Official Opinion 2003-5

With the recent adjournment sine die of the General Assembly without the confirmation of a large number of gubernatorial appointees by the Senate, questions have arisen from a number of our client agencies, boards, commissions and authorities regarding the impact and significance of this situation. Accordingly, this opinion attempts to address some of the more common questions and concerns that have been raised regarding the status of those appointees.

Under Georgia law, the Governor is authorized to make a myriad of appointments to public office. Some of that authority is provided through the state constitution and the remainder by statute. See Appendices A - F.1 Under either of these sources of the appointment authority, the Governor’s appointees may be subject to review and confirmation by the Senate in order to retain their office. The purpose of this discussion is to address the relevant provisions of law on that subject and to summarize in the appendices the application of this law to the various governmental entities in question.

Under Georgia law:

No appointment by the Governor shall be subject to confirmation by the Senate unless the statute under which such appointment is made requires confirmation or confirmation is otherwise required by law.

O.C.G.A. § 45-12-53 (emphasis added). This statute announces a clear preference that gubernatorial appointments should not be routinely subject to Senate review absent a specific provision requiring confirmation.

The lone general law exception to this preference is contained in O.C.G.A. § 45-12-54, which directs that:

All appointments made by the Governor to boards, commissions, and bureaus created and established by the laws of this state shall be made subject to confirmation by the Senate.

O.C.G.A. § 45-12-54 (emphasis added).2 In interpreting the application of this statutory exception and determining the General Assembly’s intent in enacting both of these provisions within two years of each other, the law requires that these two statutes be read in pari materia (i.e., together) and with an intent to harmonize the purposes of both statutes. See, e.g., 2002 Op. Att’y Gen. 2002-63, 2001 Op. Att’y Gen. 2001-84. “It is also, ‘a basic tenet of statutory construction that the General Assembly is presumed to enact legislation with full knowledge of the existing conditions of the law and statutes are to be construed in connection and in harmony with existing law.’” 1997 Op. Att’y Gen. 97-18, at 50 (citing Poteat v. Butler, 231 Ga. 187, 188 (1973)).

Applying these rules of statutory construction to O.C.G.A. §§ 45-12-53 and 45-12-54, it appears the General Assembly intended that gubernatorial appointments to statutory office are not subject to senatorial confirmation unless (1) that requirement is specifically included with the statutory power of appointment or (2) the appointment is to a “board,” a “commission,” or a “bureau” that is created or established by law. Appendices A, B, and C set forth those appointments that explicitly require Senate confirmation pursuant to the constitutional and statutory authority creating the positions. Appendices D and E identify those statutory boards and commissions that fall within the category of gubernatorial appointments implicitly made subject to Senate confirmation pursuant to O.C.G.A. § 45-12-54.5 All other gubernatorial appointments to entities or offices are not required to be confirmed by the Senate.

It should be noted that some gubernatorial appointments are made based upon recommendations to the Governor of appointees by other entities. See, e.g., O.C.G.A. § 21 2 30(c) (political party appointees to the State Election Board); O.C.G.A. § 47-3-21(a) (appointments to the Teachers’ Retirement System Board based upon nominations from various groups). However, these and other similar types of requirements do not change the gubernatorial nature of the appointments. Under Georgia law, the Governor’s power to appoint to public office is a nondelegable power. Rogers v. Medical Ass’n of Georgia, 244 Ga. 151, 153-54 (1979); 1999 Op. Att’y Gen. 99-4 (no delegation of authority to select members of the Georgia Music Hall of Fame); 1982 Op. Att’y Gen. 82-36 (no delegation of authority to select members of the Board of Trustees of the Teachers Retirement System). Thus, appointments such as these are also subject to the Senate confirmation requirement of O.C.G.A. § 45-12-54.

There is another classification of state entities that must be addressed in relation to the issue of senatorial confirmation – state authorities. There are two such entities that are specifically subject to confirmation by the Senate pursuant to their own statutes (the Georgia Agricultural Exposition Authority and the Georgia Lottery Corporation). This demonstrates that, even though an instrumentality may be an “authority,” it may also be made subject to the requirement of Senate confirmation. However, it is also clear that the vast majority of such entities are not subject to that requirement. See Appendix F.

