applicable to campaign disclosure reports (O.C.G.A. § 21-5-50(f)).
 
There are also state laws relating to registration and reporting by persons who lobby the General Assembly and persons who lobby local governments (O.C.G.A. §§ 21-5-70 through 21-5-73).
 
Finally, Georgia law forbids the expenditure of public funds to influence the outcome of an election (O.C.G.A. § 21-5-30.2). 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.
 
Conflict of Interest in Zoning
Zoning decisions are often troubling issues for government officials. Local government officials with a financial interest in zoning decisions are required to provide disclosure of that interest (O.C.G.A. § 36-67A-2). If the local government official knew or reasonably should have known that he or she has a property interest in real property affected by rezoning, has a financial interest in any business entity which has a property interest in real property affected by rezoning action, or has a family member having any of the interest described above, then the nature and extent of that interest must be disclosed in writing to the governing authority of the city in which the official serves. 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 (O.C.G.A. § 36-67A-1(6)). Knowingly failing to comply with these requirements or knowingly violating the other provisions of this law can result in conviction of a misdemeanor (O.C.G.A. § 36-67A-4).
 
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 a 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. In furtherance of this objective, GMA created the “Certified City of Ethics” program in June 1999.

To earn a “Certified City of Ethics” designation, a city must adopt a resolution establishing the five ethics principles for the conduct of the city’s officials and adopt an ethics ordinance that meets minimum standards approved by the GMA Board. The following five ethics principles are designed to guide the elected officials as individuals and as a governing body:

• Serve others, not ourselves
• Use resources with efficiency and economy
• Treat all people fairly
• Use the power of our position for the wellbeing of our constituents
• Create an environment of honesty, openness and integrity.

The adopted resolution must include or at least reference the definitions of these principles. A majority of elected officials is required to sign the resolution.

To participate in the “Certified City of Ethics” program, the ethics ordinance must contain definitions, an enumeration of permissible and impermissible activities by elected officials, due process procedures for elected officials charged with a violation of the ordinance, and punishment provisions for those elected officials found in violation of the ordinance. 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
 
There are several means by which federal law enforcement agencies address criminal acts of public officials. They can be grouped into three basic categories: criminal action statutes, corrupt act statutes, and honest services statutes. Criminal action statutes refer to general criminal laws that define and prohibit behavior as criminal. They are not designed specifically to address actions by public officials. Any citizen, including public officials and employees, may be charged with their violation. Examples would include embezzlement, drug dealing, tax evasion, and fraud (Charles D. Gabriel, “The Role of the FBI in State and Local Government Corruption,” Institute for City and County Attorneys (Athens: Institute of Continuing Legal Education in Georgia, University of Georgia, 2001)).
 
Extortion or bribery involving public officials may also be prosecuted under federal law. Two of the core corrupt act statutes employed to address state and local corruption are the Hobbs Act and Program Fraud statute (Gabriel, “Role of the FBI in State and Local Government Corruption”). The Hobbs Act defines extortion as “obtaining of property from another…under color of official right” (18 United States Code Annotated (U.S.C.A.) § 1951(b)(2)). It includes as a violation the misuse and potential misuse of a public official’s power for personal profit. The bribe need not be initiated or demanded by the public official, and passive acceptance is sufficient for a Hobbs Act violation so long as the public official knows that he or she is being offered the payment in exchange for a requested exercise of official power. For example, accepting cash in exchange for a promise to vote favorably on a rezoning matter would violate the Hobbs Act (Evans v. United States, 112 S.Ct. 1881 (1992)). Punishment for violation of the Hobbs Act is a fine not exceeding $10,000 or imprisonment for not more than 20 years, or both. Couching a bribe in the form of campaign contributions and reporting the payment as a campaign contribution does not change the nature of the bribe (Gabriel, “Role of the FBI in State and Local Government Corruption”).
 
The federal Program Fraud statute addresses the actions of those who are responsible for federal funds. At a minimum, jurisdiction is triggered when an organization such as a city or an authority receives federal benefits in excess of $10,000 involving some kind of federal assistance during a 12-month period prior to or following the act in question. The statute prohibits the following: (1) embezzling, stealing, defrauding or misappropriating property valued at $5,000 or more; (2) soliciting or accepting bribes relating to some matter involving $5,000 or more; and (3) giving, offering, or agreeing to give anything of value to influence or reward action in connection with some transaction valued at $5,000 or more (Gabriel, “Role of the FBI in State and Local Government Corruption”; 18 U.S.C.A. § 666). For example, a chief deputy in a jail that housed federal prisoners in exchange for federal funds well in excess of $10,000 in value was indicted and convicted for accepting a bribe from a prisoner in exchange for special treatment from the deputy (Gabriel, “Role of the FBI in State and Local Government Corruption”; Salinas v. United States, 118 S.Ct. 469, 473 (1997)).
 
