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Unofficial Opinion 97-11

Unofficial Opinion 97-11

March 14, 1997
To: 

Representative
District 161

Re: 

A member of the General Assembly may serve as a member of the Albany-Dougherty County Planning Commission without there being a per se constitutional, statutory or common-law conflict of interest.

You have requested my opinion as to whether you may serve as both a member of the General Assembly and as a member of the Albany-Dougherty County Planning Commission. It is my opinion that you may simultaneously hold these two positions without there being a per se constitutional, statutory or common-law conflict of interest.

As I have noted in the past, the right to hold public office is the rule and the disqualification from doing so is the exception. 1984 Op. Att'y Gen. 84-26, p. 59 (citing Westberry v. Saunders, 250 Ga. 240 (1982); Avery v. Bower, 170 Ga. 202, 204 (1929)). See also 1983 Op. Att'y Gen. U83-36; Long v. Rose, 132 Ga. 288 (1909); Smith v. Lester, 132 Ga. 517 (1909). A person is prohibited from simultaneously holding multiple public offices only if prohibited from doing so under constitutional or statutory authority or under the common law. 1985 Op. Att'y Gen. 85-28.

The area of potential conflict you have asked about has arisen based on your service both in the General Assembly and on the Albany-Dougherty Planning Commission. The Planning Commission was not created by the General Assembly either through general or local legislation. Instead, it was created in 1985 by a joint resolution of the City of Albany and Dougherty County. A copy of that joint resolution is appended to this opinion.

Under this joint resolution, the Planning Commission is solely advisory and its functions are limited to surveys, studies and other planning activities, as well as making recommendations to the respective local governments. Joint Resolution, Sec. 6. The Commission consists of ten appointed members, five being appointed by the governing authority of the City and five being appointed by the governing authority of the County. Id. at Sec. 3. The members have staggered terms of three years and serve without compensation. Id. A chairman and vice-chairman are selected by the members of the Commission and serve one year terms. Id.

The Commission may in the course of its activities cooperate with, contract with and accept funds from federal, state, local, public or semi-public agencies or private individuals or corporations. Id. at Sec. 5. The Commission is funded by the local governing authorities and is authorized under the joint resolution to expend funds and carry out cooperative undertakings and contracts. Id.

Given these facts, it first must be determined whether there is any constitutional prohibition in a member of the General Assembly serving on a local planning commission. The answer to that question is no. The usual constitutional prohibition which would be implicated here is whether there is a violation of the separation of powers doctrine. Ga. Const. 1983, Art. I, Sec. II, Para. III. However, such a prohibition would not be applicable here as membership on the Planning Commission is a county, not a state-level, position. Therefore, the Constitution does not prohibit the holding of this position. Id.; 1985 Op. Att'y Gen. 85-28; 1976 Op. Att'y Gen. U76-30; 1968 Op. Att'y Gen. 68-14.

The next inquiry is whether there is any statutory prohibition against a member of the General Assembly holding membership on a local planning commission. The answer to this inquiry is

also no. The General Assembly has provided that no elected county or municipal official shall be eligible to serve as a member of the legislature. O.C.G.A. § 28-1-13; 1977 Op. Att'y Gen. U77-40. Giving the term "elected official" its ordinary and common meaning, as is required under O.C.G.A. § 1-3-1(b), this provision would apply to persons elected to office by a vote of the people, and not by appointment of a local government.

The General Assembly could have extended this disqualification to persons holding local appointive office. It chose not to do so. The inclusion of one disqualification is deemed to be the exclusion of other disqualifications under the maxim of statutory construction expressio unius est exclusio alterius. See, e.g., 1993 Op. Att'y Gen. 93-26. As such, there is no statutory prohibition against a member of the General Assembly holding local appointive office on the Planning Commission.

The final inquiry is whether there is a common law conflict of interest in the holding of these offices. As I have previously stated:

"The common-law doctrine of incompatibility of offices arises out of the public policy that an officeholder's performance should not be influenced by divided loyalties. Dunn v. Froehlich, 382 A.2d 686 (N.J. 1978). Incompatibility exists where one office is subordinate to another, subject to its supervision or control, or the duties conflict, thus inviting the incumbent to prefer one obligation to another. Gryzik v. State, 380 So.2d 1102, 1104 (Fla. 1980)." Op. Att'y Gen. U83-55; see also, Op. Att'y Gen. U84-22.

1985 Op. Att'y Gen. 85-28, p. 68. "If the office holder in one capacity supervises or reviews the functions he has performed in his other capacity, common-law incompatibility exists." 1983 Op. Att'y Gen. U83-36, p. 261.

A conflict may also arise even though there is no "direct supervision or control" of one position over the other. 1984 Op. Att'y Gen. U84-22, p. 238. Instead, where there is even the potential for abuse arising from the holding of two such

offices, there is an impermissible conflict of interest created. Id.; 1980 Op. Att'y Gen. 80-64.

