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Unofficial Opinion 92-19

Unofficial Opinion 92-19

November 4, 1992
To: 

Legislative Budget Analyst

Re: 

Provisions in general law for cost-of-living adjustments for the Lieutenant Governor and the members and officers of the Senate and House of Representatives may not be varied by the General Appropriations Act and are consistent with the Constitution.

Referring to the General Appropriations Act for Fiscal Year 1992-1993, you have asked whether legal effect should be given to language in Section 82 which excludes members of the General Assembly and the Lieutenant Governor from cost-of-living adjustments authorized by Section 82 for state employees. Ga. Laws 1992, pp. 1701, 1784.

Section 82 provides for a 2.5 percent cost-of-living adjustment with a maximum of $ 1000 annually, effective October 1, 1992, for full-time state employees, with variations for certain groups.  It includes:

7.) An increase of 2.5% with a maximum of $ 1000 for each State official (excluding the Lieutenant Governor and General Assembly members) whose salary is set by . . . Code Section 45-7-4.

Ga. Laws 1992, pp. 1701, 1784-1785.  (emphasis added)

The annual [*2]  salaries of the Lieutenant Governor, the members of the General Assembly and the officers of the House of Representatives and Senate are set out in O.C.G.A. § 45-7-4 (a) (2) (22) and (23) - (25).  A proviso in O.C.G.A. § 45-7-4 (a) (22), which sets the annual salary of each member of the General Assembly, states:

. . . when employees of the executive, judicial, and legislative branches . . . receive a cost-of-living increase of a certain percentage, the members of the General Assembly shall receive a cost-of-living increase of one-half the percentage applicable to such state employees.

In addition, the Code provides, in pertinent part:

As a cost-of-living adjustment, the annual salary of each state official whose salary is established by Code Section 45-7-3, this Code section, and Code Sections 45-7-20 and 45-7-21, other than members of the General Assembly, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the Speaker Pro Tempore of the House of Representatives, may be increased by the General Assembly in the general appropriations Act by a percentage not to exceed the average percentage of the general increase in salary as may from time [*3]  to time be granted to employees who are in the classified service of the state merit system.

O.C.G.A. § 45-7-4 (b).

For the Speaker of the House and the pro tempore officers of the Senate and House, the Code provides for an annual salary of a stated amount in addition to the salary given each member of the General Assembly.  The Code then further provides in regard to the Speaker only:

(After convening day, 1983), the Speaker shall also receive as additional salary a sum equal to the amount of salary over $ 30,000.00 per annum which is received by the Lieutenant Governor as of that date or thereafter; and the salary of the Speaker shall be adjusted at the beginning of each term so as to include such additional sum.

O.C.G.A. § 45-7-4 (a) (23) (paraphrasing inserted).

These provisions of general law may not be amended by an appropriations act.  1984 Op. Att'y Gen. 84-19 (appropriation may not supersede provisions in general law for COLA's for retirees).  In other words, in this particular case, the appropriations act may not exclude a cost of living adjustment, to which the Lieutenant Governor is entitled pursuant to O.C.G.A. § 45-7-4 (b), the Speaker is entitled pursuant [*4]  to O.C.G.A. § 45-7-4 (a) (23), or the members of the General Assembly are entitled pursuant to O.C.G.A. § 45-7-4 (a) (22).

However, the Constitution provides:

The members of the General Assembly shall receive such salary as shall be provided for by law, provided that no increase in salary shall become effective prior to the end of the term during which such change is made.

Ga. Const. 1983, Art. III, Sec. IV, Par. VI.

