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Official Opinion 2003-6

Official Opinion 2003-6

June 4, 2003
To: 

Secretary of State

Re: 

A majority of the total number of positions on a given licensing board is required to constitute a quorum as identified in O.C.G.A. § 43-1-2(h), and a majority of such quorum is necessary to conduct board business other than the specific actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board.

You have requested my opinion on various questions related to the ability of a state licensing board to conduct business when it has less than a traditional quorum. This is a matter of concern because, as pointed out in your letter, 65 of the 80 professional licensing board members appointed by former Governor Barnes after the conclusion of the 2002 legislative session did not receive the required Senate confirmation as of the conclusion of the 2003 session and, therefore, those positions became vacant. The result, again according to your letter, is that nine of the professional licensing boards do not have sufficient numbers to constitute a traditional quorum.

Ordinarily, and according to general rules of statutory construction, “a joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared.” O.C.G.A. § 1-3-1(d)(5). Two separate code sections in Title 43, however, pertain specifically to the state licensing boards and their ability to transact business. The first, O.C.G.A. § 43-1-2 (h), states that “[a] majority of the appointed members of a professional licensing board shall constitute a quorum for the transaction of business by that board.” (Emphasis added.) The second, O.C.G.A. § 43-1-19(a), gives a professional licensing board the authority “to refuse to grant a license,” “to revoke [a] license,” or “to discipline” a licensee “upon a finding by a majority of the entire board.” (Emphasis added.) For the reasons set forth below, it is my opinion that reading these two code sections in harmony with standard rules of statutory construction requires a determination that a majority of the total number of positions on a given licensing board is required to constitute a quorum, and a majority of such quorum is necessary for board actions other than those actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board. In other words, if a board consists of eight positions, a quorum necessary to conduct general business requires the presence of five board members, and action can be taken by a majority vote of those members present (i.e., three or more members). Under those same circumstances, if a quorum of five members is present and a vote is taken to act pursuant to O.C.G.A. § 43-1-19(a), all five members must affirmatively vote in favor of such action.

There is sound legal support for the conclusion that a majority of the statutorily defined number of board members is required for the transaction of business as identified in O.C.G.A. § 43 1 2(h). As mentioned above, O.C.G.A. § 1-3-1(d)(5) provides that “a joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared.” Construing O.C.G.A. § 1-3-1(d)(5), our courts have held, “When a public trust or duty is to be executed by a definite number of persons, such public trust or duty may be executed by a majority of that definite number.” Stepp v. Lance, 131 Ga. App. 193, 193 (1974), quoting Beall v. State, 9 Ga. 367, 369 (1851). See also Aliotta v. Gilreath, 226 Ga. 263 (1970) (the majority which is required for official action is a majority of the total number of positions on a board, rather than a majority of those present at a meeting); 1980 Op. Att’y Gen. 80-31 (official action requires a majority of the officers to whom the authority is given, rather than a majority of those then holding office).

I recognize, at least with respect to O.C.G.A. § 43-1-2(h), that your office has administratively construed that code section to require only a simple majority of the number of board members actually appointed and serving to conduct general business. Generally, an interpretation by a state agency of a statute related to laws the agency is charged with enforcing is entitled to deference. See Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (1985) (an interpretation of a statute by an agency charged with the duty of enforcing it is entitled to “great weight”); Environmental Waste Reductions, Inc. v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 702 (1995) (an agency’s interpretation of a statute is entitled to “great weight and deference”). In this situation, however, the agency’s interpretation would permit a state licensing “board” with only one current appointee to meet and transact board business. Indeed, a quorum in such circumstances would be one person, and that one person could engage in a number of board-related activities, including rule-making. In my view, allowing a “board” consisting of only one member to exercise that authority would be contrary to the entire legislative design of dispersing regulatory authority among the various members of a board, rather than granting it to one individual, such as a department head.

With respect to the staff-level functions of any particular board, it is clear that all rules, policies and procedures lawfully adopted by a board remain in effect until such time as those rules, policies or procedures are amended, modified, or rescinded by that board pursuant to O.C.G.A. § 50-13-4. The fact that a majority of board positions may become vacant does not alter this conclusion. Therefore, lawfully established policies and procedures remain in effect and may be implemented by a board’s staff, even where a majority of board positions remain vacant.

Therefore, it is my official opinion that a majority of the total number of positions on a given licensing board is required to constitute a quorum as identified in O.C.G.A. § 43-1-2(h), and a majority of such quorum is necessary for board actions other than the specific actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board.

Prepared by:

WYLENCIA MONROE
Assistant Attorney General