State Ethics Commission
Conflicts of interest questions regarding the service of a member of the State Ethics Commission who is an attorney.
The State Ethics Commission has requested my opinion of whether the service of a lawyer as a Commission member would be affected by the following: (1) lobbying by lawyers and others affiliated with the law firm of which the Commissioner is a member, so long as the Commissioner himself or herself refrains from lobbying; (2) the Commissioner and other members of the firm practicing administrative law and representing clients before state agencies; and (3) the Commissioner and other members of the firm representing Georgia governmental entities such as state agencies and local governments. Each issue is addressed below.
The State Ethics Commission first asks whether the service of a Commission member who is an attorney would be affected by the practice of lobbying by lawyers and others affiliated with the law firm of which the Commissioner is a member, so long as the Commissioner himself or herself refrains from lobbying. The practice of lobbying is regulated by Article 4 of the Ethics in Government Act, O.C.G.A. §§ 21-5-70 through 21-5-73. Under the Act, the State Ethics Commission is charged with various duties regarding the registration and conduct of lobbyists including the denial, suspension, or revocation of a lobbyist’s registration. O.C.G.A. § 21-5-72.
Article I, Section II, Paragraph I of the Georgia Constitution provides that “[p]ublic officers are the trustees and servants of the people and are at all times amenable to them.” Indeed, a “public trustee may not be employed to perform services for the public which he or she is called upon as a public official to supervise in any manner.” 1982 Op. Att’y Gen. 82-82. See Welsh v. Wilson, 218 Ga. 843, 844-45 (1963); Twiggs v. Wingfield, 147 Ga. 790, 795-96 (1918). In Mayor of Macon v. Huff, 60 Ga. 221, 224 (1878), the Georgia Supreme Court stated that
[t]he fundamental principle which will be found to underlie all adjudications made in this state on similar questions, and which, we think, has not been upset by any well considered case anywhere, is that no officer or agent, public or private, whose duty it is to supervise a contract in behalf of his employers or principal, can himself undertake to do that thing which his office or agency makes it his duty to supervise for others, and to see to it for them that it is well and faithfully done. The reason is too plain and palpable for serious dispute. The man becomes a judge in his own case. He agrees to perform work himself, and yet is to judge whether or not it is well done.
Because the practice of lobbying by a member of the Commission could result in a case against that member coming before the Commission, it is apparent that the Commission has already concluded that lobbying by one of its members would be inappropriate. As this office has noted in the past, a Commission member “must always be cognizant of his duties and avoid involvement in particular factual circumstances which would give rise to either an appearance of impropriety or an actual conflict of interest.” 1997 Op. Att’y Gen. U97-11. This, therefore, explains the Commission’s limitation of the lobbying issue to situations where members of a Commission member’s law firm other than the Commissioner himself or herself engage in lobbying. With that limitation in mind, my research has revealed no authority in Georgia that would prohibit lawyers and others affiliated with the law firm to which a Commissioner belongs from engaging in lobbying. This is especially true in light of Georgia Ports Authority v. Harris, 274 Ga. 146 (2001), which adopted a new ad hoc conflicts of interest standard in evaluating the actions of state officers. See also Georgia Dep’t of Human Resources v. Sistrunk, 249 Ga. 543 (1982) (overruled in Harris). Accordingly, it is my opinion that, so long as the Commissioner refrains from lobbying, lawyers and others affiliated with the law firm to which a Commissioner belongs may, depending upon the particular facts and circumstances of each case, engage in lobbying.
Of course, should a situation develop where a lobbying case against a lawyer or another person affiliated with a Commissioner’s law firm comes before the Commission, it would be up to each Commissioner to determine whether he or she should voluntarily recuse himself or herself. See 1989 Op. Att’y Gen. 89-9. In making such a decision, a Commissioner could look to other provisions of Georgia law, such as the state’s general Code of Ethics and the code for boards and authorities created by general law. O.C.G.A. §§ 45-10-1, 45-10-3. For example, O.C.G.A. § 45-10-3(3) provides that a member shall “[n]ot engage in any business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties.” Additionally, the Code of Ethics provides that a member shall “[n]ever take any official action with regard to any matter under circumstances in which he knows or should know that he has a direct or indirect monetary interest in the subject matter of such matter or in the outcome of such official action.” O.C.G.A. § 45-10-3 (9). An appearance of impropriety could also be raised if members of the Commissioner’s law firm engaged in lobbying activities connected with proposed legislation affecting the Ethics in Government Act or the State Ethics Commission. It may be that the Commission itself would choose to adopt its own guidelines for how situations such as those described above would be handled so that it would be prepared to address this problem should it ever develop.