There need not be any actual wrongdoing to create a conflict of interest, and none is suggested here. Common-law and statutory provisions are designed to preclude the opportunity or temptation for impropriety, by prohibiting the holding of incompatible positions. Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926).

1980 Op. Att'y Gen. 80-64, p. 136 (emphasis in original).

The City of Albany and Dougherty County have established the Albany-Dougherty Planning Commission by the joint resolution discussed above. The Planning Commission is a creature of the local, not state, governments. It is neither funded nor supervised by the State or the General Assembly. The Planning Commission is not subordinate to the General Assembly in any direct legal relationship and there is no showing of a per se conflict in serving in the General Assembly and serving as an unpaid member of a local planning commission. As such, there is no reason to conclude that a member of the General Assembly would, per se, occupy a position of undue or improper influence on the Planning Commission so as to disqualify the member from serving on the Commission.

Of course, as in all situations regarding public service, I must temper this conclusion with the caution that a member of the General Assembly, as with all public officers, is a trustee and servant of the people. Ga. Const. 1983, Art. I, Sec. II, Para. I. The holder of public office is held to a high standard of honor and honesty. See Malcom v. Webb, 211 Ga. 449 (1955). Therefore, while there may not be an automatic disqualification from a member of the General Assembly holding a seat on a local planning commission, the member must always be cognizant of his duties and responsibilities and avoid involvement in particular factual circumstances which would give rise to either an appearance of impropriety or an actual conflict of interest.

As such, it is my unofficial opinion that a member of the General Assembly may serve as a member of the Albany-Dougherty County Planning Commission without there being a per se constitutional, statutory or common-law conflict of interest.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General


DOUGHERTY COUNTY RESOLUTION NO. 85-010

AND

ALBANY CITY ORDINANCE No. 85-167

A JOINT RESOLUTION AND ORDINANCE ENTITLED AN ORDINANCE OF THE CITY OF ALBANY AND A
RESOLUTION OF DOUGHERTY COUNTY ABOLISHING THE ALBANY METROPOLITAN PLANNING COMMISSION, THE ALBANY PLANNING COMMISSION, AND THE DOUGHERTY COUNTY PLANNING COMMISSION, AND ESTABLISHING IN LIEU THEREOF THE ALBANY DOUGHERTY PLANNING COMMISSION TO EXERCISE ALL OF THE DUTIES, POWERS AND AUTHORITY FORMERLY EXERCISED BY SAID THREE ABOLISHED BODIES; REPEALING PRIOR RESOLUTIONS AND ORDINANCES IN CONFLICT; AND FOR OTHER PURPOSES.

BE IT ORDAINED by the Board of Commissioners of the City of Albany, Georgia, and it is hereby ordained by the authority of same; and be it resolved by the Board of Commissioners of Dougherty County, Georgia, and it is hereby resolved by authority of same:

SECTION 1. ABOLISHMENT OF PRIOR COMMISSIONS. The joint ordinance and resolution of the City of Albany and Dougherty County, Ordinance Number 1950 of the City of Albany, and Resolution Number 73-127 of Dougherty County, establishing the Albany Metropolitan Planning Commission, as subsequently amended from time to time, and Ordinance Number 1951 of the City of Albany establishing the Albany Planning Commission, and a resolution of Dougherty County, Georgia adopted November 5, 1973, establishing the Dougherty County Planning Commission, and all ordinances and resolutions amendatory of said ordinances and resolutions, are hereby repealed, and the Albany Metropolitan Planning Commission, the Albany Planning Commission, and the Dougherty County Planning Commission are hereby abolished.

SECTION 2. CREATION OF ALBANY DOUGHERTY PLANNING COMMISSION. There is hereby established an Albany Dougherty Planning Commission, herein called Commission, to succeed to the powers, duties and responsibilities of the Albany Metropolitan Planning Commission, the Albany Planning Commission, and the Dougherty County Planning Commission, the membership and the specific powers, responsibilities and duties of said commission to be as hereinafter more fully set forth. All acts, decisions and determinations heretofore made by any

of said abolished commissions are hereby ratified and confirmed, and shall remain in force and effect until changed. Unfinished business of all of the abolished bodies, including any scheduled hearings or hearings in progress, shall be assumed, continued and carried out by the Commission.

SECTION 3. MEMBERSHIP. The Commission shall consist of ten members, five to be appointed to the Commission by the governing authority of the City of Albany, and five to be appointed to the Commission by the governing authority of Dougherty County, Georgia. All of said members shall serve for terms of three years and until their successors are appointed, except that initially two of the members appointed by each of the respective bodies shall be appointed to serve for an original term of three years, two members shall be appointed to serve for an original term of two years, and one member shall be appointed to serve for an original term of one year.

