You have requested an official opinion regarding the authority of the Georgia Government Transparency and Campaign Finance Commission under the Georgia Government Transparency and Campaign Finance Act of 2010 (the “Act”) to adjust maximum campaign contribution limits for candidates seeking elected office.  In addition, you have inquired into when and how the Commission may raise or lower contribution limits relative to when election cycles occur.  

 

The Act permits the Commission to raise or lower contribution limits only at the end of an election cycle for a particular office.  Because every calendar year, election cycles governing any number of municipal, county, or statewide offices conclude, the Commission must adopt new contribution limits on a yearly basis; however, only those offices whose election cycle concluded during that calendar year will have their limits adjusted.  Adjustments to contribution limits are prospective only, and any adjustments are only effective upon approval by the Commission.

 

Applicable Law

 

The Act sets forth the applicability of campaign contribution limits to candidates for public office, the duration of those limits, and when those limits can change.  See generally O.C.G.A. § 21‑5‑41.  Specifically, the Act requires that campaign contribution limits remain in effect for an entire “election cycle,” respective to each public office, and those limits can be adjusted only at the end of that cycle.  O.C.G.A. § 21‑5‑41.  “Election cycle” is defined under the Act as:

 

the period from the day following the date of an election or appointment of a person to elective public office through and including the date of the next such election of a person to the same public office and shall be construed and applied separately for each elective office.

 

O.C.G.A. § 21‑5‑3(10).

 

The Act incorporates the term “election cycle” into the subsections that define the campaign contribution limits for all elected offices regulated by the Act.  O.C.G.A. § 21‑5‑14(a) and (b).   The term itself provides a duration for how long any given campaign contribution limit is applicable to any election for a particular office for those candidates who are raising money for that specific election.  Id.  The Act provides:

 

(a)  No person, corporation, political committee, or political party shall make, and no candidate or campaign          committee shall receive from any such entity, contributions to any candidate for state-wide elected office which in the aggregate for an election cycle exceed:       

  1.   Five thousand dollars for a primary election;
  2.   Three thousand dollars for a primary run-off election;
  3.   Five thousand dollars for a general election; and
  4.   Three thousand dollars for a general election runoff.

 

(b) No person, corporation, political committee, or political party shall make, and no candidate or campaign committee shall receive from any such entity, contributions to any candidate for the General Assembly or public office other than state-wide elected office which in the aggregate for an election cycle exceed: 

  1.   Two thousand dollars for a primary election;
  2.   One thousand dollars for a primary run-off election;
  3.   Two thousand dollars for a general election; and
  4.   One thousand dollars for a general election runoff.

 

O.C.G.A. § 21‑5‑41(a) and (b).

 

The Act contemplates three general categories of public offices eligible to receive campaign contributions: state-wide offices (including constitutional offices), county offices, and municipal offices.  See O.C.G.A. §§ 21‑5‑41, 21‑5‑3(22); see also Ga. Const. Art V, Sec. I, Para. III, O.C.G.A. § 21‑2‑9.  State-wide and county offices are elected during even-numbered years, and municipal offices are elected during odd-numbered years.  See O.C.G.A. § 21‑2‑9.   For the state-wide and county offices, the election cycles (or terms) range between two, four and six year cycles; municipal offices have two and four year election cycles.  O.C.G.A. §§ 21‑2‑541.1, 21‑2‑541.2.  Many state-wide and municipal offices have staggered election cycles.  Id.  For instance, one state-wide elected public official’s four-year term might begin following the 2018 election cycle while a second statewide official’s four-year term may begin following the conclusion of the 2020 election cycle.  Similarly, one elected municipal official’s four-year term might have begun following the 2019 election cycle, while another official’s four-year term in that same municipality may begin following the conclusion of the 2021 election cycle.

 

The election cycle applicable to each public office includes the possibility of a “primary election, run-off election, either primary or general; special election; or general election.”  O.C.G.A. § 21‑5‑3(9).  A candidate for public office may receive monetary campaign contributions for a particular election, and throughout each of the applicable elections for that particular public office’s cycle, whichever elections actually occur and for which the candidate is actually on the ballot.  See O.C.G.A. § 21‑5‑43 (a) and (d).  An individual may only contribute up to the maximum contribution limit to that candidate for that particular election.