Under Georgia law:

An authority is frequently defined as "an entity possessing both corporate and governmental characteristics" which is created by "general purpose governments to accomplish specific purposes involving long-range financing of public facilities without impinging on the credit of the government." Bonapfel, "The Legal Nature of Public Purpose Authorities: Governmental, Private, or Neither?" 8 Ga. L. Rev. 680, 681 (1974). Authorities are usually granted a number of corporate powers to carry out their purposes, such as use of a corporate seal, power to execute contracts, capacity to sue and be sued, authority to purchase and hold real and personal property, and power to employ and manage its personnel. Id. at 682. Additionally, certain governmental powers, such as the power to exercise eminent domain, to issue subpoenas, and to provide police protection, along with other "necessary and proper" powers, may be granted by the legislature. Id.

. . . In McLucas v. State Bridge Building Authority, 210 Ga. 1, 6 (1953), the Georgia Supreme Court described the authority as an "instrumentality of the State" but "nevertheless not the State, nor a part of the State, nor an agency of the State. It is a mere creature of the State, having distinct corporate entity."

1986 Op. Att’y Gen. U86-7 at 135; see also 1989 Op. Att’y Gen. 89-56. Authorities, then, are unique creations that exhibit characteristics of state agencies within the executive branch, but are legally separate and distinct from the state itself and are not, in fact and law, viewed as a part of traditional state government.

Generally, the statutory language creating such entities does not create them as “boards” or “commissions,” or even provide for governance by “boards” or “commissions.” Instead, they are traditionally created as independent legal entities that are actually made up of the individuals appointed to the authority. These individuals are the “members” of the authority, a methodology similar to, but not exactly like, present usage in regard to members of non-profit corporations in the private sector. See O.C.G.A. § 14-3-140(20). Common among most of the statutes creating authorities and like organizations is the use of language such as: “There is created a body corporate and politic . . . which shall be deemed to be an instrumentality of the state and a public corporation . . . . The authority shall consist of [named officials and appointees].” See, e.g., O.C.G.A. § 50-10-3(a) (Georgia Development Authority). See also Appendix F. Where, however, an entity that operates as an “authority” is denominated a “commission” by statute, the members appointed to such a commission by the Governor are nevertheless subject to Senate confirmation by application of the plain meaning of the language used in O.C.G.A. § 45-12-54. (See, e.g., O.C.G.A. §§ 20-13-1, 20-13-2 which creates the Georgia Public Telecommunications Commission both as an “authority” by virtue of its status as a public corporation and as a “commission” by the very terms of its creating statute.)

While generally the General Assembly creates an “authority” as a “distinct corporate entity” that is “an instrumentality of the State” rather than as a “board,” there are instances where the General Assembly, along with creating an authority, has also chosen to create by statute a governing board.6 Given that there is no general exemption of authorities from Senate confirmation and applying the rules of statutory construction outlined above, it appears that in the rare circumstance where the General Assembly has chosen to create by statute both an authority and a separate governing “board,” then appointments to those boards would be subject to the Senate confirmation requirement of O.C.G.A. § 45-12-54. It must be presumed that the General Assembly knew of the confirmation requirements of O.C.G.A. § 45-12-54 and that, in statutorily creating a “board” or “commission,” it intended for appointments to those bodies to be subject to review by the Senate.7

As noted above, the 2003 session of the General Assembly adjourned sine die without the Senate having confirmed a number of gubernatorial appointments. The facts leading to this situation are as follows. On January 6, 2003, then Governor Roy Barnes forwarded to the Senate for confirmation the names of 217 appointees to various state boards or entities. Those appointments were apparently referred to the Senate Committee on Assignments, which returned a favorable recommendation on 39 of those nominees. The Senate subsequently confirmed those 39 appointments on April 25, 2003, the final day of the session. There was apparently no action taken by the Senate on the remaining 178 appointees.8

The significance of the Senate’s actions arises in two separate areas. First, questions have arisen regarding the effect of the Senate’s actions on an appointee’s ability to continue to serve. Second, there is a question whether the Senate’s actions would prevent the current administration from reappointing a person whose nomination was never acted upon by the Senate.

