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Official Opinion 2001-8

Official Opinion 2001-8

October 23, 2001
To: 

Executive Director
Georgia Technology Authority

Re: 

Agencies under the authority, direction, or control of a state-wide elected official other than the Governor may set their own technology policy but must contract through the Georgia Technology Authority for any technology resource purchase exceeding $100,000 pursuant to O.C.G.A. § 50-25-7.2(a).

The General Assembly created the Georgia Technology Authority (hereinafter referred to as “the GTA”) during the 2000 Session, thereby combining oversight of the State’s executive branch technology policies, resources, and procurement in one agency. 2000 Ga. Laws 249. You asked my opinion regarding the relationship between the GTA and state-wide elected officials other than the Governor (hereinafter referred to as “constitutional officers”), particularly in regard to technology procurements. It is my opinion that all agencies under the authority, direction, or control of a constitutional officer may set their own technology policy but must contract through the Georgia Technology Authority for any technology resource purchase exceeding $100,000 pursuant to O.C.G.A. § 50-25-7.2(a).

The responsibilities and duties of the GTA are set forth in Chapter 25 of Title 50 of the Georgia Code. The statute provides in pertinent part that all agencies shall contract through the GTA for any technology resource purchase exceeding $100,000.00. O.C.G.A. § 50-25-7.2(a) (Supp. 2001). Agency is defined as “every state department, agency, board, bureau, commission, and authority which shall not include any agency within the judicial branch of state government or the University System of Georgia and shall also not include any authority statutorily required to effectuate the provisions of Part 4 of Article 9 of Title 11.” O.C.G.A. § 50-25-1(b)(1) (Supp. 2001). [Part 4 is now Part 5.] Accordingly, with the exception of the University System and the Georgia Superior Court Clerks’ Cooperative Authority, the statute on its face appears to require that all executive branch state agencies, including those controlled by constitutional officers, contract through the GTA for all technology resource purchases exceeding $100,000.

However, the statutory scheme contains exclusions from the GTA’s authority in addition to those set forth in the definition of agency.1 One such exclusion is the removal of the GTA’s authority to set technology policy for agencies under the authority, direction, or control of constitutional officers.2 O.C.G.A. § 50-25-4(a)(10) (Supp. 2001). Technology policy is defined as the “processes, methods, and procedures for managing technology, technology resources, and technology procurement.” O.C.G.A. § 50-25-1(b)(14) (Supp. 2001). The right to establish technology policy arguably includes control over contracts for technology resource purchases, despite the language of O.C.G.A. § 50-25-7.2(a) (Supp. 2001). However, a rigid application of the definition of technology policy produces an internally inconsistent statutory scheme: it requires all agencies, including those controlled by constitutional officers, to contract for technology resource purchases over $100,000 through the GTA while at the same time exempting from the GTA’s authority the ability to set the technology policy for agencies under the control of constitutional officers, including the management of technology procurement. This ostensible inconsistency can only be resolved by applying the rules of statutory construction.

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).

Part of a remedial legislation, the GTA was created to give the public easy access to state government through the Internet, save the state millions of dollars by consolidating the procurement and management of technology, and ensure that Georgia does not repeat past technology mistakes. 17 Ga. St. U. L. Rev. 280, 281 (2000). Senator Charlie Tanskley, one of the sponsors of S.B. 465, the GTA’s enabling legislation, noted that consolidation both promotes keeping the state’s technology current with technological trends across the country and fosters the state’s ability to procure technological resources, thereby assuring uniformity. Id. at 282-83. The GTA’s express statutory purpose includes authority over technology resource procurement, technology enterprise management, and technology portfolio management for the entire state. O.C.G.A § 50-25-1(c) (Supp. 2001). The General Assembly’s clear intent to consolidate the procurement and management of technology in one agency must be given great weight when reconciling the apparently conflicting provisions of O.C.G.A. §§ 50-25-4(a)(10) and 50-25-7.2(a) (Supp. 2001).

Just as the legislation’s purpose provides insight into the intent of the General Assembly, the legislative history of S.B. 465 also reveals the General’s Assembly’s intent. As originally reported out of the Senate Defense, Science, and Technology Committee by substitute, S.B. 465 gave the GTA authority over technology policy for all agencies. 2000 Senate Journal 993, 1007. It was not until the bill reached the Senate floor that the insertion of the exception for any agency under the authority, direction, or control of a constitutional officer narrowed the scope of the GTA’s responsibility to set technology policy. 2000 Senate Journal 1018, 1032. As the bill moved through the legislative process, both the Senate and the House made several changes to Code sections 50-25-1(b)(1)(definition of agency), 50-25-4(a)(10) (authority of the GTA to set technology policy), and 50-25-7.2 (requirement that agencies contract through the GTA). Compare 2000 Senate Journal 993 (SCS) with 2000 Senate Journal 1018 & 1045 (SFSFA), 2000 House Journal 3311(HCS), 2000 House Journal 3343 & 3376 (HFSFA), 2000 Senate Journal 2386 (SAHS), and 2000 House Journal 3640 (House agreed to Senate Amendment).

