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Opinions

Opinion In Reference To
2008-1

A probate judge serving in a county with a population of over 96,000, where jury trials are authorized in the probate court, must have been both admitted to the practice of law and be a member of the Georgia Bar for seven years prior to his or her election.

2007-6

Miscellaneous questions concerning the procurement of goods and services under the set aside provisions of Georgia’s State Use Law.

2007-5

A county may not borrow from county Special Purpose Local Option Sales Tax (SPLOST) proceeds to fund expenditures other than voter-approved capital projects authorized in the SPLOST statutes. 

2007-3

All-terrain vehicles operating on the roadways in the State of Georgia are motor vehicles and as such are governed by the Uniform Rules of the Road as set forth in O.C.G.A. § 40-6-1 through 40-6-397.

2007-4

The federal Health Insurance Portability and Accountability Act (HIPAA) does not prevent the release of information on copies of death certificates about the cause of death of an individual, as well as conditions leading to the persons death and information regarding surgical proceedings conducted on the deceased, if any, that are released under the Georgia Open Records Act.

2007-2

A consumer reporting agency or a credit reporting business that is exempt from licensure requirements as a private detective business under O.C.G.A. § 43-38-14(a)(2) nevertheless must obtain a license from the Georgia Board of Private Detective and Security Agencies to perform private detective business activities as defined in O.C.G.A. § 43-38-3(3) that do not fall within the scope of this exemption or some other exemption.

2007-1

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

2006-5

The Georgia Superior Court Clerks Cooperative Authority is not empowered to contract to sell real estate images that are in its possession that are records of the clerks of superior court.

2006-2

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

2006-4

O.C.G.A. § 47‑20‑50(a), which requires generally that retirement bills be concurrently funded, and section 2 of 2006 Ga. Laws 117, which requires a specific determination of concurrent funding regarding O.C.G.A. § 47‑17‑71 (Supp. 2006), do not repeal O.C.G.A. § 47‑17‑71 (Supp. 2006), which allows for the grant of creditable service to peace officers for service prior to January 1, 1976, if the officer was denied membership to the Peace Officers’ Annuity and Benefit Fund because of race or ethnicity.

2006-2

The documentation requirement in O.C.G.A. § 35 8 22, as amended, does not prevent a governmental unit from seeking reimbursement after July 1, 2003, for the training of a peace officer hired before July 1, 2003.

2006-3

Absent explicit statutory provisions to the contrary, the Merit System Act does not generally authorize the State Personnel Board or the commissioner to promulgate rules or adopt policies that would be binding on agencies or departments that are not covered, nor can such rules or policies be promulgated pursuant to a gubernatorial executive order.

2006-1

Pursuant to O.C.G.A. § 43-9-12.1, a chiropractor, duly licensed and properly practicing in the state of Georgia, can refer a patient for X-rays or magnetic resonance imaging if the referral is needed to determine appropriate chiropractic care or for treatment for or evaluation of conditions which are outside the scope of practice of the chiropractor, assuming the referral is otherwise prudent and proper. This opinion supersedes 1993 Op. Atty Gen. 93-11.

2006-1

The additional penalty imposed under O.C.G.A. § 15-21-131 should be collected in traffic cases, unless there is a specific exception, in which the accused posts a cash bond that is subsequently forfeited and applied as a fine in lieu of the accused appearing in court.

2005-8

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

2005-5

The clerk of superior court is mandated by law to file and record in the real property records of the superior court any plat meeting the requirements of O.C.G.A. § 15-6-67(b) and (d), whether or not such plat meets any other requirements which may have been imposed by a local government.

2005-7

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

2005-6

The Governor's Office of Consumer Affairs, through its criminal law enforcement investigators, is authorized to conduct investigations of possible violations of O.C.G.A. § 16-9-4 if there is reason to suspect that the manufacturers of false or fraudulent identification documents are using computers or computer networks in the creation of documents intended to deceive or be used in fraudulent schemes, including but not limited to identity fraud, or other species of theft.

2005-5

State law does not permit the Georgia Department of Corrections to delegate to the Georgia Correctional Industries Administration the administration and management of the voluntary inmate labor program authorized pursuant to the Working Against Recidivism Act under O.C.G.A. § 42 5 120 through 125 (Supp. 2005), nor is GCIA authorized to expend funds or efforts in publicizing the program.