                       

The Act also provides the authority for when these contribution limits can be adjusted:

 

                        At the end of the election cycle applicable to each public office as to which campaign contributions are limited by the Code section and every four years for all other elections to which this Code section is applicable, the contribution limitations in this Code section shall be raised or lowered in increments of $100.00 by regulation of the commission pursuant to a determination by the commission of inflation or deflation during such election cycle or four-year period, as determined by the Consumer Price Index published by the Bureau of Labor Statistics of the United States Department of Labor, and such limitations shall apply until next revised by the commission. The commission shall adopt rules and regulations for the implementation of this subsection. 

 

O.C.G.A. § 21‑5‑41(k).  

 

By rule, the Commission raises or lowers contribution limits “each calendar year at its first regularly scheduled meeting of the year . . . .”  Ga. Comp. R. & Regs. r. 189‑1‑.07.  The Commission rule further states that “the failure to raise or lower the maximum contribution limits at its first regularly scheduled meeting of the year shall have the effect of a rejection by the Commission of the need to raise or lower the maximum contribution limits, but the Commission may, on motion, raise or lower such limits at other times during the year.”  Id.

 

Questions

 

You have asked five questions: (1) whether the Commission’s regulation on adjusting contribution limits is consistent with the statutory authority in the Act; (2) whether the Commission is mandated to raise or lower contribution limits each year, or does it have discretion; (3) whether the Commission may provide for retroactive campaign contribution increases, or must any changes be prospective only; (4) whether the Commission can delegate its authority to increase contribution limits to its staff or must only the Board authorize increases; and (5) whether contribution limits may be raised or lowered more than once during an election cycle. The opinion will answer these questions in turn.

 

Analysis

 

     1. The Commission can adjust Contribution limits for certain election cycles each year.

 

The Commission’s current rule on how it can raise or lower the contribution limits states,

 

Each calendar year at its first regularly scheduled meeting of the year, the Commission shall review the maximum campaign contribution limits imposed by [the Act]. After a review of the inflation or deflation rate as determined by the Consumer Price Index [. . .] the Commission may raise or lower the maximum campaign contribution limits in $100.00 increments for all elected offices. The failure to raise or lower the maximum contribution limits at its first regularly scheduled meeting for the year shall have the effect of a rejection by the Commission of the need to raise or lower the maximum contribution limits, but the Commission may, on motion, raise or lower such limits at other times during the year.

 

Ga. Comp. R. & Regs. r. 189‑1‑.07.

 

On its face, the rule allows the Commission to adjust the contribution limits during the beginning of a calendar year (or election year)[1] for all elected offices.[2]  However, reading the rule in conjunction with O.C.G.A. § 21‑5‑41(k), the Commission can only adjust contribution limits for those elected offices with election cycles ending during that particular calendar year.  See O.C.G.A. § 21‑5‑41(k); Ga. Comp. R. & Regs. r. 189‑1‑.07.  Despite the term “all elected offices” in the rule, the Commission only has the statutory authority to update the limits for offices for which election cycles have ended.

 

For instance, many bodies of government are comprised of public officials who have staggered election cycles. Typically, state-wide and county officials’ election cycles end during even-numbered years, and municipal officials’ election cycles end during odd-numbered years. And because of the staggered election cycles, there will always be a number of public officials whose election cycles end during any given calendar year, respectively. This means that the Commission may adjust the contribution limits only for whichever state-wide election cycles (imposed under O.C.G.A. § 21‑5‑41(a)) that end during even-numbered years, and whichever municipal election cycles (imposed under O.C.G.A. § 21‑5‑41(b)) that end during odd-numbered years. See O.C.G.A. § 21‑5‑41(k); Ga. Comp. R. & Regs. r. 189‑1‑.07. So the Commission’s existing rule that requires the contribution limits be adjusted every calendar year is in line with the requirement of contribution limits being adjusted “at the end of the election cycle,” under O.C.G.A. § 21‑5‑41(k), since some election cycles end every calendar year.

