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Official Opinion 96-12

Official Opinion 96-12

June 25, 1996
To: 

State School Superintendent
and Chairman Georgia State Board of Education

Re: 

The authority of the State School Superintendent and the State Board of Education.

Both of you have requested my opinion regarding the authority of the State School Superintendent and of the State Board of Education in light of a recent amendment to O.C.G.A. § 20-2-241, the statute which defines the powers of the State School Superintendent. 1996 Ga. Laws 167, 171-72. This statutory amendment, which is a part of the Education Reform Act of 1996, is effective on July 1, 1996. Id. at 181, § 15(a).

After review of the amendment and the applicable law, it is my official opinion that as of this effective date, the State Superintendent of Schools has the sole authority to organize and reorganize the Department of Education, while the State Board of Education retains its authority to provide general direction to, and inspect the performance of, the Department. Such additional responsibilities assigned to the Superintendent

and those remaining to the Board are defined by Georgia law as outlined below and should be exercised accordingly.

The statute in question has been amended to provide:

The State School Superintendent shall be the executive officer of the State Board of Education and the administrative chief executive officer of the Department of Education. The State School Superintendent is authorized to organize and reorganize the Department of Education and the various offices, divisions, sections, and units thereof and to prescribe the duties, functions, and operations of each at such times and in such manner as the State School Superintendent deems necessary or desirable for the more economical or effective organization, administration or functioning of the department. He or she shall also be responsible for the administration and enforcement of this article [Quality Basic Education (QBE)] and other school laws in accordance with such laws and with rules, regulations, policies, and standards adopted or prescribed by the state board for the implementation, administration, or enforcement of such laws.

1996 Ga. Laws 167, 171; O.C.G.A. § 20-2-241(a) (emphasis added). Additionally, the Superintendent is also given the authority to employ persons to serve in the five senior staff positions within the Department of Education and to enter into contracts for the amount of $50,000.00 or less on behalf of the Department. 1996 Ga. Laws 167, 171-72; O.C.G.A. § 20-2-241(b), (c).

At the outset, it should be noted that this Section of the Education Reform Act of 1996 represents a major shift of authority from the Board to the Superintendent. Up until July 1, 1996, the Board had the authority to organize and reorganize the Department, subject only to the requirement that it make "a reasonable attempt at consultation with the State School Superintendent." O.C.G.A. § 20-2-240(b). After this

amendment, that power and authority is transferred to the Superintendent.

This 1996 statutory amendment makes a number of other significant changes in the powers of the office of the State School Superintendent. The Superintendent is recognized as the "administrative chief executive officer of the Department of Education," a responsibility which had heretofore not been announced in a statute. 1996 Ga. Laws 167, 171; Compare former O.C.G.A. § 20-2-241 ("The State School Superintendent shall be the executive officer of the State Board of Education and the administrative officer of the Department of Education . . ."). The Superintendent is given the authority to organize and reorganize the Department as he or she deems appropriate and is given the responsibility of administering and enforcing Article 6 of the Code dealing with Quality Basic Education, as well as other school laws, rules, regulations, policies and standards which are adopted by the Board. 1996 Ga. Laws 167, 171.

Under the rules of statutory construction, it must be presumed that the General Assembly intended that these provisions have a substantive effect on the powers and authority of the Superintendent. O.C.G.A. § 1-3-1(a). The term "chief executive officer" is a term commonly used in other portions of Georgia law in designating generally the person who has responsibility for the day-to-day operations of an agency or organization. See, e.g., Ga. Const. 1983, Art. IV, Sec. IV, Para. I(b); O.C.G.A. § 32-2-42; 1970 Op. Att'y Gen. 70-198 (State Department of Transportation); O.C.G.A. § 20-3-235(1) (Georgia Student Finance Commission); O.C.G.A. § 20-3-315 (Georgia Student Finance Authority); O.C.G.A. § 28-5-85 (Claims Advisory Board); O.C.G.A. § 31-3-2 (County Boards of Health); O.C.G.A. § 33-36-4 (Insurers' Insolvency Board); O.C.G.A. § 45-20-2 (State Merit System); O.C.G.A. § 50-8-5 (Department of Community Affairs); O.C.G.A. § 50-26-5 (Georgia Housing and Finance Authority); and O.C.G.A. § 50-27-5 (Georgia Lottery Corporation). The use of the phrasing "chief executive officer" must then be put in this context and must be interpreted to give the State School Superintendent powers and authority commensurate with other such "chief executive officers."

