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The House Committee on Judiciary Non-Civil offers the following substitute to SB 92:
A BILL TO BE ENTITLED
AN ACT
To amend Article 1 of Chapter 18 of Title 15 of the Official Code of Georgia Annotated,1
relating to general provisions regarding prosecuting attorneys, so as to create the Prosecuting2
Attorneys Qualifications Commission; to provide for definitions; to provide for the powers,3
composition, appointment, and confirmation of such commission; to provide for commission4
members' terms, vacancies, and removals; to provide for procedures and confidentiality; to5
provide for related matters; to provide for effective dates; to repeal conflicting laws; and for6
other purposes.7
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8
SECTION 1.9
Article 1 of Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to10
general provisions regarding prosecuting attorneys, is amended by adding a new Code11
section to read as follows:12
"15-18-32.13
(a) Pursuant to Article VI, Section VIII, Paragraph II of the Constitution of Georgia in14
reference to district attorneys and Article 3 of this chapter in reference to solicitors-general15
of state courts, there is hereby created the Prosecuting Attorneys Qualifications16 23 LC 48 0938S
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Commission, which shall have the power to discipline, remove, and cause involuntary17
retirement of appointed or elected district attorneys or solicitors-general in accordance with18
such Paragraph. As used in this Code section, the term 'commission' means the Prosecuting19
Attorneys Qualifications Commission.20
(b) The commission shall consist of eight members.21
(c)(1) The commission shall be divided into a five-member investigative panel and a22
three-member hearing panel.23
(2) The investigative panel shall be responsible for:24
(A) The investigative, prosecutorial, and administrative functions of the commission;25
(B) Investigation of alleged conduct constituting grounds for discipline under26
subsection (h) of this Code section;27
(C) The selection of an individual to serve as the director of the commission who shall28
be an active status member of the State Bar of Georgia and who shall not engage in the29
practice of law, other than to represent the commission; and30
(D) Authorization of employment of such additional staff as the commission deems31
necessary to carry out the powers assigned to the commission.32
(3) The hearing panel shall be responsible for:33
(A) Adjudicating formal charges filed by the investigative panel;34
(B) Issuing disciplinary and incapacity orders;35
(C) Issuing formal advisory opinions on its own initiative or on the recommendation36
of the investigative panel regarding the grounds for discipline set forth under subsection37
(h) of this Code section; and38
(D) Issuing standards on its own initiative or on the recommendation of the39
investigative panel. Any such standards shall elaborate, define, or provide context for40
the grounds for discipline as set forth in subsection (h) of this Code section.41
(d)(1) As used in this subsection, the term:42 23 LC 48 0938S
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(A) 'Attorney' means a lawyer who has been an active status member of the State Bar43
of Georgia for at least ten years and is a registered voter in this state.44
(B) 'Judge' means an elected or appointed public official who presides over a court of45
record.46
(2) The Prosecuting Attorneys' Council of the State of Georgia may recommend to the47
respective appointing authorities a list of the names of individuals for consideration to48
serve as attorney commission members.49
(3)(A) The five members of the commission's investigative panel shall be appointed50
as follows:51
(i) One attorney with prosecutorial experience as an elected district attorney or52
elected solicitor-general shall be appointed by the Governor and shall serve a term of53
four years; provided, however, that the initial appointment shall be for three years,54
and thereafter, successors to such member shall serve terms of four years;55
(ii) One attorney with at least 5 years of service as an assistant district attorney or an56
assistant solicitor-general shall be appointed by the Lieutenant Governor and shall57
serve a term of four years; provided, however, that the initial appointment shall be for58
two years, and thereafter, successors to such member shall serve terms of four years;59
(iii) Two practicing attorneys shall be appointed by the Speaker of the House of60
Representatives and each shall serve terms of four years; provided, however, that the61
initial appointment of one attorney member as designated by the Speaker of the House62
of Representatives shall be for four years and the initial appointment of the other63
attorney member as designated by the Speaker of the House of Representatives shall64
be for one year, and thereafter, successors to such members shall serve terms of four65
years; and66
(iv) One attorney with at least 5 years of service as an assistant district attorney or an67
assistant solicitor-general shall be appointed by the Senate Committee on68
Assignments and shall serve a term of four years; provided, however, that the initial69 23 LC 48 0938S
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appointment shall be for three years, and thereafter, successors to such member shall70
serve terms of four years.71
(B) The investigative panel members shall annually elect a chairperson and vice72
chairperson for such panel.73
(4) The three members of the commission's hearing panel shall be appointed as follows:74
(A) One elected district attorney or elected solicitor-general shall be appointed by the75
Governor for a term of four years and his or her successors shall serve terms of four76
years;77
(B) One elected district attorney or elected solicitor-general shall be elected by vote of78
the Senate and shall be presiding officer of the hearing panel and shall serve a term of79
four years; provided, however, that the initial appointment shall be for one year, and80
thereafter, successors to such member shall serve terms of four years; and81
(C) One former judge of the superior court or Court of Appeals or former Justice who82
shall have at least ten years of service as a judge or Justice and has formerly been a83
district attorney or a solicitor-general shall be elected by vote of the House of84
