You have asked for my opinion as to whether the acquisition of Gwinnett Technical Institute by the Board of Regents for the purpose of creating a two-year community college would require prior approval of the Georgia General Assembly. For the following reasons, it is my official opinion that such prior legislative approval is mandated.

The consideration of your inquiry begins with an analysis of an opinion which I rendered in 1983. In 1983 Op. Att'y Gen. 83-74, the Chancellor requested an opinion as to whether prior General Assembly action was necessary for the transfer of the management and control of DeKalb Community College from the DeKalb County Board of Education to the Board of Regents. In reviewing the law, I noted that O.C.G.A. §§ 20-2-520(a) and 20-3-59, respectively, authorize a county board of education to sell any schoolhouse site which has become "unnecessary and inconvenient," and the Board of Regents to acquire such property.

In addition, I considered Article VIII, Section IV, Paragraph I(b) of the 1983 Georgia Constitution, which states, in pertinent part, as follows:

The board of regents shall have the exclusive authority to create new public colleges, junior colleges, and universities in the State of Georgia, subject to approval by majority vote in the House of Representatives and the Senate. Such vote shall not be required to change the status of a college, institution or university existing on the effective date of this Constitution. . . .

(Emphasis added.) DeKalb Community College existed as a public college on July 1, 1983, the effective date of the Georgia Constitution, and the transfer of authority from the DeKalb County Board of Education to the Board of Regents did not involve the "creation" of a new college. I opined that such transfer was akin to a "change of status" of an existing college which did not require prior General Assembly approval.

Your current inquiry presents a factually different situation from that addressed in Op. Att'y Gen. 83-74. Although the Gwinnett Technical Institute is currently under control of the county board of education and is accredited as a "two-year college," it is not currently being operated as a public college but as a postsecondary technical institution. If a county technical institute is acquired by the Board of Regents and converted into a public college, that action would then constitute the "creation" of a new public college for which General Assembly approval is required under the Georgia Constitution. This differs from the mere "change of status" of an existing college considered in Op. Att'y Gen. 83-74.

Therefore, it is my official opinion that General Assembly approval is required for the Board of Regents to acquire a county technical institute and convert such institute to a public college.

Prepared by:

MARK H. COHEN
Senior Assistant Attorney General