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Unofficial Opinion 96-12

Unofficial Opinion 96-12

June 11, 1996
To: 

Representative
District 9

Re: 

The General Assembly may not, through the passage of a Joint Resolution which has the effect of law, infringe upon the Board of Regents' constitutional authority to govern, control, and manage the University System of Georgia.

You have asked for my opinion regarding the effect of Joint House and Senate Resolution 1074 from the 1996 Session of the General Assembly as to the operation of a Senior Reserve Officers' Training Corps at North Georgia College. You have specifically asked how much, if any, attention the Board of Regents and the Chancellor should give to this Joint Resolution. It is my unofficial opinion that, while this Joint Resolution does have the force and effect of law, it cannot bind the Board of Regents in relation to the exercise of its constitutional authority to govern, control, and manage the University System of Georgia.

The resolution in question announces that it is the policy and intent of the General Assembly that the state continue the standards of excellence established at North Georgia College as a senior military college and provides:

[T]hat the board of regents and the President of North Georgia College are authorized and directed to take all actions necessary to ensure that North Georgia College remains a Senior Reserve Officers' Training Corps program in compliance with federal law and to emphasize and support to the fullest extent the military program and Corps of Cadets at such college.

1996 Ga. Laws 911, 911. This resolution was read and adopted by the House of Representatives on February 28 by a vote of 150 to 0. The resolution was also adopted by the Senate on March 15, 1996, by a vote of 47 to 0. The Joint Resolution was approved by the Governor on April 10, 1996. Id. at 912. The resolution directed the Clerk of the House of Representatives to send the resolution to the Chancellor of the University System and to the President of North Georgia College. Id. at 911-12.

I have previously opined that a Joint Resolution of the General Assembly, which was adopted in compliance with all the prerequisites necessary for the passage of an Act including passage by a constitutional majority in both Houses and signature by the Governor, has the force and effect of law. 1995 Op. Att'y Gen. U95-16 (Joint Resolution adopting English as the official language of the state had force and effect of law). See also 1981 Op. Att'y Gen. 81-53; 1971 Op. Att'y Gen. 71-39. This resolution was adopted in such a manner and therefore must be considered to have the force and effect of law.

However, this does not end the inquiry in this matter. The Georgia Constitution in creating the Board of Regents of the University System of Georgia provides that: "The government, control, and management of the University System of Georgia and all of the institutions in said system shall be vested in the Board of Regents of the University System of Georgia." Ga. Const. 1983, Art. VIII, Sec. IV, Para. I(b). The Constitution also provides that the Board has the power to allocate and distribute its lump sum appropriations among its various institutions "in such way and manner and in such amounts as will further an efficient and economical administration of the university system." Ga. Const. 1983, Art. VIII, Sec. IV, Para. I(c). The Board has broad powers in holding, purchasing, leasing, selling, conveying, or otherwise disposing of public property and "shall have such other powers and duties as provided by law." Ga. Const. 1983, Art. VIII, Sec. IV, Para. I(d).

It is only in the creation of a new public college or university that the Constitution provides for a check on the authority of the Board by requiring the approval by a majority vote of the House and Senate. Ga. Const. 1983, Art. VIII, Sec. IV, Para. I(b). However, "[s]uch vote shall not be required to change the status of a college, institution or university existing on the effective date of this Constitution." Id. I have also previously opined that this provision means that:

[T]he authority to change the status of an institution without legislative approval means the ability of the Board of Regents to alter the level of an institution, such as from a college to a university or a junior college to a college. The authority to change the status of an institution must of necessity also include the authority to alter the level of an institution downward, such as from a university to a college or a college to a junior college, and to extinguish an institution if the situation so presents itself. These actions, the Constitution makes clear, may be taken without legislative approval.

1988 Op. Att'y Gen. 88-12, p. 35.

This broad grant of constitutional authority to the Board has been consistently recognized in previous Constitutions of the state and decisions interpreting those provisions. See, e.g., Villyard v. Regents of Univ. Sys. of Ga., 204 Ga. 517 (1948); Azizi v. Board of Regents of the Univ. Sys., 132 Ga. App. 384 (1974), cert. dismissed, 233 Ga. 487 (1975); McCafferty v. Medical College of Ga., 249 Ga. 62 (1982). This authority is also recognized in the statutory authority provided to the Board by previous enactments of the General Assembly. See, e.g., O.C.G.A. § 20-3-31 (general powers); § 20-3-32 (powers as to institutions, departments, courses, and degrees); § 20-3-33 (power to invest trust funds); § 20-3-51 ("Regents to govern system."); § 20-3-53 (authority to allocate appropriations); and § 20-3-57 (title to property vested in the Board).

Specifically, as noted above, the General Assembly has provided that: "The board of regents is authorized to consolidate, suspend, or discontinue institutions; merge departments; inaugurate or discontinue courses; and abolish or add degrees." O.C.G.A. § 20-3-32(a). If such modifications are necessary, the Board is authorized to readjust budgets to the extent necessary to reallocate monies among the various institutions. O.C.G.A. § 20-3-32(b).

It should also be noted that the General Assembly has recognized the Reserve Officers' Training Corp at North Georgia College as a significant state program and has previously sought to encourage students to enroll in this program by providing tuition grant assistance for such students. O.C.G.A. § 20-3-430 et seq. However, this provision does not create the program in question, but instead is designed solely to support and encourage it. Id.

It is a well established principle of statutory construction that statutes are presumed to be enacted by the General Assembly with the full knowledge of the existing conditions of the law and with reference to it. 1993 Op. Att'y Gen. 93-15, p. 45, citing Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700 (1940). Statutes must be construed in connection and in harmony with the existing law. Id. Where a statute or a resolution "authorizes" a state agency to take certain actions, that authorization must be read in pari materia with other statutes and can be read to be permissive, and not mandatory, in relation to the prescribed actions. 1994 Op. Att'y Gen. 94-4, p. 10.

The particular Joint Resolution in question authorizes and directs the Board of Regents and the President of North Georgia College to take all actions necessary to ensure that the College continues its Senior Reserve Officers' Training Corp program. 1996 Ga. Laws 911. If this Joint Resolution were to be interpreted as having the force of law to direct and require the Board to continue a particular course or study at North Georgia College, such an interpretation would conflict with the constitutional powers of the Board outlined above.

The power to determine the scope of an institution's educational curriculum is a power uniquely reserved to the Board as part of its constitutional authority to govern, control, and manage the University System. To hold otherwise would undermine long-standing principles and vitiate the independence provided to this constitutional body.

Under the rules of statutory construction, it must be presumed that the General Assembly was aware of the authorities outlined above and that it intended that Joint Resolution 1074 not conflict with those provisions. Therefore, reading the Joint Resolution in harmony with the constitutional and statutory powers granted to the Board, it must be concluded that, while the resolution has the force and effect of law, it is not a mandatory pronouncement requiring the Board to take any particular actions. The Joint Resolution must instead be read to be "permissive" only, indicating the will of the General Assembly that the Board undertake policies consistent with this pronouncement. Though the Board is not required to implement this Joint Resolution, it may, of course, choose to follow it nonetheless.

Therefore, it is my unofficial opinion that Joint Resolution 1074 does not mandate that the Board of Regents take any action in relation to the North Georgia College Senior Reserve Officers' Training Corp program. This is because the General Assembly may not, through the passage of a Joint Resolution which has the effect of law, infringe upon the Board of Regents' constitutional authority to govern, control, and manage the University System of Georgia.

Prepared by:

 

DENNIS R. DUNN
Senior Assistant Attorney General