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Official Opinion 97-29

Official Opinion 97-29

October 6, 1997
To: 

District Attorney
Southern Judicial Circuit

Re: 

County school board members who act as subcontractors on school board construction projects generally cannot be criminally prosecuted under O.C.G.A. ¿ 20-2-505. However, under certain circumstances that practice could constitute the crime of bribery or otherwise create an impermissible conflict of interest.

You have asked whether a county school board member who acts as a subcontractor on a county school board construction project may be prosecuted criminally under O.C.G.A. § 20-2-505. In my opinion such a criminal prosecution is generally not authorized. However, such an arrangement could be one of the facts giving rise to a bribery prosecution or could be prohibited by the constitutional provision that a public office is a public trust.

Official Code of Georgia Section 20-2-505 provides as follows:

(a) No member of any county board of education in this state shall sell to any county board any supplies or equipment used, consumed, or necessary in the operation of any public school in this state.

(b) Any member of any county board violating subsection (a) of this Code section shall be guilty of a misdemeanor.

Clearly by its literal terms the statute does not prohibit electrical service work from a school board member as a subcontractor on a school board project. As drafted, the statute only covers supplies or equipment. For example, because insurance is not “supplies or equipment,” the statute does not apply to sales of insurance to the board by one of its members. 1954-56 Op. Att’y Gen. p. 192. Although several opinions of the Attorney General find that, in general, school board members cannot “do business” with the board, those findings are based primarily on the principal that a public officer cannot profit from his office. See 1954-56 Op. Att’y Gen. p. 186; 1954-56 Op. Att’y Gen. p. 187. The prohibition does not extend to the board’s purchase of supplies or equipment from a corporation that employs a school board member so long as that member does not profit from the transaction, 1958-59 Op. Att’y Gen. p. 102, or from an estate administered by a board member, 1962 Op. Att’y Gen. p. 149.

In general, the statute has not been extended beyond its specific terms and in the context of a criminal prosecution it must be strictly construed. See State Ethics Commissioner v. Moore, 214 Ga. App. 236 (1994). Thus, because the statute does not specifically criminalize construction service subcontracts by board members, the mere fact of the service subcontract itself does not justify a criminal prosecution under the statute. See Robinson v. State, 177 Ga. App. 848 (1986). That does not mean, however, that if sufficient facts are developed, a board member could not be prosecuted for some other crime in connection with the subcontract such as bribery. See O.C.G.A. § 16-10-2; 1991 Op. Att’y Gen. U91-10. See also O.C.G.A. § 16-10-1 et seq.

In addition, there are factual circumstances in which such subcontracting could be in violation of the prohibition against a public officer profiting from his position. See Georgia Dep’t. of Human Resources v. Sistrunk, 249 Ga. 543 (1982); 1960-61 Op. Att’y Gen. p. 158. It is well established in Georgia that public officials may not profit from public business entrusted to their care. Such contracts are invalid even if the official did not vote for its approval or influence other officials to vote for its approval. The contract is invalid even if it is free from fraud and was based on the lowest and most advantageous bid. Trainer v. City of Covington, 183 Ga. 759 (1937); Montgomery v. City of Atlanta, 162 Ga. 534 (1926); Twiggs v. Wingfield, 147 Ga. 790 (1918); Hardy v. Mayor of Gainesville, 121 Ga. 327 (1904); Mayor of Macon v. Huff, 60 Ga. 221 (1878).

Although no case law specifically applies this prohibition to public officials who are subcontractors rather than the direct or general contractor, the possibility exists that subcontracts are invalid as well because the prohibition is against the official contracting with himself either “directly or indirectly.” As was stated in the case of Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926):

By the common law and independently of statute, this contract is contrary to public policy and illegal. One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, and public policy. No public agent shall have the opportunity or be led into the temptation to make profit out of the public business entrusted to his care, by contracting with himself, directly or indirectly, in respect to such business. Mayor &c. of Macon v. Huff, 60 Ga. 221; Hardy v. Gainesville, 121 Ga. 327 (48 S.E. 921); Byrd v. Cook, 146 Ga. 657 (92 S.E. 61); Twiggs v. Wingfield, 147 Ga. 790 [1918].

Accord Department of Transp. v. Brooks, 254 Ga. 303, 315-16 (1985).

There could be a situation in which a board member knows that if a certain general contractor is hired, the board member will be employed as a subcontractor, but if another general contractor is hired the subcontract will go to someone else. If that set of facts existed, the board member could well be in violation of the common law prohibition against making a profit out of his public office. However, such a determination would have to be made on a local level, taking into consideration all the facts and circumstances of each particular case.

In summary, it is my unofficial opinion that county school board members who are subcontractors on a school board project are not generally subject to criminal prosecution under O.C.G.A. § 20-2-505. However, under certain circumstances that practice may constitute the crime of bribery or may create an impermissible conflict of interest.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General