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

Official Opinion 2016-4

August 31, 2016
To: 

President, Georgia Board of Nursing

Re: 

The Secretary of State and the Georgia Board of Nursing have related but separate, distinguishable roles with respect to the selection of the executive director of the Board.  The Secretary of State has the authority to select which qualified candidate or candidates to submit to the Board for its approval, and the Board has the authority to approve from the submitted candidate or candidates who may be appointed to serve as its executive director.

The Georgia Board of Nursing (hereinafter “the Board”) has requested my official opinion regarding the scope of O.C.G.A. § 43‑26‑5(17) (Supp. 2016), which provides that the Board “shall approve the selection of a qualified person to serve as executive director.”  Based upon my review of the applicable law, I conclude that the Secretary of State and the Board have related but separate, distinguishable roles with respect to the selection of the executive director of the Board.  The Secretary of State has the authority to select which candidate or candidates to submit to the Board for its approval, and the Board has the authority to approve who may be appointed to serve as its executive director.  Only a qualified person who has been submitted for approval by the Secretary of State and approved by the Board can be appointed to serve as its executive director.

Under the framework of Title 43 of the Georgia Code, the general provisions of Chapter 1 (hereinafter “the General Provisions”) apply to all professional licensing boards, most of which are created and more particularly governed by a specific chapter in Title 43 for that individual profession, business, or trade.[1]  See O.C.G.A. § 43‑1‑1 through ‑33 (2011 and Supp. 2016); see also O.C.G.A. § 43‑26‑1 through ‑13 (2011 and Supp. 2016) (the Georgia Registered Professional Nurse Practice Act, hereinafter “the Nurse Practice Act”).  Inasmuch as the Board is governed by both the General Provisions and the Nurse Practice Act, both statutory schemes must be considered in determining the scope of O.C.G.A. § 43‑26‑5(17) (Supp. 2016).  Further, as statutes that address the same issue, they must be construed together and harmonized.  Hartley v. Agnes Scott College, 295 Ga. 458, 462 (2014).

Under the General Provisions, the Secretary of State has the following authority:

The Secretary of State, notwithstanding any other provisions of law to the contrary, shall employ personnel as deemed necessary to carry out this chapter and to provide for all services required by each of the professional licensing boards and shall establish within the guidelines provided by the laws and rules and regulations of the State Personnel Board the qualifications of such personnel.

* * *

The Secretary of State, notwithstanding any other provisions of law to the contrary, shall have the power to employ and shall set the qualifications and salary for a deputy division director and shall appoint executive directors as required who shall act in the absence of the division director and who shall perform such other functions of the division director under this chapter as the division director may designate. The deputy division director and executive directors as appointed shall be in the unclassified service and shall be excluded from the classified service as defined in Article 1 of Chapter 20 of Title 45.

O.C.G.A. § 43‑1‑2(c) and (e) (Supp. 2016) (emphasis added).  Under the Nurse Practice Act, in addition to other powers and responsibilities, the Board is given the authority to “[a]pprove the selection of a qualified person to serve as executive director.”   O.C.G.A. § 43‑26‑5(17) (Supp. 2016).

It is a fundamental rule of statutory construction that “when a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.”  McKinney v. Fuciarelli, 298 Ga. 873, 874 (2016).   The “ordinary, logical and common meaning” of “approve” is “to consent to officially or formally; confirm or sanction.”  The American Heritage Dictionary 122 (2d ed. 1985).  Thus, pursuant to O.C.G.A. § 43‑26‑5(17) (Supp. 2016), the Board has the authority to consent to the selection of a qualified person to serve as its executive director.  The authority to “approve” necessarily carries with it the discretion to withhold approval.

To the extent the Secretary of State’s authority to appoint executive directors appears to conflict with the Board’s authority to approve its executive director, a review of the historical development of the applicable law is instructive in resolving the apparent conflict.  In 1931, the legislature conferred upon the Secretary of State the authority “to appoint” and “to employ” personnel.[2]  In 1975, the Nurse Practice Act was amended to authorize the Board

[i]n conjunction with the Joint-Secretary, State Examining Boards, [to] appoint, employ, fix compensation for, and define duties of a registered professional nurse with the qualifications specified in Code section 84-1005 to serve as Executive Director to the Board.

1975 Ga. Laws 501, 506 (former Ga. Code Ann. § 84‑1004 (i)).  In 1981, the General Provisions were amended to provide that

[t]he joint secretary, with the approval of the Secretary of State, notwithstanding any other provisions of law to the contrary, shall employ . . . such employees . . . as deemed necessary to carry out the provisions of this Chapter and for all services required by each of the state examining boards.  The joint secretary, with the approval of the Secretary of State, notwithstanding any other provision of law to the contrary, shall . . . appoint executive directors as required.  The qualifications and appointment of an executive director for the support of a state examining board with an executive director established by legislation prior to January 1, 1981, shall be subject to the approval of said board.

