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Unofficial Opinion 97-27

Unofficial Opinion 97-27

August 21, 1997
To: 

Representative
District 106

Re: 

Official Code of Georgia Annotated § 45-2-1, which creates a one- year residency requirement for county office-holders, prevents a county from creating a more stringent residency requirement for its office-holders.

You have requested my opinion as to “the date when a candidate for one of the five positions on the Spalding County Commission must be a resident of the local district, from which he is running.” Although there is local legislation which indicates that a candidate for county commissioner must be a resident of Spalding County for two years and of his single-member district for one year prior to his qualifying as a candidate, a statute of state-wide application requires only that a county office-holder be a resident of the county for one year prior to his election. It is my opinion that O.C.G.A. § 45-2-1, which creates a one-year residency requirement for county office-holders, prevents a county from creating a more stringent residency requirement for its office-holders.

My analysis begins with the proposition that a local law in derogation of the general law is not enforceable. The Georgia Constitution of 1983 provides:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a). See also Commissioners of Wayne County v. Smith, 240 Ga. 540 (1978); Brophy v. McCranie, 264 Ga. 187 (1994). In order to answer your question, then, we must determine whether the local law dealing with the election of Spalding County commissioners is in conflict with any general law. I find that it is.

The state constitution also provides that “qualifications, powers, and duties” of county officers are to be set by general law. Ga. Const. 1983, Art. IX, Sec. I, Para. III(a). The General Assembly has passed a law of a general nature which sets requirements for county office-holders. Official Code of Georgia Annotated § 45-2-1 states that “[t]he residency requirement for a candidate for any county office, except offices of a judicial nature, shall be 12 months residency within the county.” O.C.G.A. § 45-2-1(1). Although it allows municipalities to make exceptions to this rule via municipal charters, it does not make such an allowance for counties. Id. In addition, “[a] person who has not been a bona fide citizen of the county in which that person shall be elected or appointed at least 12 months prior to that person’s election or appointment and who is not a qualified voter eligible to vote” is not eligible to hold office. O.C.G.A. § 45-2-1(7). “[T]he office of county commissioner is . . . a county office.” 1984 Op. Att’y Gen. U84-31, p. 252. See also Lucas v. Woodward, 240 Ga. 770, 774 (1978).

The Spalding County local legislation effectively sets up two different residency requirements for those who would seek election as a county commissioner. That law provides:

Each candidate for commissioner in any primary or election shall be a resident of the State of Georgia and a qualified voter and shall have been a resident of Spalding County for at least two years immediately prior to qualifying as a candidate and shall have been a resident of the single-member district for which the candidate is offering for election, including a primary, special, or general election, at least one year immediately prior to qualifying as a candidate.

1985 Ga. Laws 3615, 3620-21. Thus, a county commission candidate, under this local legislation, must have been, prior to qualifying, (1) a resident of Spalding County for at least two years and (2) a resident of his single-member district for at least one year.

Both of these requirements conflict with O.C.G.A. § 45-2-1, which only mandates residency in the county for one year prior to the office-holder’s election. First, the local requirement that a candidate be a resident of Spalding County for two years prior to qualifying clearly conflicts with the one-year pre-election requirement of Section 45-2-1 and is, therefore, unenforceable. This office dealt with a similar situation and reached the same result in 1984 when Clay County had a five-year county residency requirement for commission candidates and a two-year requirement was then in effect state-wide. 1984 Op. Att’y Gen. U84-31.

Second, the requirement that a county commission candidate reside in the single-member district from which he is seeking office for at least one year prior to qualifying conflicts with the general law’s one-year requirement as well. This is so because Section 45-2-1 requires only that the candidate reside in the appropriate county for a year prior to his election. It makes no mention of his being a resident of the relevant commission district for a year prior to qualifying. See 1986 Op. Att’y Gen. 86-23. If a candidate were forced to reside in his single-member district for a year prior to qualifying, he could be forced to reside in the county for more than a year before his election as qualifying obviously takes place before the election. As a result, this local provision is also unenforceable to the extent that it too is in derogation of a general law by creating a longer residency requirement than that created by statute. County commission candidates may be required “to run for election from the district in which their legal residence lies,” Griffin v. Glynn County, 264 Ga. 823, 823 (1995), but they may not be required to be a resident of their particular district for a year prior to qualifying.

Therefore, it is my unofficial opinion that a candidate for county commission must reside in the appropriate county for at least one year prior to his being elected to the commission. He need not reside in the single-member district which he is seeking to represent for one year prior to qualifying. This is so because O.C.G.A. § 45-2-1, which creates a one-year residency requirement for county office-holders, prevents a county from creating a more stringent residency requirement for its office-holders.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General