You are here

Official Opinion 2011-4

Official Opinion 2011-4

November 7, 2011
To: 

Governor

Re: 

A member of the Georgia Government Transparency and Campaign Finance Commission may serve no more than one complete four year term of office, as set by law, and may for a period of less than a complete term hold over in office until his successor is duly appointed and properly takes office.

You have asked for my opinion regarding the proper calculation of the terms of office and the expiration dates of those terms for members of the Georgia Government Transparency and Campaign Finance Commission, formerly known as the State Ethics Commission.   It is my official opinion that a member of the Commission may serve no more than one complete four year term of office, as set by law, and may for a period of less than a complete term hold over in office until his successor is duly appointed and properly takes office.

Background

In 1974, the General Assembly enacted the Campaign Financing Disclosure Act and created, as the regulatory body to enforce the Act, the State Campaign Ethics Commission.   1974 Ga. Laws 155.  The Commission consisted of five members, one each to be appointed by the Governor and by a majority vote of both the House of Representatives and the Senate.  1974 Ga. Laws at 161, § 9.  The remaining two members of the Commission, who could not be members of the same political party, were appointed by the three initial appointees and all were required to be confirmed by the Senate.  Id.

The initial terms of office for these appointees were staggered so that the terms of the Commission members would not expire at the same time.  Id.  The term for the Governor’s appointee expired in 1975 and the terms of the persons selected by the initial three appointees expired in 1976 and 1977.  Id.  The terms of office for the House and Senate appointees expired in 1978 and 1979 respectively.  Id.  Thereafter, each member of the Commission was to receive a five year term of office and there was no restriction on whether an individual could be reappointed to the Commission.  Id.  Each member of the Commission would continue to hold over in office until his successor was “appointed and qualified,” meaning that the successor properly took the oath and entered into the office.[1]   Id.

The following year the General Assembly revised the manner of selecting the five Commission members, with the Secretary of State, the Lieutenant Governor and the Speaker of the House appointing three members and the Governor appointing the two remaining members.  1975 Ga. Laws 1120, 1128‑29, § 10.  The terms of office were again staggered, with the Secretary of State’s appointee receiving a one year term, the Lieutenant Governor’s appointee receiving a two year term, the Speaker’s appointee receiving a three year term, and the Governor’s appointees receiving four and five year terms.  Id.  The Governor’s appointees could not both be from the same political party.  Id.  The terms of office of all of these appointees were set to begin on May 1, 1975, and commissioners were prohibited from serving “more than one term of office.”  Id.  Appointees serving after these initial appointments received five year terms of office, but each was still to serve “until his successor is duly appointed and qualified.”  Id.  Vacancies on the Commission were to be filled by appointment by the officer who had made the initial designation for that position, but the term of the appointment was only for the balance of the unexpired term of the vacating commissioner.  Id. at 1129.

In 1976, the General Assembly amended these provisions again, extending by one year each of the terms provided for in the 1975 statutory change.   1976 Ga. Laws 1423, 1428‑29, § 5.  This alteration was followed in 1977 by changing the name of the Commission to the State Campaign and Financial Disclosure Commission and altering the types of prior or current government service which would disqualify a person from serving on the Commission.  1977 Ga. Laws 1302, 1308‑10, §§ 12 and 13.  No changes were made in the terms of office of the commissioners.  Id.

In 1986, the Commission became the State Ethics Commission.  1986 Ga. Laws 957.  The terms of office for the commissioners then serving were changed to expire on March 1, 1987.  1986 Ga. Laws at 962, § 1.  The method of appointment for the five commissioners was again changed so that the Governor now appointed three members and the Lieutenant Governor and the Speaker of the House each appointed one member.  Id.  Not more than two of the Governor’s appointees could be from the same political party.  Id.  Two of the Governor’s initial appointees received three year terms of office and the remaining appointee received a two year term.  Id.  The Lieutenant Governor’s and Speaker’s appointees each received four year terms of office.  Id.  All of these new terms of office were set to begin on March 2, 1987, and all appointments thereafter were for four year terms.  Id. at 962‑63.  Again, all members were to serve “until such member’s successor is duly appointed and qualified,” and an appointee to a vacancy served only for the balance of the unexpired term of the person he was replacing.  Id. at 963.  The restriction on multiple terms became “[m]embers of the commission shall not serve for more than one complete term of office.”  Id. (emphasis added).  A subsequent change in 1987, though, provided that the previous members of the Commission, whose terms had ended March 1, 1987, would be eligible for reappointment to the Commission for one of the initial terms.  1987 Ga. Laws 297, 302, § 3.

