Can constitutionally elected statewide officers (like the Secretary of State or Commissioner of Labor) bypass the Georgia Technology Authority on technology purchases over $100,000, since the GTA statute exempts their offices from GTA technology policy?

Plain-English summary

The General Assembly created the Georgia Technology Authority in 2000 to consolidate the state's executive-branch technology policy, resources, and procurement under one agency. The GTA statute has two provisions in tension: O.C.G.A. § 50-25-4(a)(10) carves out agencies under the authority, direction, or control of a constitutional officer (other than the Governor) from the GTA's authority to set their technology policy, but O.C.G.A. § 50-25-7.2(a) requires all "agencies" (a definition that includes those run by constitutional officers) to contract through the GTA for any technology resource purchase exceeding $100,000. Could a constitutional officer's agency rely on the technology-policy carve-out to also bypass the procurement requirement? The AG said no. Reading the two provisions together, the technology-policy exemption preserves the constitutional officer's right to set internal processes, methods, and procedures for managing the agency's technology, but does not exempt the agency from the centralized procurement mandate for big-ticket purchases. Agencies of constitutional officers must still go through the GTA for purchases over $100,000.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The Georgia Technology Authority was the state's response to a series of high-profile technology procurement failures and an industry-wide push for centralized state IT governance in the late 1990s. The 2000 enabling legislation (S.B. 465, codified in Chapter 25 of Title 50) consolidated technology policy, architecture, standards, and procurement for executive-branch agencies under the GTA. The legislative history, summarized in 17 Ga. St. U. L. Rev. 280, framed the goals as easier public access through the Internet, savings through procurement consolidation, and avoidance of past mistakes by enforcing uniform standards.

Constitutional officers (the statewide elected officials other than the Governor: Secretary of State, Lt. Governor, Commissioner of Labor, Commissioner of Insurance, Commissioner of Agriculture, Superintendent of Schools, Attorney General, etc.) have a tradition of independence from gubernatorial control because they are independently elected. The legislative bargain in S.B. 465 reflected that. As the bill moved through the Senate, an exemption was added on the floor (2000 Senate Journal 1018, 1032) excluding agencies under constitutional officers from the GTA's authority to set their technology policy. The bill went through several amendments touching three sections: § 50-25-1(b)(1) (definition of agency), § 50-25-4(a)(10) (technology policy authority), and § 50-25-7.2 (contracting requirement).

The General Assembly's repeated refusal to add a parallel procurement exemption for constitutional officers, despite multiple amendments touching adjacent provisions, signaled to the AG that the procurement requirement was meant to apply universally. Statutory construction principles required harmonizing the two provisions: agencies of constitutional officers got an internal-policy exemption but not a procurement exemption.

The AG worked through the operative definitions. "Technology policy" under § 50-25-1(b)(14) means "the processes, methods, and procedures for managing technology, technology resources, and technology procurement." A literal reading of "managing technology procurement" could swallow the contracting requirement. The AG resolved this by giving "policy" its dictionary meaning ("the general principles by which a government is guided in its management of public affairs," from Black's Law Dictionary 1178 (7th ed. 1999)). Reading "technology policy" in that broader, principle-setting sense leaves the contracting mandate intact: an agency of a constitutional officer sets the principles for managing its technology environment but executes purchases through the GTA.

The structural framework the AG laid out was useful for line-drawing in practice. Agency-specific decisions tied to the agency's mission (Internet use policies, system access rights, security postures specific to the agency's data, identification of long-term technology requirements) belong to "technology policy." Decisions designed to coordinate the overall functioning of the enterprise-wide system (architecture, technology standards, security baselines, procurement processes for purchases over $100,000) belong to the GTA. The dividing line is "subject-specific": is this about the agency's mission, or about the state's enterprise-wide technology infrastructure?

The AG also recognized constitutional limits on the GTA's authority. The GTA cannot use its procurement and standards authority to override the substantive functions assigned to constitutional officers by the Georgia Constitution. The Secretary of State, for example, has the constitutional duty to receive election returns; in setting technology standards, the GTA must accommodate the technology needs of that constitutional function. The Commissioner of Labor's statutory data-collection responsibilities under O.C.G.A. § 34-2-6 similarly constrain the GTA. The state cannot use centralized technology authority to defeat constitutional or statutory grants of substantive authority to constitutional officers.

For constitutional officer agencies at the time

The agency could establish its own technology policy (internal processes, methods, and procedures for managing technology resources to meet its mission). For purchases over $100,000, the agency had to go through the GTA's contracting process, which included GTA's competitive procurement rules.