The General Assembly’s failure explicitly to exempt agencies under the control of constitutional officers from the contracting requirements of O.C.G.A. § 50-25-7.2(a) (Supp. 2001) and from the definition of agency in O.C.G.A. § 50-25-1(b)(1) (Supp. 2001) at the time it was providing for such an exemption from Code Section 50-25-4(a)(10) (Supp. 2001) is indicative of an intent for the technology policy exemption not to create by implication an exemption from the contracting requirement. Rather than assuming that the General Assembly intended for one portion of the statute to vitiate another portion of the statute, one must construe the sections so that they work in harmony as part of a single, logical system which furthers the legislative purpose and intent.

It is clear from the legislative history that the General Assembly intended to establish an inclusive technology plan that consolidated all technology management and resource procurement under one agency, thereby assuring uniformity and increasing the state’s buying power through the economies of scale. The General Assembly typically provides that state agencies, including those under the control of constitutional officers, must operate in accordance with uniform standards and centralized administration in state government. See, e.g., O.C.G.A. § 45-7-28.1 (employee travel rules and regulations); O.C.G.A. §§ 50-5-30 through -39 (Space Management Act); O.C.G.A. § 50-5-57 (DOAS supervision of procurements for non-technology supplies and services); O.C.G.A. §§ 50-16-30 through -47 (1998 & Supp. 2001) (State Properties Commission supervision of real property acquisitions); O.C.G.A. §§ 50-18-90 through -103 (1998 & Supp. 2001) (state records management); O.C.G.A. §§ 50-22-1 through -9 (1998 & Supp. 2001) (regulation of retention of professional architects and engineers); O.C.G.A. §§ 50-24-1 through -6 (drug free workplace).

At the same time, one must presume that the General Assembly intended for the technology policy exception to have meaning. Therefore, the authority of an agency under the control of a constitutional officer to set technology policy for the management of its technology procurement means something other than an exemption from the requirement that it contract for all technology resource purchases through the GTA.

“Policy" has several ordinary meanings depending on the context in which the word is used. The meaning applicable to this context is “the general principles by which a government is guided in its management of public affairs.” BLACK’S LAW DICTIONARY 1178 (7th ed. 1999). O.C.G.A. §§ 50-25-4(a)(10) and 50-25-7.2(a) (Supp. 2001) can be reconciled if they are interpreted to mean that an agency under the control of a constitutional officer possesses an independent authority to establish the general principles for the management of its technology, technology resources, and technology procurement but must contract through the GTA for the purchase of technology resources exceeding $100,000.

Viewing the statute as a whole and keeping in mind the legislative intent to consolidate the procurement and management of technology in one agency, it is clear that the ability to set technology policy is further constrained by the GTA’s authority to establish architecture for state technology infrastructure, establish technology security standards and services, establish and enforce standard specifications applicable to all technology and technology resource related supplies, and establish standards for procurement.3 O.C.G.A. §§ 50-25-4(a)(15), (22), (29), and (30) (Supp. 2001). The difficulty, of course, is the determination of what falls within the ambit of technology policy and what falls within the ambit of architecture and standards.

The GTA’s authority to establish the technology architecture requires that it design a system4 for executive branch agencies in which all components connect to and operate with each other. The GTA’s authority to adopt technology standards for the executive branch agencies means that it has exclusive authority to establish the rules or criteria5 through which the technology products interact with each other. Thus, for the purpose of this statutory analysis, technology policy is distinguished from technology architecture and standards through a subject-specific analysis. The question is whether the subject is a specification designed to coordinate overall functioning of the enterprise-wide system or whether it is an agency-specific specification that is critical to achieve the agency’s mission, vision and values. If it is the former, it falls within the category of technology architecture or standards. If it is the latter, it falls within the category of technology policy. Once a decision is made on the agency’s technology requirements pursuant to those policies, the agency under the control of a constitutional officer must contract for the purchase of its technology resources exceeding $100,000 through the GTA, which includes the GTA’s rules governing competitive procurement.6 This requirement does not mean that the agency is prohibited from establishing internal processes, methods, and procedures to evaluate its technology requirements. On the contrary, the goal of the technology policy is to plan a course of action that will influence and determine the agency’s technology decisions and actions based upon its mission, vision, and goals. Some obvious policies that an agency might promulgate are those governing Internet use or access to meet the agency’s business plan and system access rights. For example, there may be agency-specific mandates that, as a matter of policy, require unique support or security technology. Other policies may address identification of the agency’s technology requirements to meet long term goals. In setting its technology policy, an agency under the control of a constitutional officer should remain mindful of the requirement that its technology resources must comply with the GTA’s established architecture and standards. The GTA’s powers are limited, however, to those conferred by law. O.C.G.A. § 45-6-5; City of Atlanta v. Black, 265 Ga. 425, 428 (1995); Bentley v. State Bd. of Med. Exam’rs, 152 Ga. 836, 838 (1922), cited in 1992 Op. Att'y Gen. 92-1. Therefore, the GTA is obligated to consider, accommodate, and include the technology polices set by agencies under the control of constitutional officers when establishing state-wide standard specifications, architecture for technology infrastructure, security standards, and procurement standards. To do otherwise would exceed its authority.

