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Official Opinion 99-9

Official Opinion 99-9

April 30, 1999
To: 

Acting Adjutant General
Georgia Department of Defense

Re: 

The Adjutant General cannot delegate his discretionary power or authority regarding the signing of state contracts but he can implement guidelines regarding routine contracts and then delegate to the Director of Strategic Resource Management the ministerial function of signing contracts which fall within those guidelines. The delegation should be in writing to set forth clearly the responsibility the Adjutant General has delegated.

This is in response to the request for an opinion regarding whether the Adjutant General can delegate his authority to sign state contracts to the Director of Strategic Resource Management and, if so, whether the delegation must be in writing.

The Adjutant General is the executive head of the Department of Defense of the State of Georgia, O.C.G.A. § 38-2-130, and is appointed by the Governor for a term concurrent with the term of the Governor. O.C.G.A. § 38-2-150. The Adjutant General is to "perform the duties of commander in chief" and "command the militia" when the "Governor and those who would act in succession to him under the Constitution and laws of the state are unable to perform" those duties. O.C.G.A. § 38-2-151(a), (b). Other duties of the Adjutant General include the duty "[t]o direct the planning and employment of the forces . . . in carrying out their state military mission; [t]o establish unified command of state forces . . .; [t]o coordinate the military and naval affairs with the emergency management agency of the state;" to "[b]e custodian of all military records;" to "[k]eep an itemized account of all moneys received and disbursed;" to "[m]ake an annual report to the Governor on the condition of the organized militia;" to "[c]ause the laws and regulations relating to the militia to be indexed, printed, bound, and distributed to all [the] forces;" and to "further perform such duties pertaining to his office as from time to time may be provided by the laws, rules, and regulations of the United States and such as may be designated by the Governor." O.C.G.A. § 38-2-151(c), (d), (e).

As I understand it, the Adjutant General desires to delegate to the Director of Strategic Resource Management (DSRM) his authority for signing routine contracts such as those for repairs. While the Adjutant General has no express statutory power to sign contracts, a prior opinion of this office stated that "[t]he Adjutant General . . . is vested with full control and authority over the affairs and employees of the Military Division, Department of Defense of the State of Georgia, and . . . he has full authority to enter into an agreement such as the one . . . with the United States Department of Defense." 1963-65 Op. Att'y Gen. p. 619, 620. From this, I deduce that the Adjutant General has the implied power to execute contracts. Implied powers are those that are reasonably necessary to execute the express powers conferred. See Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922); 1983 Op. Att'y Gen. 83-63. The power to sign contracts is an implied power because it is reasonably necessary in order for the Adjutant General to exercise "full control and authority over the affairs and employees" of the Department of Defense.

The general rule in American jurisdictions is that where a discretionary power or authority is vested by law in one particular official, board or other governmental body or agency, it cannot, unless otherwise provided by law of equal dignity (referring to constitutional provisions via-a-vis statutes), be delegated to others. See, e.g., 67 C.J.S. Officers, § 194; 81A C.J.S. States § 142, p. 580. It is to be noted, of course, that this rule has reference to discretionary powers only, as opposed to mere ministerial acts, such as where a board, having exercised its discretionary authority respecting the employment of a given individual, delegates to its chairman, secretary, or another, the right to sign the employment agreement on behalf of the board. 67 C.J.S. Officers, § 194, p. 644.

1986 Op. Att'y Gen. 86-29, p. 64. Here, the authority of the Adjutant General to execute contracts is not expressly vested in him by law. Rather, it is a power implied from his general authority to exercise "full control and authority over the affairs and employees" of the Department of Defense. Thus, the power to delegate need not be, nor is it, provided expressly in the statute. "[T]he delegation of a responsibility usually requires either specific statutory authorization or a showing that the delegation is necessarily implied in the statutory scheme." 1996 Op. Att'y Gen. 96-12, p. 46 (citing Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922)) (emphasis added).

Both the power to sign contracts and the power to delegate the signing of routine contracts are "reasonably necessary" in order for the Adjutant General to execute the express powers conferred upon him. See Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922); 1983 Op. Att'y Gen. 83-63. The adjutant general is empowered to retain personnel and to define their duties. O.C.G.A. § 38-2-132.

Therefore, it is my official opinion that the Adjutant General cannot delegate his discretionary power or authority regarding the signing of state contracts but he can implement guidelines regarding routine contracts and then delegate to the Director of Strategic Resource Management the ministerial function of signing contracts which fall within those guidelines. The delegation should be in writing to set forth clearly the responsibility the Adjutant General has delegated.

Prepared by:

SHEREEN M. WALLS
Assistant Attorney General