Honest services statutes are available when there are no federal program funds involved but are limited in applicability to bribery and kickback schemes and are not applicable to conflicts of interest (Skilling v. United States, 130 S.Ct. 2896, 2010 WL 2518587 (2010)). Using this tool, federal prosecutors must prove the use of either the U.S. mail, an interstate wire communication facility such as a phone or the Internet, or an interstate common carrier such as FedEx or UPS to execute a scheme to defraud someone (Gabriel, “Role of the FBI in State and Local Government Corruption”; 18 U.S.C.A. §§ 1341, 1343, 1346).
 
One final federal statute that bears mentioning is the False Claims Act (FCA). There are both civil and criminal penalties under the False Claims Act (31 U.S.C.A. §§ 3729-3733; 18 U.S.C.A. § 287). The FCA 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. In addition to individuals, local governments are considered persons that can be held liable under the FCA (Cook County, Ill. v. United States ex rel. Chandler, 123 S.Ct. 1239 (2003)). One of the most important aspects of the FCA is that it allows private parties, called relators, to sue in the name of the federal government in lawsuits known as qui tam actions (31 U.S.C.A. § 3730(b)). The damages that can be levied and collected in a FCA action include civil penalties of $5,000-$10,000 per violation, with each false statement serving as a separate claim, and treble damages (31 U.S.C.A. §§ 3729(a)(1)(G)). The federal government may intervene in the case, but the relator is allowed to collect a bounty of up to 25% of the recovery if the government intervenes and 30% if the government does not. The potential for treble damages and up to 30% of the recovery provides relators with a strong incentive to locate false claims and pursue these actions.
 

Suspension and Removal of Elected Officials

 
If a local elected official is indicted by a grand jury, Georgia law provides a procedure whereby elected officials may be suspended from office by the governor upon recommendation of a special commission. The special commission is appointed by the governor and is composed of the attorney general and two other persons holding the same office as the indicted official. The duty of the special commission is to determine if the indictment relates to and adversely affects the administration of the office of the indicted official. If the official is suspended, a temporary replacement is appointed by the governor unless the applicable charter provides for some other means for filling temporary vacancies. If the indicted official is acquitted or a nolle prosequi is entered, the official is to be immediately reinstated to his or her position. Upon initial conviction of a public official for any felony, whether or not the official was suspended under the procedures described above, such official is immediately and without further notice suspended from office and a replacement official is named to fill the vacancy created by the suspension according to the local or general law applicable to the position (O.C.G.A. §§ 45-5-6, 45-5-6.1).
 
Additionally, a public official may be subject to recall by the electors pursuant to the provisions of the Recall Act of 1989 (O.C.G.A. § 21-4-1 et seq.). The grounds for recall enumerated in the statute are as follows:

Conclusion

Some actions, such as trading rezoning votes for cash, are so egregious that any rational person would agree that they are ethical violations. Other situations may or may not be as clear a violation, depending on one’s perspective. For example, is it against public policy to include in a contract with an entertainment company using city property that the company shall provide a certain number of free tickets to entertainment events to members of the municipal governing body? What about the purchase at public auction of a surplus city automobile by the son or daughter of a council member, when the council member may be in a position to have knowledge of the particularly good condition of the car? What about the sale of insurance to the city by an agency that has a council member as one of its employees? Finally, should elected officials allow persons with whom the city does business, or may do business, to buy lunch for officials? Does it depend on the cost of the lunch?
 
These and other situations may fall outside the activities specifically prohibited by the criminal law. Likewise, a situation may not clearly be covered by civil conflict of interest statutory provisions, but still may have an appearance of impropriety. The city official can ask, “is the opportunity presented really worth the possible allegation of a scandal which would affect me and my family?” Testing the propriety of a proposed action by asking that question may result in the official deciding to forego activities that would otherwise have been undertaken, even though they might actually have aided the efficient and economical operation of a city government. In a system of government such as ours—which depends on public confidence in its leaders for its continued existence—achieving utmost efficiency and economy may be secondary to earning and keeping that trust.