For the GTA at the time

The GTA had clear authority over technology procurement for all executive-branch agencies including those of constitutional officers. The GTA also had to recognize that constitutional officers could set their own internal technology policy, and the GTA's enterprise-wide standards had to accommodate those policies where required to support a constitutional function.

For state procurement attorneys at the time

The line between agency technology policy and GTA-controlled procurement and standards was framed in subject-specific terms: agency-mission specifics belong to the agency; enterprise-wide infrastructure specifications belong to GTA.

Common questions

Q: What counts as a "technology resource purchase"?
A: The GTA statute (Chapter 25 of Title 50) provides definitions for technology and related terms. The opinion treated the contracting requirement as covering large-dollar technology procurements broadly: hardware, software, services. Detailed application would depend on GTA's implementing rules.

Q: Does this apply to the judiciary or the University System?
A: No. The definition of "agency" in O.C.G.A. § 50-25-1(b)(1) excludes the judicial branch and the University System of Georgia, plus the Georgia Superior Court Clerks' Cooperative Authority.

Q: What about purchases under $100,000?
A: The opinion explicitly does not address GTA rules governing purchases under $100,000. Other GTA rules and authorities might still apply.

Q: How does this affect constitutional officers' independence?
A: The opinion preserves it on the substantive side. Constitutional officers can decide what their agencies need to do their constitutional and statutory work. They cannot decide to procure their large-dollar technology outside the GTA structure.

Background and statutory framework

The GTA's enabling legislation built a four-part authority structure: technology policy (§ 50-25-1(b)(14)), technology architecture (§ 50-25-4(a)(15)), technology standards (§ 50-25-4(a)(22), (29)), and technology procurement (§§ 50-25-4(a)(30), 50-25-7.2). Constitutional officers got an exemption from the first; everything else applied to them. The statute also reserved certain enterprise-wide rule-making authority to the GTA: technical standards and specifications applicable to all technology and technology resource purchases, security standards, and procurement standards.

The constitutional independence of statewide elected officers other than the Governor is well-established (Griffies v. Coweta County, Morris v. Glover). At the same time, the Georgia Constitution gives the General Assembly broad authority to prescribe the duties and powers of the executive branch (Art. III, Sec. VI, Para. I; Art. V, Sec. III, Para. III), with certain specifically reserved powers to constitutional officers. The legislature therefore can require constitutional officers' agencies to participate in centralized procurement structures, as long as it does not abolish the constitutional office or prevent it from carrying out its specifically granted constitutional functions.

Citations and references

Statutes:
- O.C.G.A. §§ 50-25-1 through 50-25-7.9 (Georgia Technology Authority)
- O.C.G.A. § 45-6-5 (agency powers limited to those conferred)
- O.C.G.A. §§ 1-3-1(a), (b) (statutory construction)

Cases:
- City of Waycross v. Holmes, 272 Ga. 488 (2000), and other statutory-construction cases
- Department of Human Resources v. Hutchinson, 217 Ga. App. 70 (1995)
- Bentley v. State Bd. of Med. Exam'rs, 152 Ga. 836 (1922) (agency powers limited by statute)
- Griffies v. Coweta County, 272 Ga. 506 (2000) (independence of constitutional officers)

