Opinion In Reference To

Priority of payment of surcharges to and deductions from fines and forfeitures imposed in traffic cases.


This will thank you for your January 2, 1996, appointment of me as a Special Attorney General. You asked us to render an opinion on the applicability of the United States Department of Defense Joint Ethics Regulation ("JER") to National Guard personnel while in a non-mobilized state status. Your request stems, in turn, from a similar request by Adjutant General William P. Bland, Jr.


Where there is governmental oversight or involvement, a student-run newspaper at a state educational institution is subject to the free speech requirements of the First Amendment and, therefore, may not exclude materials from publication based on their content absent a compelling state interest for doing so.


O.C.G.A. § 40-6-395(b)(5)(A); Interpretation to determine if cases are felonies requiring transfer to superior court.


Teaching of Creationism in Public Schools.


Official Code of Georgia Annotated ¿ 16-11-178 prohibits the receipt of a handgun by a person involuntarily hospitalized within the past five (5) years; that period of time is calculated from the person's release from hospitalization. Official Code of Georgia Annotated ¿ 35-3-34(d.1)(2) requires that judges of the probate courts and clerks of the superior courts advise the Bureau of all persons involuntarily hospitalized after March 22, 1995, the date the bill was signed by the Governor.


The Georgia Ports Authority, as an instrumentality of the State of Georgia, is not bound by a Chatham County ordinance mandating certain environmental reporting requirements to be made to the County.


Local boards of education are not authorized under current law to contract for health insurance with entities other than the State Personnel Board.


Application of O.C.G.A. § 49-4A-9 to juveniles tried and sentenced as adults.


Existing law does not authorize the use of voter registration applications which contain an applicant's digitized signature; therefore, express authorization by the General Assembly must be obtained before a system which uses such technology may be implemented.


The Georgia Department of Family and Children Services may request that parents consent to placement of their children by the Department outside the family home, without the Department instituting legal action against the parents, either during the investigation of purported child abuse or after confirming child abuse, as long as the requirements under state and federal law for voluntary placements are met.


The scope of the Fair Use Doctrine, 17 U.S.C. § 107, for making copies for classroom use, for teachers who make copies for research and scholarship, and the potential liability of teachers, librarians, and employees of nonprofit institutions for exceeding the parameters of fair use.


Whether the scope of practice of dentistry includes certain surgical procedures.


The Gwinnett County Commission may increase the annual salary supplement for superior court judges beyond the minimum $19,750.00 provided for by local legislation, but a percentage of any such compensation must likewise be paid to the other county officials whose salaries are linked to local supplements paid to superior court judges.


The "Crime Victims' Bill of Rights," O.C.G.A. § 17-17-1 et seq., is not applicable to juvenile court proceedings.


The prohibition contained in the Georgia Ethics in Government Act against for-hire motor carriers regulated by the Georgia Public Service Commission contributing to political campaigns is still applicable despite the partial preemption provisions contained in the Federal Aviation Administration Authorization Act of 1994.


The Department of Transportation may give permits to American MAGLEV Technology, Inc., to cross the rights-of-way of state routes which will be traversed by the proposed MAGLEV trail between the Georgia State MARTA station and the parking lot across Capitol Avenue from Atlanta-Fulton County Stadium provided that substantial consideration is received from American MAGLEV for these permits.


While the Ethics in Government Act does not expressly prohibit an incumbent member of the General Assembly from soliciting a pledge or setting goals for contributions during a legislative session, such actions would clearly be contrary to the policies and purposes of the Act and should be avoided.


English is the official language of the State of Georgia; therefore, there is no legal mandate for the Department of Public Safety to offer driver's license examinations in any other language.


The provisions of O.C.G.A. ¿ 44-14-361.5, requiring an "owner" of real property who engages a contractor to perform improvements upon the property to file a "Notice of Commencement" of work, are not applicable to a state authority with regard to construction projects on public property; however, a contractor performing a public works contract for a state authority is required to file a "Notice of Commencement," in accordance with O.C.G.A. ¿ 36-82-104(f).