A change in 2005 removed the appointment power of the Lieutenant Governor and instead provided that the Senate appointment would be made by the Committee on Assignments.  2005 Ga. Laws 859, 864, § 3.  In 2010, the Commission was renamed again to become the Georgia Government Transparency and Campaign Finance Commission.  2010 Ga. Laws 1173, 1178, § 3.  Neither of these amendments changed the terms of office of the commissioners or the manner for filling vacancies.  However, this amendment did delete from the statute the specific reference, dating from the 1986 amendment, that the terms of office of the then-members began on and subsequent terms of office are measured or calculated from March 2, 1987.  Id.  The language remained that commissioners would serve until a “successor is duly appointed and qualified.”  Id.  Finally, the provision remained that “[m]embers of the commission shall not serve for more than one complete term of office.”  2010 Ga. Laws at 1178.  Therefore current Georgia law provides:

The commission shall be governed by five members appointed as follows:   three members, not more than two of whom shall be from the same political party, shall be appointed by the Governor, two for terms of three years and one for a term of two years; one member shall be appointed by the Senate Committee on Assignments for a term of four years; and one member shall be appointed by the Speaker of the House of Representatives for a term of four years.   Upon the expiration of a member's term of office, a new member, appointed in the same manner as the member whose term of office expired as provided in this subsection, shall become a member of the commission and shall serve for a term of four years and until such member's successor is duly appointed and qualified.   If a vacancy occurs in the membership of the commission, a new member shall be appointed to the unexpired term of office by the state official or the committee that appointed the vacating member.   Members of the commission shall not serve for more than one complete term of office.

O.C.G.A. § 21‑5‑4(b).  These provisions now control the proper calculation of the terms of office for the commission members.

In removing the reference to the March 2, 1987, date, as noted above, there is no indication that the General Assembly intended to change either the terms of office of the commissioners or how those terms of office should be calculated.  The General Assembly left in place the provisions that commissioners could only be appointed either to fill the balance of the unexpired term of a previous commissioner or to the commissioner’s own four year term of office.  Because of this, the current commissioners’ terms of office can only be identified by reference to the March 2, 1987, date in the previous versions of the statute and that must be used as the starting date for the calculation of all subsequent terms of office.

Summary

Applying these provisions, then, to the terms of office of the members of the Commission, it appears that the following principles and calculations are appropriate.

  • Starting March 2, 1987, the Governor had the authority to appoint a member of the Commission initially to serve a two year term of office.   That term of office expired March 1, 1989.  Subsequent appointees to this position received four year terms of office which ran from March 2 to March 1 four years later for the following time periods:  1989-1993, 1993-1997, 1997-2001, 2001‑2005, 2005-2009, 2009-2013, and so forth into the future.

 

  • The Governor also had the authority to appoint two members of the Commission initially to three year terms of office, again beginning on March 2, 1987.   These two terms of office ran from March 2, 1987, until March 1, 1990.  Thereafter, the succeeding commissioners were to serve four year terms of office from March 2 until March 1 four years later for the following time periods:  1990–1994, 1994–1998, 1998–2002, 2002–2006, 2006‑2010, 2010–2014, and so forth.

 

  • Finally, the Speaker of the House and the Lieutenant Governor at the time (and the Senate Committee on Assignments since 2005) had the authority to appoint one commissioner each for four year terms of office.   Those terms of office would have begun on March 2, 1987, and expired on March 1 four years later for the following time periods:  1987–1991, 1991–1995, 1995–1999, 1999–2003, 2003–2007, 2007‑2011, 2011–2015, and so forth.