There is a general rule under Georgia law that, upon the end of an individual’s term of office, public officers continue to serve or “hold over” until their successors are commissioned and qualified. O.C.G.A. § 45-2-4. However, this preference for holding over does not apply to “public officers appointed by the Governor and subject to confirmation by the Senate.” Instead, such officers “[s]hall not hold over until their successors have been appointed and confirmed.”9 Id. (emphasis added). This provision is also consistent with the terms of O.C.G.A. § 45 12 54(a), the same statute that makes board, commission and bureau appointments subject to Senate confirmation, which provides:

Unless such [board, commission and bureau] appointees are confirmed by the Senate, they shall cease to hold the office to which they have been appointed, and the name of another appointee to fill such office shall be immediately submitted by the Governor to the Senate.

Id. See also O.C.G.A. § 45-12-52(b) (in filling vacancies subject to confirmation by the Senate, an ad interim appointee “shall not hold over until his successor shall have been appointed and confirmed”). See also 1945-47 Op. Att’y Gen. 489, 490 (a person appointed by Governor to Georgia State Board of Dental Examiners ceases to hold office when the next session of the General Assembly adjourns sine die without the Senate’s having confirmed the appointment).

The fact that the Senate did not vote to reject an appointment and instead declined to consider and confirm a nomination does not change the conclusion that these appointees do not hold over and their offices are now vacant. The Supreme Court of Georgia has recognized that appointments requiring Senate confirmation are only ad interim until the Senate next meets and acts or declines to act, so that the Senate’s adjournment without confirmation ends an interim appointee’s term of office. See Sims v. Tucker, 191 Ga. 676 (1941); accord Kaigler v. Floyd, 187 Ga. 441, 444-45 (1939); Britton v. Bowden, 188 Ga. 806, 815-16 (1939).10 Therefore, the adjournment of the Senate sine die without confirmation of the appointments has created vacancies in those offices and the Governor is free to fill those vacancies through his own ad interim appointments until the Senate should next meet.

The next issue presented by these facts is whether the Governor, in exercising his authority to make new ad interim appointments, may consider individuals whose previous appointments were not among those recommended for confirmation by the Senate Committee on Assignments and never voted on by the Senate. The Georgia Constitution makes it clear that once a gubernatorial appointee’s confirmation is rejected by the Senate, then “that person shall not be renominated by the Governor for appointment to the same office until the expiration of a period of one year from the date of such rejection.” GA. CONST. Art. V, Sec. II, Para. IX. This constitutional provision, by its very terms, applies to gubernatorial appointments based both on constitutional and statutory authority. Id. This proscription is also echoed in O.C.G.A. § 45-12-52(b), which provides that “[t]he Governor shall not appoint ad interim any person previously rejected by the Senate.” Id. (emphasis added). At the very least, then, a person whose appointment has been affirmatively rejected by the Senate is not eligible to be reappointed to succeed himself in that office for at least one year following the Senate rejection.

However, there is still a question whether the fact that the entire Senate did not consider and vote on a number of gubernatorial appointments is tantamount to an affirmative “rejection” of those appointments by the Senate. At least as to appointments made by the Governor pursuant to his authority under the Constitution or under O.C.G.A. § 45-12-52(b) in filling vacancies, it cannot be said that the Senate has rejected the appointments of those persons when there has been no confirmation vote on their appointment. Where this circumstance has occurred, it appears that, while those appointees may not continue in office, they still would be eligible for reappointment by the Governor because their appointments were not actually rejected by the Senate. It cannot be said that there was any official legislative action by the Senate demonstrating it reviewed the appointments and denied confirmation. Because there was no affirmative rejection of their appointment, the appointees are not otherwise constitutionally or statutorily disqualified from reappointment.

That same interpretation does not apply, however, to the Senate’s review of gubernatorial appointments to “boards, commissions, and bureaus” under O.C.G.A. § 45-12-54. The language in that statute is substantively different from the provisions cited above. That statute provides that “[u]nless such appointees are confirmed by the Senate” they cease to hold office immediately and the name of “another appointee to fill such office shall be immediately submitted by the Governor to the Senate.” Id. This statutory provision clearly anticipates that anything less than a Senate confirmation of these appointees (even where the Senate never voted on confirmation) results not only in the immediate end to the appointee’s term of office, but also mandates that some other names will be submitted to the Senate. Of course, those persons covered under these circumstances would be eligible to appointment to other offices and would also be eligible for reappointment to the same office at least after the one-year period described in the constitution.