It is not the purpose of the GTA law to control the substantive actions of any agency. Constitutional officers have the added statutory prerogative to set their own technology policy as defined by the GTA law. This is consistent with the principle established by case law that the General Assembly cannot defeat the Constitution’s purpose in establishing the office or defeat any specific powers granted. See supra note 2. Thus, for example, the Secretary of State, in setting technology policy, may establish the processes, methods, and procedures for identifying, managing, and controlling the technology resources necessary to ensure that the “returns of all elections by the people shall be made to the Secretary of State.” GA. CONST. Art. II, Sec. II, Para. I. Similarly, the Commissioner of Labor, in setting technology policy, may establish the processes, methods, and procedures for identifying, managing and controlling the technology resources necessary to investigate, collect, and compile statistical information on the condition of labor in the State of Georgia. O.C.G.A. § 34-2-6. Both the Secretary of State and the Commissioner of Labor, having established the technology policy, must contract through the GTA for any technology resource purchase required to advance the policy if the cost exceeds $100,000.

For the foregoing reasons and upon application of the rules of statutory construction cited herein, I conclude that agencies under the authority, direction, or control of a state-wide elected official other than the Governor may set their own technology policy but must contract through the Georgia Technology Authority for any technology resource purchase exceeding $100,000 pursuant to O.C.G.A. § 50-25-7.2(a).

Prepared by:

EMILY P. HITCHCOCK
Assistant Attorney General


1 You did not request my opinion regarding, and this opinion does not address, statutory exceptions to the GTA’s authority other than the one recognizing a constitutional officer’s power to set technology policy for agencies under his or her control.

2 The independence of constitutional officers is well recognized. E.g., Griffies v. Coweta County, 272 Ga. 506, 507-08 (2000) (county commission has power and duty to issue a budget but does not have unilateral authority to control budget expenditures of a constitutional officer, the clerk of court); Morris v. Glover, 121 Ga. 751, 753-55 (1905) (General Assembly without power to abolish a constitutional office, the office of county treasurer, either expressly or indirectly by depriving the officer of the emoluments of the office, interpreting GA. CONST. of 1868 Art. IX, Sec. I). At the same time, the executive branch constitutional officers do not have unfettered independence. Except for certain specifically stated powers in the case of some officers, the Constitution confers on the General Assembly the authority to prescribe the duties and powers of the executive branch. GA. CONST. Art. III, Sec. VI, Para. I; GA. CONST. Art. V, Sec. III, Para. III; see, e.g., GA. CONST. Art. V, Sec. III, Para. IV (duties of the Attorney General). The tension between the independence of a constitutional officer and the power of the General Assembly to prescribe the duties of the office is not new. E.g., Massenburg v. Commissioners of Bibb County, 96 Ga. 614, 616-18 (1895) (a constitutional office is not subject to abolition by legislative enactment, interpreting GA. CONST. of 1868, Art. IX, Sec. I); 1958-59 Op. Att'y Gen. at 4 (General Assembly does not have the power to abolish a constitutional office but does have the authority to curtail its activities, interpreting GA. CONST. of 1945, Art. V, Sec. II, Paras. I and II).

3 O.C.G.A. § 50-25-7.2(c), mandating that all technology resource purchases comply with the technical standards and specifications established by the GTA, is further evidence that agencies under the control of constitutional officers are subject to the GTA’s authority to set state-wide technology standards.

4 In its generic sense, architecture refers to “the structure of anything.” Random House Webster’s Unabridged Dictionary 109 (2d ed. 1997). One technology source defines architecture in pertinent part as follows: “The architecture of a system refers to how it is designed and how components of the system are connected to, and operate with, each other. . . . It also includes the ability of the system to grow ‘seamlessly’ (i.e., without too many large jumps in price).” Newton’s Telecom Dictionary 55 (17th ed. 2001).

5 A standard is “a model accepted as correct by custom, consent, or authority” or “a criterion for measuring acceptability, quality, or accuracy.” BLACK’S LAW DICTIONARY 1412 (7th ed. 1999).

6 This opinion does not address the applicability of any GTA rules governing purchases that are under $100,000.