 

  • The General Assembly anticipated that commissioners would sometimes not serve their full four year terms of office.   This situation was addressed by providing the appropriate appointing person or entity with the authority to appoint a person to serve the balance of an unexpired term.  Such an appointment would not change the underlying term of office of the previous incumbent commissioner, which would still be calculated as noted above.  The new appointee would be serving the same term of office in the place of the departed commissioner.  Because that commissioner, by virtue of being appointed to someone else’s unexpired term of office, would not have served his own “complete” term of office, he is presumptively eligible to be appointed to his own four year term of office upon the ending of the previous incumbent’s unexpired term.

 

  • Finally, the statutory framework for the Commission also anticipates that, at the end of a term of office, a replacement commissioner might not be immediately appointed by the appropriate authority.   Rather than leaving an unfilled vacancy on the Commission, which might hamper it in carrying out its statutory duties and responsibilities, the General Assembly provided that a commissioner could “hold over” in office, i.e., continue to serve beyond the expiration of his term of office.  Again, this provision did not change the underlying term of office.  The commissioner “holding over” is not receiving a new term of office.  Instead, he continues to serve beyond the end of his term of office only as a matter of governmental necessity and operation and can be summarily replaced by the appointment of a new commissioner by the appropriate authority.  That new appointee’s term of office would still be measured by the statutory framework outlined above, dating from the March 2, 1987, starting date for the various terms of office.

 

  • Applying these provisions, then, the current five members of the Commission should be serving terms of office as follows:   one gubernatorial appointee should be serving a term of office that expires March 1, 2013, and the remaining two gubernatorial appointees should be serving terms of office expiring on March 1, 2014; the two legislative appointees should each be serving terms of office that would expire on March 1, 2015.  These and the previous terms run with the office itself and do not change or depend upon who is the actual office holder.

Current Terms of Office

The current members of the Commission are Chairman Patrick N. Millsaps, Kent Alexander and B. Chan Caudell, all of who are gubernatorial appointees, and Hillary Stringfellow and Kevin Abernethy, who are the appointees of the Speaker of the House and the Senate Committee on Assignments respectively.  You have asked for a clarification on the terms of office of these Commission members.

Your office, the office of the Speaker, the Secretary of the Senate, and the Campaign Finance Commission have provided the available documentation regarding past appointments to the Commission.  Unfortunately, this documentation from the inception of the Commission to the present is incomplete, making it difficult – if not impossible – to determine with certainty when some commissioners’ terms have ended and whether particular commission members have been appointed to unexpired or complete terms or have otherwise served in a holdover capacity.  The difficulty is further compounded because it appears that many of the previous appointments of commissioners have not been made in accordance with the above outlined statutory time table and framework.  This means the appointment documentation that is available may have used erroneous dates for the ending of terms or mischaracterized the nature of the appointment, making it increasingly difficult for succeeding appointing authorities to determine accurate periods of service for the proper terms of office.  Finally, a number of commissioners resigned their positions during their terms, while others held over in office for substantial periods of time, all of which further clouds an understanding of the proper beginning and ending dates for the terms of office.

It is not possible to correct earlier mistakes regarding the appointments of commissioners who are no longer serving on the Commission.  However, from a review of the available information it appears that each of those commissioners was otherwise properly appointed by the appropriate authority.  To the extent that the timing of their service did not comport with the statutory terms of office, it nonetheless appears that they properly entered into their offices and acted in accordance with Georgia law in exercising the duties of the office.  See, e.g., Garcia v. Miller, 261 Ga. 531, 532 (1991).[2]

However, as you have recognized, it is appropriate to harmonize the terms of the present commissioners with Georgia law.  Once this is done, you and the other appointing authorities may consider whether there are additional appointment actions to be taken.  To assist you, and acknowledging the incomplete information available regarding Commission appointments, the following appears to be the appropriate calculation of the terms of office of the current commissioners.

