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Unofficial Opinion 93-14

Unofficial Opinion 93-14

December 30, 1993
To: 

Legislative Counsel

Re: 

The gratuities clause of the Georgia Constitution is not per se violated by the free use of government office space as a news room by journalists covering state government.

At the direction of the Legislative Services Committee, you have requested my opinion whether the Committee violates the gratuities prohibition of the Georgia Constitution by allowing the news media the free use of office space as a news room in the Legislative Office Building.

The Legislative Office Building is across the street from the State Capitol.  You report that the Committee pays the Georgia Building Authority, the building owner, for its use and that the news media use the news room in it to cover the General Assembly, other governmental agencies and, on occasion, "nongovernmental activities".  I take it that the use is not formally documented and is understood on both sides as a fully and immediately revocable privilege, without any claim of right by the press.  I also understand that state furniture is in the room and no charge [*2]  is made for general overhead such as the costs of heat and power.

The Gratuities Clause

The gratuities prohibition states in pertinent part:

. . . the General Assembly shall not have the power to grant any donation or gratuity. . . .

Ga. Const. 1983, Art. III, Sec. VI, Par. VI (a).

The words of this short, plain statement have their ordinary meanings.  McCook v. Long, 193 Ga. 299, 303 (1942). Thus, without more, a gift of state funds or state property violates the prohibition, notwithstanding the worthiness of the purpose or the recipient and notwithstanding there may be no cost to the State.  See, e.g., Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1931) (county has no power to donate funds to private organizations promoting commercial welfare of county, however worthy); Ops. Att'y Gen. 89-19 (no free hop on state airplane even if no extra cost entailed); 67-418 (use of University System facility prohibited to private credit union which is not part of educational program).

Exceptions to the Gratuities Clause

There are at least three situations in which additional facts cause the gratuities prohibition not to apply.

(1) Most clearly, these include  [*3]  "privatization" cases where the State grants funds or the use of state property pursuant to a good faith contract and receives in equivalent value a bargained-for performance of public functions.  See, e.g., Haggard v. Board of Regents, 257 Ga. 524 (1987) (Board may transfer student athletic fees to athletic association in return for promise to perform University System functions); Smith v. Board of Commissioners, 244 Ga. 133 (1979) (county may allow use of fire station in return for fire fighting services).

(2) In certain other "public welfare" cases, there is no promised return of service or payment to the State, but the "gratuitous" activity is valid because it itself is the performance of a public service authorized by law.  See, e.g., Brock v. Chappell, 196 Ga. 567 (1943) (county may pay for hospital care for the poor); Ops. Att'y Gen. 84-31 (Labor Department may perform services for the unemployed even if not reimbursed by federal program); see also U75-1 (county may pay for day care in center participating in a statutory assistance program but may not grant funds to another day care center which simply performs a worthy cause).

(3) Finally, in certain other [*4]  "state benefit" cases, the gratuitous use or grant of public property is allowed because it is reasonably expected that the use will benefit a public program or function.  These exceptions are more problematic because there is no agreement or bargained-for promises by the recipients to use the property for state benefit and because the grant of use is not itself, strictly-speaking, a public function authorized by law, but only aids in the performance if one.  See, e.g., State of Georgia v. Trustees of Cincinnati So. Rwy., 248 U.S. 26 (1918) (State bound by legislative grant which shared with a private railroad the right-of-way of a state-owned railroad, established by law, where the General Assembly only required the grantee to adopt the same grade as the state railroad but the legislation also recited expected advantage of new rail links to North and West and expected efficiencies in maintenance, both of benefit to the state railroad); Op. Att'y Gen. 73-145 (state may donate litter bags to motorists to alleviate roadside maintenance where maintenance authorized by law); 1964 Op. Att'y Gen. p. 558 (State may give industrial prospects mementos to preserve memory of promotional  [*5]  trip where "promotion" authorized by law).

In these instances, the validity or invalidity of the use or grant of state property is usually determined with reference to the "benefit" received by the State, in absolute terms and in relative terms as compared to benefit bestowed. There is no clear, consistent language for the test.  See, e.g., State v. Cincinnati So. Rwy., supra, at 30 ("great benefits are expected"); Ops. Att'y Gen. 89-19 ("some benefit"); 81-107 ("great" or "substantial benefit"); 73-145 ("the direct benefit" lies with the State); 71-128 ("indirect or incidental benefits" not enough); 69-418 (good faith and "primary benefit"); 1964 Ops. Att'y Gen. p. 558 (gift element must be incidental to dominant statutory function); 1962 Ops. Att'y Gen. p. 62 (disapproved because function "mere incident" of gift element); state "just as well without"); 1958 Ops. Att'y Gen. p. 281 ("sole purpose" "great benefit").  However, it is fair to say that the cited precedent and other reported cases and opinions require a good faith expectation, and primary motive, that the State will benefit in fair return for the cost or the value bestowed and further that the actual gratuitous  [*6]  activity and the function expected to benefit indirectly are expressly authorized by law, or are authorized by implication.  It is clear that this exception must be applied cautiously.

Scope of the Power to Inform the Public

An administrative body, created by an act of the legislature, has only such powers as are expressly or by necessary implication conferred upon it."

Bentley v. State Board of Medical Examiners, 152 Ga. 836 (1922); Op. Att'y Gen. 92-1.

I am unable to imagine clearer examples of powers necessarily implied or needed in our democratic form of government than the power to inform the public of the operations of government and to open government to the scrutiny of its citizens.  The power arises out of duties and principles embedded in the state and federal constitutions.  Thus, the Georgia Constitution provides:

No law shall be passed to curtail or restrain the freedom of speech or the press. . . .

