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Unofficial Opinion 95-27

Unofficial Opinion 95-27

December 11, 1995
To: 

Senator
District 48

Re: 

While the Ethics in Government Act does not expressly prohibit an incumbent member of the General Assembly from soliciting a pledge or setting goals for contributions during a legislative session, such actions would clearly be contrary to the policies and purposes of the Act and should be avoided.

You have asked my opinion as to whether an incumbent member of the General Assembly may solicit either a pledge of a campaign contribution or have a supporter set a goal of making a campaign contribution to the member, where the pledge or goal would be formalized during a session of the General Assembly but the funds would not actually be paid until after the legislative session. It is my opinion that while the Ethics in Government Act does not expressly prohibit an incumbent member of the General Assembly from soliciting a pledge or setting goals for contributions during a legislative session, such actions would be contrary to the policies and purposes of the Act and should be avoided.

The specific provision of the law in question is that portion of the Ethics in Government Act which provides: "No member of the General Assembly or that member's campaign committee or public officer elected state wide or campaign committee of such public officer shall accept a contribution during a legislative session." O.C.G.A. § 21-5-35(a). A contribution is defined as:

[A] gift, subscription, membership, loan, forgiveness of debt, advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for office . . . . The term "contribution" shall include other forms of payment made to candidates for office or who hold office when such fees and compensation made can be reasonably construed as a campaign contribution designed to encourage or influence a candidate or public officer holding elective office.

O.C.G.A. § 21-5-3(6).

Specifically, you have asked if the prohibition against a member of the General Assembly accepting contributions during a legislative session would be violated if the member, as a candidate for public office, asked contributors to execute one of the following statements.

"Candidate, I pledge $ to your campaign to be collected after the legislative session and before May 1, 1996.

or

Candidate, I set a goal of $ to your campaign to be collected after the legislative session and before May 1, 1996."

It is clear that the General Assembly intended O.C.G.A. § 21-5-35 to prevent even the appearance of impropriety by its members or certain state officers in accepting contributions during a period where legislation is pending and there could be a perception that any legislative action could be influenced by the giving of a campaign contribution. This strong statement by the General Assembly is consistent with its desire that public officials not be influenced in the performance of their duties by improper "political contributions." See O.C.G.A. § 16-10-2 (bribery prohibited); see also State v. Agan, 259 Ga. 541, (1989), cert. denied, 494 U.S. 1057 (1990).

In deciding whether the acceptance of a "pledge" or "goal" would violate the prohibition of O.C.G.A. § 21-5-35, it would first be necessary to determine the purpose of such an inquiry. Because violations of the Ethics in Government Act are misdemeanors under O.C.G.A. § 21-5-9, and there is the possibility of felony bribery allegations under O.C.G.A. § 16-10-2, it might be problematic to prove in a criminal trial that the "pledge" or "goal" was made for an illegal purpose.

Nevertheless, a strong argument can be made that, while the statute does not expressly prohibit the solicitation of "pledges" or "goals," they could still very well be considered "contributions" under the Act. The Act prohibits a candidate from accepting a contribution, which is defined to include the acceptance of "anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for office." O.C.G.A. § 21-5-3(6). Certainly, a candidate would consider the giving of such "pledges" or the setting of specific "goals" to be something of value, otherwise the candidate would not be seeking these promises during the legislative session.

If a finder of fact determined that these promises were in fact things of value and that they were received by the state officer during a legislative session, acceptance of such promises could be found to be a violation of O.C.G.A. § 21-5-35. To do otherwise would lead to a frustration of the purpose of the statute and lead to the absurd result that an incumbent state officer covered by the statute could continue to raise funds during a legislative session but avoid the prohibitions of the law simply by disguising the fund-raising in the form of "pledges" or "goals." In considering the Ethics in Government Act in relation to the state's bribery statute, the Supreme Court of Georgia has recognized that "[w]here the letter of the statute results in absurdity or injustice or would lead to contradictions, the meaning of the general language may be restrained by the spirit or reason of the statute." Agan, 259 Ga. at 545 n.3 (quoting Sirmans v. Sirmans, 222 Ga. 202, 204 (1966)).

Given the above and foregoing, it is my opinion that while the Ethics in Government Act does not expressly prohibit an incumbent member of the General Assembly from soliciting a pledge or setting goals for contributions during a legislative session, such actions would clearly be contrary to the policies and purposes of the Act and should be avoided.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General