2005-4

The additional penalty imposed by O.C.G.A. § 15-21-179 applies, unless there is a specific exception, where a court imposes a fine for a violation of any traffic law and is not limited to violations of those laws that are set forth in Chapter 6 of Title 40 of the Official Code of Georgia

2005-4

The additional monetary penalties provided in O.C.G.A. § 15 21 73 may not be added to the civil monetary penalties imposed pursuant to O.C.G.A. § 40 6 20.

2005-3

Drug offenders who are later pardoned are ineligible to obtain a license to carry a concealed pistol or revolver pursuant to O.C.G.A. § 16 11 129, although they are permitted to possess a pistol or revolver inside their home, vehicle, or place of business without violating Georgia law.

2005-2

The 2004 amendment to O.C.G.A. § 36‑70‑2(5.2)[1] removes any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials from the definition of “local government” with the result that those officials and the costs of their offices are not to be included in the deliberations of local government officials when formulating agreements between counties and cities regarding the delivery of local government services.

 

 

2005-3

Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency.

2005-2

Because the promissory notes obtained by the Georgia Student Finance Authority to secure state funded student loans are non-negotiable instruments under the Uniform Commercial Code, the Authority has the discretion to determine the extent to which it will be legally bound by electronically-executed documents and promissory notes; furthermore, a secure electronic signature of a notary will satisfy the requirement, if any, for an official witness.

2005-1

Agencies covered by the Georgia Open Records Act may not by contract with a federal agency create an exception to the Act and make otherwise public documents in the hands of the agency confidential unless the contract provision is mandated by federal law or regulation.

2005-1

Questions concerning whether a county marshal has authority to operate speed detection devices or otherwise make vehicle stops based on such operation

2004-10

Local governing authorities are not authorized to enact local ordinances that differ from O.C.G.A. § 15-6-95 which establishes an order of priority for the distribution of partial payments toward criminal fines, forfeitures, or costs that are received by clerks of superior court.

2004-9

The Georgia Child Fatality Review Panel and local child fatality review committees are public health authorities as defined by the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated pursuant to the Act by the Department of Health and Human Services; they are authorized by law to receive public health information, including reports of child abuse and neglect, in order to carry out their statutory duties; and they are thereby authorized to obtain protected health information from covered entities under the Act’s public health exception.

2004-8

The Georgia Environmental Facilities Authority is statutorily empowered to make the administrative and policy determinations requiring the City of Atlanta to pledge its full faith and credit as security for a loan from the Authority, there are no constitutional prohibitions upon the City of Atlanta pledging its full faith and credit as security for such a loan, and a referendum is not required prior to the City making the pledge.

2004-7

Members of the Board of Regents of the University System of Georgia hold fiduciary positions of trust under Georgia law, and business transactions between any Regent and the University System are prohibited absent a statutory exception permitting the transaction, and then only if there is no common law conflict creating a breach of their constitutional fiduciary duty.

2004-6

Current state law governing credit unions that were in existence and validly operating prior to April 1, 1975, allows those credit unions to maintain the fields of membership that they possessed prior to April 1, 1975. The current statutory provisions governing mergers of state-chartered credit unions allow the field of membership of a pre-1975 credit union to be included in a plan of merger and assumed by the surviving credit union.

2004-5

The Georgia Public Service Commission has authority over mobile and wireless providers of telecommunications services to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46-5-181 (Supp. 2003) and do not exempt mobile or wireless providers; the Georgia Public Service Commission also has authority over “phone-to-phone” internet protocol telephony as this service is described by the FCC, and over cable-based broadband service to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46-5-181 (Supp. 2003).

2004-4

When so reported by a state agency, the Employees Retirement System should include as a part of earnable compensation conditional pay supplements for duties that are performed as a regular part of an employees duties and compensation that is paid as a part of an approved incentive compensation plan, unless circumstances indicate that the compensation is so unusual that it may fall outside the statutory definition of earnable compensation in the retirement statute.

2004-2

An impermissible conflict of interest arises when a member of the Walker County Board of Elections and Registration is also employed as the boards full time chief clerk.

