Georgia Department of Law, from the office of Samuel S. Olens, Attorney General

Unofficial Opinion 2016-1

February 5, 2016
To: 

Senators

Re: 

An appointment to the DeKalb County Audit Oversight Committee may not be rescinded and the appointee may not be removed from her position without following the procedures outlined under the law.

Dear Senators Butler, Parent and Van Ness:

You have requested my opinion whether an appointment made to the DeKalb County Audit Oversight Committee may be rescinded by the appointing authority.  It is my unofficial opinion that such an appointment, which is made to a position for a term of years and where the incumbent may be removed only for cause or through a specific statutory procedure, may not be rescinded.  The incumbent may be removed from the position only through compliance with the established legal procedures, which may include providing the incumbent with notice and an opportunity for a hearing on the reasons for removal.

BACKGROUND

            1.The Statute – 2015 Ga. Laws 3826 (Act 206, H.B. 599)

On May 12, 2015, Governor Nathan Deal signed into law Act 206, H.B. 599, after its passage by the House on March 19 and the Senate on March 24.  Website of the General Assembly of Georgia, http://www.legis.ga.gov/legislation/en-US/Display/20152016/HB/599 (last visited February 4, 2016); 2015 Ga. Laws 3826.  This Act is local legislation and as such it became effective immediately upon the Governor’s signature because there is no separate effective date specified in the Act.  O.C.G.A. § 1‑3‑4(b).  The Act provides for the creation of a DeKalb County Office of Internal Audit that is independent of county government control.  2015 Ga. Laws at 3827.  The office is to be headed by a Chief Audit Executive (the Auditor) who is appointed by a majority vote of the county commission and who serves for a five-year term of office.  Id.

To “ensure the independence of the audit function,” the local legislation also provides for the creation of an Audit Oversight Committee (the Committee).  2015 Ga. Laws at 3830.  One of the functions of the Committee is to provide a list of two or three candidates from which the county commission must select the Auditor.  2015 Ga. Law at 3827, 3831.  Additionally, if the county commission cannot agree on a selection within 30 days of receipt of the list of nominees, a majority of the Committee itself may appoint the Auditor.  Id.  The Committee is also empowered to perform a number of other supervisory functions in relation to the functions of the county and the Auditor, including conducting evaluations of the audit functions, ensuring that audit results are communicated to the county governing authority and the public, and acting as an integral part of the process for obtaining the county’s annual financial statement audits.  2015 Ga. Laws at 3831-32.  The Committee has the authority to hire outside experts, including legal counsel, and to propose the budget for the Auditor.  2015 Ga. Laws at 3832.  The administrative support for the Committee is to be provided by the county commission.  Id.

Given the wide range of responsibilities provided to the Committee, the General Assembly established a number of statutory qualifications for its members.  These include the requirements that:

(a)All members must be “residents of DeKalb County”;

(b)All members must “have expertise in performance auditing”; and,

(c)All members must “have a minimum of five years’ experience as a certified public accountant, a certified internal auditor, a certified performance auditor, a certified management account, or ten years of other relevant professional experience.”

2015 Ga. Laws at 3830.  As additional qualifications, the legislature incorporated by reference the requirements of O.C.G.A. § 45‑2‑1, a general state statute identifying issues which would render a person ineligible to serve as a public officer.[1]  2015 Ga. Laws at 3831.  Essentially this means that in order to be qualified to serve on the Committee, the appointee must meet all of the requirements of O.C.G.A. § 45‑2‑1.  Id.

The Committee comprises five individuals.  2015 Ga. Laws at 3830.  One member is appointed by the chairperson of the DeKalb County delegation for the House of Representatives, one member is appointed by the chairperson of the Senate delegation, one is appointed by the chief executive officer (the CEO) of DeKalb County, and two members are appointed by the county commission itself.  2015 Ga. Laws 3830.  The members of the Committee have five-year terms of office, with the expiration of those terms being staggered.  Id.  The staggering of the terms is created by providing for terms of varying length for the initial appointees.  Id.  The first appointee of the Commission receives a one-year term of office, while its second appointee has a four-year term of office.  Id.  The House delegation initial appointee has a two-year term of office and the Senate initial appointee has a five-year appointment.  Finally, the CEO’s initial appointee has a three-year term of office.  2015 Ga. Laws at 3830-31.

While the Act does not specify when the terms of office of the initial appointees begin, it does provide that a Committee member’s term of office will expire on January 1 of the year following the appointment of the member’s successor in office and, thereafter, each member will serve for the full five years.  2015 Ga. Laws at 3831.  For future appointments, the appointing authorities must make these new appointments no later than 30 days before the end of an incumbent’s term.  Id.  The DeKalb legislative delegation is authorized to appoint persons to fill the balance of an unexpired term in the event of a vacancy, and those appointments must be made within 60 days of the occurrence of the vacancy.  Id.

