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Official Opinion 96-1

Official Opinion 96-1

January 23, 1996
To: 

Chairman
State Ethics Commission

Re: 

The prohibition contained in the Georgia Ethics in Government Act against for-hire motor carriers regulated by the Georgia Public Service Commission contributing to political campaigns is still applicable despite the partial preemption provisions contained in the Federal Aviation Administration Authorization Act of 1994.

This is in response to your request for my official opinion regarding the effect of recently enacted federal legislation on Georgia's Ethics in Government Act (the "Ethics Act"), O.C.G.A. § 21-5-1 et seq. In particular, you ask whether the provision contained in the Ethics Act which prohibits a public utility corporation regulated by the Georgia Public Service Commission from making campaign contributions no longer applies to for-hire motor carriers as a result of the preemption provisions contained in the Federal Aviation Administration Authorization Act of 1994. It should be stated at the outset that, for the sole purpose of answering your question, this opinion assumes the constitutional sufficiency of the preemption provisions contained in the federal act in question.

Article 2 of the Ethics Act provides that: "A person acting on behalf of a public utility corporation regulated by the Public Service Commission shall not make, directly or indirectly, any contribution to a political campaign." O.C.G.A. § 21-5-30(f). It has long been the official position of this office that the prohibition contained therein is applicable to those companies subject to the Public Service Commission's supervision as contained in Title 46 of the Code, including motor common and contract carriers. See 1976 Op. Att'y Gen. 76-53; 1982 Op. Att'y Gen. 82-56.

The question now presented is whether the passage of the Federal Aviation Administration Authorization Act of 1994 (the "FAA Authorization Act"), Pub. L. No. 103-305, § 601, 108 Stat. 1569, 1605-07 (1994), changes that conclusion. I do not believe that it does. The preemption provision of the FAA Authorization Act states that "a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property." Id. at 1606 (§ 601(c)). The Act does not affect the ability of a state to continue to fully regulate household goods carriers, or continue regulating other motor carriers by imposing safety regulations, highway route control regulation based on vehicle size, weight, or hazardous cargo, or financial responsibility regulation in connection with insurance requirements. Id. Furthermore, Congress did not intend these enumerated areas of continuing state regulation to be an exhaustive list of the powers retained by the states. See H.R. Rep. No. 677, 103rd Cong., 2nd Sess. 84 (1994). In addition, the Act does not eliminate the Public Service Commission's general supervisory authority over motor carriers contained in O.C.G.A. § 46-2-20(a). Consequently, while the FAA Authorization Act may have had the effect of preempting some of the Public Service Commission's regulatory powers over motor carriers, by its very terms the Act does not purport to completely preempt the field. Therefore, because the Commission still, at a minimum, maintains some regulatory and most general supervisory authority over for-hire motor carriers, the prohibition against such carriers from contributing to political campaigns contained in the Ethics Act still applies.

This interpretation is consistent with my position regarding the applicability of the Ethics Act provision to electric membership corporations. As in the current case, although the Public Service Commission has limited regulatory jurisdiction over the rates, charges, and service of electric membership corporations, it has long been my opinion that such corporations are nonetheless prohibited from contributing to political campaigns by the Ethics Act. See 1985 Op. Att'y Gen. U85-35. Likewise, this interpretation is consistent with a more recent opinion which stated that private motor carriers are not "regulated" by the Public Service Commission for

purposes of the Ethics Act despite being subject to the Commission's safety regulations. See 1990 Op. Att'y Gen. 90-32. In that opinion I determined that the Ethics Act provision against campaign contributions did not apply to private carriers because the only authority the Commission had over such carriers was to subject them to its safety regulations. In contrast, under the facts and assumptions of this situation, with respect to for-hire motor carriers, the Commission still retains regulatory powers in the area of safety, highway route control, insurance requirements, household goods carriers, as well as most aspects of its general supervisory authority contained in O.C.G.A. § 46-2-20(a).

Therefore, it is my official opinion that the prohibition contained in the Ethics Act against for-hire motor carriers regulated by the Georgia Public Service Commission contributing to a political campaign is still applicable despite the partial preemption provisions contained in the Federal Aviation Administration Act of 1994.

Prepared by:

JOHN E. HENNELLY
Assistant Attorney General