Hensley, In re, 74978

• Decision Date: 22 October 1987
• Docket Number: No. 74978,74978
• Citation: 362 S.E.2d 432,184 Ga.App. 625
• Parties: In re HENSLEY.
• Court: Georgia Court of Appeals

Page 432

362 S.E.2d 432

184 Ga.App. 625

In re HENSLEY.

No. 74978.

Court of Appeals of Georgia.

Oct. 22, 1987.

Charles L. Wilkinson III, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Augusta, for appellee.

POPE, Judge.

The Columbia County grand jury for the September 1986 term of the superior court appointed a citizen committee to conduct a civil investigation of the Columbia County Sheriff's Office. The committee consisted of most, but not all, of the members of the grand jury. Over a period of seven days the committee heard sworn testimony from twenty-nine witnesses, including appellant, Sheriff Otis Hensley. On February 11, 1987 the committee issued an extensive report charging numerous instances of improper or illegal action by Sheriff Hensley and other officials within the sheriff's department. On the same day, the grand jury met and adopted the report of the committee as its own and directed that a copy of the report be published in the official county organ. The report recommended, inter alia, that the district attorney take legal action to remove Sheriff Hensley from office.

On February 28, 1987 appellant Hensley filed a petition in the lower court to expunge the grand jury report from the record and to restrain the grand jury from further publishing said report. Appellant also filed a motion to disqualify members of the grand jury from any further participation in any investigation of appellant or the sheriff's department. Subsequently, the grand jury, before the expiration of its term, issued special presentments charging appellant and one of his deputies with two counts of theft by taking and with perjury during sworn testimony before the citizen committee. Sheriff Hensley appeals the lower court's denial of his petition and his motion for disqualification of grand jurors.

1. "While it is the duty of the grand jury to investigate and present public officials for malpractice in the performance of their official duties [cits.], a grand jury has no right in the absence of specific statutory authority to file a report charging or casting reflections of misconduct in office upon a public officer or impugning his character, except by presentment or true bill of indictment charging such individual with a specific offense against the State; and it is the fundamental right of one who is the subject of such extra judicial report to have it expunged from the official records. [Cits.] This is not to infer, however, that the grand jury in exercising the investigative powers of a civil nature, specifically delegated to it by statute ..., may not make fair reports of its findings, even though such reports of necessity incidentally reflect negligence or incompetence, upon the officials involved." Kelley v. Tanksley, 105 Ga.App. 65, 66, 123 S.E.2d 462 (1961).

Responding for the grand jury, the district attorney argues the report in question falls within the exception set forth in Kelley. The grand jury in this instance had the statutory authority to appoint a committee to inspect the records of the sheriff and "to hear evidence in regard to fraud, the nonperformance of official duty, and the improper disbursement of county funds." OCGA § 15-12-76(a) and (b). Upon the report of the committee the grand jury could have issued a presentment of malpractice in office. See OCGA § 45-11-4; Beauchamp v. Smith, 250 Ga. 16, 295 S.E.2d 97 (1982). However, the grand jury's adoption of the report of the citizen committee was not set forth as a presentment. In fact, it was filed with the court and served upon appellant under the title "Grand Jury Investigation Report." As in Kelley, the report sought to be expunged from the record "was not a special presentment or true bill of indictment charging any individual with the violation of the penal laws of this State." Kelley v. Tanksley, supra, 105 Ga.App. at 66, 123 S.E.2d 462.

"[Reports specifically authorized by statute] are allowed, but if they contain 'statements unnecessary to the purpose sought to be accomplished by the report,' they are overbroad and exceed the powers of the grand jury. [QuotingKelley v. Tanskley, supra.] Under Kelley ... the only proper way to accuse an identifiable person with misconduct would be to return a presentment or an indictment. On the other hand, reports of a general nature concerning those areas where the grand jury has a statutory duty to investigate are acceptable. The dividing line between acceptable reports and those reports that go too far in criticizing individuals for unindictable activity is a tenuous one. Because of the practical difficulty involved in trying to distinguish in each case between permissible and impermissible reports, and because of the fundamental individual rights implicated by a report that criticizes indentifiable individuals but does not indict, this court is of the opinion that statutory reform of [OCGA § 15-12-71 et seq.] is required before reports similar to the one in this case could be permitted without threat of expungement." Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 778, 273 S.E.2d 19 (1980). In a special concurrence to the Thompson opinion, Justice Hill stated: "In my view, a grand jury...