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Official Opinion 97-6

Official Opinion 97-6

March 4, 1997
To: 

Lieutenant Governor

Re: 

The described use of appropriated funds violates the gratuities clause. For its expenditure or forbearance to collect, the State must receive something new, worth the money paid or let go, as determined by the appropriate state agency as a fiduciary of public funds.

You have asked whether a proposed appropriation would violate the ban against governmental gratuities. As you report the issue in your letter, the proposed appropriation would be made "to the Department of Natural Resources and then would be given to the Paralympic Organizing Committee which would in turn pay Georgia Tech for past due rent and other expenses owing from last summer." The Atlanta Paralympic Organizing Committee ("APOC") is a private corporation, which contracted with the Board of Regents for the use of part of the Georgia Tech campus during the Paralympic Games. APOC's payment was due last August, but Regents and APOC then further contracted to postpone it, in return for interest and for security in the form of a bank letter of credit. The current issue concerns the postponed payment.

The Department of Natural Resources may not "give" a private corporation any amount of money, and the Board of Regents may

not "give up" a liquidated claim it has for the use of its facilities. The gratuities clause denies the State the power "to grant any donation or gratuity or to forgive any debt or obligation owing to the public . . . [or to] grant or authorize extra compensation to any public officer, agent, or contractor after the service has been rendered or the contract entered into." Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a).

The circumstantial detail related in your letter is not reflected in the appropriation being considered. The current appropriations to the Department of Natural Resources already contain the following item (see 1996 Ga. Laws 1529, 1560-61):

Contracts: Paralympic Games $ 895,000

Pending House Bill 34, in the version passed by the House, would increase the amount to $1,795,000 without changing the language. The Senate version would leave the line as it is.

As an appropriation, neither version does more than authorize a draw of funds from the treasury, up to the stated amount for the stated purpose, i.e., contracts having to do with the Paralympic Games. Ga. Const. 1983, Art. III, Sec. IX, Para. I and III; O.C.G.A. § 45-12-71(1); 1991 Op. Att'y Gen. 91-26. Whether a budget unit receiving an appropriation can spend it for the stated purpose is a question of separately enacted, general law powers, which an appropriation cannot provide or vary. In other words, the Department of Natural Resources may draw down this appropriation for a contract pertaining to the Paralympic Games if the contract is within its powers to make, and if DNR otherwise complies with the legal requirements for such a contract. Other than to rule out a gift, I do not undertake here to give all the transactional advice which may be appropriate in a given instance.

It is, therefore, my official opinion that the Department of Natural Resources may not use the described appropriation for a gratuity. For its expenditure or forbearance to collect, the State must receive something new, worth the money paid or let go, as determined by the appropriate state agency as a fiduciary of public funds.

Prepared by:

JOHN B. BALLARD, JR.
Senior Assistant Attorney General