1981 Ga. Laws 1898, 1899[3] (emphasis added).  In 1990, the General Assembly amended the Nurse Practice Act to provide authority to the Board for its approval of the selection of its executive director.  1990 Ga. Laws 747, 752‑53.  In 2013, the General Assembly again conferred this authority upon the Board when the Board was reconstituted.  See 2013 Ga. Laws 643, 644‑45.[4] 

These statutory changes are instructive because they illustrate not only that the Board’s authority to approve the selection of its executive director is a distinct authority from the Secretary of State’s authority to appoint executive directors, but also that, with respect to the selection of the Board’s executive director, the General Assembly deliberately separated the authority between the Secretary of State and the Board.  See, e.g., 1982 Op. Att’y Gen. 82‑4.  “For purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” Goldberg v. State, 282 Ga. 542, 544 (2007).  Here, the General Provisions are the “general statutes” and the Nurse Practice Act is the “specific statute” as it relates to the position of the executive director of the Board.  Thus, the specific authority given to the Board in the Nurse Practice Act to approve the selection of a qualified person to serve as its executive director in 1990 and in 2013 prevails over the administrative authority of the Secretary of State found in the General Provisions to appoint executive directors unilaterally. 

Further, the General Assembly’s inclusion of the Board’s authority to approve the selection of its executive director in the Nurse Practice Act when the Board was reconstituted in 2013 is the General Assembly’s “last expression on [the] subject.”  This means that, notwithstanding the Secretary of State’s general authority to appoint executive directors, the General Assembly intended for the Board to have approval over which “qualified person” would serve as its executive director.  See Tippins Bank & Trust Co. v. Southern Gen. Ins. Co., 266 Ga. 97, 98 (1995) (“Indeed, the courts are not only to be guided by the General Assembly’s last expression on a subject, but the latest declaration controls.”)

The Board’s authority under O.C.G.A. § 43‑26‑5 (Supp. 2016), however, “can extend no further than [its] statutorily authorized purpose.”  2005 Op. Att’y Gen. 05-3, at 22.  “As an administrative body created by the legislature, [a professional licensing board] has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.”  Id., quoting Bentley v. State Bd. of Med. Exam’rs, 152 Ga. 836, 838 (1922).  Inasmuch as the Board’s authority is limited to the “approv[al] of the selection of a qualified person,” the statute contemplates that the Board may approve only candidates that have been proposed (selected) by the Secretary of State.  Accordingly, when the statutes are read in harmony, the Secretary of State has the authority to select which candidates to submit to the Board for its approval to serve as the executive director, the Board has the authority to approve which qualified person will serve as its executive director, and the Secretary of State has the authority to appoint the Board’s approved selection as the Board’s executive director.[5]

Since the Board’s approval of its executive director is required, the Board’s disapproval of a candidate precludes that candidate from serving as the Board’s executive director.  To interpret O.C.G.A. § 43‑26‑5(17) (Supp. 2016) in any other way would render meaningless the Board’s unique authority.  See State v. C.S.B., 250 Ga. 261, 263 (1982) (“where possible, we construe language used by the General Assembly in a manner that will not render it meaningless or mere surplusage”).  Similarly, to avoid contravening the Board’s authority to approve, the Board’s approval must be secured before the Secretary of State appoints the Board’s executive director.  Further, given that the Nurse Practice Act contemplates that the Board will have an executive director and the General Provisions contemplate that the Secretary of State is to appoint executive directors “as required,” it is implicit in O.C.G.A. § 43‑26‑5(17) (Supp. 2016) that the Secretary of State will submit qualified persons to the Board for its approval until the Board approves a candidate to serve as its executive director.

Therefore, it is my official opinion that, pursuant to O.C.G.A. §§ 43-26-5(17) (Supp. 2016) and 43-1-2(c) and (e) (Supp. 2016), the Secretary of State and the Board have related but separate, distinguishable roles with respect to the selection of the executive director of the Board.  The Secretary of State has the authority to select which candidate or candidates to submit to the Board for its approval, and the Board has the authority to approve from the submitted candidate or candidates who may be appointed to serve as its executive director.  Only a qualified person who has been approved by the Board can be appointed to serve as its executive director

[1]“Professional licensing board means any board, bureau, commission, or other agency of the executive branch of state government which is created for the purpose of licensing or otherwise regulating or controlling any profession, business, or trade and which is placed by law under the jurisdiction of the director of the professional licensing boards division within the office of the Secretary of State.”  O.C.G.A. § 43‑1‑1(3).

[2] See 1931 Ga. Laws 1, 35-36:

The Secretary of State is hereby empowered to employ such assistants to discharge the functions herein-above imposed on him as may be necessary . . . .

The Secretary of State is hereby authorized and directed to appoint one secretary to serve as such for the several examining board, to-wit: . . . 5. State Board of Examiners of Nurses . . . .

This authority has, at times, been vested in the joint secretary with the approval of the Secretary of State.  See 1981 Ga. Laws 1898, 1899.  However, in 2000, the General Assembly returned this authority specifically to the Secretary of State.  See 2000 Ga. Laws 1706, 1707.  In its 2000 amendment the General Assembly removed the language from the General Provisions requiring approval by the boards.

[3]This amendment to the General Provisions was interpreted as “consolidating all personnel appointment powers for the examining boards.”  1982 Op. Att’y Gen. 82-4, at 6.

[4] The Board is the only Title 43 professional licensing board that currently has the authority to approve the selection of its executive director.

[5] Following the appointment, the Secretary of State as the appointing authority and employer retains decision-making authority over the employment of the executive director, an unclassified employee.  O.C.G.A. § 43‑1‑2(c) and (e).

Prepared by:

Kirsten S. Daughdril

Senior Assistant Attorney General