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Official Opinion 2005-5

Official Opinion 2005-5

October 31, 2005
To: 

Commissioner, Georgia Department of Corrections

Re: 

State law does not permit the Georgia Department of Corrections to delegate to the Georgia Correctional Industries Administration the administration and management of the voluntary inmate labor program authorized pursuant to the Working Against Recidivism Act under O.C.G.A. § 42 5 120 through 125 (Supp. 2005), nor is GCIA authorized to expend funds or efforts in publicizing the program.

You have requested my opinion whether the Georgia Department of Corrections (“the department”) may delegate to the Georgia Correctional Industries Administration (“GCIA”) the administration and management of responsibilities imposed by law upon the Board of Corrections and the department by the Working Against Recidivism Act, enacted during the 2005 session of the General Assembly at 2005 Ga. Laws 1222.1

The plain language of O.C.G.A. § 42-5-120 authorizes the board “to issue and promulgate rules and regulations for programs of voluntary labor by inmates” in compliance with “the published requirements of the Prison Industry Enhancement Certification Program authorized by 18 U.S.C. § 1761.” It further provides that “[s]uch rules and regulations may provide for administration and management of such work programs by the department.” Id. (emphasis supplied). Neither that Act nor any other provision of law provides specific authorization for GCIA to administer the Prison Industry Enhancement Certification (“PIE”) Program.

The predecessor of GCIA was created by act of the General Assembly in 1960 as the Georgia Prison Industries Administration, and renamed in 1972 the Georgia Correctional Industries Administration. See 1960 Ga. Laws 880; 1972 Ga. Laws 572. The Georgia Board of Corrections serves ex officio as the Georgia Correctional Industries Administration, and the commissioner of corrections serves as the executive officer of GCIA. O.C.G.A. § 42-10-3. The department and the GCIA, however, are separate entities with different duties imposed by law. In response to many abuses,2 the General Assembly has narrowly prescribed the permissible use of inmate labor. See, e.g., O.C.G.A. § 42-5-60. The Attorney General has opined on numerous occasions on the permissible use of inmate labor. See, e.g., 1999 Op. Att’y Gen. 99-12; 1980 Op. Att’y Gen. 80-44. Likewise, federal law also carefully circumscribes the permissible use of the fruits of inmate labor. See 18 U.S.C. § 1761. It is against this backdrop that I address your question.

The GCIA is a creation of state law and may only exercise those powers conferred upon it by law, either expressly or by clear implication; any grant of authority to it must be strictly construed. Bryant v. Employee Ret. Sys. of Ga., 216 Ga. App. 737 (1995); Bentley v. State Bd. of Med. Exam’rs of Ga., 152 Ga. 836 (1922); 2002 Op. Att’y Gen. U02-8; 1995 Op. Att’y Gen. 95-29; 1993 Op. Att’y Gen. 93-21. For example, in 1970 Op. Att’y Gen. 70-156, the Attorney General determined that the Board of Corrections, but not GCIA (then Georgia Prison Industries Administration), had the authority to develop a service type of industrial program because the statutory language empowering GCIA was more restrictive.3

The Attorney General has consistently opined that GCIA may only engage in and expend its funds upon those activities that are authorized by law. See, e.g., 1989 Op. Att’y Gen. 89-56; 1970 Op. Att’y Gen. 70-156; 1965-66 Op. Att’y Gen. 66-89. Moreover, only those powers that are necessarily implied from the express powers are available to be exercised by entities created by state law. Beazley v. DeKalb County, 210 Ga. 41 (1953); Tippins v. Cobb County Parking Auth., 213 Ga. 685 (1957).

Although O.C.G.A. § 42-5-120(a) does authorize the Board of Corrections to promulgate and adopt rules and regulations that “may provide for the administration and management of [the PIE program] by the department,” there is no such concurrent authorization for GCIA to administer and manage the PIE program. Id. In fact, it is plain from early non-adopted versions of House Bill 58 that the General Assembly considered but did not adopt language that would have specifically authorized GCIA to administer and manage the PIE program. See HB 58, Gen. Assem., Reg. Sess. (Ga. 2005) (version LC 22 5676); available at http://www.legis.state.ga.us/ legis/2005_06/ versions/hb58_LC_22_5676_a_2.htm.