Representatives and shall serve a term of four years; provided, however, that the initial85
appointment shall be for three years, and thereafter, successors to such member shall86
serve terms of four years.87
(5) All members' initial terms shall begin on April 1, 2024; provided, however, that the88
initial term of a member under this paragraph shall not be construed as counting toward89
the limit of two full terms of service as provided for under paragraph (6) of this90
subsection.91
(6) A commission member shall be eligible to serve so long as he or she retains his or92
her status as an attorney, citizen, or district attorney, but a vacancy shall be created by93
operation of law when he or she no longer has the designation for which he or she was94
appointed. Any vacancy for a member shall be filled by the appointing authority, and95
such appointee shall serve the balance of the vacating member's unexpired term;96 23 LC 48 0938S
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provided, however, that, if the appointing authority fails to fill a vacancy within 60 days97
of being notified of such vacancy by the commission, the Governor shall appoint a98
replacement member from the same category of member. Any member of the99
commission shall serve no more than two full terms.100
(e) Members and staff of the hearing panel shall not engage in any ex parte101
communications regarding a disciplinary or incapacity matter of a district attorney or102
solicitor-general, including with members and staff of the investigative panel.103
(f)(1) Each member of the commission shall be entitled to vote on any matter coming104
before his or her respective panel unless otherwise provided by rules adopted by the105
commission concerning recusal. The chairperson of the investigative panel and the106
presiding officer of the hearing panel shall retain a vote on all matters except those in107
which such chairperson or presiding officer has been recused. No commission member108
present at a panel meeting shall abstain from voting unless he or she is recused. The rules109
of the commission shall establish grounds for recusal and the process for allowing a110
temporary replacement of a commission member in such circumstance.111
(2)(A) As used in this paragraph, the term 'for cause' shall include indictment for or112
conviction of a felony or any offense involving moral turpitude; misconduct,113
malpractice, malfeasance, misfeasance, nonfeasance, or incapacity; failure to attend114
three or more panel meetings or hearings in a one-year period without good and115
sufficient reason; or abstaining from voting, unless recused.116
(B) Removal of a panel member for cause shall be by a unanimous vote of all members117
of the commission; provided, however, that the panel member who is the subject of the118
vote shall not vote.119
(3) A quorum of the investigative panel shall require any three members of such panel.120
(4)(A) Members of the commission shall serve without compensation but shall receive121
the same daily expense allowance as members of the General Assembly receive, as set122
forth in Code Section 28-1-8, for each day such member is in physical attendance at a123 23 LC 48 0938S
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panel meeting or hearing, plus either reimbursement for actual transportation costs124
while traveling by public transportation or the same mileage allowance for use of a125
personal motor vehicle in connection with such attendance as members of the General126
Assembly receive.127
(B) Notwithstanding subparagraph (A) of this paragraph, no member shall receive such128
expense allowance or travel reimbursement if he or she is entitled to receive an expense129
allowance, travel reimbursement, or salary for performance of duties as a state130
employee.131
(C) Expense allowances and travel reimbursements shall be paid from moneys132
appropriated or otherwise available to the commission.133
(g) The commission, with the assistance of the Prosecuting Attorneys' Council of the State134
of Georgia, shall promulgate standards of conduct and rules for the commission's135
governance which will comport with due process and enforce the provisions of subsections136
(h) and (i) of this Code section; provided, however, that such standards and rules shall be137
effective only upon review and adoption by the Supreme Court. Such standards and rules138
shall allow for a full investigation of a district attorney or solicitor-general only upon139
majority vote of the investigative panel. When a commission member receives information140
relating to the conduct of a district attorney or solicitor-general, such member shall provide141
such information to the commission's director for appropriate action.142
(h) The following shall be grounds for discipline of a district attorney or solicitor-general143
or for his or her removal or involuntary retirement from office:144
(1) Mental or physical incapacity interfering with the performance of his or her duties145
which is, or is likely to become, permanent;146
(2) Willful misconduct in office;147
(3) With respect to district attorneys, willful and persistent failure to carry out duties148
pursuant to Code Section 15-18-6;149 23 LC 48 0938S
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(4) With respect to solicitors-general, willful and persistent failure to carry out duties150
pursuant to Code Section 15-18-66;151
(5) Conviction of a crime involving moral turpitude;152
(6) Conduct prejudicial to the administration of justice which brings the office into153
disrepute; or154
(7) Knowingly authorizing or permitting an assistant district attorney or assistant155
solicitor-general to commit any act constituting grounds for removal under paragraphs (1)156
through (6) of this subsection.157
(i)(1) In any complaint filed with the commission alleging a violation of subsection (h)158
and requesting an investigation of an elected or appointed district attorney or159
solicitor-general, the complainant shall be required to file with the commission a sworn160
affidavit detailing the personal knowledge of the facts supporting the complaint,161
including any interest the complainant may have in the outcome of the case. The162
complainant may attach documents to support the complaint. Nothing in this Code163
section shall be construed to limit the ability of the commission to bring a complaint164
pursuant to this Code section on its own motion.165
