BURGESS v. WEAVER (2026)

After Turner County Commissioner James Burgess publicly declared that he was resigning his position effective immediately, a special election was called. Although Burgess later notified the governor's office that he was rescinding his resignation, a judge from the county's superior court determined that Burgess had abandoned the seat and appointed former commissioner Allen Weaver to fill it pending the election. Burgess filed this quo warranto petition, arguing that his resignation was ineffective, he did not abandon his seat, and his due process rights were violated. The trial court denied the petition, and Burgess appeals. For reasons that follow, we affirm.

The record shows that Burgess took office as a commissioner for Turner County in January 2025 after defeating incumbent Weaver in the 2024 election. On August 6, 2025, Burgess sent an email to his fellow commissioners, the county clerk, and the county election supervisor stating, “Effective immediately, I resign from my position on the Turner County Board of Commissioners.” That same day, Burgess posted his resignation letter on Facebook, explaining that he was “[l]eaving the table, not the fight.” Burgess did not notify the governor's office of his resignation.

The day after Burgess sent the resignation email, the county election supervisor alerted the Secretary of State that there was a vacancy on the county commission and called for a special election to fill it. Around the same time, the county sheriff informed the chief judge of the county superior court of Burgess's resignation email. The chief judge began speaking with local officials about possible appointments to fill Burgess's position.

On August 13, Burgess sent an email to the governor's office and the county clerk titled “Formal Withdrawal of Resignation.” Although Burgess contends that he sent this email to “the same individuals as the August 6 [resignation] email,” the copy of the August 13 email that appears in the appellate record is addressed to the “Governor and Governor's Office Staff,” and the recipients do not include the commissioners or the county elections supervisor. In the August 13 email, Burgess stated that he was “formally withdraw[ing] and rescind[ing his] resignation” at the request of his constituents “and in response to strong feedback from the community encouraging [him] to continue serving.” There is no evidence in the record that Burgess posted this email, or any other message about rescinding his resignation, on Facebook or any other public platform.

On August 15, the governor's executive counsel sent Burgess, the other commissioners, and the county attorney a letter stating that because the governor's office had not received a letter of resignation from Burgess and Burgess had “expressed an intent to withdraw any resignation should one later arrive,” there was “no resignation for the Governor to accept.” The letter also stated that it “should not be interpreted as a comment on, or position regarding, whether a vacancy was created by any other means.”

Also on August 15, the chief judge sent a letter to the county clerk and elections supervisor stating:

Pursuant to OCGA § 45-5-1[(a)](7), it appearing that a vacancy exists as evinced by the attached written resignation of James Burgess, the undersigned hereby appoints Allen Weaver as District 2 Commissioner for Turner County, Georgia, to serve in such capacity until the first day of January after the general election next held, at which election a successor for the unexpired term shall be elected.

Notably, the statutory provision referenced by this letter provides that an officer may vacate his position “[b]y abandoning the office or ceasing to perform its duties[.]”¹ Shortly thereafter, Weaver was sworn in as a commissioner.

On August 17, Burgess filed this petition for a writ of quo warranto ² and injunctive relief against Weaver in the Turner County Superior Court, alleging that he had neither effectively resigned from nor abandoned his commission seat and asking the court to enjoin Weaver from taking office.³ After a two-day hearing on Burgess's petition at which the trial court heard testimony from the parties, the county commissioners, the county clerk, the county elections supervisor, and the chief judge, the court denied the petition. Specifically, the court found that Burgess's resignation “created a vacancy under OCGA §§ 45-5-1(a)(2) and 45-5-1(a)(7),” which the chief judge duly filled. Burgess appeals, arguing that these rulings were erroneous.

1. OCGA § 45-5-1(a) lists seven ways that a public office in Georgia may be vacated. One way, set forth in subsection (a)(2), is “[b]y resignation, when accepted.” Burgess argues that the trial court erred by finding that his office was vacated under subsection (a)(2), and we agree.

Under OCGA § 45-5-5(a), “[t]he resignations of all state and county officers ․ shall be made to the Governor.” County commissioners are county officers.⁴ It is undisputed that Burgess did not submit his resignation to the governor and that the governor did not purport to accept it. Thus, Burgess's office was not vacated by an accepted resignation under subsection (a)(2).⁵ The trial court erred by ruling otherwise.

2. Under OCGA § 45-5-1(a)(7), another way to vacate a public office is “[b]y abandoning the office or ceasing to perform its duties, or both.” The trial court determined that a vacancy also occurred under subsection (a)(7). Burgess argues that there was no evidence that he abandoned his seat, but we disagree.

Whether an office has been abandoned generally presents a question of fact.⁶ In this case, the trial court sat as the trier of fact, and we will affirm its finding of abandonment under subsection (a)(7) unless that finding is clearly erroneous.⁷ Further, “we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court's judgment.”⁸

Here, the evidence showed that Burgess emailed county authorities and posted publicly on social media that he was resigning his position immediately and “[l]eaving the table.” Burgess notified the governor's office a week later that he had changed his mind, but nothing in the record indicates that he so informed his fellow commissioners or — perhaps more importantly — his constituents, who might have wanted to contact their elected official.⁹ Thus, although Burgess publicly declared his resignation, it appears that he did not announce his about-face in the same manner. Burgess maintains that he continued to fulfill his duties despite his declaration of resignation and did not surrender his county credit card or keys. But applying the requisite deferential standard of review, we cannot say that the trial court's determination that Burgess abandoned his post was clearly erroneous under the particular facts of this case.

