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Unofficial Opinion 95-26

Unofficial Opinion 95-26

November 3, 1995
To: 

Senator
54th District

Re: 

There is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1(c)(1) with respect to general matters, as well as in conjunction with employee disciplinary proceedings, as long as the legislator, in his or her capacity as the board's legal representative, does not take any adverse action against the state or any of its agencies.

This is in response to your inquiry requesting my opinion as to (1) whether an attorney who serves in the General Assembly may represent and provide legal services to a "community service board" as defined in O.C.G.A. § 37-2-11.1(c)(1) [hereinafter "the board"], and (2) if so, whether that attorney can provide legal services to the board in disciplinary proceedings brought against an employee of the board. Although you did not indicate in your letter whether the attorney/legislator would be compensated for his or her representation of the board, for purposes of this opinion I will assume that he or she would be paid for such services.

The Georgia Constitution of 1983 provides that "[p]ublic officers are the trustees and servants of the people and are at all times amenable to them." Ga. Const. 1983, Art. I, Sec. II, Para. I. The Georgia Supreme Court has interpreted this provision of the state constitution to prohibit a legislator who is also an attorney from representing a client, for the legislator's own financial gain, in any civil transaction or matter in which the State of Georgia or any of its agencies is an opposing party or where such legal action seeks to defeat the official public actions of other public officers. See Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543, 547 (1982); Stephenson v. Benton, 250 Ga. 726, 728 (1983); Georgia State Bd. of Pharmacy v. Lovvorn, 255 Ga. 259, 260 (1985).

The Official Code of Georgia also provides additional proscriptions regarding the activities of public officials and statutory directives which must be adhered to concerning conflicts of interest involving public officials. See O.C.G.A. §§ 45-10-20 through 45-10-28. Under these conflict of interest statutes, members of the General Assembly are considered part-time public officials with state-wide powers, and as such they are, excluding exceptions not pertinent hereto, prohibited from transacting any business, on their own behalf or on behalf of any business, with any state agency. See O.C.G.A. § 45-10-20(3), (7), (9), (10); O.C.G.A. § 45-10-24; O.C.G.A. § 45-10-25. "Agency" is defined as "any agency, authority, department, board, bureau, commission, committee, office, or instrumentality of the State of Georgia but shall not mean a political subdivision of the State of Georgia." O.C.G.A. § 45-10-20(1).

The legislature has explicitly declared that community service boards are not state agencies, their employees are not state employees, and the state has no liability for any of the actions of these employees. O.C.G.A. § 37-2-11.1(c)(1). Of course, that would not end the inquiry if the board fits any of the other entities within the definitional scope of O.C.G.A. § 45-10-20(1), but in my opinion, it does not.

Indeed, although the boards are likewise not considered agencies of any particular county or municipality, O.C.G.A. § 37-2-11.1(c)(1), their operations do appear analogous to those of cities and counties. For example, the boards operate in only a limited area of the state, appointment of board members and determination of funding are made at the local level, and each board is accorded broad discretionary powers in determining methods of operation, as are cities and counties.

With these attributes in mind, the General Assembly has empowered the board to "employ or contract for legal counsel to assist in performing its duties" and to "appoint legal counsel to represent the community service board and its employees." O.C.G.A. § 37-2-11.1(c)(2). Thus, given its unique status, there appears to be no prohibition against a community service board's retaining the legal services of an attorney who serves in the General Assembly to represent the board and its employees; nor is there a per se conflict of interest if the legislator accepts such employment. See 1984 Op. Att'y Gen. U84-34. However, it must be emphasized that such legal representation by a member of the General Assembly may not be totally devoid of any conflicts.

In the course of representing a board, certain situations may arise where a dispute occurs between the board and the state or one of its agencies. For example, the board and the state may disagree regarding funding for the board (O.C.G.A. § 37-2-5.2(c)) or some other matter over which the state exercises control. Moreover, disputes between the board and the state could possibly arise in regard to a disciplinary proceeding concerning an employee of the board, including but not limited to, a challenge by the board to the state's merit system which in part applies to employees of the board. In the event that the board wished to take some kind of legal action against the state or one of its agencies concerning these or other types of disputes, the legislator, in his or her position as both legal counsel for the board and a state representative, would be presented with a conflict of interest. See 1981 Op. Att'y Gen. U81-52.

Based on the foregoing, it is my unofficial opinion that there is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1(c)(1) with respect to general matters, as well as in conjunction with employee disciplinary proceedings, so long as the legislator, in his or her capacity as the board's legal representative, does not take any adverse action against the state or any of its agencies. See 1984 Op. Att'y Gen. U84-34. To do otherwise, the legislator would be engaging in conduct violative of Article I, Section II, Paragraph I of the 1983 Georgia Constitution and Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543, 546-47 (1982). See also 1982 Op. Att'y Gen. 82-82; 1983 Op. Att'y Gen. U83-6; 1991 Op. Att'y Gen. 91-25.

Prepared by:

SHALEN A. SGROSSO
Assistant Attorney General