The above quoted language regarding the Superintendent's power to organize and reorganize the Department of Education is essentially word for word the same as the language used in

O.C.G.A. § 20-2-240(b), the statute defining the powers of the State Board of Education. In effect, the 1996 legislation gives to the Superintendent the identical powers to organize and reorganize the Department as was earlier provided to the Board.

The 1996 legislation is later in time than the original enactment providing this authority to the Board and clearly encompasses the entire field defining the power to organize and reorganize the Department of Education. The latest amendment supersedes and, in effect, repeals the Board's authority to organize and reorganize the Department of Education as outlined in O.C.G.A. § 20-2-240(b). Even though such repeals by implication are not usually favored, parts of a statute may be superseded if the later legislation covers the entire field. See, e.g., Sutton v. Garmon, 245 Ga. 685 (1980); Taylor v. R.O.A. Motors, Inc., 108 Ga. App. 635 (1963); 1977 Op. Att'y Gen. 77-68. That has occurred here.

Given this statutory framework, I will now respond to the issues presented in your respective opinion requests.

1. What authority does the State Board have by virtue of the grant to it of "general supervision of the Department of Education" pursuant to O.C.G.A. § 20-2-11?

State law provides:

The State Board of Education shall prepare and submit to the Governor and General Assembly an estimate of the funds necessary for the operation of the state public school system. It shall have general supervision of the Department of Education and may delegate to the State School Superintendent the authority to employ and dismiss such clerical employees, supervisors, administrators, and other employees who are members of the classified service under Article 1 of Chapter 20 of Title 45 as may be necessary for the efficient operation of the Department of

Education. It shall set aside the necessary funds for the maintenance of the office of the department and the State School Superintendent, the amount and sufficiency of such funds to be in the discretion of the state board, such funds to be disbursed by the superintendent in the payment of salaries and travel expenses of employees and for printing, communication, equipment, repairs, and other expenses incidental to the operation of the department.

O.C.G.A. § 20-2-11 (emphasis added). The issue presented then is what is meant by the granting of this general supervisory power to the Board in light of the 1996 amendment discussed above.

Neither of the statutes in question contain a definition of the word "supervision," so it is appropriate to use its ordinary meaning in construing the statute. See O.C.G.A. § 1-3-1(b); Fisch v. Randall Mill Corp., 262 Ga. 861, 862 (1993). "Supervise" is defined to include the power "[t]o direct and inspect the performance of" persons. The American Heritage Dictionary 1221 (2d College ed. 1982). Further guidance is given by O.C.G.A. § 20-2-241(a), as amended, which continues the obligation of the Superintendent to administer the Department in accordance with the rules, regulations, policies, and standards prescribed by the Board. This obligation to administer in accordance with the guidelines established by law and the Board further emphasizes that the Board's power of "supervision" is clearly generalized and not intended to include day-to-day supervision of the Department or the Superintendent.

In applying this power of "general supervision," it is clear then that the Board does retain the authority to oversee and review the actions of employees of the Department of Education. This power, as noted above, does not extend to exercising day-to-day control over the operation of either the Department or its employees. Those responsibilities lie with the Superintendent, who as described above is the "administrative chief executive officer of the Department of Education." O.C.G.A. § 20-2-241(a), as amended 1996 Ga. Laws 167, 171.

