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Unofficial Opinion 97-30

Unofficial Opinion 97-30

October 7, 1997
To: 

Representative
District 122

Re: 

Georgia Military College is not a local school system as that term is defined in the Quality Basic Education Act and therefore is ineligible to be a member of a regional educational service agency (RESA). The State Board of Education is not authorized to waive the statutory definition so as to allow Georgia Military College to be a RESA member.

You have asked for my opinion whether the Georgia Military College is eligible to be a member of a regional educational service agency, or “RESA.” In my opinion Georgia Military College is not, by statutory definition, a local school system and therefore is ineligible to be a RESA member. RESAs are agencies whose territories are established by the State Board of Education and whose purpose is to provide educational services to its members, “local school systems.” See O.C.G.A. §§ 20-2-270, 20-2-271. The term “local school systems” is defined for purposes of the Quality Basic Education Act as “[t]he political subdivisions governed by county, independent, and area boards of education in this state.” O.C.G.A. § 20-2-242.

The question is whether Georgia Military College meets that definition. Georgia Military College is governed by the Board of Trustees of the Georgia Military College, “which shall be deemed an instrumentality of this state and a public corporation.” O.C.G.A. § 20-3-541. However, Georgia Military College is not governed by a county, independent or area board of education. 1969 Op. Att’y Gen. 69-419. Those terms are reserved for the boards of education contemplated by the 1983 Georgia Constitution at Article VIII, Section V, Paragraph I. That Paragraph grants authority to “county and area boards of education to establish and maintain public schools within their limits.” It also continues the authority of existing county and “independent” school systems subject to the power of the General Assembly to provide for consolidation of several of such systems. It seems quite apparent then that when the General Assembly used the terms “county, independent, and area boards of education” in O.C.G.A. § 20-2-242, it meant to use those same terms as they were used in the constitution. See Kesler v. State, 249 Ga. 462, 471 (1982) (“impartial jury” given the same meaning in statute as it had in constitution).

You have also asked whether the State Board of Education may waive the statutory definition and allow Georgia Military College to be a member of a RESA even though it does not fall within the statutory definition of a RESA member. Although state agencies may waive their own rules, 1997 Op. Att’y Gen. 97-11, they lack the authority to waive statutory requirements unless specifically authorized to do so by the General Assembly. See HCA Health Services of Georgia, Inc. v. Roach, 265 Ga. 501 (1995). Therefore, the Board of Education lacks the authority in this instance to allow Georgia Military College to be a member of a RESA by waiving the statutory definition.

It is therefore my unofficial opinion that Georgia Military College is not a “local school system” as that term is defined in the Quality Basic Education Act and therefore is ineligible to be a member of a regional educational service agency (RESA). The State Board of Education is not authorized to waive the statutory definition so as to allow Georgia Military College to be a RESA member.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General