Advisory Opinion NO 2011-05

QUESTION PRESENTED

Whether county and city elected officials may use county or city equipment or personnel for the limited purpose of filing required campaign contribution and personal financial disclosure reports.

ADVISORY OPINION

The Association of County Commissioners of Georgia (“ACCG”) and the Georgia Municipal Association (“GMA”) (collectively “Local Governments”) requested the above opinion from the Georgia Government Transparency and Campaign Finance Commission (the “Commission”). The Local Governments cite policy reasons why the question should be answered in the affirmative. The Commission concludes that county and city elected officials may use county or city equipment or services to comply with the elected officials’ obligations imposed by the Ethics in Government Act; provided, however, campaigns of the same officials may not be authorized to use certain county or municipal equipment or personnel to assist with campaigns’ reporting requirements.

As with any request for an advisory opinion, our inquiry must begin and end with the statutory text: “we always must presume that the General Assembly means what it says and says what it means.” NE Atlanta Bonding Co. v. State, 308 Ga. App. 573, 577 (2011). Our courts may consider legislative intent: “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.” O.C.G.A. § 1-3-1(a) (emphasis added). Legislative intent is best expressed by the face of the statute itself. Hollowell v. Jove, 247 Ga. 678, 681 (1981).

The Commission’s review on requests for advisory opinions is narrower than the proper judicial one. Unlike inquiries before the judiciary or before most other executive agencies that operate pursuant to the Administrative Procedures Act (O.C.G.A. § 50-13-1 et. seq.,), nothing in the Ethics in Government Act (the “Act”) specifically authorizes the Commission to consider legislative intent or adopt constructions of statutes that are reasonably related to the underlying act. Instead, the Act expressly limits the Commission to do that which is “specifically authorized” by the Act itself. O.C.G.A. § 21-5-6(a)(8).1 And with advisory opinions, the Commission may only address the “requirements” of the Act. O.C.G.A. § 21-5-6(b)(13). Consequently, when responding to requests for advisory opinions, the Commission will interpret the law strictly as passed by the General Assembly.

Answering the Local Governments’ questions requires an examination of two requirements: (1) campaign contribution disclosure forms, and (2) candidate and public officials’ financial disclosure statements (collectively “Reports”). See O.C.G.A. §§ 21-5-34(a)(1)(A) (campaign contribution disclosure forms), and 21-5-50(a) (financial disclosure statement). Elected officials and candidates must file financial disclosure statements, but campaigns are charged with completing the campaign contribution disclosure form. Id.

Code Section 21-5-30.2 provides the answer to the Local Governments’ questions. It prohibits county and municipalities from making “contributions” to any campaign committee or candidate. Public employees are prohibited from such contributions if they are acting “on behalf of” the public entity. Id. A “’contribution’ means a gift … or anything of value conveyed or transferred by or on behalf of an agency, without receipt of payment therefore, to any campaign committee … or to any candidate for campaign purposes.”2 O.C.G.A. § 21-5-30.2(a)(2). This prohibition expressly does not apply to the “furnishing of office space, facilities, equipment, goods, or services to a public officer for use by the public officer in such officer’s fulfillment of such role.” O.C.G.A. § 21-5-30.2(b) (emphasis added).

By its terms, the Ethics in Government Act (the “Act”) would appear to authorize a locally elected official to use local government equipment and services to comply with the legal requirements imposed on him or her by the Act. Put differently: the law requires public officials to file financial disclosure statements with the Commission, and the Act expressly does not prevent the use of county services and equipment to comply with legal obligations imposed on public officials. See O.C.G.A. § 18 21-5-30.2(b). For this reason, when a public employee or public equipment is utilized to assist an elected official comply with the filing of a financial disclosure statement, the use may not be for “campaign purposes,” O.C.G.A. § 21-5-30.2(a)(2) or for the purpose of influencing an election. See, O.C.G.A. § 21-5-3(7) (defining contribution).

The obligation to file a campaign contribution disclosure form, however, is imposed on the “candidate or the chairperson or treasurer of each campaign committee.” O.C.G.A. § 21-5-34(a)(1)(A). Consequently, the exception allowing the use of local governments’ equipment and services does not apply, as that provision is limited to public officers. See, O.C.G.A. § 21-5-30.2(b).3

The Commission expresses no opinion about whether local ordinances authorize or prohibit conduct that the Act allows.4 Likewise, this Advisory Opinion makes no judgment about county or city employees working on their own time and not “on behalf of” a county or municipal government. See, O.C.G.A. § 21-5-30.2(b). That question is best left to the body of law addressing the First Amendment to the Constitution of the United States and local policies and ordinances. Last, this Advisory Opinion does not address the propriety of non-incumbent candidates’ use of local governments’ personnel or equipment for the same limited purpose. The Commission does note, however, that its staff and computers are available for use by candidates and elected officials alike.

Prepared by Josh Belinfante
July 29, 2011



1.In addition, Commission advisory opinions cannot be reviewed by a court of competent jurisdiction or altered by the General Assembly except through statutory change. Rules promulgated by other agencies must go before the appropriate legislative committee of jurisdiction for review, and they can be challenged in the superior courts of this State. See O.C.G.A. §§ 50-13-4 and 50-13-10.
2 The same statute defines an agency as including counties and municipal corporations as well as State entities like the Commission. O.C.G.A. § 21-5-30.2(a)(1).
3 This Advisory Opinion should not be interpreted as prohibiting elected officials or the general public from using county or municipal equipment that is public in nature like computers at public libraries or other locations of general access. In such cases, the public purpose of the equipment prevents anything from being “conveyed” to a campaign within the meaning of Code Section 21-5-30.2.
4 The Act specifically does not alter county and municipal governments’ abilities to regulate the political activity of their employees. O.C.G.A. § 21-5-30.2(d)(1).

Approved at August 5, 2011 Commission Meeting


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