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Official Opinion 2001-5

Official Opinion 2001-5

July 10, 2001
To: 

State School Superintendent

Re: 

Powers of the State Board of Education and the State School Superintendent

You have requested my opinion whether several specific actions of the State Board of Education are within its authority as interpreted in 1996 Op. Att’y Gen. 96-12. You have asked about nine different actions of the Board taken “without consultation with the Superintendent or the Superintendent’s approval.”

The background against which these questions are asked is the legislative action taken in 1996 and explained in 1996 Op. Att’y Gen. 96-12 and 1996 Op. Att’y Gen. 96-19 as well as the 2000 legislation regarding the Board chairman. In 1996 the General Assembly enacted a provision empowering the Superintendent as “executive officer of the [Board] and the administrative chief executive officer of the Department” to “organize and reorganize the Department . . . and the various . . . units thereof and to prescribe the duties, functions, and operations of each.” This represented a “major shift of authority from the State Board of Education to the Office of the State School Superintendent.” 1996 Op. Att’y Gen. 96-12. Although the Board retained control over policy, the retention and dismissal of employees, and its “general power of supervision over the operations” of the Department and the Superintendent, it was “not authorized to go beyond those powers and interfere in the day-to-day operations of the agency.” Id.; see also 1996 Op. Att'y Gen. 96-19 (“The State Board of Education lacks the statutory authority to hire its own staff or to designate Department of Education employees as staff for the Board.")

In 2000 the General Assembly enacted O.C.G.A. § 20-2-5.2 (Supp. 2000), providing:

The [Board] shall elect a chairperson and . . . other officers . . . . The chairperson shall preside at meetings of the state board, set the agenda for the state board, and perform such other duties as required by the state board. The chairperson is authorized, after a reasonable attempt at consultation with the State School Superintendent, to require any employee of the Department of Education to furnish information or perform functions for the state board.

The specific questions you have asked follow, along with my answer to each.

1.

May the Board chairman change the agenda for Board meetings and require Department staff to prepare reports without first consulting the Superintendent?

This question goes to the issues of whether the Board retains control over its own agenda and to what extent it can require employees of the Department to assist it in performing its duties.

Obviously, under the new Code section just quoted the Board chair may change the agenda consistent with Board policies and the general requirements of State law.1 See O.C.G.A. § 20-2-5.2 (Supp. 2000) (“The chairperson shall . . . set the agenda for the state board.”). Although the Superintendent is the “executive officer” of the Board, O.C.G.A. § 20-2-241, the relevant statutes do not require that she be consulted about the agenda. See O.C.G.A. §§ 20-2-240, -241 and O.C.G.A. § 20-2-5.2 (Supp. 2000). On the other hand, since she is the executive officer of the Board and the administrative chief executive officer of the Department, the Superintendent by implication is the officer expected to prepare the Department for the Board’s meetings. She could not reasonably do this unless she is at least reasonably informed. In any event, the chairman cannot act directly in seeking reports or other information from Department employees until he has made "a reasonable attempt at consultation with the State School Superintendent."

The cardinal rule in the construction of statutes is that the intent of the General Assembly in enacting a statute must be ascertained and that a statute must receive a construction which will give effect to that legislative intent and purpose. O.C.G.A. § 1-3-1(a); City of Roswell v. City of Atlanta, 261 Ga. 657 (1991); City of Jesup v. Bennett, 226 Ga. 606 (1970). The statutory language should be given its plain meaning. A statute needs no interpretation when its meaning is plain and unambiguous. Central of Ga. Ry. v. Tucker, 99 Ga. App. 52, 57 (1959).

The sense of the above statutes and common sense dictate that the Board and the Superintendent should work together in harmony to accomplish the carrying out of sound educational policy for the State of Georgia. On the one hand, the Board should be able to call on its employees through the Superintendent for assistance in carrying out its supervisory function and the Superintendent should not make it difficult for the Board to get that assistance. On the other, a point could be reached at which requests for assistance become so onerous as to interfere with the day-to-day operation of the Department. 1996 Op. Att'y Gen. 96-12. Your request for advice does not indicate that that is the case.

2.

May individual members of the Board draft rules without getting Department input?