3. Burgess argues that his due process rights were violated because he was not afforded notice and an opportunity to be heard before the county determined that he had abandoned his seat. Again, we disagree.

With regard to filling a vacancy, OCGA § 45-5-1(b) provides as follows:

Upon the occurrence of a vacancy in any office in the state, the officer or body authorized to fill the vacancy or call for an election to fill the vacancy shall do so without the necessity of a judicial determination of the occurrence of the vacancy. Before doing so, however, the officer or body shall give at least ten days’ notice to the person whose office has become vacant, except that such notice shall not be required in the case of a vacancy caused by death, final conviction of a felony, or written resignation.10

In other words, no judicial determination of a vacancy is needed before the vacancy may be filled and/or a special election called; rather, the entities authorized to take those actions “shall do so” without waiting for a court to act.¹¹ The statute requires that notice be given to the former officeholder before actions are taken to fill the office, “except ․ in the case of a vacancy caused by death, final conviction of a felony, or” — as relevant here — “written resignation.”¹² Because Burgess declared in writing that he was resigning, the county was not required to give him statutory notice before appointing a replacement to fill the vacancy and calling a special election for a successor for the unexpired term.

Burgess argues that the “written resignation” exception to the notice requirement applies only if the resignation was accepted. However, Burgess conflates OCGA § 45-5-1(a)(2), which lists one way a vacancy may occur, with OCGA § 45-5-1(b), which addresses what happens when a vacancy does occur. Subsection (b) provides that once a vacancy has occurred under one of the methods listed in subsection (a), including abandonment under subsection (a)(7), notice of the vacancy is not required if it was caused by a “written resignation.” Subsection (b) does not say that the written resignation must be accepted for the notice requirement to be waived, and “[w]e will not read into the statute language that the General Assembly did not include.”¹³

As discussed in Division 1, subsection (a)(2) does not apply here because Burgess's resignation was not accepted. Rather, the vacancy was created under subsection (a)(7) when Burgess abandoned his office by publicly declaring his immediate resignation and not rescinding that resignation through the same public channels before the county carried out its statutory duties to fill the vacancy. And because the abandonment was caused, in part, by Burgess's “written resignation,” the county was not required to provide him with notice of the vacancy under subsection (b). This only makes sense, as Burgess is charged with the knowledge of his own declaration of resignation.

Further, even if Burgess should have received notice and an opportunity to be heard before the county acted on his declaration, he has not demonstrated any harm.¹⁴

An initial procedural violation can be cured by a subsequent procedural remedy. Insofar as a hearing is concerned, [Burgess] had a full and fair opportunity to contest the [county's] decision at the trial of the [quo warranto] action. Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate.15

The events in this case happened quickly: On August 6, Burgess publicly declared his resignation; on August 7, the county called for a special election; on August 15, a replacement was appointed; on August 17, Burgess filed this action; and on September 8, an evidentiary hearing began. Burgess participated fully in that hearing and does not argue that he was deprived of the opportunity to make his case. And during that hearing, the trial court considered whether Burgess had abandoned his position — which is precisely the same question that Burgess contends should have been addressed earlier. Under these circumstances, we discern no reversible error.

4. Burgess also argues that, under the Turner County Code of Ordinances, the chief judge was not authorized to determine that a vacancy existed and that instead, the county commissioners “should have met to discuss and pass a resolution declaring the seat vacant.” However, the county code was not introduced into evidence at the quo warranto hearing and is not part of the appellate record. “It is well settled that neither a superior court nor an appellate court can take judicial notice of a county ordinance. County ordinances must be alleged and proved by production of the original or of a properly certified copy.”¹⁶ Accordingly, this claim of error presents nothing for our review.

Judgment affirmed.

FOOTNOTES

1.   OCGA § 45-5-1(a)(7).

2.   “The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging. It may be granted only after the application by some person either claiming the office or interested therein.” OCGA § 9-6-60.

3.   The judges of the Turner County Superior Court recused themselves, and the case was assigned to a different judge.

4.   Lucas v. Woodward, 240 Ga. 770, 774(1), 243 S.E.2d 28 (1978).

5.   See Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522, 523(1), 444 S.E.2d 877 (1994) (“Prior to acceptance, the resignation is ineffective.”).

6.   Belcher v. Harris, 228 Ga. 387, 389, 185 S.E.2d 771 (1971).

7.   See Agricommodities v. Moore, 359 Ga. App. 1, 2, 854 S.E.2d 781 (2021).

8.   Battle Props. v. Branch Banking & Trust, 310 Ga. App. 217, 218, 712 S.E.2d 625 (2011) (citation and punctuation omitted).

9.   Multiple commissioners testified at the quo warranto hearing that their job duties included answering constituents’ calls, addressing their concerns, and handling other county business, sometimes on a daily basis.

10.   Emphasis added.

11.   OCGA § 45-5-1(b) (emphasis added).

12.   Id.

13.   City of Atlanta v. Block, Inc. of Delaware, 375 Ga. App. 717, 725(2), 917 S.E.2d 403 (2025) (citation and punctuation omitted).

14.   See generally Baker v. Cuthbertson, 372 Ga. App. 753, 761(1), 906 S.E.2d 764 (2024) (“an appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful” (citation and punctuation omitted)).

15.   Pryor Org., Inc. v. Stewart, 274 Ga. 487, 491(3), 554 S.E.2d 132 (2001).

16.   Monterey Comty. Council v. DeKalb Planning Comm'n, 281 Ga. App. 873, 875(1), 637 S.E.2d 488 (2006) (citations omitted).

Watkins, Judge.

McFadden, P. J., and Padgett, J., concur.