Finally, questions have arisen regarding quorum requirements necessary for the continued operation of entities affected by vacancies created by the lack of Senate confirmation for the offices in question. Certainly, agencies and other organizations must look to their own statutes, rules, regulations or policies to determine whether quorum requirements have already been set. For example, O.C.G.A. § 21-5-4(f) requires that a majority of the five members of the State Ethics Commission may transact business. Where there is no specific provision fixing the number of votes required to take official action, O.C.G.A. § 1-3-1(5) generally requires a vote by a majority of the persons or officers to whom the joint authority is given, rather than a majority of those holding the office at the time of the vote or a majority of a quorum at a meeting. 1980 Op. Att’y Gen. 80-31, citing 1972 Op. Att’y Gen. 72 103; Aliotta v. Gilreath, 226 Ga. 263, 264 65 (1970).

This opinion has addressed miscellaneous questions regarding gubernatorial appointments, the requirements of Senate confirmation and the effect of the lack of Senate confirmation on reappointments and on quorum requirements. I hope this opinion has helped to clarify the state of the law regarding gubernatorial appointments and the significance of senatorial action in relation to such appointments.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General

Gubernatorial appointments authorized under the state constitution and explicitly subject to confirmation by the Senate include:

Gubernatorial appointments, other than to state licensing and examining boards, authorized under state statutes and explicitly subject to confirmation by the Senate include:

Gubernatorial appointments to licensing or examining boards explicitly subject to confirmation by the Senate pursuant to state law include:

Gubernatorial appointments to boards authorized by statute and implicitly made subject to Senate confirmation pursuant to O.C.G.A. § 45-10-54 include:

Gubernatorial appointments to commissions authorized by statute and made implicitly subject to Senate confirmation pursuant to O.C.G.A. § 45-10-54 include:

Gubernatorial appointments to state authorities not created as commissions or otherwise governed by statutorily-created boards and for which there is no independent statutory requirement of Senate confirmation:

1 Appendices A through E attempt to identify and categorize the various constitutional and statutory entities and offices that are filled by gubernatorial appointment and are also subject to senatorial confirmation. Appendix F identifies those state authorities that are not subject to confirmation by the Senate and is included for purposes of clarity. The appendices do not attempt to identify all those additional gubernatorial appointments either not subject to confirmation or which may be authorized by noncodified sources.

2 This language has been interpreted to apply solely to appointments pursuant to state statute, and not to constitutional offices. 1945-47 Op. Att’y Gen. 646, 647.

3 “‛[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject matter, briefly called statutes 'in pari materia,' are construed and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ Butterworth v. Butterworth, 227 Ga. 301, 303-04 (1971), quoting Ryan v. Comm'rs of Chatham County, 203 Ga. 730, 731 (1948).”

4 “The applicable rules of statutory construction can be stated as follows: (1) determine the legislative intent giving meaning to the old law, the evil, and the remedy; (2) harmonize all parts of the statute to give meaning to each part of a statute; (3) apply the ordinary meaning to all words; and (4) avoid a construction which produces an absurd or contradictory result. O.C.G.A. §§ 1-3-1(a) and (b) (Supp. 2001); City of Waycross v. Holmes, 272 Ga. 488, 489 (2000); Vollrath v. Collins, 272 Ga. 601, 603-04 (2000); Mansfield v. Pannell, 261 Ga. 243, 244 (1991); State v. Watson, 249 Ga. App. 256, 257 (2001); Monticello Ltd. v. City of Atlanta, 231 Ga. App. 382, 383-84 (1998); Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995); Brown v. City of Marietta, 214 Ga. App. 840, 840-41 (1994).”

5 I note that, notwithstanding the inclusion of the designation of “bureau” in O.C.G.A. § 45-12-54, there do not appear to be any state bureaus to which the Governor makes appointments.

6 An example of this is the Geo. L. Smith II Georgia World Congress Center Authority, where the legislature has created the authority as a “body corporate and politic” and, by statute, has established a board of governors to operate the authority. O.C.G.A. §§ 10-9-2, 10-9-6. Other examples include the Herty Foundation Board and the Boards of Trustees of the Employees’ and Teachers’ Retirement Systems. See Appendix D.

7 The fact that an authority is designated as a “commission” or is governed by a statutorily-created board does not alter the fundamental nature of the authority as a distinct entity separate and apart from state government. The general conclusions contained in this opinion address only the question of whether gubernatorial appointees to these entities require Senate confirmation.

