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Unofficial Opinion 98-8

Unofficial Opinion 98-8

July 9, 1998
To: 

Senator District 17
Representative District 92

Re: 

Dual service as a volunteer firefighter and a member of a city council or county commission does not appear to violate the prohibitions of either O.C.G.A. § 36-30-4 or § 45-2-2. However, cities and counties confronted with this situation must determine for themselves, based on the unique circumstances presented by dual service in their particular jurisdiction, whether a common law conflict of interest exists.

You have requested my opinion regarding the scope of O.C.G.A. § 36-30-4, which prohibits any city council member from simultaneously holding another municipal office, and O.C.G.A. § 45- 2-2, which prohibits any person from simultaneously holding two county offices. You have specifically asked whether these provisions of the Georgia Code prohibit city council and county commission members from also serving as volunteer firefighters. It is my unofficial opinion that dual service as a volunteer firefighter and a member of a city council or county commission does not appear to violate the prohibitions of either O.C.G.A. § 36-30-4 or § 45-2-2. However, cities and counties confronted with this situation must determine for themselves, based on the unique circumstances presented by dual service in their particular jurisdiction, whether a common law conflict of interest exists.

A "volunteer firefighter" is defined for purposes of the Georgia Firefighters' Pension Fund as:

an individual who is appointed and regularly enrolled as a volunteer with a fire department; who, as a volunteer firefighter, has and primarily performs the principal responsibility of preventing or suppressing fires; and who satisfies the requirements specified in subparagraph (a)(1)(D) of Code Section 25-3-23. O.C.G.A. § 47-7-1(7). Code Section 25-3-23(a)(1)(D) requires "[successful completion of] an approved basic fire-fighting course conducted by or through the Georgia Fire Academy." Volunteer firefighters are eligible to participate in the Firefighters' Pension Fund. O.C.G.A. § 47-7-40(a). This program is funded by dues paid by the firefighters themselves, a tax on fire insurance premiums, and gifts. O.C.G.A. §§ 47-7-24, -60, -61.

I. SECTION 36-30-4 AND MUNICIPAL OFFICES

The first statute in question, O.C.G.A. § 36-30-4, provides:

A councilman or alderman of a municipal corporation shall be ineligible to hold any other municipal office during the term of office for which the councilman or alderman was chosen unless he first resigns as councilman or alderman before entering such other office. This Code section shall apply to all elected officials of a municipal corporation.

The second sentence of the statute, which provides that Section 36-30-4 applies to all elected municipal officials "does not necessarily mean that it shall apply solely to such elected officials." Fowler v. Mitcham, 249 Ga. 400, 402 (1982). It can apply to non-elected officials as well.

The Georgia Supreme Court's most extensive interpretation of Section 36-30-4 came in Fowler, in which a citizen challenged the legality of city council members' simultaneously serving as policemen. The court held that a policeman is a municipal officer within the meaning of Section 36-30-4 and that a member of a city council, therefore, is prohibited from serving as a policeman as well. Id. at 400-01. The court relied in part on the Georgia Court of Appeals' previous reference to a "municipal policeman, who is a lesser municipal officer" in White v. State, 132 Ga. App. 62, 64 (1974), aff'd, 233 Ga. 593 (1975). The court also utilized Black's Law Dictionary's definitions of "officer" and "employee," including the following description:

In determining whether one is an "officer" or an "employee," important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only by agreement; whether it is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a sum agreed upon by the contract of hiring.

Fowler, 249 Ga. at 401-02.

The court additionally relied on "the common-law rule against conflicts of interest in local governments," specifically that public policy does not allow an official board to appoint one of its own members to another office "unless the statute conferring the appointing power expressly authorizes self-appointment" and that allowing council members to serve simultaneously as police officers would violate the principal of separation of powers as officials serving in such dual capacities "could not only vote to set their own salaries, but also enforce ordinances which they had participated in enacting." Id. at 402. See also Columbus, Ga. v. Board of Water Comm'rs, 261 Ga. 219 (1991).

Although the Georgia Constitution provides a list of positions that are considered to be county offices at Art. IX, Sec. I, Para. III, it does not indicate what positions are to be considered municipal offices. In addition, I have found no case law or statutory provision that either defines "municipal office" or indicates whether the position of volunteer firefighter constitutes a municipal office.

At this point, I note that the Georgia Supreme Court has held that:

[T]he right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law.