Chairman Patrick N. Millsaps

The documentation provided states that Mr. Patrick Millsaps was initially appointed to the Commission on February 10, 2009, by Governor Sonny Perdue.  The appointment order indicated that he was being appointed to succeed Emmett Bowers, “whose term expired on February 5, 2007.”  General Bowers’ appointment order stated he was appointed on July 3, 2003, to succeed Rodney K. Strong, whose term of office according to the appointment order “expired February 5, 2003.”  Records provided by the Commission indicate that Mr. Strong began his service on the Commission on June 28, 2001.  Unfortunately, while the appointments were properly made by the appointing Governors, the terms provided in these orders did not comply with the statutorily prescribed terms outlined above.

Instead, in order to harmonize the periods of actual service by these commissioners with the term requirements of the law, it must be concluded that Mr. Strong’s June 28, 2001, appointment by Governor Roy Barnes was actually for the term of office that began March 2, 2001, and would have run until March 1, 2005.  Mr. Strong apparently left office prior to that date on February 5, 2003, leaving the balance of his unexpired term unfilled.  Governor Perdue appointed General Bowers to succeed Mr. Strong on July 3, 2003, but that appointment can only be interpreted as an appointment to fill the balance of his unexpired term.  General Bowers then continued to serve beyond the March 1, 2005, term expiration date, holding over in office until February 5, 2007, when it appears that he ceased to perform the functions of the office.  This date was actually halfway through the next statutory term of office which ran from March 2, 2005, until March 1, 2009.

No action was taken to fill the 2005-2009 term until the appointment of Mr. Millsaps on February 10, 2009.  The Governor’s appointment order indicates Mr. Millsaps was to succeed General Bowers on the Commission, but no one realized that only 19 days remained in that term of office.  Mr. Millsaps continued to serve in the office and must be considered a holdover because no new appointment order was entered on his behalf at that time.  On February 28, 2011, you appointed Mr. Millsaps to a new term on the Commission.  Consistent with the law, this appointment must be construed as intended to permit Mr. Millsaps to serve a new term of office that began on March 2, 2009, and will expire on March 1, 2013.  If that is your intent, I recommend that a corrected order of appointment be entered.

The question arises whether Mr. Millsaps is eligible to so serve on the Commission.  As noted above, the law prohibits a commissioner from serving “for more than one complete term of office.”  O.C.G.A. § 21‑5‑4.  While Mr. Millsaps was appointed to serve a portion of the 2005-2009 term, that appointment amounted to 19 days of service.  While the issue is certainly a unique one, it would not appear from any sensible measurement that serving those 19 days would be considered having previously served a “complete term of office” so as to disqualify him from a new appointment on the Commission.  While Mr. Millsaps is eligible to complete this current term of office, he would not be eligible for reappointment in 2013.

Mr. Kent Alexander

The terms of Kent Alexander and his immediate predecessors appear to be consistent with the statutory terms set out above.  It appears that, for this position on the Commission, Governor Roy Barnes appointed Ms. Pamela James Doumar on April 10, 2002, to serve the 2002-2006 term of office.  However, Ms. Doumar’s appointment to the Commission was ultimately not confirmed by the Senate and therefore she ceased to hold office as a matter of law upon the adjournment of the Senate on April 25, 2003, pursuant to O.C.G.A. § 45‑12‑54.  See 2003 Op. Att’y Gen. 2003‑5 (2003 Ga. AG LEXIS 6).

Mr. Steve Farrow was then appointed by Governor Perdue on June 10, 2003, to fill the balance of the 2002-2006 term of office.  It appears that Mr. Farrow held over in office until January 18, 2007, when he was succeeded by Griffin B. “Jake” Pollard.  Mr. Pollard was appointed to his own four year term of office on January 19, 2007, to serve until March 2, 2010.  However, Mr. Pollard resigned from the Commission prior to the end of his term.  Mr. Alexander was then appointed on October 1, 2009, to serve the balance of Mr. Pollard’s term, i.e., until March 2010.

