Unofficial Opinion 2009-2

You have asked my opinion whether an assistant district attorney on your staff, whose position is paid by county rather than state funds, may serve as a member of the Georgia General Assembly.  It is my unofficial opinion that because an assistant district attorney serves as an officer of the judicial branch of state government and because the Georgia Constitution requires that the branches of government remain separate and distinct, an assistant district attorney may not serve as a member of the legislature in the General Assembly regardless of the source of the funding for the position.

The office of a district attorney is created for each judicial circuit in the state as a part of the judicial branch of state government pursuant to Article VI, Section VIII, Paragraph I of the Georgia Constitution.[1]   The duties and responsibilities of this office are established by law, and may generally be summarized as representing the State of Georgia in the prosecution of violations of the criminal laws of this state.  O.C.G.A. §  15‑18‑6.  This includes a wide range of responsibilities related to such prosecutions.  Id.  A district attorney is authorized to employ assistants to carry out those duties.  O.C.G.A. §  15‑18‑14.  The number of such assistants that may be employed, the scope of the duties to be assigned, and provisions regarding the pay and promotion of these assistants are addressed in state law.  Id.

A district attorney may also employ an assistant for child support recovery matters, and an assistant serving in such a position may be designated either a county or state employee.  O.C.G.A. § 15‑18‑14(a)(1)(B).  Such an assistant is authorized only so long as the appointment is “pursuant to a contract for such services with the Department of Human Resources.”  Id.  It appears from the statute that this designation is done for purposes of determining the source of compensation funds, but that the amount of such compensation must still be provided under the same statutory guidelines as provided for other assistant district attorneys.  Id.  While minimum salaries for assistant district attorneys are established by law, counties may supplement an assistant’s salary.  O.C.G.A. §  15‑18‑14(c); 1978 Op. Att’y Gen. U78‑36.  However, regardless of the funding source of an assistant’s salary, the assistant is acting as a deputy of and under the authority of the district attorney and is serving functions defined by the Constitution and state statutes as being within the judicial branch of state government.  O.C.G.A. §  15‑18‑14.  Simply put, the duty of an assistant district attorney is to act in the name of the State of Georgia in enforcement of state law and in the criminal prosecution of violations of the law.  Those duties devolve on the assistant district attorney through the district attorney and derive from the Georgia Constitution and state law; they are not determined or altered by the source of the prosecutor’s compensation.

The legislative power of the State is vested in the General Assembly.  Ga. Const. Art. III, Sec. I, Para. I.  The General Assembly comprises two chambers, the House of Representatives and the Senate.  Ga. Const. Art. III, Sec. II, Para. I.  The members of each of these chambers are elected from individual districts.  Id.   The legislature is authorized to make all laws of the state, consistent with the provisions of the Constitution.  Ga. Const. Art. III, Sec. VI.  The power to appropriate funds is specifically given to the General Assembly.  Ga. Const. Art. III, Sec. IX.  This includes the power to appropriate funds for the state’s various district attorneys.[2]

There are specific qualifications for a person to serve in the General Assembly, including the provision that “[n]o person holding any civil appointment or office having any emolument annexed thereto under the United States, this state, or any other state shall have a seat in either house.”  Ga. Const. Art. III, Sec. II, Para. IV (b).  An emolument of office is “[a]ny advantage, profit, or gain received as a result of one’s employment or holding of office.”  Black’s Law Dictionary 563 (8^th ed. 2004).  Emoluments may include retirement benefits and even the accrual of annual and sick leave credits to be used in relation to calculating retirement benefits.[3]   Amerson v. Bd. of Trustees of the Ret. Sys. of Georgia, 257 Ga. 579, 581 (1987).

The Constitution of Georgia provides that

[t]he legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

Ga. Const. Art. I, Sec. II, Para. III.    “This provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’”   Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008).

In addressing the application of the separation of powers doctrine, it is evident that under the plain language of the Constitution any analysis of whether the doctrine has been violated must look both at the legal designation of the branch of government to which a particular position is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.  The source of the funding of a position is independent from and does not determine the functions to be performed or the legal authority for undertaking duties and responsibilities otherwise assigned by law.

In an opinion directly addressing the funding question, one of my predecessors recognized that a member of the General Assembly could not serve as a judge pro tem of the Recorder’s Court of Chatham County.  1983 Op. Att’y Gen. U83‑58.  It had been suggested there that such service was permissible because the Recorder’s Court judgeship had been created by a local amendment to the Georgia Constitution of 1945, that the judicial position was appointive rather than elective, and that “the judge’s compensation [was] paid entirely by local government as opposed to state government.”  Id. at 295.  In rejecting that argument, the Attorney General examined the functions that were being undertaken in exercising the duties and responsibilities of the Recorder’s Court and concluded that they were clearly judicial in nature.  Id. at 296.   Given that conclusion, a state legislator could not serve in that office and exercise those judicial powers.