There is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1(c)(1) with respect to general matters, as well as in conjunction with employee disciplinary proceedings, as long as the legislator, in his or her capacity as the board's legal representative, does not take any adverse action against the state or any of its agencies.


Alteration of the by-laws of the chamber of commerce would not work a change in the membership of the Crisp County - Cordele Industrial Development Authority and the appropriate representative to the authority is the chamber chairman who held the position of president at the time of the creation of the authority.


The term "immediate family" which appears in the campaign contributions portion of the Ethics in Government Act refers to a candidate's spouse and children.


The General Assembly of Georgia may, within constitutional limitations, enact legislation which requires the public libraries of this state to distinguish between materials which are "harmful to minors" and other materials in order to prevent the exposure of such materials to children.


When the General Assembly enacted legislation which required the Vidalia Public School System to be brought into conformity with the method of certification and levy of school tax provided in Ga. Const. 1983, Art. VIII, Sec. VI, Para. I(a), it eliminated the Vidalia Public School System's ability to utilize a different method of certification and levy which had been allowed under the "grandfather" provision in Ga. Const. 1983, Art. VIII, Sec. VI, Para. I(d).


Local and independent school systems are authorized to lease school buses to the Atlanta Committee for the Olympic Games for the purpose of transporting the public to the Olympic venues, provided that all of the cost of the use of the buses as well as any additional insurance costs are paid from funds other than public school funds.


A county board of tax assessors and county board of equalization are subject to the provisions of the Georgia Open Meetings Law, O.C.G.A. § 50-14-1 through 50-14-6.


Within certain parameters and with diligent, good faith supervision of the enterprise, a member of the Board of Directors of the Georgia Housing and Finance Authority acting within the scope of his or her authority in carrying out the Authority's stated powers, may rely upon O.C.G.A. ¿ 50-26-6 for protection from imposition of personal liability.


Lumpkin County may not enter into a long-term lease with the Georgia Tribe of Eastern Cherokee Indians under the intergovernmental contract provisions of 1983 Georgia Constitution, Article IX, Section III, Paragraph I.


The Department of Administrative Services' policy prohibiting commercial advertising on state vehicles prevents the Department of Education from operating a donated Toyota van with the slogan "Another Toyota Vehicle Serving the Community" stenciled on the side.


A Regional Development Center is not authorized, pursuant to O.C.G.A. ¿ 45-9-21, to pay one of its employee's attorney's fees which were incurred prior to the commencement of a civil, criminal, or quasi-criminal action against the employee arising out of the performance of the employee's duties.


A magistrate judge may issue an arrest warrant for someone charged with the offense of deposit account fraud, O.C.G.A. § 16-9-20, based on the affidavit of a person working for a company in the business of collecting worthless checks for merchants, provided that the collection company has legally acquired possession, and is entitled to receive payment, of the instruments, or that the company is an agent with express authorization from its principal.


A sentencing court may not require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement. However, where an offender voluntarily agrees to make restitution in a certain amount, even if such amount exceeds the victim's "damages," the sentencing court may incorporate that agreement into its restitution order.


In the absence of clear legislative authority, a local school board may not appoint a new school superintendent for a term beginning after the terms of a majority of the current board expire.


Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file identifying data.


Resolution 70, 1986 Ga. Laws 529, adopting English as the official language of the State of Georgia has the force and effect of law.


Under certain circumstances, the Environmental Protection Division may authorize special environmental projects in lieu of unimposed or unaccrued monetary penalties; however, the modification of the Consent Order here in question so as to reduce the amount of unaccrued stipulated penalties and require that an amount equal to the reduction be spent on development of a proposed Chattahoochee River Recreational Park would not appear to be authorized.


The statutory proviso negating a "conflict of interest" situation for Board of Regents' employees who serve on the governing boards of the various private, nonprofit, educational, athletic and research foundations and associations affiliated with University System institutions is both express, and contained in legislation dealing specifically with "conflicts of interests" in government. This specific proviso in public sector legislation is in no way affected, limited or modified by a more recent amendment of Georgia's general corporation code placing certain "conflict of interest" disclosure requirements upon the directors and officers of private non-profit corporations.