Subsequently, and as permitted under O.C.G.A. § 21‑5‑4, Mr. Alexander also held over in that office until he was again appointed to the Commission on March 26, 2010, this time to his own new term of office “ending March 2 [sic], 2014.”[3]   For a short period of time later in 2010, Mr. Alexander considered relocating to Chicago and resigned from the Commission; his position remained unfilled by the Governor.  Eventually Mr. Alexander returned to Georgia and the Governor prevailed upon him again to accept appointment to the Commission.  Therefore, on December 1, 2010, he was reappointed to the Commission to the same term of office as before, to serve until 2014, just as in his original appointment order.  Mr. Alexander is currently and properly serving this four year term on the Commission and would not be eligible for appointment to another term after this term is completed.

Mr. B. Chan Caudell

The terms of Chan Caudell and his immediate predecessors also appear to be consistent with the appropriate statutory terms of office, including the current 2010-2014 term.  Mr. Caudell was appointed to the Commission by you on August 19, 2011, to serve the balance of the unexpired term of Mr. Josh Belinfante, who resigned to seek election to public office.  Mr. Caudell’s appointment order indicates his term will expire March 2, 2014.[4]   Mr. Belinfante had been appointed August 20, 2010, to a four year term ending on March 2, 2014.  Mr. Belinfante had succeeded Mr. James Gatewood, who had been appointed on January 19, 2007, to serve the 2006-2010 term of office.   Therefore, Mr. Caudell is currently serving the balance of an unexpired term of office and would be eligible to be appointed to his own four year term of office in 2014.

Ms. Hillary Stringfellow

As noted above, the current terms of office for the Commission members appointed by the Speaker of the House and the Senate Committee on Assignments run from March 2, 2011, until March 1, 2015.  The present appointee of the Speaker is Ms. Hillary Stringfellow.

Relying on the records of the Commission itself and some documentation from the Speaker’s office, the following seems to be the recent history of appointments.  On March 2, 1991, Mr. Steven E. Scheer was appointed to serve the 1991-1995 term of office.  Mr. Scheer held over in office, however, until February 26, 1999.  By that time, much of the 1995-1999 term of office had been served.  After Mr. Scheer left the Commission, the position remained unfilled until December 1, 1999, when Mr. Sam G. Nicholson was appointed.  This appointment should be construed as the filling of the 1999-2003 term and, indeed, Mr. Nicholson served until December 1, 2003.

Apparently the position then remained vacant until the appointment of Mr. Sonny Watson on January 4, 2005.  This appointment was made approximately halfway through the 2003-2007 term of office.  However, Mr. Watson served until April 15, 2009, which again must be construed as his holding over in office into the beginning of the 2007-2011 term.  On January 15, 2010, Robert J. Proctor was appointed to the Commission, serving briefly until February 12, 2010.  That was when the present incumbent, Ms. Stringfellow, was appointed on July 1, 2010, to fill the balance of the unexpired term of Mr. Proctor, which would have ended March 1, 2011.  It appears that Ms. Stringfellow is currently holding over in office given that the current term of office started on March 2, 2011, and will expire on March 1, 2015.  Ms. Stringfellow is eligible for reappointment to the Commission for the 2011-2015 term.

Mr. Kevin Abernethy

Originally this position on the Commission was filled by appointment of the Lieutenant Governor, but that was changed in 2005 and the responsibility moved to the Senate Committee on Assignments.  The history of appointees for this position appears to be that Mr. Jerry Sanders was appointed to the Commission on March 2, 1987, to serve until March 2, 1991.  This was appropriate in filling the 1987-1991 term.   Thereafter, Ms. Denise Cleveland-Leggett was appointed to fill the 1991-1995 term, serving from June 10, 1991 until June 1, 1995, essentially holding over after the expiration of the term on March 1, 1995.  She was followed in office by Mr. Michael D. McRae who was appointed to serve the 1995-1999 term, albeit from July 1 to July1 rather than the statutory March dates.