Source

• Landing page: https://law.georgia.gov/opinions/2001-8

Original opinion text

The General Assembly created the Georgia Technology Authority (hereinafter referred to as "the GTA") during the 2000 Session, thereby combining oversight of the State's executive branch technology policies, resources, and procurement in one agency. 2000 Ga. Laws 249. You asked my opinion regarding the relationship between the GTA and state-wide elected officials other than the Governor (hereinafter referred to as "constitutional officers"), particularly in regard to technology procurements. It is my opinion that all agencies under the authority, direction, or control of a constitutional officer may set their own technology policy but must contract through the Georgia Technology Authority for any technology resource purchase exceeding $100,000 pursuant to O.C.G.A. § 50-25-7.2(a). The responsibilities and duties of the GTA are set forth in Chapter 25 of Title 50 of the Georgia Code. The statute provides in pertinent part that all agencies shall contract through the GTA for any technology resource purchase exceeding $100,000.00. O.C.G.A. § 50-25-7.2(a) (Supp. 2001). Agency is defined as "every state department, agency, board, bureau, commission, and authority which shall not include any agency within the judicial branch of state government or the University System of Georgia and shall also not include any authority statutorily required to effectuate the provisions of Part 4 of Article 9 of Title 11." O.C.G.A. § 50-25-1(b)(1) (Supp. 2001). [Part 4 is now Part 5.] Accordingly, with the exception of the University System and the Georgia Superior Court Clerks' Cooperative Authority, the statute on its face appears to require that all executive branch state agencies, including those controlled by constitutional officers, contract through the GTA for all technology resource purchases exceeding $100,000. However, the statutory scheme contains exclusions from the GTA's authority in addition to those set forth in the definition of agency.1 One such exclusion is the removal of the GTA's authority to set technology policy for agencies under the authority, direction, or control of constitutional officers.2 O.C.G.A. § 50-25-4(a)(10) (Supp. 2001). Technology policy is defined as the "processes, methods, and procedures for managing technology, technology resources, and technology procurement." O.C.G.A. § 50-25-1(b)(14) (Supp. 2001). The right to establish technology policy arguably includes control over contracts for technology resource purchases, despite the language of O.C.G.A. § 50-25-7.2(a) (Supp. 2001). However, a rigid application of the definition of technology policy produces an internally inconsistent statutory scheme: it requires all agencies, including those controlled by constitutional officers, to contract for technology resource purchases over $100,000 through the GTA while at the same time exempting from the GTA's authority the ability to set the technology policy for agencies under the control of constitutional officers, including the management of technology procurement. This ostensible inconsistency can only be resolved by applying the rules of statutory construction. The applicable rules of statutory construction can be stated as follows: (1) determine the legislative intent giving meaning to the old law, the evil, and the remedy; (2) harmonize all parts of the statute to give meaning to each part of a statute; (3) apply the ordinary meaning to all words; and (4) avoid a construction which produces an absurd or contradictory result. O.C.G.A. §§ 1-3-1(a) and (b) (Supp. 2001); City of Waycross v. Holmes, 272 Ga. 488, 489 (2000); Vollrath v. Collins, 272 Ga. 601, 603–04 (2000); Mansfield v. Pannell, 261 Ga. 243, 244 (1991); State v. Watson, 249 Ga. App. 256, 257 (2001); Monticello Ltd. v. City of Atlanta, 231 Ga. App. 382, 383-84 (1998); Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995); Brown v. City of Marietta, 214 Ga. App. 840, 840-41 (1994). Part of a remedial legislation, the GTA was created to give the public easy access to state government through the Internet, save the state millions of dollars by consolidating the procurement and management of technology, and ensure that Georgia does not repeat past technology mistakes. 17 Ga. St. U. L. Rev. 280, 281 (2000). Senator Charlie Tanskley, one of the sponsors of S.B. 465, the GTA's enabling legislation, noted that consolidation both promotes keeping the state's technology current with technological trends across the country and fosters the state's ability to procure technological resources, thereby assuring uniformity. Id. at 282-83. The GTA's express statutory purpose includes authority over technology resource procurement, technology enterprise management, and technology portfolio management for the entire state. O.C.G.A § 50-25-1(c) (Supp. 2001). The General Assembly's clear intent to consolidate the procurement and management of technology in one agency must be given great weight when reconciling the apparently conflicting provisions of O.C.G.A. §§ 50-25-4(a)(10) and 50-25-7.2(a) (Supp. 2001). Just as the legislation's purpose provides insight into the intent of the General Assembly, the legislative history of S.B. 465 also reveals the General's Assembly's intent. As originally reported out of the Senate Defense, Science, and Technology Committee by substitute, S.B. 465 gave the GTA authority over technology policy for all agencies. 2000 Senate Journal 993, 1007. It was not until the bill reached the Senate floor that the insertion of the exception for any agency under the authority, direction, or control of a constitutional officer narrowed the scope of the GTA's responsibility to set technology policy. 