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Unofficial Opinion 2002-7

Unofficial Opinion 2002-7

October 25, 2002
To: 

District Attorney
Northern Judicial Circuit

Re: 

A state paid assistant district attorney may not offer for and hold a part time elective office with a political subdivision of this state, as the duties of that office conflict with the performance of the official duties of assistant district attorney in the Northern Judicial Circuit of Georgia.

You have inquired whether an assistant district attorney in your employ may lawfully offer for and hold the elected office of Mayor of Comer, Georgia, a position which you have indicated is part time.

Official Code of Georgia Annotated § 45-10-70 provides that

[n]o rules or regulations of any state agency, department, or authority shall prohibit nonelective officers or employees of this state from offering for or holding any elective or appointive office of a political subdivision of this state or any elective or appointive office of a political party or political organization of this state, provided that the office is not full time and does not conflict with the performance of the official duties of the person as a state employee.

Thus, it appears plain that this employee could offer for and hold this part time elective office of mayor of Comer, Georgia, so long as it does not interfere with the performance of his or her official duties as an assistant district attorney. The question which must be addressed, therefore, is whether there exists a common law conflict of interest between the two positions.

Several prior opinions of the Attorney General have examined the application of the doctrine of incompatibility of offices.

‘The common-law doctrine of incompatibility of offices arises out of the public policy that an officeholder's performance should not be influenced by divided loyalties. Dunn v. Froelich, 382 A.2d 686 (N.J. 1978). Incompatibility exists where one office is subordinate to another, subject to its supervision or control, or the duties conflict, thus inviting the incumbent to prefer one obligation to another. Gryzik v. State, 380 So.2d 1102, 1104 (Fla. 1980).’ Op. Att'y Gen. U83-55; see also, Op. Att'y Gen. U84-22.

1985 Op. Att'y Gen. 85-28 at 68. "If the office holder in one capacity supervises or reviews the functions he has performed in his other capacity, common-law incompatibility exists." 1983 Op. Att'y Gen. U83-36 at 261.

A conflict may also arise even though there is no "direct supervision or control" of one position over the other. 1984 Op. Att'y Gen. U84-22 at 238. Instead, where there is even the potential for abuse arising from the holding of two such offices, there is an impermissible conflict of interest created. Id.; 1980 Op. Att'y Gen. 80-64.

There need not be any actual wrongdoing to create a conflict of interest, and none is suggested here. Common-law and statutory provisions are designed to preclude the opportunity or temptation for impropriety, by prohibiting the holding of incompatible positions. Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926).

1997 Op. Att'y Gen. U97-11, quoting 1980 Op. Att'y Gen. 80-65 at 136.

In the present circumstance, as you have described the form of government in Comer, Georgia, the mayor of that municipality “exercises no judicial or law enforcement functions.” The city of Comer is, however, located within the geographical confines of the Northern Judicial Circuit.

Thus, any matter which comes within the jurisdiction of the district attorney for the Northern Judicial Circuit arising within or from the City of Comer would be the responsibility of the members of your office to investigate and prosecute. Such matters might conceivably include malfeasance or other crimes committed by employees or officers of the City of Comer. In such a circumstance, however unlikely it might now seem, the “opportunity or temptation for impropriety” might well exist. Given the statutory role of the district attorney (and his assistants) as advisor to the grand jury and as advisor to law enforcement on the direction and control of investigations generally, the potential for conflict between these two positions is of no small moment.1

Therefore, given the fact that you and any assistant district attorney employed by the Northern Judicial Circuit might well be called upon as a part of your duties to investigate, direct, or supervise the investigation of, and prosecute employees or officers of, the City of Comer, it is my unofficial opinion that there exists a conflict between the performance of the official duties as an assistant district attorney in the Northern Judicial Circuit of Georgia and those of the mayor of Comer, Georgia. Thus, offering for or holding that elective office while employed as an assistant district attorney in the Northern Judicial Circuit would be prohibited by O.C.G.A. § 45-10-70. Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General


1 Moreover, this is not a conflict which may be cured by a “recusal” or “disqualification” by the assistant district attorney because the conflict set out herein is not “case specific” and cannot be thus avoided. Rather, this conflict is one of incompatibility between the office of district attorney and that of city mayor. In my opinion, the divided loyalties possible because of the “supervisory” role the office of the district attorney plays herein make that incompatibility applicable to the entire office, not merely to the assistant district attorney holding both positions.