 

     2. The Commission may raise or lower contribution limits only in set increments.

 

The Act requires that any adjustments to contribution limits must occur “in increments of $100 pursuant to . . . inflation or deflation.”  O.C.G.A. § 21‑5‑41(k).  However, neither the Act, nor the rule, allow for any smaller or larger increments of adjustments to the contribution limits.  Id.  This means that after a yearly review of the Consumer Price Index, if neither inflation nor deflation has occurred such that a contribution limit can be raised or lowered by an increment of $100, the rule allows the Commission to reject raising or lowing the contribution limits for that election cycle, and the limits would stand as is “until next revised by the commission.”  See O.C.G.A. § 21‑5‑41(k); see also Ga. Comp. R. & Regs. r. 189‑1‑.07 (“failure to raise or lower the maximum contribution limits . . . shall have the effect of a rejection by the Commission of the need to raise or lower the maximum contribution limits.”).[3]  Once the Commission affirmatively raises, lowers, or rejects adjustment of contribution limits, the new or unchanged limit remains in effect for that particular election cycle until it ends. O.C.G.A. § 21‑5‑41(k).  While the Commission’s rule permits the revisiting of setting contribution limits if the Commission fails to timely adjust the contribution limits at its first regularly scheduled meeting of the year, the language of the Act does not allow the Commission to revisit an affirmative vote that raises, lowers, or rejects an adjustment to contribution limits. Such an affirmative vote of the Commission locks the adjusted contribution limits into place for the duration of that election cycle.[4]

 

     3. The Commission must adjust contribution limits at the end of every election cycle.

 

The Act allows for contribution limits to be adjusted “at the end of an election cycle” or “every four years for elections for which contributions are not expressly limited by the terms of O.C.G.A. § 21‑5‑41.  O.C.G.A. § 21‑5‑41(k).  The only types of elections for which limits are set explicitly by O.C.G.A. § 21‑5‑41 are primary, primary run-off, general election and general election run-off. See O.C.G.A. §21‑5‑41 (a) and (b).  As discussed above, the limits applicable to a particular office are set following the conclusion of the election cycle applicable to that particular office.  As set out in the Commission’s rule, this typically is considered at the first regularly called meeting of the Commission in a calendar year.

 

In contrast, special elections, special election run-offs, and recall elections are limited to adjustment once every four years, as the limits applicable to them are not found within the terms of O.C.G.A. § 21‑5‑41.  The Commission is authorized to modify the limits applicable to special elections, special election run-offs, and recall elections once every four years, and those limit increases will be applicable to election cycles occurring after the adoption of the adjustment of the limits until the Commission makes an affirmative decision to modify those contribution limits, such consideration taking place at least four years from the Commission’s last adjustment of the limits applicable to special elections, special election run-offs, and recall elections.

 

Election cycles end at various times throughout the year.  See O.C.G.A. §§ 21‑2‑9, 21‑2‑10, 21‑2‑541, 21‑2‑541.1, and 21‑2‑541.2.  For example, most if not all nonpartisan general elections are held in April or May.  See O.C.G.A. § 21‑2‑9.  State-wide and county general elections are usually held in November.  Id.  Special elections conclude during the time between the nonpartisan and general elections; however, they typically occur only if there is a vacancy or recall election.  See O.C.G.A. §§ 21‑2‑9, 21‑2‑139, 21‑2‑541, 21‑2‑541.2.  Although the Commission’s rule only allows for contribution limit adjustments at its first meeting of the year, it is conceivable that the adjustment period of end-of-election-cycle contributions, which are expressly limited by the act, coincides with the end-of-four-year contributions, which are special elections, special election run-offs, or recall elections. In the event this occurs, the Commission has the authority to review and adjust the contribution limits multiple times per calendar year, tailored to when the specific election cycles or four year period ends.  O.C.G.A. § 21‑5‑41(k); Ga. Comp. r. & Regs. r. 189‑1‑.07.[5]

 

The Commission raising contribution limits only at the end of a cycle or every four years, suggests that candidates should know at the beginning of the next cycle what the maximum contribution limits will be for the duration of the new cycle.  See Id.[6]  Adjusting contribution limits after the new election cycle has begun may allow outdated contribution limits to carry over into new election cycles.  Thus, the adjustment of a contribution limit should occur as close as practically possible to the end of an election cycle or every four years to avoid changes to limits during any subsequent election cycle.