Registration to vote may not be conditioned upon an applicant supplying his race on a registration application, though race may be requested as an optional part of the registration process.


An "approved school" for purposes of tuition equalization grants must have been in existence in Georgia for ten years prior to being eligible to receive grant funds in addition to satisfying other statutory criteria. Further, eligibility also depends upon a school being a baccalaureate degree granting institution on or after July 1, 1995.


A school board may not close to the public any meeting devoted to the airing of grievances about school personnel by interested members of the public. Further, should the school board conduct an inquiry into the actions of school personnel any evidence or argument presented to the board must be held in an open meeting, but the board may close that portion of the meeting consisting of deliberation or discussion of disciplinary action upon proper compliance with the statutory meeting closure provisions.


Forsyth County did not establish a county police force when it created a county marshal's office in 1985 and, therefore, the county governing authority must comply with the requirements of O.C.G.A. § 36-8-1(b) before creating a county police force.


A hospital authority may apply for a certificate of need outside its area of operation and without the permission of the affected governing authority or hospital authority board in the planned service area, provided however that in order to implement the certificate permission to pursue the health care activity would be required.


Companies providing alternative insurance coverage in lieu of workers' compensation insurance may be required to participate in the Workers' Compensation Insurance Plan by a rule properly promulgated under the Administrative Procedure Act.


The City of Tifton may not transfer real property by deed of gift to the Tift County Recreation Department for recreational use but may transfer real property pursuant to a valid inter-governmental contract.


The statutory phrase "to procure insurance coverage for participants in its programs," found in O.C.G.A. ¿ 50-12-44, grants the Commission the power to procure insurance only for those actively taking part in the athletic competition, and thus, the Commission has no power to procure insurance for its sponsors.


A hospital authority may not own or operate a business corporation consistent with the mandate of the Georgia Hospital Authorities Law, O.C.G.A. § 31-7-70 et seq. Further, a member of a hospital authority board has an impermissible conflict of interest where he has any financial interest, not de minimis, in an entity conducting business with the authority notwithstanding the existence of an intermediary between the board and the entity.


Certified financial statements, financial audits and summary statements of nonprofit contractors who seek to contract with and obtain reimbursement through the Office of Planning and Budget based upon the recommendation of the Georgia Council for the Arts must be made available for public inspection.


The Georgia Housing and Finance Authority's power to continue to make loans pursuant to the United States Department of Agriculture's Farmers Home Administration Intermediary Relending Program until reaching the monetary limit of the existing promissory note is not affected by the "sunset" provision of O.C.G.A. ¿ 50-26-10(i)(2).


The National Guard is a law enforcement agency within the contemplation of O.C.G.A. ¿¿ 16-13-48.1 and -49(u)(4)(B) and is eligible to share in proceeds of drug-related forfeitures with respect to activities under O.C.G.A. ¿ 38-2-10 or a duly declared emergency.


One of the duties of the Attorney General is to give his legal opinion, when required to do so by the Governor, on any question of law connected with the interest of the state or with the duties of any of the departments. O.C.G.A. § 45-15-3(1). However, to avoid having the Governor endorse all requests for opinions originating within the departments of the state, the Attorney General receives requests for opinions directly from the heads of the executive departments.

The Attorney General will also provide opinions to other state officers, such as legislators, judges or district attorneys. The Attorney General does not generally provide legal advice, opinions or representation to county or municipal governments or officials, but will on request review the written legal opinions and conclusions of counsel for local governments.

Opinions issued to the Governor and the heads of the executive departments are classified as "Official Opinions." Those issued to other state officers (such as legislators, judges or district attorneys) are classified as "Unofficial Opinions." Additionally, from time to time the Attorney General will approve interstate compacts or issue position papers on questions of state law. Those documents are published along with the opinions of the Attorney General.

This presentation of the opinions of the Georgia Attorney General is provided for informational purposes only and should not be considered as legal advice to the general public. From time to time, opinions may be withdrawn, revised or otherwise made obsolete.

Opinions of the Attorney General
1994 - Current

For a copy of a pre-1994 opinion, please contact the Georgia Attorney General's Office at (404) 651-5825 or by e-mail at opinions@law.ga.gov.