The Board is authorized to adopt rules and regulations. O.C.G.A. § 20-2-240. As a state agency the Board is expected to provide a “high level of expertise” along with “the policy mandate and discretion entrusted to them by the legislature to make rules and enforce them in fashioning solutions to very complex problems.” See Bentley v. Chastain, 242 Ga. 348, 350-51 (1978). There appears to be no statutory provision regarding the source of the rules that the Board may consider, but it would be wise to invite input from a variety of sources, including the Department, before adopting a rule that would have the force and effect of law. See O.C.G.A. § 20-2-240. There is nothing in the law, however, that would preclude an individual board member from drafting rules to be considered by the Board.

3.

May the Board forbid the use of the “Math Matters” Program that is not funded with public money?

Although the information given is not sufficient to allow a full answer, it is safe to say that the Board may make policy on many matters dealing with education and is not limited to decisions dealing with expenditures of money, public or otherwise. See O.C.G.A. § 20-2-240 and 1996 Op. Att’y Gen. 96-12.

4.

May the Board require the Superintendent to enter into a contract with the Georgia School Superintendents’ Association?

Since you have not indicated the purpose of the contract or any other information about it, I am unable to fully evaluate the question. However, in general, in deciding policy questions, the Board has the right to decide with which associations the agency wishes to be affiliated. See O.C.G.A. § 20-2-240. I am unaware of a limitation on the Board’s authority in this regard.

5.

May the Board create its own newsletter with DOE funds and DOE staff?

The Board has the ability to determine the policy of the agency. See O.C.G.A. § 20-2-240 (a). The Board also has specific authority to “take such actions as it deems necessary to ensure that the citizens have full awareness and knowledge relative to the costs, quality, and performance of the public . . . schools of this state.” Id. Thus, the Board may determine as a policy matter that a newsletter is needed and what its content should be. To implement that policy, it should provide direction to the Superintendent for staff implementation, and it may direct that funds be spent for that purpose. Again, the Board must make reasonable attempts at consultation with the Superintendent to see that the purposes of the Board are carried out before directing appropriate staff to carry out this function.

6.

May the Board hire its own director with DOE funds and use DOE staff for secretarial assistance to the director?

In 1996 Op. Att’y Gen. 96-19 the Attorney General opined that the Board lacked the statutory authority to hire its own employees or to designate a member of the Department as its staff. This result harmonized the powers of the Board (including the powers of employment) with the powers of the Superintendent (including the power of organization and administration). In the change in 2000, the General Assembly provided that “after a reasonable attempt at consultation with the . . . Superintendent, [the chairperson may] require any employee of the Department . . . to furnish information or perform functions for the state board.” This statutory amendment does not change the direct result of that opinion but may be seen as qualifying it. The Code section does not withdraw from the Superintendent her powers to organize the Department and to implement its statutory functions and the Board’s policies, rules and directives. However, it makes clear the implied duty in the Superintendent to provide through the Department as part of her duties the executive functions peculiar to and needed by the Board, as opposed to those of the Department as a whole. Such services would include those of information gathering, as O.C.G.A. § 20-2-5.2 (Supp. 2000) states explicitly. They would also include services of an executive assistant or confidential secretary, providing the Board with a means of scheduling events and appointments. They would include, too, the administration of contracts the Board has chosen to execute for its own purposes, such as consulting contracts. See 1996 Op. Att'y Gen. 96-19. This is not an exhaustive description but illustrative.

Should the chairman determine after reasonable consultation with the Superintendent that such services were not being provided by Department employees, the chairman is empowered to direct their performance. Since the situation by its own terms may involve a disagreement or conflict between the Board and the Superintendent, the Board and especially the chairman should keep in mind the awkward situation this may present for the employee. Neither the Board nor the chairman should put the employees in an ambiguous situation concerning their duties if at all possible.

With respect to functions described above peculiar to the Board, such as those of an executive assistant or “director,” it would be appropriate, after a reasonable attempt at consultation with the Superintendent, for the Board to direct the designation of an employee suitable for such purposes. However, O.C.G.A. § 20-2-5.2 (Supp. 2000) should not be viewed as an avenue to circumvent the Superintendent’s general executive powers. The policy decision that appears to have been made by the General Assembly is to give complementary powers to the Superintendent and the Board but not to allow the two to create competing bureaucracies.2

7.