How the Board's authority to provide general direction and to inspect the performance of the Department may lawfully be carried out in any specific instance must be decided under the particular circumstances of the event in question, but in all instances it is clear that the Board's power cannot be carried out so as to infringe on the powers granted to the Superintendent under the 1996 amendment.

2. May the Board exercise its authority to "set aside the necessary funds for the maintenance of the office of the Department and the Superintendent" on a monthly, rather than an annual, basis?

The statute outlining the Board's general supervisory authority also provides:

[The Board] shall set aside the necessary funds for the maintenance of the office of the department and the State School Superintendent, the amount and sufficiency of such funds to be in the discretion of the state board, such funds to be disbursed by the superintendent in the payment of salaries and travel expenses of employees and for printing, communication, equipment, repairs, and other expenses incidental to the operation of the department.

O.C.G.A. § 20-2-11. The question is whether that authority may be exercised by the Board in making its allotment of funds on a monthly, rather than an annual, basis. Because the statute sets no specific time requirements on budgeting, the Board may perform that function at whatever intervals it finds suitable, including making monthly allotments.

Additionally, the Board is specifically given the discretion to determine the amount and sufficiency of the funds in question. The parameters of that discretion generally are that the Board may not decrease the amount budgeted to the point of denying the Superintendent and the Department the means to accomplish their statutory obligations. Cf. Board of Comm'rs v. Wilson, 260 Ga. 482 (1990). Nor may the Board decrease the budget to

eliminate positions that are within the Superintendent's authority to fill or to intrude upon the Superintendent's authority to reorganize the Department. See Board of Comm'rs v. Whittle, 180 Ga. 166 (1935).

As such, while the Board may indeed provide for the allotment of funds on a monthly basis, it must always be cognizant of the Superintendent's authority and responsibilities, including those provided under the 1996 amendment. The Board, in the exercise of its general supervisory powers, may not act so as to interfere with or improperly curtail the Superintendent's actions in these areas by use of such a funding mechanism.

3. May the Superintendent exercise her power to organize and reorganize the Department so as to fire an employee by eliminating the employee's job description from the reorganization plan? Concomitantly, may the Board order the transfer of employees without the specific recommendation of the Superintendent?

As noted above, under O.C.G.A. § 20-2-11 the General Assembly has provided to the Board itself "the authority to employ and dismiss such clerical employees, supervisors, administrators, and other employees" who are members of the classified service.{1} However, this authority may be delegated to the superintendent under this statutory provision. Id. Absent such a delegation of authority, however, only the Board may exercise these powers and the Superintendent may not hire or fire such employees, even as a consequence of reorganization. See 1962 Op. Att'y Gen. p. 177; Cf. Raines v. Shipley, 199 Ga. 316, 332 (1945) (Whatever can be delegated to an agent, can be done by the principal).

On the other hand, regarding the question of the transfer of employees, that power must be said to be necessary and incidental to the Superintendent's power to organize and reorganize the Department. Absent such an interpretation, the grant of the power to organize and reorganize would be a nullity and would frustrate the powers granted in the 1996

amendments. Therefore, it must be concluded that only the Superintendent has authority to transfer employees within the Department. See Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922) (Public officials and agencies have the powers expressly granted to them as well as those incidental thereto).

4. Who has the authority to identify, hire, and fire the five senior staff positions referred to in the Education Reform Act of 1996?

The one exception to the Board's authority to employ and dismiss employees is the 1996 amendment to O.C.G.A. § 20-2-241 which allows the Superintendent to "employ persons to serve in the five senior staff positions within the Department." The Superintendent's authority to employ carries with it the concomitant and incidental power to dismiss. See Floyd County Bd. of Comm'rs v. Floyd County Merit Sys. Bd., 246 Ga. 44 (1980). Because the Superintendent will have the power to organize and reorganize, she necessarily has the power to determine which are the senior staff positions and fill them with persons of her choosing. The Board may not involve itself in this process.

