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Unofficial Opinion 97-5

Unofficial Opinion 97-5

January 24, 1997

District 27


Under the Constitution, the General Assembly is responsible for appropriating federal funds, but federal funds are continually appropriated.

You have asked whether Article III, Section IX, Paragraph II(b) of the Constitution means that "the General Assembly is responsible for appropriating federal money." In pertinent part, "Paragraph II(b)" reads as follows:

The General Assembly shall annually appropriate those state and federal funds necessary to operate all the various departments and agencies. To the extent that federal funds received by the state for any program, project, activity, purpose, or expenditure are changed by federal authority or exceed the amount or amounts appropriated in the general appropriations Act or supplementary appropriations Act or Acts, or are not anticipated, such excess, changed or unanticipated federal funds are hereby continually appropriated for the purposes authorized and directed by the federal government in making the grant.

This language was new in the 1983 Constitution. After 1962, prior Constitutions simply provided for continual appropriation of federal funds, in the amounts and for the purposes directed by the federal government. Ga. Const. 1945, Art. VII, Sec. IX, Para. II [Ga. Code Ann. § 2-6202], as amended, 1962 Ga. Laws 752; Ga. Const. 1976, Art. III, Sec. X, Para. V(d).

When language of the law changes, the new language should be interpreted in light of the old, taking into account the reasons for the change and the changes made. The point is sometimes expressed as looking at the "old law, the evil, and the remedy." See generally Moore v. Baldwin County, 209 Ga. 541, 545-46 (1953). During the drafting of the 1983 Constitution, some legislators on the Select Committee said that the General Assembly should be more involved in the appropriation of federal funds. Other members of the Committee expressed concern that requiring an appropriation before federal funds could be spent would deprive the State of their timely and full use. The Select Committee decided against change, i.e., favored the "continual appropriation" language in effect since 1962. State of Georgia Select Committee on Constitutional Revision 1977-1981, Transcript of Proceedings, Meetings of Select Committee October 22, 1979, pp. 51-58, 93-111; October 29, 1979, pp. 41, 48; November 7, 1979, pp. 36-44; Meetings of Legislative Overview Committee July 14, 1981, pp. 146, 155; August 12, 1981, pp. 69-81.

When the General Assembly took up the proposed Constitution during a special session in 1981, the House Committee on Constitutional Revision recommended a substitute which replaced the clause continually appropriating federal funds with a clause empowering the General Assembly to enact statutory procedures "by which all federal funds . . . shall be allocated." Journal of the Georgia House of Representatives, Ex. Sess. 1981, 129, 139, 171, 181. This clause was deleted on the floor, and the House sent to the Senate provisions for appropriation of federal funds much like the present version except in ways explained below. House Journal at 245-46, 394-95; Journal of the Georgia Senate, Ex. Sess. 1981, 199, 216, 231-34. The Senate restored the existing language as recommended by the Select Committee. House Journal at 411-12, 421-23; Senate Journal at 281, 296-99, 348, 375-76, 379, 381-84. The Conference Committee proposed the language finally adopted. House Journal at 508, 509, 519-20, 551-52; Senate Journal at 434, 449-52, 499.

It is apparent that the first sentence of the adopted language addresses the concern that legislators be more involved by providing for appropriation of federal funds. It is clear, too, that the following sentence addresses the concern that the

State be able to make full and timely use of federal funds by appropriating "excess, changed or unanticipated federal funds." How then do these contrasting sentences work together?

It is a basic rule of construction that a statute or constitutional provision should be construed "to make all its parts harmonize and to give a sensible and intelligent effect to each part[, as it] is not presumed that the legislature intended that any part would be without meaning."

Gilbert v. Richardson, 264 Ga. 744(3), 747-48 (1994) (citation omitted).

It is also basic that words of the Constitution should be given their ordinary meanings unless the context otherwise requires. See generally Hollowell v. Jove, 247 Ga. 678, 681 (1981). Standing alone, the words of the first sentence of Paragraph II(b) are plain: "The General Assembly shall annually appropriate . . . federal funds. . . ." An appropriation is commonly understood to be an authorization to spend a stated amount for a stated purpose. O.C.G.A. § 45-12-71(1); see 1973 Op. Att'y Gen. 73-80. Therefore, to use the words of your letter, it is the "responsibility of the General Assembly" to state annually in an appropriations act the amounts and purposes for which state and federal funds may be drawn down and disbursed to operate the government.

