This is in response to your letter requesting that we advise you whether recipients of the HOPE Scholarship, HOPE Grant, and other state scholarship and grant programs must comply with the Fair and Open Grants Act (FOGA). See O.C.G.A. §§ 28-5-120 through -127. Your letter refers to the exclusion in the Fair and Open Grants Act for "any grant, by law, which is apportioned entirely by formula." O.C.G.A. § 28-5-121(1)(C). You state that the law governing the HOPE Grant program requires recipients to meet a list of criteria in order to be eligible for the Grant. O.C.G.A. §§ 20-3-519.1 through –519.12. As I understand it, you believe this excepts the HOPE Grant program from FOGA under O.C.G.A § 28-5-121(1)(C) which provides that the term "grant" in FOGA does not include "[a]ny grant, by law, which is apportioned entirely by formula." I have not analyzed whether this is true because there are sufficient other reasons to conclude that recipients of these scholarships and grants are not required to comply with FOGA.

The Fair and Open Grants Act implements the Constitutional power of the General Assembly to regulate the making of grants to local governments. See 1993 Op. Att'y Gen. 93-13.

State funds may be granted to counties and municipalities within the state. The grants authorized by this Paragraph shall be made in such manner and form and subject to the procedures and conditions specified by law.

GA. CONST. Art. VII, Sec. III, Para. III.

Under the Fair and Open Grants Act, "grant" is defined as "any line item appropriation of funds that will be disbursed for a public purpose of which such amount, purpose, and recipient is not identified in the appropriations Act." O.C.G.A. § 28-5-121. In interpreting this definition, this office has advised that "FOGA regulates only those expenditures which conform to the ordinary meaning of grant, i.e., those which are in the nature of a gift or aid for a particular purpose." 1993 Op. Att'y Gen. 93-13, at 37. That opinion also concludes that:

FOGA defines "grant" as pertaining to an appropriation for a "public purpose." Since any appropriation must be for a "public purpose," the language is redundant unless it has some special meaning. The logical, special meaning is a grant for a "public" entity rather than a grant for a "private" citizen.

Id. at 38. State scholarships are to "private" citizens, not for a "public" entity. A separate part of the Georgia Constitution from that which is implemented by FOGA authorizes the expenditure of public funds "[t]o provide grants, scholarships, loans, or other assistance to students and to parents of students for educational purposes." GA. CONST. Art. VIII, Sec. VII, Para. I(a)(1). The Constitution also specifically authorizes the use of lottery proceeds for "educational programs and educational purposes,” including “grants, scholarships or loans” for college. GA. CONST. Art. I, Sec. II, Para. VIII(c) and (c)(1).

From this I conclude, and it is my official opinion, that it was not the intent of the General Assembly that the Commission comply with the Fair and Open Grants Act in administering the HOPE Scholarship, HOPE Grant, and other state scholarship and grant programs.

Prepared by:

Shereen M. Walls
Assistant Attorney General