In 1993 Op. Att’y Gen. 93‑24, this office concluded that the separation of powers requirement could not be avoided by having an employee of one branch of government work for another branch of government under the guise of being an independent contractor.  It made no difference that the function being performed was in accordance with such a contract for services rather than a formal employment relationship.  The individual was still performing the functions of two separate branches of state government.

Other opinions of the Attorney General have followed the constitutional command that the branches of state government shall forever remain separate and distinct.  A member of the General Assembly may not serve as a juvenile court judge.  1984 Op. Att’y Gen. U84‑46.  A member of the General Assembly may not hold employment with the University System of Georgia.  1973 Op. Att’y Gen. U73‑85; 1976 Op. Att’y Gen. 76‑117.  A court reporter may not simultaneously hold employment with a superior court and the State Board of Workers’ Compensation.  1983 Op. Att’y Gen. 83-56.

State law provides in O.C.G.A. § 16‑10‑9 (a)(1) that

[i]t shall be unlawful for . . . Members of the General Assembly to accept or hold office or employment in the executive branch of the state government or any agency thereof or in the judicial branch of state government.

Furthermore, any “person who knowingly disburses or receives any compensation or money in violation of this Code section is guilty of a misdemeanor.”  O.C.G.A. § 16‑10‑9 (b).  In upholding the constitutionality of an earlier enactment of these same provisions, the Supreme Court of Georgia has noted that this statute furthers the compelling and significant interests of the state in enforcing the “separation of powers” doctrine “to prevent the obvious conflicts of interest inherent in situations where an individual serves concurrently in two of the branches of state government.”  Galer v. Bd. of Regents of the Univ. Sys., 239 Ga. 268, 270 (1977); accord Fowler v. Mitcham, 249 Ga. 400, 402 (1982) (City policemen could not serve as city council members because they “could not only vote to set their own salaries, but also enforce ordinances which they had participated in enacting.”).

This office has previously opined that a violation of this statute is not ameliorated if a legislator takes unpaid leave from employment in a separate branch of government in order to perform legislative duties.  1976 Op. Att’y Gen 76-117.  There the Attorney General concluded, in the context of a legislator working for the executive branch of state government, that the conflict arises from the mere service in the two separate branches.  Such service creates not only constitutional and statutory conflicts, but also violates the common law doctrines of conflicts of interest because the individual

would be in a position to: (1) vote on appropriations and other matters directly affecting his private pecuniary interest, to wit, his salary, (2) exercise undue leverage upon his own personal promotions and pay raises from an agency which depends upon legislative appropriations, and (3) to some extent to be in a position of evaluating the performance of an agency of which he is a part, in derogation of the checks and balances system which the “separation of powers” feature of [Georgia law] is intended to enhance.

Id. at 213.   Those same reasons for enforcing the separation of powers doctrine, O.C.G.A. § 16‑10‑9, and the common law principles of conflicts of interest are as applicable today as they were over 30 years ago.

Finally, in relation to the issue of potential conflicts of interest arising in the performance of government service, I note again that

[t]he Constitution mandates that “public officers are the trustees and servants of the people and are at all times amenable to them.”   Ga. Const. Art. I, Sec. II, Para. I.   The Supreme Court of Georgia has repeatedly recognized that this constitutional provision creates a special fiduciary duty of loyalty on behalf of public officers and employees and that duty should not be compromised by either divided loyalties or other conflicts of interest.  Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543, 546 48 (1982), overruled in part, GeorgiaPorts Auth. v. Harris, 274 Ga. 146, 147 (2001). See also GeorgiaState Bd. of Pharmacy v. Lovvorn, 255 Ga. 259, 260 (1985); Ianicelli v. McNeely, 272 Ga. 234, 236 (2000).   A public officer may not use this special trust to promote his or her own personal interests, regardless of how fair a contract may be, but must instead affirmatively avoid any conflicts of interest. Sistrunk, 249 Ga. at 547.  (Footnotes omitted.)

2004 Op. Att’y Gen. 2004-7.

Having reviewed the law regarding the duties and responsibilities of an assistant district attorney, it is my conclusion that an individual in that position is exercising the powers and authority of the judicial branch of state government.  The exercise of that authority cannot be undertaken by someone holding a position in another branch of government, and no structuring of the job or shifting of the funding for the position cures the constitutional defect under Ga. Const. Art. I, Sec. II, Para. III.  The conflict inherent in simultaneously holding positions in different branches of government may manifest itself in any number of ways; one obvious example is when a member of the General Assembly, serving as an assistant district attorney, participates in the budget process and affects the funding and salaries of offices of the district attorneys, including the district attorney who is his or her employer.

Therefore, it is my unofficial opinion that because of the constitutional requirement that the branches of government must remain forever separate and distinct, an assistant district attorney, whether paid by a county or by the State, may not serve as a member of the General Assembly.

Prepared by:

DENNIS R. DUNN

Deputy Attorney General