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Unofficial Opinion 2004-2

Unofficial Opinion 2004-2

April 2, 2004
To: 

Chief Judge
Lookout Mountain Judicial Circuit

Re: 

An impermissible conflict of interest arises when a member of the Walker County Board of Elections and Registration is also employed as the boards full time chief clerk.

You have requested my opinion whether an impermissible conflict of interest arises when a member of the Walker County Board of Elections and Registration also is employed as the board’s full time chief clerk. It is my unofficial opinion that a government employee’s holding of such dual positions for the same entity, where he or she has supervisory responsibility over himself or herself, presents a conflict of interest under Georgia law.

As this office has previously stated,

[t]he 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. Froehlich, 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).

1983 Op. Att'y Gen. U83-55, at 291. See also 1985 Op. Att'y Gen. 85-28, at 68; 1984 Op. Att'y Gen. U84-22, at 237-38. "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 (concluding a state court judge may not simultaneously hold the office of chief magistrate). See also 2002 Op. Att’y Gen. U2002-7 (concluding that an assistant district attorney could not simultaneously hold elective office as mayor); 1997 Op. Att’y Gen 97-21 (concluding that a county deputy coroner could not simultaneously be employed with the Georgia Bureau of Investigation’s Division of Forensic Services).

“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, p. 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.” 1997 Op. Att’y Gen. U97-11, at 137-38.

The local legislation creating the Walker County Board of Elections and Registration, in Section 2(b), limits who may serve as a member of the board, then provides that “[t]his subsection shall not prohibit a nonelective employee of the county governing authority from serving as a member of the board of elections and registration.” 1997 Ga. Laws 3657, 3657-58. The subsection, however, does not address and does not override the common law conflict of interest principle that prohibits a government employee from simultaneously holding two offices which are incompatible because one has supervisory or review authority over the other. Indeed, there may be employees of Walker County who could serve on its county board of elections and registration if they are not employees whom the board supervises. However, even though a county employee may not be prohibited from serving on the board by the local legislation creating the board, he or she may not simultaneously be employed in a position the board supervises or reviews.

Therefore, it is my unofficial opinion that an impermissible conflict of interest arises when a member of the Walker County Board of Elections and Registration is also employed as the board’s full time chief clerk.

Prepared by:

STEFAN RITTER
Senior Assistant Attorney General