Yet the next sentence in Paragraph II(b) continually appropriates certain federal funds, those which are "excess, changed or unanticipated," and then two paragraphs later the Constitution further provides: "Each general appropriations Act . . . shall continue in force and effect for the next fiscal year after adoption and it shall then expire, except for the mandatory appropriations . . . those required to meet contractual obligations . . . and the continued appropriation of federal grants." Ga. Const. 1983, Art. III, Sec. IX, Para. IV(a) (emphasis added).

The subject of "Paragraph IV(a)" just quoted is the expiration of the appropriations act at the end of the fiscal year and the exceptions to its expiration. Since "excess, changed or unanticipated federal funds" by definition are not appropriated in the appropriations act, and instead are continually appropriated by the Constitution, the federal funds excepted as continually appropriated by Paragraph IV(a) must be the federal

funds which are initially appropriated in the appropriations act, as required by the first sentence of Paragraph II(b). That this is so is confirmed two paragraphs later by Paragraph IV(c): "All appropriated state funds, except for the mandatory appropriations required by this Constitution, remaining unexpended and not contractually obligated at the expiration of such general appropriations Act shall lapse." Ga. Const. 1983, Art. III, Sec. IX, Para. IV (c) (emphasis added).

Conversely, all appropriated federal funds do not lapse. This conclusion based on the text is reinforced by comparison of the final language in the Constitution with the initial House language. There were two, main differences between the versions. First, the House floor amendment required the General Assembly to "appropriate the funds necessary to operate . . . the various departments . . ., including state funds and federal funds." House Journal at 245. At that time, as at present, it was recognized that certain other funds do not have to be deposited into the treasury and may be spent without appropriation. See 1993 Op. Att'y Gen. 93-4; 1977 Op. Att'y Gen. 77-77. The House version arguably suggested that the General Assembly was required to appropriate all funds, "including," but not just, state and federal funds. The tightening of the language in the adopted version ("shall annually appropriate those state and federal funds") excluded other funds from the command, but conversely strengthened the import that federal funds are to be appropriated like state funds. Second, the House floor amendment only deleted the "continually appropriated" clause and substituted the House version of the present language of Paragraph II(a). The other appropriations language of Section IX was unchanged. That meant Paragraph IV(a) provided as now for "the continued appropriation of federal funds," but Paragraph IV(c) provided that "all" appropriations lapsed at the end of the fiscal year, not just "state funds" as now. Therefore, the final language eliminates any ambiguity or possible interpretation that federal funds lapse. State and federal funds must both be appropriated, but only state fund appropriations may lapse. Federal funds are continually appropriated, whether their initial appropriation was in the act or was because they were "excess, changed or unanticipated" funds.

That all federal funds are continually appropriated does not render the first sentence of Paragraph II(b) meaningless. A reasonable explanation is that the people not only wanted full, timely use of federal funds, as permitted by general law, but also wanted their availability and use to be incorporated into

the appropriations process. While the continual appropriation of all federal funds, including "excess, changed and unanticipated" federal funds, makes the effect of their annual appropriation potentially less restrictive than it is on state funds, nevertheless it is an appropriation, i.e., authorization to expend a stated amount for a stated purpose. Consider, for example, a source of federal funds, which may be used for two purposes which are treated as separate statutory activities under Georgia general law. Assume that two state agencies could each perform both activities with federal funds. An appropriation could then direct the funds to one of the agencies for only one of the activities, or it could otherwise allocate the funds. Only "excess, changed or unanticipated" funds would be authorized for the other purpose or to the other agency. The illustration shows the need to apply the Budget Act with caution. The Budget Act still provides simply that all federal funds are continually appropriated in the amounts and for the purposes federally authorized, O.C.G.A. § 45-12-91, and this language must now be applied in harmony with the 1983 Constitution. See McKnight v. City of Decatur, 200 Ga. 611(3), 619 (1946).

For both state and federal funds, it remains true that an appropriation is only an authorization to spend and may not affect the general law powers of an agency. See 1991 Op. Att'y Gen. 91-26; 1973 Op. Att'y Gen. 73-80. General law remains the means by which the General Assembly controls the permitted activities of state agencies and the fiscal management of the State. Ga. Const. 1983, Art. III, Sec. VI, Para. I (police power); Art. III, Sec. IX, Para. II(c) (fiscal management power); see generally 1994 Op. Att'y Gen. 94-22; 1994 Op. Att'y Gen. U94-6 (state law on federal medical assistance funding). [There are at least 130 references to federal funds and grants in the Code, and I have not undertaken to consider them individually in answering your question about the fundamental meaning of the Constitution.]

In conclusion, it is my unofficial opinion that under the Constitution the General Assembly is responsible for appropriating federal funds, but all federal funds are continually appropriated.

Prepared by:

Senior Assistant Attorney General