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Unofficial Opinion 94-3

Unofficial Opinion 94-3

January 31, 1994
To: 

Legislative Counsel
Office of Legislative Counsel

Re: 

The Legislative Services Committee does not have the authority to dispose of the items returned by the members of the General Assembly pursuant to O.C.G.A. § 45-7-4(a)(22).

On November 25, 1992, I issued an opinion stating that items purchased by legislators for the performance of duties as a member of the General Assembly, for which the legislators were reimbursed under O.C.G.A. § 45-7-4(a)(22), are property of the state and may not be retained by the legislators as personal property. You have now requested a further opinion as to the authority of the Legislative Services Committee to:

1. Adopt a depreciation schedule for items of personal property for which reimbursement under O.C.G.A. § 45-7-4(a)(22) has been paid;

2. Adopt a policy under which a member of the General Assembly may, upon leaving office, purchase an item for which reimbursement was previously paid upon payment by the member of its depreciated value; and

3. Adopt a policy under which a fully depreciated item for which reimbursement was previously paid may be retained by the member upon leaving office, either at no cost or upon payment of a reasonable salvage value.

Official Code of Georgia Annotated § 28-4-2(d) provides the Legislative Services Committee with the power to procure "supplies, materials, and equipment which are required jointly for the Senate and House of Representatives." However, the Committee is not granted, in this paragraph or any other paragraph in the Code Section, the express authority to dispose of supplies, materials, and equipment. Unless specifically authorized by the Georgia Constitution, "[t]he power to dispose of property belonging to the State is vested in the Legislature." Western Union Tel. Co. v. Western and Atl. R.R., 142 Ga. 532, 534 (1914). Given these limitations, it appears that the Legislative Services Committee does not have the authority to dispose of state property.

The General Assembly has empowered the Department of Administrative Services to dispose of surplus property. O.C.G.A. §§ 50-5-140 through 50-5-146. The Legislative Services Committee probably is not required to dispose of its surplus property in accordance with that provision under the rule that the legislative branch is not generally subject to the provisions pertaining to the executive branch unless a statute expressly states so. See Harrison Co. v. Code Revision Comm'n, 244 Ga. 325 (1979).

However, I see no impediment to the Committee transferring the property in its custody to the custody of the Department of Administrative Services for disposition pursuant to the DOAS authority. If that is done, or if new legislation is considered, the existing conflicts provisions should be kept in mind. Legislators, as part-time public officials with state-wide powers, are subject to the provisions of O.C.G.A. § 45-10-24 which provides that: "Except as provided in subsection (b) of this Code section, it shall be unlawful for any part-time public official who has state-wide powers . . . to transact any business with any agency."

To "'transact any business' means . . . to purchase surplus real or personal property." O.C.G.A. § 45-10-20 (12). However, the prohibition against public officials transacting business does not apply to:

(1) Any transaction made pursuant to sealed competitive bids; (2) Any transaction when the amount of a single transaction does not exceed $250.00 and when the aggregate of all such transactions does not exceed $9,000.00 per calendar year;

(3) Any transaction involving the lease of real property to or from any agency if such transaction has been approved by the State Properties Commission or the Space Management Division of the Department of Administrative Services; and

(4) Any transaction involving the purchase of surplus state property at a public auction.

O.C.G.A. § 45-10-24(b); see also 1983 Op. Att'y Gen. U83-63.

Therefore, it is my unofficial opinion that, under the current law, the Legislative Services Committee does not have the authority to dispose of the items purchased pursuant to the reimbursement provisions of O.C.G.A. § 45-7-4(a)(22).

Prepared by:

DENISE E. WHITING-PACK Staff Attorney