(2) The commission may not entertain a complaint on the basis of a charging decision,166
plea offer, opposition to or grant of a continuance, placement of a case on a trial calendar,167
or recommendation regarding bond unless the affidavits and any documents attached to168
the complaint show it is plausible that the district attorney or solicitor-general made or169
knowingly authorized the decision based on:170
(A) Undue bias or prejudice against the accused or in favor of persons with interests171
adverse to the accused;172
(B) An undisclosed financial interest in the outcome of the prosecution;173
(C) An undisclosed conflict of interest;174
(D) Factors that are completely unrelated to the duties of prosecution; or175 23 LC 48 0938S
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(E) A stated policy, written or otherwise, which demonstrates that the district attorney176
or solicitor-general categorically refuses to prosecute any offense or offenses of which177
he or she is required by law to prosecute.178
(3) Upon indictment of a district attorney or solicitor-general of a matter before either179
panel, the commission shall suspend its investigation or hearing pending the outcome of180
the procedure provided for in Code Section 45-5-6.181
(j)(1) All information regarding a disciplinary or incapacity matter of a district attorney182
or solicitor-general shall be kept confidential by the investigative panel and commission183
staff before formal charges are filed; provided, however, that, if prior to filing formal184
charges such judge and investigative panel agree to a satisfactory disposition of a185
disciplinary matter other than by a private admonition or deferred discipline agreement,186
a report of such disposition shall be publicly filed in the Supreme Court.187
(2) After the filing and service of formal charges:188
(A) With respect to an incapacity matter of a district attorney or solicitor-general, all189
pleadings, information, hearings, and proceedings shall remain confidential; and190
(B) With respect to a disciplinary matter of a district attorney or solicitor-general, all191
pleadings and information shall be subject to disclosure to the public, and all hearings192
and proceedings shall be open and available to the public, except to the extent that such193
pleadings and information or hearings and proceedings could be properly sealed or194
closed under Chapter 14 or Article 4 of Chapter 18 of Title 50 or by a court as provided195
by law.196
(3) With respect to administrative and other matters, all records and information shall be197
subject to disclosure to the public, and all meetings, or portions thereof, shall be open and198
available to the public, except to the extent that such records, information, and meetings199
would:200
(A) Disclose disciplinary matters of a district attorney or solicitor-general protected in201
paragraph (1) of this subsection;202 23 LC 48 0938S
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(B) Disclose incapacity matters of a district attorney or solicitor-general protected in203
paragraph (1) or subparagraph (A) of paragraph (2) of this subsection;204
(C) Be considered a matter subject to executive session, if the commission were205
considered to be an agency under Chapter 14 of Title 50; or206
(D) Not be required to be publicly disclosed under Code Section 50-18-72, if the207
commission were considered to be an agency under Article 4 of Chapter 18 of Title 50.208
(4) The work product of the commission and its staff and the deliberations of the209
commission shall remain confidential.210
(k) Notwithstanding subsection (j) of this Code section, information regarding a211
disciplinary or incapacity matter of a district attorney or solicitor-general may be disclosed212
or the confidentiality of such information may be removed when:213
(1) The privilege of confidentiality has been waived by the individual who was the214
subject of the commission's investigation; or215
(2) The commission's rules provide for disclosure:216
(A) In the interest of justice and to protect the public;217
(B) If an emergency situation exists; or218
(C) If a district attorney or solicitor-general is under consideration for another state or219
federal position.220
(l) Information submitted to the commission or its staff, and testimony given in any221
proceeding before the commission or one of its panels, shall be absolutely privileged, and222
no civil action predicated upon such information or testimony shall be instituted against223
any complainant, witness, or his or her counsel.224
(m) A respondent may appeal the decision of the hearing panel by submitting a petition225
to the superior court of the county where such respondent served as a district attorney or226
solicitor-general. A respondent who is subjected to public reprimand, censure, limitation227
on the performance of prosecutorial duties, suspension, retirement, or removal shall be228
entitled to a copy of the proposed record to be filed with the Supreme Court and, if the229 23 LC 48 0938S
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respondent has objections to it, to have the record settled by the hearing panel's presiding230
officer. The hearing panel's order in a disciplinary or incapacity matter may be reviewed231
by the Supreme Court in accordance with its rules and the rules of the commission.232
(n) The commission shall commence by April 1, 2024, and the rules and regulations233
promulgated by such commission shall be established no later than April 1, 2025. No234
complaint shall be filed before July 1, 2025. The commission shall not receive complaint235
submissions regarding misconduct that occurred prior to July 1, 2025, unless such alleged236
misconduct is related to a continuous pattern of conduct that continues beyond that date.237
(o) The authority of the commission shall be limited to incapacity or discipline regarding238
the conduct of a district attorney or solicitor-general as a holder of such office. Nothing239
in this Code section shall be construed as diminishing the authority of the Supreme Court240
or the State Bar of Georgia to regulate the practice of law in this state."241
SECTION 2.242
This Act shall become effective for purposes of appointing members of the commission upon243
its approval by the Governor or upon its becoming law without such approval and shall244
become effective for all other purposes on July 1, 2023.245
SECTION 3.246
All laws and parts of laws in conflict with this Act are repealed.247