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Official Opinion 99-5

Official Opinion 99-5

April 5, 1999
To: 

Secretary of State

Re: 

The Private Colleges and Universities Authority is not a "state authority" for the purposes of the Ethics in Government Act and, therefore, its members need not file the financial disclosure forms required by O.C.G.A. § 21-5-50.

Your office has requested my opinion as to whether members of the Private Colleges and Universities Authority (“PCUA”) must file a financial disclosure statement in accordance with the Ethics in Government Act, O.C.G.A. § 21-5-1 et seq. For the reasons stated herein, it is my official opinion that PCUA members are not required to do so.

A portion of the Ethics in Government Act, O.C.G.A. § 21-5-50, requires certain specified “public officers” to file financial disclosure statements with the Secretary of State each year. Code Section 21-5-3(15)(E) defines those covered “public officers” to include “[t]he executive director of each state board or authority and the members thereof.” (Emphasis added.) See 1997 Op. Att’y Gen. 97-18. The Act, however, does not specifically define the term “state authority.” It is this lack of specificity that gives rise to your inquiry here.

While described as an “authority” in the statute creating it, the PCUA is very different in structure and operation from other authorities created by the General Assembly. See, e.g., O.C.G.A. § 10-9-1 et seq. (Georgia World Congress Center Authority); O.C.G.A. § 52-2-1 et seq. (Georgia Ports Authority); or O.C.G.A. § 12-3-230 et seq. (Jekyll Island State Park Authority). The PCUA was created by the General Assembly solely for the purpose of “assist[ing] institutions for higher education.” O.C.G.A. § 20-3-203. An “institution for higher education” is defined under this statute as a “nonprofit educational institution which is not owned or controlled by the state or any political subdivision, agency, instrumentality, district, or municipality thereof, which provides a program of education beyond the high school level." O.C.G.A. § 20-3-201(9) (emphasis added). In other words the PCUA is created to assist private colleges and universities. That assistance consists mostly of providing tax exempt financing for construction projects and education loan programs of its participating institutions. O.C.G.A. §§ 20-3-201(4), (8), (11), 20-3-203(5), -204, -209.

Even though the Governor appoints the PCUA members and its mission is described as being an "essential governmental function,” the PCUA is also specifically deemed by the statute “not [to be] a state institution nor a department or agency of the state." In fact, the PCUA is specifically excluded as an instrumentality of the state or any local government. It is instead created solely as "an instrumentality of purely public charity." O.C.G.A. § 20-3-202. The PCUA is also prohibited from receiving state or local public funds, O.C.G.A. § 20-3-206, and must instead assess its participating private institutions for the costs of its administrative expenses. O.C.G.A. § 20-3-203(13). In performing its sole “governmental function,” i.e., providing tax exempt financing as a charitable aid to private colleges and universities, the PCUA is explicitly not subject to the review and approval of the Georgia State Financing and Investment Commission, which is charged with that function for all other “state authorities.” O.C.G.A. §§ 20-3-202, 50-17-21(9), 50-17-22(f).

Therefore, while the PCUA is designated by name as an “authority,” it is also explicitly created as an entity outside of state government with a unique mission and status. It is this unique status which gives rise to your question as to whether it should be considered a “state" authority for purposes of the Ethics in Government Act. In answering this question, it first must be noted that authorities themselves are unique creatures with a somewhat ambiguous nature. See, e.g., Paul W. Bonapfel, The Legal Nature of Public Purpose Authorities: Governmental, Private, or Neither?, 8 Ga. L. Rev. 680, 706 (1974). See also Cox Enterprises, Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39 (1981).

In looking at the PCUA, it is clear that the PCUA, by the very terms of the statute that creates it, is not a state instrumentality created to assist state government. Its sole connection with a governmental function is one related to its actions as a “purely public charity.” The PCUA performs no other state actions and receives no state funding whatsoever. As such, I believe that it would not properly be considered a “state" authority within the meaning of the Ethics in Government Act.

Given that the PCUA is not a “state authority” within the meaning of the Ethics in Government Act, I believe that it also falls outside the disclosure rule in question here. Under the express terms of the Act, members of the PCUA would be subject to the Act and its reporting and disclosure requirements only if they are "members" of a "state . . . authority." O.C.G.A. §§ 21-5-3(15), 21-5-50. As indicated above I have concluded that PCUA is not a "state authority."

For these reasons, it is my official opinion that the PCUA is not a “state authority” for the purposes of the Ethics in Government Act and that, therefore, members of the PCUA need not file the financial disclosure forms required by O.C.G.A. § 21-5-50.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General