2004-1

Legal entities and individuals who seek to obtain collegiate athletic scholarships for high school athletes do not fall under the provisions of O.C.G.A. § 20 2 317 and 20 2 318 or the 2003 amendments to Chapter 4A of Title 43.

2004-3

Limitations on the use of state aircraft for other than official business

2004-2

The consumer member for the Georgia Board of Dentistry may vote on any matter before the board without restriction; the dental hygienist member of the Georgia Board of Dentistry may vote on any matter other than one that specifically relates to the practical or scientific examination of dentists for licensure in Georgia.

2004-1

A county or municipality may participate as a member for limited purposes in the Atlanta Regional Commission under federal laws and regulations governing metropolitan planning organizations while remaining a member of a regional development center other than the Atlanta Regional Commission.

2003-10

Subsection (a) of O.C.G.A. § 50-17-2 gives agencies, authorities, boards, public corporations, instrumentalities, retirement systems, and other divisions of state government authority to enter into reverse repurchase agreements for certain specified underlying securities.

2003-9

An overdraft fee will not be considered interest when the transaction is readily characterized as a checking account transaction, lacking the legal and economic reality of a loan or extension of credit, and when the fee is not determined based on the amount and time value of overdraft amounts.

2003-8

If a loan or origination fee charged in connection with a non-real estate loan of under $3,000 is not adduced based on the time value of the money involved, if its use merely increases the lenders expectation of collecting in full the principal amount of the loan plus interest or if the fee is attributable to a service or benefit other than the extension of credit, and if the fees factual justification is clearly documented in sufficient detail, such a fee should not be considered prepaid interest.

2003-7

Cockfighting constitutes cruelty to animals in violation of O.C.G.A. § 16 12 4 (b) and is not exempt from prosecution pursuant to subsection (e) thereof under the guise of scientific research by virtue of the fact that blood or tissue samples are taken from some of the game birds and sent to a laboratory for disease testing.

2003-6

A majority of the total number of positions on a given licensing board is required to constitute a quorum as identified in O.C.G.A. § 43-1-2(h), and a majority of such quorum is necessary to conduct board business other than the specific actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board.

2003-5

Miscellaneous questions regarding gubernatorial appointments, the requirements of Senate confirmation and the effect of the lack of Senate confirmation on reappointments and on quorum requirements

2003-1

O.C.G.A. § 45-18-52 authorizes the Employee Benefit Plan Council to create an optional automobile or homeowner insurance program for state employees.

2003-4

Miscellaneous questions regarding the imposition, collection, and distribution of additional penalties and surcharges on criminal and traffic fines

2003-3

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints

2003-2

Employees of community service boards hired after July 1, 1996, are not in the classified service of the State Merit System.

2003-1

The Georgia Board of Dentistry is authorized by O.C.G.A. § 43-11-74 to promulgate rules to permit delegating the administration of local anesthesia to dental hygienists under the supervision of a practitioner, so long as that determination is consistent with the Boards statutory obligation under its rule-making authority to protect and promote the public health and welfare of the citizens of this state and is deemed appropriate by the Board.

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One of the duties of the Attorney General is to give his legal opinion, when required to do so by the Governor, on any question of law connected with the interest of the state or with the duties of any of the departments. O.C.G.A. § 45-15-3(1). However, to avoid having the Governor endorse all requests for opinions originating within the departments of the state, the Attorney General receives requests for opinions directly from the heads of the executive departments.

The Attorney General will also provide opinions to other state officers, such as legislators, judges or district attorneys. The Attorney General does not generally provide legal advice, opinions or representation to county or municipal governments or officials, but will on request review the written legal opinions and conclusions of counsel for local governments.

Opinions issued to the Governor and the heads of the executive departments are classified as "Official Opinions." Those issued to other state officers (such as legislators, judges or district attorneys) are classified as "Unofficial Opinions." Additionally, from time to time the Attorney General will approve interstate compacts or issue position papers on questions of state law. Those documents are published along with the opinions of the Attorney General.

This presentation of the opinions of the Georgia Attorney General is provided for informational purposes only and should not be considered as legal advice to the general public. From time to time, opinions may be withdrawn, revised or otherwise made obsolete.

Opinions of the Attorney General
1994 - Current

For a copy of a pre-1994 opinion, please contact the Georgia Attorney General's Office at (404) 651-5825 or by e-mail at opinions@law.ga.gov.