May the Board require that it review requests for proposal before they are sent out for bids?

In carrying out its function of setting policy for the agency, the Board is authorized to be involved in the advance planning for a contract that may have the effect of determining the future direction of the agency. Requests for proposals or invitations for bid should be prepared after careful study of the future needs of the agency. Usually the request for proposal method of procurement is used only for large or complex projects. See O.C.G.A. § 50-5-67. For instance, a request for proposal resulting in sealed competitive proposals was utilized in the letting of a contract for the development of the CRCT tests. Many policy decisions are made in advance when a multimillion-dollar project like this is proposed. If the Board is not involved at the level at which the request for proposal is drafted it will be in the position of trying to analyze the policy consequences of the contract for the first time when the bids have been opened and evaluated and a proposed contractor has been recommended by the Department of Administrative Services. At that point the Board’s only option would be to refuse to enter into the contract if it did not approve of the policy decisions that had been made by Department employees at the stage that the request for proposal was drafted. Such a result would be a waste of public resources and would be inconsistent with the Board’s authority to develop policy for the agency.

8.

May the Board require that the Superintendent appoint a Department employee to serve as a liaison and contact with the Department of Human Resources?

This discussion is essentially answered in the section above discussing the appointment of a “director” for the Board. The Board may direct as a policy matter that there be someone in charge of communicating with the Department of Human Resources but it may not direct who that person is or what the person’s exact duties will be unless, after reasonable consultation with the chairman, the Superintendent does not implement the policy.

9.

May the Board require information about Department employees on a monthly basis regarding all appointments and dismissals?

In general the Board may require that it be provided with information about employees of the Department. See 1996 Op. Att’y Gen. 96-12. However, the frequency with which such information is required or the amount of such information could reach a point at which it infringes on the day-to-day operation of the Department. Id. You have not indicated that providing the information requested by the Board is a burden of that magnitude. Again, the Board and the Superintendent must work together in carrying out sound educational policy. Toward that end the Board should have all of the information necessary to make sound employment decisions. See also O.C.G.A. § 20-2-5.2 (Supp. 2000).

Conclusion

Therefore, it is my official opinion that the Board chairman has the authority to set the Board’s agenda. In conjunction with setting the agenda or his other duties as chairman, he may require Department employees to provide information to or perform functions for the Board, but he must first make a reasonable attempt to consult with the Superintendent. Individual members of the Board have the authority to prepare draft rules without Department of Education input. The Board may decide various policy matters such as whether to enter into certain contracts, whether a liaison with the Department of Human Resources is needed, whether it needs a newsletter, and whether to approve programs even though they involve no expenditure of public funds. It may require the Department to provide to the Board information regarding personnel actions and information regarding requests for proposals before they are released to prospective offerors. Finally, the chairman may, after reasonable attempts at consultation with the Superintendent, direct the designation of one or more Department employees to carry out various executive or administrative functions for the Board. The Board’s authority in these and other matters, however, is limited in that it may not infringe on the Superintendent’s authority to manage the day-to-day operations of the Department of Education. The Board and the Superintendent must work together in these and other areas to further sound educational policies for the State of Georgia.

I hope the above advice will be useful to you in your relationship with the State Board of Education.

Prepared by:

Kathryn L. Allen
Senior Assistant Attorney General


1 See, e.g., O.C.G.A. § 50-14-1(e) for requirements related to open meetings.

2 That was the conclusion reached in 1996 Op. Att’y Gen. 96-19. Subsequent to that and with presumptive knowledge of that conclusion, the General Assembly gave the Board chairman the authority “to require any employee of the Department of Education to furnish information or perform functions for the state board” after a “reasonable attempt at consultation with the State School Superintendent.” O.C.G.A. § 20-2-5.2 (Supp. 2000). That authority reinforces the conclusion that the Board may not hire its own staff because it specifically allows for the use of Department employees to perform needed functions for the Board. As a matter of statutory interpretation, the General Assembly is presumed to know the state of the law and its interpretation by the courts and its failure to correct what it considers a faulty construction is deemed acquiescence in the construction that has been given to the statute. See Abernathy v. City of Albany, 269 Ga. 88, 89-90 (1988); Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1985).