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Official Opinion 99-1

Official Opinion 99-1

January 4, 1999
To: 

Executive Secretary
Georgia Public Service Commission

Re: 

Under O.C.G.A. § 46-2-5(b), a commissioner on the Public Service Commission who defers serving as chairman, will resume his place, in the following year, at the head of the order rather than behind the other otherwise eligible commissioners.

This is in response to your request for an official opinion as to the statutory order of succession for the chairman of the Public Service Commission once the commissioner next eligible to serve elects to defer service. This question is governed by O.C.G.A. § 46-2-5(b) which, in relevant part, provides the following rules for succession:

(1) A member of the commission with less than one year of continuous unbroken service on the commission shall not be eligible to take office as chairman;

(2) A member of the commission who has previously served as chairman shall not be eligible to serve again as chairman until each other eligible member (i.e., each other member with more than one year of continuous service on the commission) has served as chairman or has deferred service as chairman;

(3) Subject to paragraphs (1) and (2) of this subsection, the most senior member of the commission who is eligible to serve as chairman shall be selected to the office of chairman; provided, however, that such member may elect to defer service as chairman for a period of one year, at the conclusion of which year such member shall resume his place at the head of the order of rotation for the chairmanship.

For the reasons set forth below, this provision requires that a commissioner who defers serving as chairman in one year, in the following year, will resume his place at the head of the order rather than behind the other otherwise eligible commissioners.

In addressing this question, certain fundamental rules of statutory construction control. The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Board of Trustees of the Policemen’s Pension Fund v. Christy, 246 Ga. 553 (1980). Where there is apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another, and if they cannot be so reconciled, the one which best conforms to the legislative intent must stand. Id.

With these rules in mind, the statute makes clear that the General Assembly intended that “the most senior member of the commission who is eligible to serve as chairman shall be selected to the office of chairman.” O.C.G.A. § 46-2-5(b)(3). The General Assembly further intended that if the chairman so selected chooses to defer service as chairman, at the conclusion of the deferred year, “such member shall resume his place at the head of the order of rotation for the chairmanship.” Id. Taken together, these express legislative pronouncements lead to the conclusion that a commissioner who defers serving as chairman, will resume his place, in the following year, at the head of the order rather than behind the other otherwise eligible commissioners.

The statement at the beginning of O.C.G.A. § 46-2-5(b)(3) that the foregoing is “[s]ubject to paragraphs (1) and (2)” does not alter this conclusion. This provision should be read as a statement of the minimum requirements any commissioner must meet in order to serve as chairman regardless of whether that commissioner is selected by normal rotation, or as a result of a deferral. Paragraph (1) requires one year of continuous unbroken service. Paragraph (2) bars repeat service as chairman until all other eligible commissioners have either served or deferred. This statement should not be read to override the clear legislative pronouncements in the statute establishing seniority as the basis for selection and placing a commissioner who has deferred service at the head of the rotation in the following year.

Therefore, based upon the foregoing, under O.C.G.A. § 46-2-5(b), a commissioner on the Public Service Commission who defers serving as chairman, will resume his place in the following year at the head of the rotation, rather than behind the other otherwise eligible commissioners, and will serve as chairman in the following year. The deferring commissioner would continue in the rotation behind the commissioner who served during the deferment year.

Prepared by:

HAROLD D. MELTON
Senior Assistant Attorney General


1 There is nothing in the statute that expressly provides that the deferring commissioner, once he has served as chairman, will serve again ahead of the commissioner who served during the deferment year. The position that the deferring commissioner would reassume his position ahead of the commissioner who served during the deferment year would be based on an over reading of the role of seniority in the chairman selection process. A reading to this effect would make seniority universally paramount and call for drastic shifts in the rotation contrary to the overall statutory scheme. Such a construction should be avoided. Board of Trustees of the Policemen’s Pension Fund v. Christy, 246 Ga. 553 (1980) (A court may decline to give a legislative Act such construction as will attribute to the General Assembly an intention to pass an Act which is not reasonable, or as will defeat the purpose of the proposed legislation.).