SECTION 4. COMPENSATION. All members of the Commission shall serve without compensation, but shall be reimbursed for actual expenses incurred in connection with their official duties.

SECTION 5. ORGANIZATION, RULES, STAFF, OFFICERS AND FINANCES. The Commission shall elect from its members a Chairman and a Vice-chairman, each to serve for a term of one year and until a successor is elected. The Commission shall meet at least once each month at the call of the Chairman, and at such other times as the Chairman or a majority of the members of the Commission shall determine. The Commission shall adopt rules and regulations for the conduct of its meetings and the transaction of its business, and shall keep records of its resolutions, motions, transactions, findings, determinations, and recommendations, which records shall be public records. The Commission may appoint such employees and staff as it deems necessary for its work, within the budget provided for its operation by the respective governing authorities, or other funds lawfully available to it. In the performance of its duties, the Commission may cooperate with, contract with, and accept funds from federal, state, local, public or semi-public agencies or private individuals or corporations, and may expend such funds and carry out cooperative undertakings and contracts with any of same within its lawful powers. The Commission is authorized to make expenditures for the purchase of required equipment and supplies, all, with the exception of gifts to said Commission, or contract receipts, to be within the amounts appropriated for the purpose by the governing authorities of the local units of general government represented by appointees on the Commission.

SECTION 6. POWERS, DUTIES AND RESPONSIBILITIES. It shall be the function and duty of the Albany Dougherty Planning

Commission, subject to the direction and control of the respective governing authorities, to make surveys and studies of existing conditions and probable future developments and to prepare such plans for physical, social and economic growth as will best promote the public health, safety, morals, convenience, prosperity, general welfare, efficiency and economy in the development of the City of Albany and Dougherty County. In particular, the Albany Dougherty Planning Commission shall have the power and duty, subject to the direction and control of the governing authorities, to:

1. Prepare a master plan or parts thereof for the development of the City of Albany and Dougherty County.

2. Prepare and recommend to the appropriate governing authorities for adoption amendments to or revisions of zoning ordinances and zoning maps for the City of Albany and Dougherty County.

3. Prepare and recommend to the respective governing authorities of the City of Albany and Dougherty County for adoption regulations and amendments thereto for the subdivision of land within the political jurisdiction of the respective bodies, and to administer such regulations as may be adopted.

4. Prepare and recommend to the respective governing authorities of the City of Albany and Dougherty County for adoption of a plat or plats, or an official map, and amendments thereto, showing the exact location of the boundary lines of existing, proposed, extended, widened, or narrowed streets, public open spaces or public building sites, together with regulations to control the erection of buildings and other structures within such lines, within the City of Albany or Dougherty County or specified portions thereof.

The function and responsibility of the Albany Dougherty Planning Commission shall be advisory only.

The Albany Dougherty Planning Commission shall have such additional duties and responsibilities and shall perform such additional functions and services as may be called for from time to time by the City of Albany and Dougherty County, or either of them.

SECTION 7. Notwithstanding any other provision of this joint resolution and ordinance to the contrary, all checks or other orders of the Albany Dougherty Planning Commission for the withdrawal of money from banking institutions shall be

signed by all three of the following: The City Manager of the City of Albany, or his designated representive [sic]; the County Administrator for Dougherty County, or his designated representative; and the Director of the Albany Dougherty Planning Commission, or his designated representative.

SECTION 8. All ordinances and resolutions or parts of ordinances and resolutions in conflict herewith are repealed.

THE CITY OF ALBANY, GEORGIA

James H. Gray MAYOR

ATTEST:

Joann Pope CITY CLERK Adopted: May 30, 1985

DOUGHERTY COUNTY, GEORGIA

Gil Barrett CHAIRMAN

ATTEST:

W. Alan Reddish COUNTY ADMINISTRATOR

Adopted June 3, 1985

This represents only one of a long series of opinions which recognize these principles. See 1984 Op. Att'y Gen. 84-26, U84-22; 1983 Op. Att'y Gen. U83-36, U83-55; 1981 Op. Att'y Gen. U81-6; 1980 Op. Att'y Gen. 80-64; 1978 Op. Att'y Gen. 78-1, U78-8; 1977 Op. Att'y Gen. 77-47, U77-25; 1976 Op. Att'y Gen. U76-30, U76-56; 1973 Op. Att'y Gen. U73-120; 1971 Op. Att'y Gen. U71-34; 1969 Op. Att'y Gen. 69-220, 69-356; 1968 Op. Att'y Gen. 68-14, 68-169, 68-219; 1962 Op. Att'y Gen. p. 52; 1957 Op. Att'y Gen. p. 53, 54; 1954-56 Op. Att'y Gen. p. 296, 383; 1948-49 Op. Att'y Gen. p. 582. See also 1976 Op. Att'y Gen. "Conflicts of Interest of Public Officers, Employees and Agents," p. 355, 365-68.