Language in O.C.G.A. § 42-5-123 ensuring compensation for “any administrative costs or other costs incurred by the department or the [GCIA] for the operation of the [PIE] program or programs” and compensation for both the department and GCIA for the use of their employees or facilities does not compel a contrary result. Such language appears to be a vestige of earlier drafts of HB 58 that permitted GCIA to manage and administer the PIE program. It is not enabling language; it essentially protects against a violation of the Gratuities Clause of the Georgia Constitution. GA. CONST. art. III, § VI, VI. Language requiring that any use of the personnel, space, and other facilities of either the department or GCIA be compensated does not necessarily imply, and certainly does not expressly provide, that GCIA may manage and administer the PIE program. At most, and only consistent with this opinion and in return for appropriate compensation, GCIA might provide some service to the department in connection with the department’s administration of the PIE program.

The amendment to O.C.G.A. § 42-10-4 authorizing GCIA to have the same power and authority as the department in connection with the “provision of services” provides no basis for a contrary conclusion.4 As discussed above, the Attorney General has previously opined under prior law that GCIA could not engage in programs to provide services because it lacked statutory authority.5 While the addition of that language permits GCIA to engage in such activities, it does not provide the necessary legal authority for GCIA to manage and administer the PIE program.

Regarding the proper expenditure of funds, it is necessary to have clear, express, or necessarily implied authorization. 1987 Op. Att’y Gen. 87-15, at 37. “Regardless of the worthiness of the cause, absent a clear state constitutional or statutory authority providing for the expenditure of state funds, such funds cannot be disbursed.” Willis v. Price, 256 Ga. 767 (1987). As discussed at some length in this opinion, I do not find an express or necessarily implied grant of authority for GCIA to administer the PIE program.

Therefore, it is my official opinion that state law does not permit the Georgia Department of Corrections to delegate to the Georgia Correctional Industries Administration the administration and management of the voluntary inmate labor program authorized pursuant to the Working Against Recidivism Act under O.C.G.A. §§ 42-5-120 through 125 (Supp. 2005), nor is GCIA authorized to expend funds or efforts in publicizing the program.

Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General


1 Introduced as House Bill 58 and signed into law by the Governor May 10, 2005, as Act No. 383, the Working Against Recidivism Act amended several sections of Title 42 of the Code and created a new Article 6 of Chapter 5, O.C.G.A. §§ 42-5-120 through 125, authorizing a voluntary inmate labor program in compliance with the federal Prison Industry Enhancement Certification Program authorized by 18 U.S.C. § 1761.

2 The misuse of inmate labor in Georgia has a long and notorious history. During Reconstruction, Georgia set up the convict lease system in response to the growing number of persons convicted of serious crimes, the lack of money to spend on the care of prisoners, and the destruction of the state penitentiary during the just-ended war. Under this system, convicts were leased to private entities such as railroads and mining companies. With no state oversight or supervision, treatment of the prisoners and their living and working conditions was “frightful.” A HISTORY OF GEORGIA 246 (Kenneth Coleman ed., University of Georgia Press 1977). Public outcry led to the first efforts at legislative reform in 1897 when the General Assembly passed a law amending the convict lease system. 1897 Ga. Laws 71, §§ 6714 6738. It was not until 1908, however, in a special session called by the governor to avoid the renewal of convict leases that were set to expire before the regular session, that the convict lease system was abolished. 3 WALTER G. COOPER, THE STORY OF GEORGIA 409-11 (The American Historical Society, Inc. 1938). See also E. MERTON COULTER, A SHORT HISTORY OF GEORGIA (The University of North Carolina Press 1933); LAWRENCE R. HEPBURN, THE GEORGIA HISTORY BOOK (The Institute of Government, University of Georgia 1982).

3 Section 5 of Act No. 383, the Working Against Recidivism Act, specifically amended O.C.G.A. § 42-10-4(4) to permit GCIA “[t]o have the same power and authority possessed by the Department of Corrections in connection with the manufacture and sale of products and provision of services.” 1970 Op. Att’y Gen. 70-156 was rendered under prior law that did not permit GCIA to engage in the provision of services. Thus, to the extent that the statute on which the opinion relied has been amended 1970 Op. Att’y Gen. 70-156 is superseded.

4 Indeed, because the General Assembly specifically included a reference to GCIA in § 5 of the Act and failed to include that language in any other provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Dep’t of Human Res. v. Hutchinson, 217 Ga. App. 70, 72 (1995) (“The omission of [specific statutory language] ‘invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.’”).

5See supra note 3 and accompanying text.