8 Senate Rule 218(a) of the 2003 Rules of the Senate contemplates that the Committee on Assignments or other committees assigned to review appointees make recommendations on the appointments and that final disposition of the appointments awaits action by the Senate itself. (“At the time the Senate considers such nominations, the committee or committees shall make their recommendations, if any, relative to such nominees.”) The entire Senate must then act on the committee recommendations to confirm or reject the appointments. See also DeJulio v. Georgia, 127 F. Supp.2d 1274 (N.D. Ga. 2001), aff’d, 290 F.3d 1291 (11th Cir.), cert. denied, ___ U.S. ___, 123 S. Ct. 413 (2002) (internal committees of the Georgia General Assembly do not have delegated authority to make laws). 9 There is some authority that suggests that outside of the area of the Senate’s failure to confirm (i.e., when the term of office for a person who is subject to confirmation expires), that officer may still hold over in office provided that the specific language creating the office contains hold over language such as “the officer continues to serve until his successor is appointed and qualified.” See Garcia v. Miller, 261 Ga. 531, 531-32 (1991); 1998 Op. Att’y Gen. 98-3 (members of the Professional Standards Commission do not hold over in office absent language permitting their serving “until successor is appointed and qualified”). The General Assembly recognized the correctness of this office’s 1998 opinion and amended the statute in question to provide “members of the commission may serve until their successors are appointed and qualified.” See 2002 Ga. Laws 397, 399 § 3; compare 1992 Ga. Laws 2365, 2367 § 4; 1993 Op. Att’y Gen. U93-16 (members of a local board of education hold over in office); 1983 Op. Att’y Gen. U83-30 (members of local board of equalization hold over in office).

10 All of these cases reject a previous interpretation of Georgia law outlined in Shackelford v. West, 138 Ga. 159 (1912), which held that the Senate’s failure to confirm an interim appointment to replace a city court judge resulted in the original judge (which the Governor intended to replace) instead “holding over” in office.

11 Only four gubernatorial appointees to the Board of Public Safety are specifically designated as requiring Senate confirmation. O.C.G.A. § 35-2-1(b)(2)(A-D); O.C.G.A. § 35-2-1(b)(3)(A). In requiring that only certain gubernatorial appointees to the Board be confirmed, while excluding other appointees from this requirement within the same statute, it should be presumed that the General Assembly did not intend those appointments pursuant to O.C.G.A. § 35-2-1(b)(3)(A) also be subject to the confirmation requirement, following the statutory maxim. expressio unius est exclusio alterius. See, e.g., O’Donnell v. Durham, 275 Ga. 860, 861 (2002); City of Decatur v. Dekalb County, 256 Ga. App. 46, 49 (2002).

12 The members of the North Georgia Mountain Authority are not explicitly subject to confirmation pursuant to that authority’s creating statute, but the authority “shall consist of nine members who . . . shall be appointed by the Governor from the same persons who comprise the Board of Natural Resources,” and those persons are subject to confirmation when appointed to the Board of Natural Resources pursuant to GA. CONST. Art. IV, Sec. VI, Para. I and O.C.G.A. § 12-2-21.

13 The members of the Georgia Music Hall of Fame Authority and the Georgia Housing and Finance Authority are not explicitly subject to confirmation pursuant to those authorities’ creating statutes, but both authorities “shall consist of the same persons who comprise the Board of Community Affairs,” and those persons are subject to confirmation when appointed to the Board of Community Affairs pursuant to O.C.G.A. § 45-10-54.

14 The members of the Georgia Golf Hall of Fame Authority are not explicitly subject to confirmation pursuant to the Authority’s creating statute (O.C.G.A. § 12-3-582), but its members are the same persons who comprise the Georgia Golf Hall of Fame Board created at O.C.G.A. § 50-12-64, who themselves are subject to Senate confirmation pursuant to O.C.G.A. § 45-10-54.

15 The members of the Georgia Higher Education Assistance Corporation and the Georgia Student Finance Authority are, by virtue of their statutes, the same persons who are serving on and are members of the Georgia Student Finance Commission, who themselves are explicitly subject to Senate confirmation pursuant to O.C.G.A. § 20-3-234(a)(1).

16 See supra note 15. 17 See supra note 13.