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Official Opinion 97-26

Official Opinion 97-26

August 18, 1997
To: 

State Auditor

Re: 

Commissions paid state agencies by telephone companies for the privilege of locating pay telephones on state property are not collected pursuant to revenue measures enacted by the General Assembly and are not required to be deposited into the state treasury.

You have asked whether commissions paid state agencies by telephone companies for the privilege of locating pay telephones on state property are required to be deposited into the treasury.

To answer your question, it is necessary to determine whether the commissions are "revenue collected from taxes, fees, [or] assessments for state purposes, as authorized by revenue measures enacted by the General Assembly." Such funds must be "paid into the general fund of the state treasury." Ga. Const. 1983, Art. VII, Sec. III, Para. II(a). Under its power to provide by general law for the fiscal management of the state, the General Assembly may also direct other funds into the treasury. Ga. Const. 1983, Art. III, Sec. IX, Para. II(c); 1977 Op. Att'y Gen. 77-77, p. 141. However, in the absence of such statutory direction, funds not collected pursuant to a specific statutory premise, i.e., not collected pursuant to a revenue measure directing the collection of a specific fee, tax or assessment, are not required to be paid into the treasury. 1977 Op. Att'y Gen. 77-77, p. 142-44; 1993 Op. Att'y Gen. 93-4.

This test makes it crucial to determine the statutory authority under which the funds are collected. You indicate that approximately 22 agencies receive pay telephone commissions under contracts which allow telephone companies to place telephones on state land. In most similar situations, the "State Properties Code" would give the State Properties Commission the "exclusive power" to grant the licenses for placement of private facilities on state property. O.C.G.A. † 50-16-42(a). Unless the license is for the benefit of the state, a fee of at least $650 must be charged. O.C.G.A. † 50-16-42(b)(3). A fee with such a specific premise must be paid into the treasury. 1977 Op. Att'y Gen. 77-77.

However, the contracts in question apparently were not procured or approved by the State Properties Commission. Instead, they were procured for the agencies by the Department of Administrative Services. DOAS made the arrangements pursuant to the "Telecommunications Consolidation Act of 1973," O.C.G.A. † 50-5-160. This Act directs DOAS to "consolidate" and "manage" a "statewide system" of "telecommunications services." O.C.G.A. †† 50-5-163, -164. Like the State Properties Code, this Act also bestows exclusive jurisdiction: "All agencies . . . are requested to cooperate with [DOAS], for . . . implementing [the Act]. No . . . agency . . . other than [DOAS] shall perform the duties or exercise the powers of [DOAS], except as provided in this part, unless [DOAS] delegates such duties or powers. . . ." O.C.G.A. † 50-5-167.

When statutes conflict, they should be reconciled whenever possible, by such means as looking for the more specific intent. See Board of Trustees of the Policemen's Pension Fund v. Christy, 246 Ga. 553, 554-55 (1980); G.H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 222 Ga. App. 118, 119 (1996). In this instance, the more specific enactment is the Telecommunications Act. It authorizes "[e]ach user agency [to] determine its particular telecommunications service requirements and the site at which such services shall be provided." O.C.G.A. † 50-5-164. The Act does not direct the agencies to the State Properties Commission to process a license for the telephone company. Instead, it charges DOAS with the exclusive responsibility for making the arrangements. I conclude that in the case of telephone services for state agencies like those under discussion here, the State Properties Code does not apply.

The Telecommunications Act does not provide for revenue measures in the form of payments by telephone service providers. Instead, the pay telephone contracts were procured through general statutory power to conduct the program. The power is sufficient to authorize DOAS solicitation of best offers in the form of payments but is not specific enough to require the charge and make it a revenue measure. Cf. 1993 Op. Att'y Gen. 93-4. See 1977 Op. Att'y Gen. 77-77. Accordingly, the commission payments do not have to be paid into the treasury and do not lapse. Cf. 1994 Op. Att'y Gen. 94-22. However, they become public funds and are otherwise subject to the rules pertaining to public fund expenditures and accounting. In part, the funds must be amended into the agency budgets and deposited according to the rules pertaining to public deposits. 1993 Op. Att'y Gen. 93-4. They may not be spent in violation of constitutional restraints on public expenditures, for example the prohibitions against gratuities and aid to religion. Cf. 1988 Op. Att'y Gen. 88-2. The funds may be spent only pursuant to express or necessarily implied powers of the agency. 1987 Op. Atty. Gen. 87-15.

Therefore, it is my official opinion that commissions paid state agencies by telephone companies for the privilege of locating pay telephones on state property are not collected pursuant to revenue measures enacted by the General Assembly and are not required to be deposited into the state treasury.

Prepared by:

JOHN B. BALLARD, JR.
Senior Assistant Attorney General