 

     4. The Commission has not delegated approval of the adjustments of contribution limits to staff.

 

Although the Commission can choose to delegate certain authority to agency staff in order to carry out the Commission’s duties, it has not delegated the authority to raise or lower contribution limits, nor may it do so.  An entity of the State of Georgia generally has “only such powers as the legislature has expressly, or by necessary implication conferred upon it.”  Bentley v. Board of Medical Examiners, 152 Ga. 836, 838 (1922); Bryant v. Employees Retirement System of Georgia, 216 Ga. App. 737 (1995). A prior opinion from this office states:

 

Legal commentators have pointed out that a total delegation of control of a corporation to an individual is generally considered improper.  Robert J. McGaughey, Georgia Corporate Law Handbook (GCLH), §§ 5.08, 5.11 (1994).  However, an officer may conduct all ordinary business and execute contracts and conveyances.  See O.C.G.A. § 14-2-841; Tallman v. Southern Motor Exchange, Inc., 97 Ga. App. 565, 567 (1958); See also Armed Forces Service Co. v. Petree, 211 Ga. 867 (1955).  Thus, the Authority may delegate day-to-day management of its affairs to its managing officer.  Certain powers are not delegable: (1)  appointment and compensation of the executive director; (2) filling of vacancies or election of positions on the Board of Directors; (3) adopting, amending, or repealing by-laws; (4) approval of mergers or dissolutions; (5) determination of financial structure of the Authority; and (6) vigilance of the welfare of the entire enterprise. (GLCH), § 5.08 supra.  See generally O.C.G.A. § 14-2-285(d) (prohibited delegations to committees of directors).

 

1995 Op. Att’y Gen. 95-40.

 

The Commission is permitted to “employ an executive secretary and such additional staff as the commission deems necessary to carry out the powers delegated to the commission by this chapter.”  O.C.G.A. § 21‑5‑6(a)(4) (emphasis added).  The Commission has delegated certain authority to Commission staff to carry out the Commission’s functions, and, when it has done so, the adopted rule specifically states such delegation. See O.C.G.A. § 21‑5‑6(b)(9), see also Ga. Comp. R. & Regs. r. 189‑2‑.03(3) (delegating to commission staff the ability to take preliminary action on receipt of a written complaint); Ga. Comp. R. & Regs. r. 189‑2‑.04 (delegating to commission staff ability to initiate investigation on reasonable belief that probable cause exists); Ga. Comp. R. & Regs. r. 189-2-.04 (delegating to commission staff ability to use investigative subpoenas to bring enforcement action).  Certain functions remain within the sole province of the the Commission, such as the ability to impose penalties.  See O.C.G.A. § 21‑5‑6(b)(14)(C); Ga. Comp. R. & Regs. r. 189‑2‑.04.

 

The ability to determine the need for adjusting contribution limits, as well as the determination of the amount of those altered contribution limits, is by its nature a discretionary function.  As this office has previously stated,[t]he general rule in American jurisdictions is that where a discretionary power is vested by law in one particular official, board or other governmental body or agency, it cannot, unless otherwise provided by law of equal dignity (referring to constitutional provisions vis-à-vis statutes), be delegated to others.  1986 Op. Att’y Gen. 89-29 (emphasis added); see also Chatham Ass’n of Educators v. Bd. of Public Educ., 231 Ga. 806, 807-08 (“Without specific legislative authorization, a school board has no authority, by contract or otherwise, to delegate to others the duties placed on the board by the Constitution and laws of Georgia.”).  There has been no specific authorization by the General Assembly that would authorize the Commission to delegate the discretionary duties placed upon it to set contribution limits.  Cf. 1996 Op. Att’y Gen. 96-12 (pointing out that the authority of the State Board to hire and fire classified employees within the Department of Education could, pursuant to explicit statutory authority, be delegated to the State School Superintendent).  Nor is the authority to set contribution limits a power a power implied from general authority rather than expressly vested by statute, which forecloses the possibility that the delegation could necessarily be implied within the statutory scheme.  Cf. 1999 Op. Att’y Gen. 99-9 (finding that the Adjutant General could delegate the ministerial act of signing certain contracts that fell within established guidelines set by the Adjutant General because the power to sign contract was necessarily implied by his general authority rather than expressly granted to him under state law).