5. May the Board delegate its general supervisory authority to any one member of the Board so as to permit that single member to act on behalf of the Board itself?

In dealing with the issue of the Board's ability to delegate its own duties and authority, it must be recognized that the general rule is that the Board may not delegate discretionary authority without specific statutory authority to do so. 1986 Op. Att'y Gen. 86-29 (State Board of Education may not delegate its authority to employ or terminate personnel). See also 1995 Op. Att'y Gen. 95-11 (Insurance Commissioner may not delegate membership on other Boards absent specific legislative authority).

The statutes which grant authority to the Board contain express permission to delegate in only a few instances. For example,

O.C.G.A. § 20-2-11 allows the Board to delegate its authority to employ and dismiss employees to the Superintendent. This authority was added by Ga. Laws 1991, p. 1630, after I previously opined that there was no specific authority for the Board to make such a delegation. 1986 Op. Att'y Gen. 86-29. Absent such express authority to delegate its general supervisory authority to a single member of the Board, the Board may not do so.

6. May the Board delegate to the Superintendent the authority to enter into contracts on behalf of the Board in an amount in excess of $50,000.00?

This question regarding delegation of the authority to enter into contracts presents a somewhat more complex issue. As previously noted, the Education Reform Act of 1996 amended O.C.G.A. § 20-2-241(c) to provide the Superintendent with the authority to enter into contracts on behalf of the Department of Education where the amount of the contract is $50,000.00 or less. 1996 Ga. Laws 167, 172. As such it is clear that the Superintendent need not consult with the Board for contracts within these limits, except as the Board's general supervisory and review powers are implicated.

The additional question presented, however, is whether the Board may nonetheless still grant to the Superintendent additional authority to enter into contracts in excess of the $50,000.00 limit established in the amendment to O.C.G.A. § 20-2-241(c). An express answer to this question is not simply found in the existing law or the new amendments.

There is a maxim of statutory construction which states, "expressio unius est exclusio alterius," meaning the express mention of one thing implies the exclusion of another. See, e.g., Walton v. Prudential Ins. Co., 210 Ga. App. 82, 83 (1993); 1993 Op. Att'y Gen. 93-26. As such, one concern presented here is whether the General Assembly in providing the Superintendent with the authority to enter into contracts in an amount of $50,000.00 or less, also provided by implication that the State Board could not delegate to the Superintendent the authority to enter into contracts in excess of that amount.

In answering this question, it must be noted that rules of statutory construction provide that a statute must be viewed so as to make all of its parts harmonize and to give a sensible and intelligent effect to each part. 1993 Op. Att'y Gen. 93-12. Statutes must also be viewed in the context of the overall statutory framework and specifically in pari materia with other related portions of the law. 1994 Op. Att'y Gen. 94-4. Finally, as outlined above, the delegation of a responsibility usually requires either specific statutory authorization or a showing that the delegation is necessarily implied in the statutory scheme. Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922).

The General Assembly has provided that: "The State School Superintendent shall have the authority to enter into contracts for the amount of $50,000.00 or less on behalf of the Department of Education." 1996 Ga. Laws 167, 172; O.C.G.A. § 20-2-241(c). On its face, this Code Section is a specific grant of contractual authority to the Superintendent. In effect, this grant of authority to the Superintendent also acts as a limitation on the State Board itself, providing that the Superintendent may enter into such contracts without specific approval by the Board. This new Code Section evidences no intent of the General Assembly to limit whatever authority the State Board might have to permit the Superintendent to enter into contracts in excess of the $50,000.00 limit.

In defining the State Board's own responsibility for supervising and giving general direction to the Superintendent in the operation of the Department, the General Assembly has provided that:

[The Board] shall set aside the necessary funds for the maintenance of the office of the department and the State School Superintendent, the amount and sufficiency of such funds to be in the discretion of the state board, such funds to be disbursed by the superintendent in the payment of salaries and travel expenses of employees and for printing, communication, equipment, repairs, and other expenses incidental to the operation of the department.

