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Official Opinion 97-1

Official Opinion 97-1

January 16, 1997
To: 

Chancellor
Board of Regents University System of Georgia

Re: 

Official Code of Georgia Annotated ¿ 16-10-9 prohibits an individual who is employed as a staff member in the judicial branch of state government or in the General Assembly from being employed as a graduate research, laboratory, or teaching assistant at any unit of the University System of Georgia.

Your office has recently asked for my opinion as to whether O.C.G.A. § 16-10-9 prohibits the hiring of graduate research, laboratory, or teaching assistants who are also employed as staff members in the judicial branch or the General Assembly. I understand that such graduate assistants are paid or receive tuition reductions to work for University System faculty members. It is my official opinion that O.C.G.A. § 16-10-9 prohibits such employment, because it would constitute employment in two different branches of government.

The Georgia Constitution of 1983 mandates that the three branches of government "shall forever remain separate and distinct" and that "no person discharging the duties of one shall at the same time exercise the functions of either of the others except as provided herein." Ga. Const. 1983, Art. I, Sec. II, Para. III. In furtherance of this constitutional separation of powers, the General Assembly has passed O.C.G.A. § 16-10-9 which provides, in relevant part, that "[i]t shall be unlawful for: . . . [o]fficers or employees of the executive branch of the state government to accept or hold office or employment in the legislative or judicial branches of the state government." O.C.G.A. § 16-10-9(a)(3). "A person who knowingly disburses or receives any compensation or money in violation of this Code section is guilty of a misdemeanor." O.C.G.A. § 16-10-9(b). The Georgia Supreme Court has held that

this Code Section "applies to all employees of the executive branch without discrimination." Galer v. Board of Regents of the Univ. Sys., 239 Ga. 268, 271 (1977).

Graduate assistants at public universities are employees of the Board of Regents, and "[i]t is clear that employment by the Board of Regents in a position in the University System of Georgia is employment by or the rendition of services for a state department or agency." 1981 Op. Att'y Gen. 81-13, p. 33. The Board of Regents and units of the University System are agencies of the executive branch of the state government. See Galer, 239 Ga. at 269. These graduate assistants, therefore, are employees of the executive branch. As a result, they are prohibited by the clear language of O.C.G.A. § 16-10-9 from holding simultaneous employment in the legislative or judicial branches.

Accordingly, it is my official opinion that O.C.G.A. § 16-10-9 prohibits an individual who is employed as a staff member in the judicial branch of state government or in the General Assembly from being employed as a graduate research, laboratory, or teaching assistant at any unit of the University System of Georgia.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General


Excepted from this prohibition, however, are officers and employees of the excecutive branch who take temporary leaves of absence from their executive branch positions to serve as temporary employees of the legislative branch during a session of the General Assembly. O.C.G.A. § 16-10-9(c).