2000 Senate Journal 1018, 1032. As the bill moved through the legislative process, both the Senate and the House made several changes to Code sections 50-25-1(b)(1)(definition of agency), 50-25-4(a)(10) (authority of the GTA to set technology policy), and 50-25-7.2 (requirement that agencies contract through the GTA). Compare 2000 Senate Journal 993 (SCS) with 2000 Senate Journal 1018 & 1045 (SFSFA), 2000 House Journal 3311(HCS), 2000 House Journal 3343 & 3376 (HFSFA), 2000 Senate Journal 2386 (SAHS), and 2000 House Journal 3640 (House agreed to Senate Amendment). The General Assembly's failure explicitly to exempt agencies under the control of constitutional officers from the contracting requirements of O.C.G.A. § 50-25-7.2(a) (Supp. 2001) and from the definition of agency in O.C.G.A. § 50-25-1(b)(1) (Supp. 2001) at the time it was providing for such an exemption from Code Section 50-25-4(a)(10) (Supp. 2001) is indicative of an intent for the technology policy exemption not to create by implication an exemption from the contracting requirement. Rather than assuming that the General Assembly intended for one portion of the statute to vitiate another portion of the statute, one must construe the sections so that they work in harmony as part of a single, logical system which furthers the legislative purpose and intent. It is clear from the legislative history that the General Assembly intended to establish an inclusive technology plan that consolidated all technology management and resource procurement under one agency, thereby assuring uniformity and increasing the state's buying power through the economies of scale. The General Assembly typically provides that state agencies, including those under the control of constitutional officers, must operate in accordance with uniform standards and centralized administration in state government. See, e.g., O.C.G.A. § 45-7-28.1 (employee travel rules and regulations); O.C.G.A. §§ 50-5-30 through -39 (Space Management Act); O.C.G.A. § 50-5-57 (DOAS supervision of procurements for non-technology supplies and services); O.C.G.A. §§ 50-16-30 through -47 (1998 & Supp. 2001) (State Properties Commission supervision of real property acquisitions); O.C.G.A. §§ 50-18-90 through -103 (1998 & Supp. 2001) (state records management); O.C.G.A. §§ 50-22-1 through -9 (1998 & Supp. 2001) (regulation of retention of professional architects and engineers); O.C.G.A. §§ 50-24-1 through -6 (drug free workplace). At the same time, one must presume that the General Assembly intended for the technology policy exception to have meaning. Therefore, the authority of an agency under the control of a constitutional officer to set technology policy for the management of its technology procurement means something other than an exemption from the requirement that it contract for all technology resource purchases through the GTA. "Policy" has several ordinary meanings depending on the context in which the word is used. The meaning applicable to this context is "the general principles by which a government is guided in its management of public affairs." BLACK'S LAW DICTIONARY 1178 (7th ed. 1999). O.C.G.A. §§ 50-25-4(a)(10) and 50-25-7.2(a) (Supp. 2001) can be reconciled if they are interpreted to mean that an agency under the control of a constitutional officer possesses an independent authority to establish the general principles for the management of its technology, technology resources, and technology procurement but must contract through the GTA for the purchase of technology resources exceeding $100,000. Viewing the statute as a whole and keeping in mind the legislative intent to consolidate the procurement and management of technology in one agency, it is clear that the ability to set technology policy is further constrained by the GTA's authority to establish architecture for state technology infrastructure, establish technology security standards and services, establish and enforce standard specifications applicable to all technology and technology resource related supplies, and establish standards for procurement.3 O.C.G.A. §§ 50-25-4(a)(15), (22), (29), and (30) (Supp. 2001). The difficulty, of course, is the determination of what falls within the ambit of technology policy and what falls within the ambit of architecture and standards. The GTA's authority to establish the technology architecture requires that it design a system4 for executive branch agencies in which all components connect to and operate with each other. The GTA's authority to adopt technology standards for the executive branch agencies means that it has exclusive authority to establish the rules or criteria5 through which the technology products interact with each other. Thus, for the purpose of this statutory analysis, technology policy is distinguished from technology architecture and standards through a subject-specific analysis. The question is whether the subject is a specification designed to coordinate overall functioning of the enterprise-wide system or whether it is an agency-specific specification that is critical to achieve the agency's mission, vision and values. If it is the former, it falls within the category of technology architecture or standards. If it is the latter, it falls within the category of technology policy. Once a decision is made on the agency's technology requirements pursuant to those policies, the agency under the control of a constitutional officer must contract for the purchase of its technology resources exceeding $100,000 through the GTA, which includes the GTA's rules governing competitive procurement.6 This requirement does not mean that the agency is prohibited from establishing internal processes, methods, and procedures to evaluate its technology requirements. On the contrary, the goal of the technology policy is to plan a course of action that will influence and determine the agency's technology decisions and actions based upon its mission, vision, and goals. Some obvious policies that an agency might promulgate are those governing Internet use