O.C.G.A. § 20-2-11. This statutory provision was not altered by the Education Reform Act of 1996 and also evidences no intent of the General Assembly to limit the authority of the Superintendent to enter into contracts. On the contrary, it is clear that this statutory provision provides a direct authorization for the Board to delegate to the Superintendent the authority to disburse funds in certain areas and under parameters established by the Board.

Given that the Board has general supervision, that the Board is not involved in the day-to-day operation of the Department and that the Superintendent is the administrative chief executive officer, the implication is that the Board may authorize or direct the execution of contracts or classes of contracts. The Board has the responsibility of assuring the accurate disbursement of funds and may exercise this duty through delegation to the Superintendent of this contracting authority. O.C.G.A. § 20-2-11.

In accordance with Bentley, supra, and the other authorities outlined above, this delegation would be permissible only where the Board determined that it was both necessary to carrying out its statutory duties and where the disbursement of funds would fall within those delineated in the statute.

This interpretation harmonizes the requirements of both O.C.G.A. § 20-2-11 and § 20-2-241, as amended, by recognizing the Superintendent's contractual authority while also preserving the Board's discretionary power to delegate certain disbursements by the Superintendent, even if such disbursements were by contract in amounts in excess of $50,000.00. It also demonstrates that while the General Assembly established the $50,000.00 limit on the Superintendent, it did not act to limit the discretion of the Board to exercise its authority under O.C.G.A. § 20-2-11. As such, the Board may, in its discretion, define the limits of this delegation and the commensurate disbursements, always being mindful that such delegations are limited solely to the listed expenses outlined in O.C.G.A. § 20-2-11 or to, "other expenses incidental to the operation of the department."

7.

May the Board enter into contracts for services without the recommendation of the Superintendent?

There is no statutory requirement that the Board seek the recommendation of the Superintendent before entering into service contracts. See, e.g., O.C.G.A. §§ 20-2-240, 20-2-305, 20-2-306, 20-2-307. Therefore, the Board may enter into such contracts so long as they do not infringe upon the Superintendent's authority to manage the day to day operations of the Department or to organize or reorganize the State Department of Education.

CONCLUSION

Therefore, it is my official opinion that as of July 1, 1996, the General Assembly has provided for a major shift of authority from the State Board of Education to the Office of the State School Superintendent.

The Superintendent is now the administrative chief executive officer for that Department and may organize and reorganize it as she deems appropriate in carrying out her statutory responsibilities. The State Board of Education retains under this statutory framework its general power of supervision over the operations of the Department and the Office of the Superintendent, but it is not authorized to go beyond those powers and interfere in the day-to-day operations of the agency.

However, the State Board does have the exclusive authority to hire and fire classified employees and may exercise that authority within the parameters of its supervision. While the Board itself must exercise this responsibility of supervising the Department as a single entity, and may not delegate that obligation to any single member of the Board, the Board may under particular guidelines permit the Superintendent to enter into contracts in an amount in excess of $50,000.00.

Finally, while the Board is not obliged to consult with the Superintendent when entering into service contracts, it must be mindful of the Superintendent's duties and responsibilities and act consistent with those obligations in making such contractual commitments.

Prepared by:

KATHRYN L. ALLEN Senior Assistant Attorney General

DENNIS R. DUNN
Senior Assistant Attorney General


{1} I note that pursuant to Act No. 816 of the 1996 Session of the General Assembly, the classified service has been defined to apply to positions filled by agencies prior to July 1, 1996, except those included by law in the unclassified service. 1996 Ga. Laws 684, 690; O.C.G.A. § 45-20-6(a) as amended. The unclassified service has also been redefined to include, among other personnel, "All positions filled on or after July 1, 1996, by new hires." 1996 Ga. Laws 684, 690; O.C.G.A. § 45-20-2(15)(EE).