Since 1987 members of the General Assembly have received cost of living adjustments pursuant to the first proviso of O.C.G.A. § 45-7-4 (a) (22) at the same time as other state officers and employees, notwithstanding that the adjustment was made during the legislative term in which the COLA was appropriated.  I understand from you and the Fiscal Officer that this practice was recognized as creating an issue under the constitutional provision just quoted.  I gather that the issue was resolved by taking the position that a general law may allow the base salary of legislators to be adjusted by COLA's during the term of the appropriations act which authorized the COLA, so long as no COLA takes effect during the term in which the general law allowing such  [*5]  appropriations and COLA's was passed.  In this sense it is true that the salary as "set by law" for legislators is not changed during the term, but there also is a plain language sense in which such a COLA nevertheless is an "increase in salary".  During the drafting of the present Constitution, various approaches to legislative salaries were proposed.  At one time versions of the legislative salary provisions in Article III, Section IV, Paragraph VI were proposed to provide expressly for members of the General Assembly to receive COLA's when the rest of state government received them.  These were stricken on policy or political grounds.  See the discussions of Article III, Section IV, Paragraph VI by the authors of the 1983 Constitution in State of Georgia Select Committee on Constitutional Revision 1977-1981, Transcripts of Meetings, Legislative Overview Committee, July 14, 1981, pp. 58, 61-62; July 28, 1981, pp. 16-21; August 12, 1981, pp. 47-57, 94-100; August 20, 1981, pp. 19, 64-68.

Thus, the language of the Constitution pertaining to legislative raises requires consideration of two questions: Did the General Assembly intend in the first proviso to O.C.G.A. § 45-7-4 (a)  [*6]  (22) for legislative COLA's to take effect with other COLA's?  If so, is this consistent with Article III, Sec. IV, Paragraph VI of the Constitution?

The plain language of the first proviso in O.C.G.A. § 45-7-4 (a) (22) is that a COLA takes effect "when" state employees obtain it.  By contrast, expressly different provisions regarding the Speaker in the following paragraph (23) provide for adjustment at the beginning of each term.  The contemporaneous administrative interpretation of the proviso by legislative staff has given effect to the COLA's "when" other state officers and employees receive their COLA.  Given these factors, it is apparent that Paragraph (22) should be interpreted to intend for the legislative COLA's to take effect with the COLA's of the rest of state government.

Is this consistent with the Constitution?

There is, first, a presumption of constitutionality.  The Attorney General on rare occasions must find a statute not capable of reconciliation with the Constitution.  However, he must give great weight to the legal presumption that a statute is constitutional and will not generally find an act to be in violation of the Constitution "unless its terms are [*7]  such as to absolutely demand such a conclusion." See 1968 Op Att'y Gen 68-427.

Second, the General Assembly has not in this term changed the general law which provides for salaries for its members.  The provision for the legislative COLA's was expressly made effective only with the term which followed its enactment.

Third, the proviso which permits the COLA's maintains the status quo; it does not elevate the salaries of the General Assembly but preserves those salaries in relation to inflation and in relation to their comparison with other state salaries. Not to have a COLA when others have one, in effect, would be a pay decrease.

Therefore, while not free from doubt but taking all these aspects into account, I have the following unofficial opinion: The Lieutenant Governor, as an officer whose salary is set by Code Section 45-7-4, must be given the percentage increase or $ 1000 maximum provided by Section 82 (7) of the appropriations act.  O.C.G.A. § 45-7-4 (a) (2) (b).  No percentage increase may be applied to the salaries of office provided for the Speaker of the House, President Pro Tempore of the Senate and Speaker Pro Tempore of the House of Representatives under [*8]  O.C.G.A. § 45-7-4 (a) (23) (24) and (25).  O.C.G.A. § 45-7-4 (b).  However, the salary of the Speaker must be adjusted at the beginning of the next term to include the increase given the Lieutenant Governor.  O.C.G.A. § 45-7-4 (a) (23).  Finally, the members of the General Assembly must be given one-half the percentage increase given employees of the executive, judicial and legislative branches when the employees receive it.  O.C.G.A. § 45-7-4 (a) (22).

Prepared by:

JOHN B. BALLARD, JR.

Senior Assistant Attorney General