It is not clear what followed in relation to filling the 1999-2003 term of office, but it does appear that Mr. Billy Ned Jones was appointed to the Commission sometime in 2002 to serve until April 2006.  However, Mr. Jones apparently left office in 2004 and Mr. David H. Moskowitz was appointed to fill the balance of his term.  Given the statutory terms, this must be construed as actually an appointment until March 1, 2007.  However, given the misunderstanding about the appropriate terms of office, Mr. Moskowitz left office on April 1, 2006.  He was replaced by William “Bill” H. Jordan who served from April 12, 2006, until August 31, 2010.  This time period effectively covered most of the 2007-2011 statutory term of office and it appears to have been the intent of the Senate Committee on Assignments at that time to appoint Mr. Jordan to his own four year term of office.

In any case, Mr. Jordan left the Commission on August 31, 2010, the date on which Mr. Abernethy was appointed.  Given that this date was well before March 2, 2011, the beginning of the next statutory term of office, it would be appropriate to characterize this appointment as one to fill the balance of Mr. Jordan’s prior term.    Therefore, it appears that a fair reading of Mr. Abernethy’s status at this time is that he is holding over in office, but that he would be eligible for reappointment to his own term of office on the Commission to serve until March 1, 2015.

Conclusion

It is apparent that there has been a substantial misunderstanding of the law and the nature of the appointments for members of the Commission.  As noted above, it is not possible to remedy this entirely; however, the situation can be addressed and corrected for future appointments.  I have attempted to provide some guidance here in doing so.  Regarding the gubernatorial appointments to the Commission, one appointee’s term will expire on March 1, 2013, and two will expire on March 1, 2014.  The current terms of office of the appointees of the Speaker and the Senate Committee on Assignments will expire on March 1, 2015.  Current occupants of those offices may legally hold over and, in some instances, may be eligible for reappointment.  However, no member of the Georgia Government Transparency and Campaign Finance Commission may serve more than one complete four year term of office, as set by law; notwithstanding that limitation, a member may for a period of less than a complete term hold over in office until his successor is duly appointed and properly takes office.

 

Prepared by:

DENNIS R. DUNN

Deputy Attorney General




 

[1] The general rule in Georgia is that an appointee subject to Senate confirmation would not hold over in office beyond the expiration of his term of office unless there is specific statutory authority to do so, as there is here.  See O.C.G.A. §§ 45‑2‑4, 45‑12‑52(b), 45‑12‑54.  See also 2003 Op. Att’y Gen 2003‑5 n.9 and Appendix E (2003 Ga. AG LEXIS 6) (Members of this Commission are subject to Senate confirmation).  Additionally, a public officer is required to take the oath of office prior to entering into the office and is not properly “qualified” to exercise its duties and responsibilities if he fails to do so.  See O.C.G.A. §§ 45‑3‑1, 45‑3‑8, 45‑3‑9; Pittman  v. Ingram, 184 Ga. 255, 258 (1937), accord Garcia v. Miller, 261 Ga. 531, 531-532(2) (1991).  See also Chandler v. Strong, 233 Ga. 143, 144‑45 (1974); 1978 Op. Att’y Gen. 78‑58 (1978 Ga. AG LEXIS 41), 1976 Op. Att’y Gen. 76‑10 (1976 Ga. AG LEXIS 191), 1975 Op. Att’y Gen. 75‑15 (1975 Ga. AG LEXIS 16).

 

[2]“All officers of this state, except public officers appointed by the Governor and confirmed by the Senate, ‘shall discharge the duties of their offices until the successors are commissioned and qualified.’  O.C.G.A. § 45‑2‑4.  ‘[I]t is better for society that the act de facto stand than that the business of society . . . be all wrecked, because parties did not know that the term of office of the public official expired the day before.’ Smith & Bondurant v. Meador, 74 Ga. 416, 419 (1885).  An office is not vacant so long as it is filled by “‘an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it.’”  Pittman [v. Ingram], 184 Ga.[255, 257 (1937)] (quoting Shackelford v. West, 138 Ga. 159 (74 S.E. 1079) (1912)).”  Garcia at 532.  As noted previously, these commissioners are authorized by law to hold over in office, notwithstanding the requirement for Senate confirmation.

 

 

[3] The correct ending date should be March 1, 2014.  See discussion supra p. 4.

[4] See n.3 supra.