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Unofficial Opinion 2000-6

Unofficial Opinion 2000-6

April 17, 2000
To: 

Senator
District 26

Re: 

A candidate for the position of local director of emergency management who has been convicted of a felony and fully pardoned is not eligible to hold that position under O.C.G.A. § 38-3-27(a)(2)(B).

This responds to your request for an opinion as to whether a person who has been convicted of a felony and fully pardoned is qualified to serve as a local emergency management director. Based on your letter and other information that has been furnished to this office, I understand that the Twiggs County Commission has nominated a candidate, who has received a pardon for several felony convictions,1 to serve as its local emergency management director, but that the Governor’s Deputy Executive Counsel has found the candidate unfit for the position under O.C.G.A. § 38-3-27(a)(2)(B) based on those convictions. Despite this action, the County has not withdrawn its nomination for local emergency management director. You question whether a felony that has been fully pardoned should have any effect on holding this position and ask that I issue an opinion to you on the matter. After careful consideration and research of the issues involved in your request, I conclude that a person who has been convicted of a felony and pardoned is not eligible to serve in the position of local emergency management director.

It has been said that the effect of a full pardon is “to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offense . . . .” Randall v. The State, 73 Ga. App. 354, 355 (1945). Consideration of such language in isolation might lead one to conclude that a person who has been convicted of a felony and pardoned should be eligible to hold any office he or she would have been eligible for in the absence of the felony conviction. To the contrary, Georgia law indicates that the effect of a pardon on the right to hold office depends on the law in effect and the factual context. See, e.g., Hulgan v. Thornton, 205 Ga. 753 (1949) (if ineligible to hold office at time of election, subsequent pardon does not remove the disqualification). In addition, this office has previously noted that the disqualification to hold public office which accompanies conviction of certain crimes results from application of constitutional or statutory requirements of eligibility, not punishment for crimes that have been committed. Op. Att’y Gen. 92-3. In the setting of this matter, Article II, Section II, Paragraph 3 of the 1983 Georgia Constitution and O.C.G.A. § 38-3-27(a)(2)(B) are dispositive of the question you raise as to the effect of a pardon on eligibility to hold the position of local director of emergency management.

Article II, Section II, Paragraph 3 of the 1983 Georgia Constitution states:

No person who is not a registered voter or who has been convicted of a felony involving moral turpitude, unless that person’s civil rights have been restored and at least ten (10) years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude, or who is the holder of public funds illegally shall be eligible to hold any office or appointment of honor or trust in this state. Additional conditions of eligibility to hold office for persons elected on a write-in vote and for persons holding offices or appointments of honor or trust other than elected offices created by this Constitution may be provided by law. (Emphasis added).

This provision is to be construed in light of the principle that eligibility to hold public office is the general rule and ineligibility is the exception. Westberry v. Saunders, 250 Ga. 240, 241 (1982); Op. Att’y Gen. 92-3. It must also be construed so that where the General Assembly has authority to impose additional conditions of eligibility for an appointment or office, its enactments are given effect, even when a pardon has been granted. Barbour v. Democratic Executive Comm., 246 Ga. 193 (1980). Under the last sentence of the foregoing constitutional provision, if the position in question is one of trust or honor and is not an elected office created by the Constitution of this State, additional qualifications or conditions of eligibility may be required by the General Assembly.

In 1951, the position of local director of civil defense (now emergency management) was created by an Act of the General Assembly. Ga. Laws 1951, pp. 224, 232. In 1991, the General Assembly amended the qualifications for the position so as to provide that local directors of emergency management "shall not have been convicted of a felony”, without making an exception for a pardon. Ga. Laws 1991, 654, 656 (O.C.G.A. § 38-3-27(a)(2)(B)). As the position of local director of emergency management is to be appointed by the Governor and is statutorily concerned with public safety, O.C.G.A. § 38-3-27(a)(1), it would seem clearly to be a position of trust or honor. Georgia Peace Officers Standards and Training Council v. Mullis, 248 Ga. 67, 69 (1981); Op. Att’y Gen. 70-137; Op. Att’y Gen. U85-12. In addition, the position is not created by the Constitution. Accordingly, the position of local director of emergency management is subject to such reasonable qualifications as the General Assembly may prescribe. A past free of felony convictions is a reasonable qualification. Barbour v. Democratic Executive Committee of Crawford County, et al., supra.

Therefore, it is my unofficial opinion that a candidate for the position of local director of emergency management who has been convicted of a felony and fully pardoned is not eligible to hold that position under O.C.G.A. § 38-3-27(a)(2)(B).

1 The candidate in this case was convicted of larceny, a crime which is historically a basis of disenfranchisement of rights. Op. Att’y Gen. 83-33.

Prepared by:

ISAAC BYRD
Senior Assistant Attorney General