This is in response to your respective requests for advice on whether the State Board of Education may hire its own staff or designate employees of the Department of Education as Board staff so that they may perform duties assigned to them by the Board rather than by the State Superintendent of Schools. It is my official opinion that the State Board of Education lacks the statutory authority either to hire its own staff or to designate Department of Education employees as staff for the Board.

Previously, the Superintendent had assigned a staff position to the Board, with the primary duty being to act as a liaison between the Department and Superintendent and the Board. Recently, however, the position was transferred to the Professional Practices Commission and it no longer exists as a Department position. Now the Board proposes to name a current employee of the Department as its staff member or to hire an employee for that position.

Pursuant to recent amendments to O.C.G.A. § 20-2-241, the Superintendent now has the sole authority to transfer employees within the Department of Education as a part of her authority to organize and reorganize the Department of Education,

although the Board has the authority to employ and dismiss employees. 1996 Op. Att'y Gen. 96-12. As a necessary corollary to her power to organize the Department and transfer employees, the Superintendent may refuse to allow Department employees to be diverted to functions for the Board if she believes that all the current positions in the Department are necessary to her organization plan for the Department. This is especially true if the functions of the proposed Board staff are duplicative of those already being carried out by Department employees.

There is no statute which specifically gives the Board authority to designate or hire employees to serve as its own staff. Even though the Board may employ and dismiss employees, it may do so only "as may be necessary for the efficient operation of the Department of Education." O.C.G.A. § 20-2-11 (emphasis added). The specific mention of one power in conjunction with the absence of the other implies that the legislature intended that the Board should not have the authority to hire employees to act as its staff according to the rule of expressio unius est exclusio alterius. See, e.g., Walton v. Prudential Ins. Co., 210 Ga. App. 82, 83 (1993); 1957 Op. Att'y Gen. p. 119, 120.

The Board "has only such powers as the legislature has expressly, or by necessary implication, conferred upon it." Bentley v. State Bd. of Medical Examiners, 152 Ga. 836, 838 (1922). Hiring its own staff is not necessarily implied by any of the Board's enumerated powers. The Superintendent is the executive officer of the Board. O.C.G.A. § 20-2-241. The Superintendent is also responsible for carrying out and enforcing the Board's rules and laws relating to state aid to schools. O.C.G.A. § 20-2-34. Thus, the Superintendent is the person who, along with employees of the Department, is the Board's staff for the purpose of carrying out its policy. O.C.G.A. § 20-2-241.

The Board has general supervisory power over the Department of Education. O.C.G.A. § 20-2-11. That authority, however, does not include the day-to-day supervision of the Department or the Superintendent, nor may it be used to infringe on the Superintendent's authority as administrative chief executive officer of the Department. 1996 Op. Att'y Gen. 96-12. It is apparent that employment of Board staff would duplicate the functions which the Superintendent is authorized by state law to perform and would set up an alternate to the Department for carrying out Board functions. Such an alternate would infringe on the Superintendent's authority.

It is clear from an examination of the statutes that the legislature has provided the structure for the Board to perform its duties through the Superintendent and the Department. See, e.g., O.C.G.A. §§ 20-2-5, -6, -7, -11, -34, -240, -241. This structure provides that the Superintendent is the executive officer of the Board and the chief executive officer of the Department. O.C.G.A. § 20-2-241. Thus, for the Board to hire its own staff to perform its duties outside the specified structure is neither expressed nor necessarily implied by law.

Therefore, it is my opinion that the State Board of Education is without the requisite statutory authority either to hire its own staff or to require the Superintendent to allocate a Department of Education employee to perform functions for the Board.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General