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Unofficial Opinion 97-17

Unofficial Opinion 97-17

May 29, 1997
To: 

Chief Judge
Pataula Judicial Circuit

Re: 

A chief clerk need not be reappointed after the reelection of the probate judge, but continues on as an employee of this county officer and is therefore eligible to assume the duties of the probate judge under O.C.G.A. § 15-9-11.1 should a vacancy occur in that office.

You have requested my opinion as to whether a chief clerk to a probate judge must be reappointed when the incumbent probate judge is elected to a new term of office. It is my opinion that a chief clerk need not be reappointed after the reelection of the probate judge, but continues on as an employee of this county officer.

You have described the factual context of your question as follows. On May 3, 1995, the probate judge of Randolph County appointed a chief clerk. This appointment was made in accordance with the judge’s authority outlined under O.C.G.A. § 15-9-36(a). The order of appointment provided that the chief clerk could perform all acts of the Judge of the Probate Court which were not judicial in nature and also act for the Probate Judge where permitted under O.C.G.A. § 15-9-13. Additionally, the order provided that the chief clerk would have the authority prescribed in O.C.G.A. § 15-9-11.1.

On this same date, the chief clerk executed a written oath that she would discharge the duties of the chief clerk of the probate court. The Judge of the Probate Court was reelected to a new term of office beginning on January 1, 1997. The same chief clerk continued to serve, but no new order of appointment was made and no new oath was administered to the chief clerk. Thereafter, the Probate Judge resigned his position, effective March 1, 1997.

This resignation created a vacancy in the office of the probate judge. O.C.G.A. § 45-5- 1(a)(2). In accordance with O.C.G.A. § 15-9-11.1, the chief clerk then began to discharge the duties of the probate judge. See also 1986 Op. Att’y Gen. 86-26. However, a careful reading of this statute shows that the chief clerk did not actually become the "probate judge" under these circumstances. Id. Instead, under O.C.G.A. § 15-9-11.1(b), the chief clerk only continues to discharge the duties of the probate judge until a successor to the judge is elected either at the next general election or at a special election, whichever is appropriate under the requirements of the statute.

The question has arisen, though, as to whether the chief clerk here was properly holding the chief clerk’s position at the time of her assumption of the duties of the probate judge, given that the chief clerk had not been administered a new oath of office upon the earlier reelection of the probate judge. Should that be the case, the vacancy in the office of the probate judge would be temporarily filled in accordance with O.C.G.A. § 15-9-10 and a special election called pursuant to O.C.G.A. § 15-9-11.

However, it is my opinion that the chief clerk was properly serving in that position upon the resignation of the probate judge, so that the terms of O.C.G.A. § 15-9-11.1 apply as to the filling of this vacancy. Initially, it must be realized that the chief clerk of the probate court is not a county officer, but is instead an appointed employee of the probate judge. 1958-59 Op. Att’y Gen. p. 232 (decided under former Ga. Code Ann. § 24-1801). See Newberry v. Balkcom, 249 Ga. 347 (1982); 1981 Op. Att’y Gen. U81-6. The chief clerk must meet certain statutory qualifications to hold this position. O.C.G.A. §§15-9-11.1(a), 15-9-2, 15-9-4. However, chief clerks are not appointed to their position for any definite period of time. Instead, they serve at the pleasure of the probate judge.

While the law requires that probate judges take an oath of office prior to their entry into office, there is no such specific requirement for the chief clerk, even when the chief clerk has assumed the duties of the probate judge. O.C.G.A. § 15-9-6. The chief clerk does not serve as the "deputy probate judge" and is not, therefore, subject to the statutory requirement that "deputies" take the same oath as their principals prior to entry into their office. O.C.G.A. § 45-3-7. See also, e.g., 1981 Op. Att’y Gen. U81-21.

Notwithstanding the lack of a specific requirement for the taking of an oath prior to the assumption of the office of "chief clerk," it is apparent that this position is also a "public office." Brown v. Scott, 266 Ga. 44, 45-46(1) (1995) (quoting Smith v. Mueller, 222 Ga. 186, 187(1) (1966) ("An individual who has a designation or title given him by law, and who exercises functions concerning the public assigned to him by law, is a public officer; nor is he any less a public officer because his authority or duty is confined to narrow limits.")). See also McDuffie v. Perkerson, 178 Ga. 230, 234 (1933) ("An individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law, is a public officer.").

As such, a person entering into the position of "chief clerk of the probate court" must take the oath of office and any other appropriate oaths before entering into that particular position. O.C.G.A. § 45-3-1. The oath should then be filed with the Judge of the Probate Court. O.C.G.A. § 45-3-6. While a "public officer" may not enter into their office without the taking of such oaths, it should also be recognized that any official acts taken in such circumstances are still valid regardless of any such defect, unless the law specifically provides otherwise. O.C.G.A. § 45-3-10.

However, once a person has properly entered into the office of "chief clerk" and possesses all of the statutory requirements to hold that position, then in the event of a vacancy in the office of the probate judge, the chief clerk is eligible to discharge the duties of the probate judge until a successor to that office has been selected. The chief clerk discharges these duties not as a new "probate judge" but solely in the capacity of a qualified "chief clerk" authorized to exercise certain duties under the law.

Therefore, it is my official opinion that a chief clerk need not be reappointed after the reelection of the probate judge, but continues on as an employee of this county officer and is therefore eligible to assume the duties of the probate judge under O.C.G.A. § 15-9-11.1 should a vacancy occur in that office.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General