or access to meet the agency's business plan and system access rights. For example, there may be agency-specific mandates that, as a matter of policy, require unique support or security technology. Other policies may address identification of the agency's technology requirements to meet long term goals. In setting its technology policy, an agency under the control of a constitutional officer should remain mindful of the requirement that its technology resources must comply with the GTA's established architecture and standards. The GTA's powers are limited, however, to those conferred by law. O.C.G.A. § 45-6-5; City of Atlanta v. Black, 265 Ga. 425, 428 (1995); Bentley v. State Bd. of Med. Exam'rs, 152 Ga. 836, 838 (1922), cited in 1992 Op. Att'y Gen. 92-1. Therefore, the GTA is obligated to consider, accommodate, and include the technology polices set by agencies under the control of constitutional officers when establishing state-wide standard specifications, architecture for technology infrastructure, security standards, and procurement standards. To do otherwise would exceed its authority. It is not the purpose of the GTA law to control the substantive actions of any agency. Constitutional officers have the added statutory prerogative to set their own technology policy as defined by the GTA law. This is consistent with the principle established by case law that the General Assembly cannot defeat the Constitution's purpose in establishing the office or defeat any specific powers granted. See supra note 2. Thus, for example, the Secretary of State, in setting technology policy, may establish the processes, methods, and procedures for identifying, managing, and controlling the technology resources necessary to ensure that the "returns of all elections by the people shall be made to the Secretary of State." GA. CONST. Art. II, Sec. II, Para. I. Similarly, the Commissioner of Labor, in setting technology policy, may establish the processes, methods, and procedures for identifying, managing and controlling the technology resources necessary to investigate, collect, and compile statistical information on the condition of labor in the State of Georgia. O.C.G.A. § 34-2-6. Both the Secretary of State and the Commissioner of Labor, having established the technology policy, must contract through the GTA for any technology resource purchase required to advance the policy if the cost exceeds $100,000. For the foregoing reasons and upon application of the rules of statutory construction cited herein, I conclude that agencies under the authority, direction, or control of a state-wide elected official other than the Governor may set their own technology policy but must contract through the Georgia Technology Authority for any technology resource purchase exceeding $100,000 pursuant to O.C.G.A. § 50-25-7.2(a). Prepared by: EMILY P. HITCHCOCK Assistant Attorney General 1 You did not request my opinion regarding, and this opinion does not address, statutory exceptions to the GTA's authority other than the one recognizing a constitutional officer's power to set technology policy for agencies under his or her control. 2 The independence of constitutional officers is well recognized. E.g., Griffies v. Coweta County, 272 Ga. 506, 507-08 (2000) (county commission has power and duty to issue a budget but does not have unilateral authority to control budget expenditures of a constitutional officer, the clerk of court); Morris v. Glover, 121 Ga. 751, 753-55 (1905) (General Assembly without power to abolish a constitutional office, the office of county treasurer, either expressly or indirectly by depriving the officer of the emoluments of the office, interpreting GA. CONST. of 1868 Art. IX, Sec. I). At the same time, the executive branch constitutional officers do not have unfettered independence. Except for certain specifically stated powers in the case of some officers, the Constitution confers on the General Assembly the authority to prescribe the duties and powers of the executive branch. GA. CONST. Art. III, Sec. VI, Para. I; GA. CONST. Art. V, Sec. III, Para. III; see, e.g., GA. CONST. Art. V, Sec. III, Para. IV (duties of the Attorney General). The tension between the independence of a constitutional officer and the power of the General Assembly to prescribe the duties of the office is not new. E.g., Massenburg v. Commissioners of Bibb County, 96 Ga. 614, 616-18 (1895) (a constitutional office is not subject to abolition by legislative enactment, interpreting GA. CONST. of 1868, Art. IX, Sec. I); 1958-59 Op. Att'y Gen. at 4 (General Assembly does not have the power to abolish a constitutional office but does have the authority to curtail its activities, interpreting GA. CONST. of 1945, Art. V, Sec. II, Paras. I and II). 3 O.C.G.A. § 50-25-7.2(c), mandating that all technology resource purchases comply with the technical standards and specifications established by the GTA, is further evidence that agencies under the control of constitutional officers are subject to the GTA's authority to set state-wide technology standards. 4 In its generic sense, architecture refers to "the structure of anything." Random House Webster's Unabridged Dictionary 109 (2d ed. 1997). One technology source defines architecture in pertinent part as follows: "The architecture of a system refers to how it is designed and how components of the system are connected to, and operate with, each other. . . . It also includes the ability of the system to grow 'seamlessly' (i.e., without too many large jumps in price)." Newton's Telecom Dictionary 55 (17th ed. 2001). 5 A standard is "a model accepted as correct by custom, consent, or authority" or "a criterion for measuring acceptability, quality, or accuracy." BLACK'S LAW DICTIONARY 1412 (7th ed. 1999). 6 This opinion does not address the applicability of any GTA rules governing purchases that are under $100,000.