Ga. Const. Art I, Sect. I, Para. V.

All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.  Public officers are the trustees and servants of the people and are at all times  [*7]  amenable to them.

Ga. Const. Art I, Sect.  II, Para. I.

The people of this state have the inherent right of regulating their internal government.

Ga. Const. Art I, Sect. II, Para. II.

Construing similar provisions of the federal constitution, the U. S. Supreme Court has said:

These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.

Richmond Newspapers, Inc., v. Virginia, 448 U. S. 555, 575 (1980) (discussing the power of trial courts to close judicial proceedings).  The Georgia Supreme Court has likewise

sought to open the doors of Georgia's courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system, which, in turn, is one of the cornerstones of a free society.

R. W. Page Corp. v. Lumpkin, 249 Ga. 576 n1 (1982) (imposing strict substantive and procedural requirements for closure of criminal proceedings); see also Stephens v. State, 261 Ga. 467, 469-470 (1991) (even when press is allowed, exclusion of public must follow  [*8]  Lumpkin procedures); Board of Regents v.  Atlanta Journal, 259 Ga. 214, 216 & 216 n4 (1989) (discussing open records in First Amendment terms).

Effect of Gratuities Prohibition on Power to Inform

To what extent does the gratuities prohibition restrain the necessarily implied power of each unit of government to keep its citizens informed?

Certainly not all information or assistance in obtaining information about government must have a price.  Indeed, there are common practices so traditionally a part of government that discussing them in gratuities terms seems anomalous.  Thus, the Archives Building, like a public library, exists not only as institutional memory for government but must be open to the public.  O.C.G.A. § 45-13-50.  Government funds are paid for the salaries of press secretaries and for distributing press releases and other documents of information to the public.  See Op. Att'y Gen. 81-107.  The government provides seating and other accommodations to the observing public in centers of government activity just as it provides public building space used as public forums for expressive activity.  The Code permits but does not require the imposition [*9]  of fees for copying public records, O.C.G.A. § 50-18-71, and the Georgia Supreme Court has held the fee authorizations must be "narrowly construed" because they constitute a "burden on the public's right of access to public records." McFrugal Rental of Riverdale, Inc., v. Garr, 262 Ga. 369 (1992) (government may not impose fees for records routinely available and must prove reasonableness of fee in other cases); see also Ops. Att'y Gen. 81-71 (government may charge "if it wants to"); 78-55 ("'allows'" fees to be charged).

Thus, I am not able to conclude per se that the gratuities clause prevents government from providing without charge a facility for the use of those conducting inquiries into the operations of government, any more than I could conclude that government must charge for the use of libraries or for entrance into the spectator seating of the chambers of the General Assembly.  In that sense, the provision of such a facility would be like the provision for the "public welfare" approved in Brock v. Chappell, 196 Ga. 567 (1943), and within the exceptions to the gratuities clause discussed at (2) above.  The provision of such a facility might also be reasonably [*10]  included within the "state benefit" exception recognized and discussed at (3) above, in that one may reasonably conclude that allowing use of the facility will return fair value to the State in making easier the legitimate government function of informing the public.  [Under this reasoning the use of the space for reporting non-governmental activities would be improper, so this answer assumes that any such reporting is de minimis. I understand further as a basis of answer that the press does pay for the particular costs of individual reporters or organizations, such as telephone costs.]

The Particular Facility and Arrangement

Neither the Legislative Services Committee nor the Georgia Building Authority is expressly authorized to allow the use of state facilities for news reporting purposes.  However, the Committee in pertinent part exercises "general supervision of the operation of the legislative branch", may contract for the legislative branch and may procure services for it.  O.C.G.A. § 28-4-2 (a) (3) (4).  The Authority is empowered to "operate and manage" "facilities of every kind and character deemed by the authority necessary or convenient for the efficient operation [*11]  of any . . . agency of the state" and in doing so enjoys the powers "usually possessed by private corporations performing similar functions" or otherwise "necessary or convenient to carry out the powers expressly given". O.C.G.A. §§ 50-9-2 (4), 50-9-5 (6) (10) (11).  These powers may reasonably be interpreted to include the provision of space which facilitates access between an informing government and an inquiring public, just as the provisions were reasonably interpreted to authorize the existing Archives Building.

The question, then, becomes whether the answer changes because the press in particular is allowed to use this facility.  Limiting my answer to the scope of your question, the application of the gratuities clause, I think the answer is not changed.  Apparently no contractual or real property right has been granted to any particular organization or person.  Members of the journalism profession are simply allowed revocable, informal use of available space. There is no indication that the motive or practical effect is such as to make the gift element dominant, though the question calls for subjective, factual judgment.  Just as the litter bags were distributed to motorists [*12]  in Op. Att'y Gen. 73-146, the press room has been made available to those who engage continuously in the desired activity.

Finally, I also note that while the press has no superior right of access to government, a special role for the press has been recognized in the related context of courtroom access:

The right of access of the news media representatives is no greater and no less than any other member of the general public.

R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 581 (1982).

However, where space or other limitations prevent universal access or make it difficult, the press has been recognized to have a unique ability and responsibility to act as surrogate for the general public. See id.; see also Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555, 582 n18 (1980).

Conclusion

I have limited my analysis to the specific question you asked on the facts as stated and have not undertaken to consider other possible legal issues or to advise regarding matters of policy or arrangement.  On that basis, however, it is, therefore, my unofficial opinion that the gratuities clause of the Georgia Constitution is not per se violated by the free use of government office [*13]  space as a news room by journalists covering state government.

Prepared by:

JOHN B. BALLARD, JR.

Senior Assistant Attorney General