 

Here, the General Assembly has decreed that campaign contribution limits may be raised or lowered, “by regulation of the Commission pursuant to a determination by the Commission,” of the rate of inflation or deflation based on the Bureau of Labor Statistics Consumer Price Index.  O.C.G.A. § 21‑5‑41(k) (emphasis added).  The Commission, and not its staff, is the regulatory body under Georgia law granted the discretionary ability to determine whether and to what extent to adjust contribution limits. There is no express grant of authority by the General Assembly that would permit the delegation of this discretionary duty to Commission staff.  Therefore, only the Commission, not the staff, can alter contribution limits pursuant to the discretionary authority granted to the Commission by statute.

 

     5. Adjustments to contribution limits can occur only once during an election cycle.

 

With respect to adjusting contribution limits more than once during an election cycle, O.C.G.A. § 21‑5‑41(k) only provides that the contribution limits be raised “at the end of the election cycle . . . and every four years for all other elections. . . .”  O.C.G.A. § 21‑5‑41(k).  This statutory prescription provides that the limits for primaries, primary run-offs, general elections, and general election run-offs can only be adjusted once at the conclusion of the just-concluded election cycle.  Limits for other potential elections, including special elections, special election run-offs, and recall elections may be modified only once every four years.

 

Thus, for an office with a four-year term, a candidate may appear on the ballot several times during that period. The limits applicable to the primary, primary run-off, general, and general run-off, which will each occur at most once during that four year period, will be the limits set by the Commission at the conclusion of the last election cycle concluding with a general election or, if applicable, the general election run-off. Any special election, special election run-off, and recall election shall be governed by the contribution limits set once every four years by the Commission for all offices as to those types of elections.

 

Conclusion

 

In light of the foregoing, it is my official opinion that the Ethics in Government Act limits the authority of the Commission as to which offices may have their contribution limits adjusted in a particular year.  The Commission may raise or lower contribution limits only in set increments of $100, depending on the inflation or deflation rates of the Consumer Price Index. The Commission must adjust Contribution limits for primaries, primary run-offs, general elections, and general election run-offs, only after the conclusion of the election cycle for that particular office. For special elections, special election run-offs, and recall elections, the Commission may adjust those limits only once every four years.  The Commission cannot delegate its authority to set contribution limits to commission staff.  Finally, the Commission is not authorized to increase or decrease the contribution limits applicable to a particular election for a particular office more than once during the election cycle for that particular office, whether the office be state-wide, county, or municipal.

 

 

Prepared by:

Christian A. Fuller

Assistant Attorney General

 

[1] “’Election year’ shall be construed and applied separately for each elective office and means for each election office the calendar year during which a regular or special election to fill such office is held.” O.C.G.A. § 21‑5‑3(11).

[2] The Commission’s existing yearly review is, in essence, reviewing the contribution limits every four years, which complies with the requirements of the Act.

 

[3] It is important to note here that the Commission’s interpretation of the CPI to determine the inflation or deflation rate is wholly within the purview of the agency’s discretion because the Act does not state how the Commission should interpret the CPI. See Cook v. Glover, 295 Ga. 495, 500 (2014) (citing Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984) (If a statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.)).

[4] The Commission should consider modifying its rule to remove the language that implies that during the annual review, contribution limits can be raised for all offices. Otherwise, as long as the Commission applies the remainder of the rule consistent with this opinion, the Commission is authorized to adopt and implement a rule similar in almost all other salient aspects as the current version of Ga. Comp. R. & Regs. r. 189‑1‑.07.

 

[5] The Commission can also choose “by motion” to review the limits as each election cycle ends during a calendar year. See Ga. Comp. r. & Regs 189-1-.07; O.C.G.A. § 21-5-41(k).

[6] “At” as defined means “used to indicate a location or position, as in time, on a scale, or in order.” https://www.dictionary.com/browse/at (last accessed on July 17, 2020).