Vacancies on the Committee can be caused by “death, resignation, incapacity to serve for 90 days or longer, or loss of residency.”  Id.; see also O.C.G.A. § 45‑5‑1(a).  However, the Act also provides that a Committee member’s loss of residency creates a vacancy only if contested and then determined by a court of competent jurisdiction.  Id.  Under certain limited circumstances, a Committee member may be removed from his or her position “if a member becomes ineligible to hold civil office within the meaning of [O.C.G.A. § 45‑2‑1] and that ineligibility is established by decision of a court of competent jurisdiction which declares the office vacant because of such ineligibility.”  2015 Ga. Laws at 3831.  Alternatively, a Committee member may be removed from his or her position by a two-thirds vote of the members of the legislative delegation.  Id.  There is no provision in the Act permitting one of the appointing authorities to rescind an appointment.

2.The applicable facts

As a part of the implementation of the Act, the initial appointments to the Committee were required to be made no later than October 31, 2015.  2015 Ga. Laws at 3830.  From the information provided to our office, it appears that on September 23, 2015, Senator Butler, as the chairperson of the DeKalb Senate legislative delegation, through her administrative assistant informed the county commission of her appointment of Harmel Codi to the Audit Oversight Committee.[2]  A copy of Ms. Codi’s resume was attached to that communication.  On November 17, a staff member for the Commission sent an email to Ms. Codi congratulating her on her recent appointment to the Committee.  He wrote that “[y]ou have been appointed to serve a five (5) year term scheduled to begin on January 1, 2016.”  He also informed Ms. Codi that the Committee would hold its first meeting on November 20.  Ms. Codi has indicated that this email was the only official notice of her appointment that she received from the CEO’s office.

The Committee did in fact meet on November 20, with Ms. Codi present and identified as a member in the minutes of the meeting.  The Committee discussed its authorizing legislation and selected Mr. Harold Smith as its chairperson and Ms. Gina Major as the vice-chair.  The Committee discussed what resources it would need to operate and a general schedule for meeting; it also began to discuss efforts to hire the Auditor as envisioned under the Act.  The Committee next met on December 7 and Ms. Codi was again present.  The Committee set an agenda for a third meeting to be held on December 18, when it would address matters such as bylaws and a mission statement for the Committee.  No information has been provided regarding whether the December 18 meeting was held.

On December 28, Senator Butler wrote to the “Members of the DeKalb County Governing Authority” stating:

I submit this correspondence to you rescinding my appointment of Harmel Codi, to the DeKalb County Oversight Committee, effective immediately.

Senator Butler then indicated that she was appointing another individual to the Committee in the place of Ms. Codi.  Senator Butler acknowledged in her request letter to this office that she recognizes the statutory requirements for Committee members established under the Act, including the professional background and experience requirements for members.  However, the Senator has also indicated a number of factors for moving to rescind Ms. Codi’s appointment, including:

I felt that Ms. Codi did not possess [the required] professional qualifications and would not be able to perform her duties as a member of the Audit Oversight Committee.

An Audit Oversight Committee member should also conduct themselves in an objective [and] nonpartisan manner.

Soliciting signatures on a petition in an open meeting asking for the CEO (Lee May) to step down from office does not reflect the guidelines of an objective nonpartisan member.

The question has been posed whether this appointment may now be rescinded based on these reasons.

ANALYSIS

The first question presented is whether Ms. Codi has in fact been appointed to the Committee, given that the appointment and Senator Butler’s rescission letter both pre-date the January 1, 2016, date referred to in the congratulatory email received by Ms. Codi.  The answer to that question is yes; the appointment has been made and is effective.

The Act itself was effective upon the signature of the Governor.  While the General Assembly chose to designate the date when future terms of office would begin, it did not do so for the initial terms of office.  Instead, the legislation appears to invite action at least by October 31, 2015.  “Pursuant to the principle of statutory construction, ‘Expressum facit cessare tacitum’ (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) and its companion, the venerable principle, ‘Expressio unius est exclusio alterius’ (‘The express mention of one thing implies the exclusion of another’), the list of actions [in a statute] is presumed to exclude actions not specifically listed . . . and the omission of [a provision] is regarded by the courts as deliberate.”  2014 Op. Att’y Gen. 2014-3, citing Alexander Properties Group v. Doe, 280 Ga. 306, 309 (2006) (internal citations omitted); 2010 Op. Att'y Gen. 2010-3.  Here the exclusion of a beginning date for the terms of the initial appointees can be deemed deliberate and an expression that the General Assembly intended for the Committee and its members to undertake their responsibilities within a reasonable time after the October 31 appointment deadline.  Consistent with this interpretation, the Committee did in fact meet on at least two occasions prior to January 1 and began its preliminary planning work, with Ms. Codi participating as a member of the Committee on those occasions.