Patten v. Miller, 190 Ga. 123, 139 (1940). As there appears to be no proof specifically declared by law that a volunteer fireman is a municipal officer under O.C.G.A. § 36-30-4 and is thereby prohibited from serving as city council member, such dual service is not unambiguously prohibited by the language of that statute. Cf. 1982 Op. Att'y Gen. U82-27 (opining that city council member was disqualified from serving as member of board of education under predecessor to Section 36-30-4 as caselaw clearly indicated that both constituted municipal offices).

II. SECTION 45-2-2 AND COUNTY OFFICES

The second statute in question, O.C.G.A. § 45-2-2, provides:

No person shall hold, in any manner whatever, or be commissioned to hold more than one county office at one time, except by special enactment of the General Assembly; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment.

As was noted above, the Georgia Constitution specifies what offices constitute a "county office." These include clerks of superior courts, judges of probate courts, sheriffs, tax receivers, tax collectors, and tax commissioners ("where such office has replaced the tax receiver and tax collector"). Ga. Const., Art. IX, Sec. I, Para. III. The definition of "county officer," however, has been expanded by caselaw. 1986 Op. Att'y Gen. U86-2 (citing Employees Retirement Sys. v. Lewis, 109 Ga. App. 476 (1964)). It also includes those positions (1) to which one is elected by the qualified voters of the county; (2) which one holds for a period of four years; (3) for which one must be a resident of the county; and (4) for which one must be a qualified voter. Lewis, 109 Ga. App. at 479.

As I understand the facts, a volunteer firefighter is neither a person elected by the residents of the county to serve for a period of four years nor a deputy to such a person. A county commissioner who also serves as a volunteer firefighter, therefore, would not violate the prohibition against holding two county offices at one time.

III. COMMON LAW CONFLICTS OF INTEREST

When faced with a city council or county commission member serving simultaneously as a volunteer firefighter, however, a local government must still determine for itself, based on the unique circumstances presented by dual service in its particular jurisdiction, whether a common law conflict of interest exists.

A member of a city council or a county commission is clearly a public officer, and "[p]ublic officers are the trustees and servants of the people and are at all times amenable to them." Ga. Const., Art. I, Sec. II, Para. I. This office has previously opined:

A public trustee may not place himself in a position in which his interest or the interest of private parties he represents may conflict with the public interest and he has the opportunity and temptation to sacrifice the public interests to his interests or those of third parties.

1982 Op. Att'y Gen. 82-82, p. 171. Although there is no formula for evaluating whether a specific situation will result in a conflict of interest, a local government should consider the following:

The determination of whether or not two offices or positions are incompatible at common law invariably involves a determination of the facts of each individual case, with particular attention to the relationship between the two, the nature of the duties involved, whether one possesses appointive power over the other, or whether for any other reason the performance of the duties of one will interfere with the performance of the duties of the other. See 63 Am. Jur. 2d Public Officers and Employees, § 73.

1976 Op. Att'y Gen. pp. 355, 365. "The common-law doctrine of incompatibility arises out of the public policy that an officeholder's performance should not be influenced by divided loyalties. 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." 1983 Op. Att'y Gen. U83-55, p. 291 (citations omitted).

In light of these considerations and the Georgia Supreme Court's analysis in Fowler, a local government must first determine whether volunteer firefighters are appointed by the city council or county commission and, if so, whether any provision of law gives the city council or county commission the power of self-appointment. It also must be determined whether the two positions in question, city council/county commission member and volunteer firefighter, are incompatible for any other reason. The Fowler court, for instance, found the positions of city council member and policeman to be incompatible because someone serving in both capacities would be able to vote to set his own salary and to enforce ordinances he had voted to enact. Fowler, 249 Ga. at 402. See also Mayor of Macon v. Huff, 60 Ga. 221 (1878) (holding that mayor could not lease city park and contract with city to be paid to fence, drain, and keep park in repair); Welsch v. Wilson, 218 Ga. 843 (1963) (holding that mayor could not also be employed as city manager). Such determinations must be made on a case-by-case basis in light of the particular facts of each individual situation.

It is, therefore, my unofficial opinion that dual service as a volunteer firefighter and a member of a city council or county commission does not appear to violate the prohibitions of either O.C.G.A. § 36-30-4 or § 45-2-2. However, cities and counties confronted with this situation must determine for themselves, based on the unique circumstances presented by dual service in their particular jurisdiction, whether a common law conflict of interest exists.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General