The Commission next asks whether the service of a Commissioner who is an attorney would be affected by the Commissioner and other members of his or her law firm practicing administrative law and representing clients before state agencies. There does not appear to be a general prohibition against such persons practicing administrative law before agencies other than the State Ethics Commission. Previously, the Attorney General opined that lawyer-legislators could only engage in a limited administrative law practice, but the continued viability of that opinion is called into question by the decision of the Supreme Court in Georgia Ports Authority v. Harris, supra. 1983 Op. Att’y Gen. U83-6. However, any such activity would also have to be reviewed in accordance with the principles outlined above and certainly any involvement of the Commission itself, even peripherally, would raise potential issues of conflicts of interest. For example, I note that under Rule 189-1-.02 of the Rules of the State Ethics Commission, a former member of the Commission cannot represent a client before the Commission until two years have elapsed since the termination of his or her service as a Commission member.
The Commission’s final question is whether the service of a Commission member who is an attorney would be affected by the Commissioner and other members of his or her law firm representing Georgia governmental entities such as state agencies and local governments. With regard to the representation of local governments, this office has opined, in the context of lawyer-legislators, that so long as the county or city that the lawyer-legislator represents is not undertaking an action adverse to the state or its agencies, no per se constitutional or statutory conflict of interest exists. 1984 Op. Att’y Gen. U84-34. Applying this reasoning to the members of the State Ethics Commission in light of Georgia Ports Authority v. Harris, supra, a Commission member who is an attorney and other members of his or her law firm may generally represent local governments so long as the representation does not involve taking an action adverse to the Commission itself. With regard to whether a Commissioner who is an attorney and members of his or her law firm may continue to represent state agencies, I assume you refer to that representation which occurs, and can only occur, by way of appointment as a Special Assistant Attorney General pursuant to O.C.G.A. § 45-15-4 or as otherwise provided by law. See 1995 Op. Att’y Gen. 95-1. Within the context of providing legal representation as a Special Assistant Attorney General, there are certain conflict of interest restrictions that are imposed as a matter of policy by this office. For example, no appointee and no member of the appointee’s firm may be in an adversarial relationship or otherwise have a conflict with the client for which the legal assistance is being provided.
In addition to conflict of interest restrictions imposed by the Attorney General, there is a broader issue of whether a Commissioner and members of his or her law firm may transact any business or have any business dealings generally with state agencies. The answer lies in Georgia’s conflict of interest statutes regulating transactions between state agencies and public officials. See O.C.G.A. §§ 45 10 20 through 45 10 28. A member of the Commission is a part-time public official with limited powers. O.C.G.A. §§ 45-10-20 (6), (7), and (9). Under O.C.G.A. § 45-10-22(a)(2)
[i]t shall be unlawful for any public official who has limited powers, for himself or on behalf of any business, or for any business in which such public official or member of his family has a substantial interest to transact any business with the agency for which such public official serves.
Thus, not only is a member of the State Ethics Commission prohibited from engaging in any business transaction with the Commission, but the prohibition also extends to any business on whose behalf a Commissioner is acting or to any business in which a Commissioner or a member of his or her family owns a substantial interest. Id. For this reason, the other members of a Commissioner’s law firm would be prohibited from engaging in any business transaction with the Commission if the Commissioner or a member of his or her family owns a substantial interest, which is defined as “the direct or indirect ownership of more than 25% of the assets or stock of any business,” in the law firm. O.C.G.A. § 45-10-20 (11). Additionally, when O.C.G.A. § 45-10-22(a)(2) is read in pari materia with O.C.G.A. §§ 45-10-3(3) and (9), it would also constitute an impermissible conflict of interest for a Commissioner, any business on whose behalf a Commissioner is acting, or any business in which the Commissioner or a member of his or her family owns a substantial interest to transact business with a state agency other than the State Ethics Commission if the work is directly or indirectly for the benefit of the State Ethics Commission. See 1991 Op. Att’y Gen. U91-13; 1984 Op. Att’y Gen. 84-18; 1983 Op. Att’y Gen. U83-56. Finally, there are exceptions set forth at O.C.G.A. § 45-10-25 that, depending on the particular facts and circumstances of a business transaction, could potentially authorize a Commissioner to transact business with the State Ethics Commission. Nevertheless, the provisions of Article I, Section II, Paragraph I of the Georgia Constitution and O.C.G.A. § 45-10-3 counsel against such a business transaction as it could give rise to an appearance of impropriety if not an actual conflict of interest. After all, a public trustee may not be employed to perform services for the public which he or she is called upon as a public official to supervise. 1982 Op. Att’y Gen. 82 82. See Welsh v. Wilson, 218 Ga. 843, 844-45 (1963); Twiggs v. Wingfield, 147 Ga. 790, 795-96 (1918).
I trust that the foregoing has been responsive to the Commission’s conflict of interest questions regarding the service of a Commission member who is an attorney. If you have any further questions concerning this matter, please do not hesitate to contact me.
KYLE A. PEARSON
Assistant Attorney General