The Act authorizes the direct appointment of Committee members.  Giving the words of the Act their ordinary and common meaning, the only action required to complete this process is for the authorized person or entity to exercise that authority and for the appointee to accept that appointment.  See O.C.G.A. § 1‑3‑1(b).  Those actions have occurred and the appointing process has been complied with and completed.

This conclusion is not altered even if the January 1 date were deemed to be the formal beginning of the appointees’ terms of office because, under Georgia law, an appointing authority may exercise its powers to make a prospective appointment to an office or position.  “As a general rule, an appointing authority may make a prospective appointment, that is, an appointment that fills a prospective vacancy before the vacancy occurs.”  Murphy v. Pearson, 284 Ga. 296, 297 (2008); see also 1999 Op. Att’y Gen. U99-8.  The appointing authority has acted and the appointee has accepted the appointment.  The appointment has been completed.

Given that the appointment of Ms. Codi was effective, the second issue you have posed is whether that appointment can be rescinded by Senator Butler.  The answer to that question is no.

The members of the Committee are appointed for fixed terms of office.  The initial appointees have terms of varying lengths, but future appointees all will serve for five years.  The Act also specifies the circumstances under which a Committee member may be removed.  2015 Ga. Laws at 3831.  There is no allegation, let alone the required showing, that Ms. Codi is not a resident of DeKalb County, or that any of the other conditions specifically prescribed in the Act exist at this time.  Id.  Additionally, there is no showing or determination that Ms. Codi has been rendered ineligible to serve pursuant to O.C.G.A. § 45‑2‑1(1)‑(8).  Id.  Finally, two‑thirds of the members of the DeKalb County legislative delegation have not acted to remove Ms. Codi from the Committee.  Id.

The Supreme Court of Georgia has long recognized:

It may therefore be considered as settled beyond all doubt or peradventure, that a public officer who has under the law a fixed term of office, and who is removable only for definite and specified causes, can not be removed without notice and a hearing on the charge or charges preferred against him, with an opportunity to make defense.  It follows necessarily that a statute providing for the removal from office of such an officer for inefficiency, incapacity, neglect of duty, or other cause, and which makes no provision for giving him notice, or for allowing him to be heard in his defense, is contrary to the constitutional guaranty which declares that no person shall be deprived of life, liberty or property without due process of law.

Coleman v. Glenn, 103 Ga. 458, 461 (1898); accord Holder v. Anderson, 160 Ga. 433, 437-38 (1925).  Alternatively, if the term and tenure of office is not fixed by law, and there are no other statutory provisions made for removal of a person from an office, then the appointing authority does have the authority to remove an appointee.  Kautz v. Powell, 297 Ga. 283, 284 (2015), citing Holder v. Anderson, 160 Ga. at 437.

Here the Act prescribes a term of office for the appointees and specific reasons for which they can be removed.  The Act also requires the same level of due process protection for allegations that an incumbent has become ineligible to hold office under O.C.G.A. § 45‑2‑1.  Not only have none of those statutory reasons for removal been cited, but there has been no judicial review of the removal process.  Finally, the reasons cited in part for the removal of Ms. Codi are whether she meets the professional experience criteria outlined in the statute.  That is not one of the reasons enumerated in the statute which would permit removal of an appointee.

CONCLUSION

Therefore, it is my opinion that the appointment in question, which is made for a term of years and provides for the incumbent to be removed only for cause or through a specific statutory procedure, may not be rescinded.  The incumbent may be removed from the position only through compliance with the established statutory procedures, which may include providing the incumbent with notice and an opportunity for a hearing on the reasons for removal.

Prepared by:

DENNIS R. DUNN

Deputy Attorney General

 

[1] The factors that would render someone ineligible to hold public office include not being a Georgia citizen; not meeting the age or residency requirements of the law; being an improper holder of public money; being convicted of a felony involving moral turpitude without a restoration of rights; holding an office of profit or trust under the governments of the United States, another state, or a foreign country; being of unsound mind or unfit to discharge the duties of the office; or someone who is otherwise constitutionally disqualified.  O.C.G.A. § 45‑2‑1(1)‑(8).

[2] This communication was by email from Sen. Butler’s administrative assistant to Demetrius McCoy, a policy analyst on the staff of DeKalb CEO Lee May.  The email erroneously referred to this as a “nomination” of Ms. Codi.  As noted above, the Committee members are appointed by the authorized individuals - Sen. Butler in this instance.  There is no nomination or subsequent approval process involved.