dissenting.
I am unable to agree with the majority’s holding. The statute does violate Commissioner Eaves’ constitutional right to due process.
The Attorney General stated that the commission “must accept the facts in the indictment for purposes of [the] deliberations as being true.” He also stated that the following two questions must be answered by the review commission in making their decision. 1) “[I]f . . . the facts alleged in the four counts of the indictment are true, . . . would those allegations or do they relate to and adversely affect the administration of the office.” 2) “[WJhether this indictment under this analysis relates to and adversely affects the interests of the public
Inasmuch as the statute only comes into action after the Attorney General has already decided that the indictment relates to the performance or activities of the office and no evidence is allowed, the review commission is forced to determine based solely on the four corners of the indictment, “that the indictment relates to and adversely affects the administration of the office of the indicted public official and that the rights and interest of the public are adversely affected thereby.” OCGA § 45-5-6 (c). If the review commission finds in the affirmative, it must “recommend that the public official be suspended from office.” Id. The following comment of one of the members of the commission indicates the fatal flaw in the statute: “One of the most difficult jobs I have, which is today, is to try and make an objective decision when in effect the decision has already been made.” The statute, once triggered, makes the decision the review commission is supposed to make.
The statutory procedure does not comport with due process. “An elected city official who is entitled to hold an office under state law has a property interest in his office which can be taken from him only by procedures meeting the requirements of due process.” Crowe v. Lucas, 595 F2d 985, 993 (5th Cir. 1979). “Due process of law, as guaranteed by article I, section I, paragraph III, of the [Georgia] Constitu*7tion (Code, Ann., § 2-103), includes notice and hearing as a matter of right in matters where one’s property rights are involved. Robitzsch v. State, 189 Ga. 637 (7 S. E. 2d 387); Southern Ry. Co. v. Town of Temple, 209 Ga. 722, 724 (75 S. E. 554).” Sikes v. Pierce, 212 Ga. 567, 568 (94 SE2d 427) (1956). The statute does not provide for a meaningful hearing. There is no opportunity for the review commission to hear evidence3 which might indicate that the indictment does relate to or adversely affect the administration of the office or the rights and interests of the public. More importantly, the statute does not provide the official an opportunity to present evidence to the contrary.
Decided February 16, 1988. Walbert & Hermann, David F. Walbert, Jesse B. Beasley, Jr., for appellants. Michael J. Bowers, Attorney General, Charles M. Richards, Assistant Attorney General, Meals, Kirwan, Goger, Winter & Parks, John J. Goger, David R. Bundrick, Larry H. Chesin, Floyd, Jones & Ware, Charles R. Floyd, Jr., for appellees.“All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are trustees and servants of the people and are at all times amenable to them.” Constitution of Georgia of 1983, Article I, Section II, Paragraph I. Removal of a public official under OCGA § 45-4-6 without a meaningful hearing not only denies the public official his right to due process, it abolishes the right of his constituents to have their duly elected official in office, and it denies the official a fundamental presumption in the law — “Every person is presumed innocent until proved guilty.”4 OCGA § 16-1-5.
“[An] indictment is not evidence, but is merely the manner in which charges are brought before the court for trial.” Skipper v. State, 257 Ga. 802, 805 (364 SE2d 835) (1988).
Without a doubt, when an office holder is suspended, the public generally assumes he has been tried and found guilty. After the suspension, in the public’s mind, any court trial is a mere formality.