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Official Opinion 95-11

Official Opinion 95-11

March 20, 1995
To: 

Commissioner of Insurance

Re: 

The authority to sit on various state boards may not be delegated to a Deputy Commissioner of Insurance, unless the statute creating the appropriate board provides for a designee.

You have asked for an official opinion as to whether you may delegate to your chief deputy, appointed pursuant to O.C.G.A. § 33-2-4, the authority to attend the meetings of various state boards on which you are a member by virtue of your office as Insurance Commissioner, Comptroller General or State Safety Fire Commissioner.

Code Section 33-2-4 authorizes you, in your capacity as Insurance Commissioner, to appoint a chief deputy and other deputies to assist you in the performance and discharge of your duties and to perform all your duties in the event the office is vacant or if you are disabled or absent. Code Section 33-2-6 authorizes you to delegate to a deputy any "authority, power, or duty vested in the Commissioner by any provision of this title." However, none of the boards on which you sit by virtue of your offices is found within Title 33. See, e.g., O.C.G.A. §§ 43-1A-4, 50-17-50.

The general rule is that "performance of a duty imposed by the General Assembly which involves the exercise of discretion may not, absent specific authority, be delegated to another." 1976 Op. Att'y Gen. 76-45. Specifically that rule operates to prohibit the head of a state agency who sits on a board which requires the exercise of discretion to delegate his or her duties on that board to another. Id. Because it relates solely to your duties in Title 33, it is clear that O.C.G.A. § 33-2-6 is insufficient authority to constitute an exception to the above rule that board duties may not be delegated.

Further, because O.C.G.A. § 33-2-4 is limited to your disability or absence, it also is insufficient to confer authority for a general delegation of authority such as you describe.

You have inquired specifically about nine boards on which you serve. Five of the boards are the Georgia Firefighter Standards and Training Council, the Board of Trustees of the Georgia Firemen's Pension Fund, the Occupational Regulation Review Council, the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund, and the State Codes Advisory Committee. The statutes creating these boards provide that your designee may be a member of the board in your stead. O.C.G.A. §§ 25-4-3(a), 47-7-20(a)(2), 47-17-20(a)(3), 43-1A-4(b)(1), 8-2-24(a)(1). For the other boards, (the State Depository Board, the Board of Trustees of the Subsequent Injury Trust Fund, the State Indemnification Commission, and the State Commission on Condemnation of Public Property) the statutes do not provide for your designee to serve. O.C.G.A. §§ 50-17-50, 34-9-354(a), 45-9-83, 50-16-181(a).

In the absence of specific authority for a designee to serve in your place, the general rule which does not permit delegation would apply. See 1976 Op. Att'y Gen. 76-45. Thus, you may not delegate your membership or duties on the State Depository Board, the State Indemnification Commission, the Board of Trustees for the Subsequent Injury Trust Fund, or the State Commission on Condemnation of Public Property.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General