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Unofficial Opinion 98-16

Unofficial Opinion 98-16

December 14, 1998
To: 

Representative
District 142

Re: 

The General Assembly is within its power to require information of the Board of Regents under Code Section 45-12-88 so long as its exercise of the power does not infringe upon the constitutional power of the Board to govern the University System, particularly its power to receive and allocate as a lump sum "[a]ll appropriations made for the use of any or all institutions in the university system."

This replies to your request that I determine whether the Board of Regents is exempt from Code Section 45-12-88. That Section provides as follows:

When any budget unit has plans to institute any new program, it shall be the duty of the head of such unit to furnish to the Budgetary Responsibility Oversight Committee, on September 1 prior to the convening date of the session at which appropriations to finance such program are to be sought, a description of the program, the reason for seeking to institute such program, the operating procedure of such program, the manner in which it conforms to the organization's strategic plan as well as the state strategic plan, the extent to which the facilities and staff to implement or provide the program will be decentralized, and any other information which would be helpful to the members of the committee in determining whether or not to appropriate funds therefor. The members shall also be furnished with the projected cost to implement the program fully.

Thus, the Section applies generally to all budget units, with its supervision in the Governor. See 1970 Op. Att'y Gen. 70-175 (as Director of Budget, the Governor may collect and distribute this information through the Office of Planning and Budget). The legislative direction is consistent with the power of the General Assembly to determine appropriations, Ga. Const., Art. III, Sec. IX, and to provide by general law for the fiscal management of the State. Ga. Const., Art. III, Sec. IX. Para. II(c).

The Constitution further addresses appropriations for the Board of Regents in specific terms:

All appropriations made for the use of any or all institutions in the university system shall be paid to the board of regents in a lump sum, with the power and authority in said board to allocate and distribute the same among the institutions under its control in such way and manner and in such amounts as will further an efficient and economical administration of the university system.

Ga. Const., Art. VIII, Sec. IV, Para. I(c); O.C.G.A. § 20-3-53.

This "lump sum appropriations" clause is rooted in historical circumstances and is part of the checks and balances in the Georgia Constitution. See generally McCafferty v. Medical College of Georgia, 249 Ga. 62, 66-68 (1982). There are other provisions specifically regarding the Board of Regents, including in particular the following:

(b) The government, control, and management of the University System of Georgia and all of the institutions in said system shall be vested in the Board of Regents of the University System of Georgia. . . . . (d) The board of regents may . . . dispose of public property . . . and utilize the proceeds arising therefrom; . . . and shall have such other powers and duties as provided by law.

Ga. Const., Art. VIII, Sec. IV, Para. I.

The "Appropriations Section" and the "Regents Section" of the Constitution should be harmonized in their respective applications, giving each as full a breadth as possible, in light of the language used and their purposes. See Gilbert v. Richardson, 264 Ga. 744(3), 747-48 (1994). Read in such a manner, these Sections together mean that the General Assembly provides for the budget process and determines the amount it will appropriate to the Board of Regents. The Board of Regents is empowered to receive and allocate as a lump sum "[a]ll appropriations made for the use of any or all institutions in the university system." It is consistent with this interpretation for the General Assembly to require information from the Board of Regents as part of the budget process so long as the General Assembly does not detract from the power of the Board to receive the appropriation as a lump sum. Cf. 1996 Op. Att'y Gen. U96-12 (General Assembly may not infringe upon power of Board to determine military program of a college). This conclusion is analogous to the result under the "open government" laws, through which the General Assembly may require the Board to conduct its activities openly. See Board of Regents of the Univ. Sys. of Ga. v. Atlanta Journal & Atlanta Constitution, 259 Ga. 214 (1989).

Therefore, it is my unofficial opinion that the General Assembly is within its power to require information of the Board of Regents under Code Section 45-12-88 so long as its exercise of the power does not infringe upon the constitutional power of the Board to govern the University System, particularly its power to receive and allocate as a lump sum "[a]ll appropriations made for the use of any or all institutions in the university system."

Prepared by:

JOHN B. BALLARD, JR.
Senior Assistant Attorney General