What conflict-of-interest restrictions apply to a Georgia State Ethics Commission member who is a practicing attorney, especially regarding the lobbying, administrative-law practice, and government representation activities of the Commissioner and the Commissioner's law firm?

Plain-English summary

The State Ethics Commission asked the AG about three situations involving a Commissioner who is a practicing attorney: lobbying by other people affiliated with the Commissioner's firm, administrative-law practice and representation before state agencies, and representation of state agencies and local governments. The opinion says that, if the Commissioner does not lobby, affiliated lawyers and others may lobby depending on the facts; administrative-law practice before agencies other than the Ethics Commission is not generally prohibited; and the Commissioner and firm may generally represent local governments if the representation does not involve action adverse to the Commission. It also discusses representation of state agencies as Special Assistant Attorneys General. Under O.C.G.A. § 45-10-22(a)(2), the Commissioner and a firm in which the Commissioner or a family member has a substantial interest may not transact business with the Commission unless an applicable § 45-10-25 exception authorizes the particular transaction. The opinion also discusses potential conflicts when work for another state agency is directly or indirectly for the Commission's benefit.

Currency note

This opinion was issued in 2002. 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 State Ethics Commission enforces Georgia's Ethics in Government Act including the lobbyist regulation provisions in O.C.G.A. §§ 21-5-70 through 21-5-73. The Commission has authority to register lobbyists and to deny, suspend, or revoke registrations. A Commissioner who is also a lobbyist would face an obvious self-judging problem, which is why the Commission's question begins with the assumption that the Commissioner himself or herself does not lobby.

The opinion relies on Georgia Ports Authority v. Harris, 274 Ga. 146 (2001), which it describes as adopting a new ad hoc conflicts-of-interest standard and overruling Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543 (1982).

For lobbying by other firm members: no per se prohibition. The opinion notes that Harris changed the prior categorical analysis. So a firm member can lobby, subject to two caveats. First, if a lobbying matter against the firm member comes before the Commission, the Commissioner should consider recusal under O.C.G.A. § 45-10-3 (avoiding direct or indirect monetary interest in matters before the agency) and the general appearance-of-impropriety standard. Second, if the firm members lobby on legislation affecting the Ethics in Government Act or the Commission itself, an appearance-of-impropriety problem could arise even before any specific case.

For administrative law practice before non-Ethics agencies: the opinion says there does not appear to be a general prohibition. It discusses the earlier opinion concerning lawyer-legislators and says its continued viability was called into question by Harris. It also notes that a former Commission member cannot represent a client before the Commission for two years after service ends under Rule 189-1-.02.

For representing local governments: the opinion applies its earlier lawyer-legislator analysis and says a Commissioner and firm may generally represent local governments so long as the representation does not involve action adverse to the Commission.

For representing state agencies: representation of state agencies by private counsel typically happens through Special Assistant Attorney General appointments under O.C.G.A. § 45-15-4. The AG's office imposes its own conflict policies on such appointees (no adversarial relationships, no conflicts with the client agency). Within those policies, the firm could serve as Special Assistant AGs.

For business dealings with the State Ethics Commission itself: O.C.G.A. § 45-10-22(a)(2) makes it unlawful for a limited-powers public official, a business on the official's behalf, or a business in which the official or a family member has a substantial interest to transact business with the agency for which the official serves. The opinion describes a Commission member as a part-time public official with limited powers and defines substantial interest as direct or indirect ownership of more than 25 percent of a business's assets or stock. It also concludes that the same types of business cannot transact with another state agency when the work is directly or indirectly for the Commission's benefit. O.C.G.A. § 45-10-25 contains exceptions that may depend on the facts, but the opinion says the constitutional and ethics provisions counsel against such a transaction because it could create an appearance of impropriety or an actual conflict.

The constitutional anchor is Art. I, Sec. II, Para. I, declaring public officers to be "trustees and servants of the people . . . at all times amenable to them." Older cases like Welsh v. Wilson (1963), Twiggs v. Wingfield (1918), and Mayor of Macon v. Huff (1878) reinforced the no-self-supervision principle: an officer cannot be employed to perform services that the officer is called upon as a public official to supervise.

For the State Ethics Commission at the time

The opinion says that affiliated lawyers and others may lobby if the Commissioner refrains from lobbying, subject to the facts and possible recusal when a related case comes before the Commission. It also says there is no general prohibition on administrative-law practice before agencies other than the Commission.

For attorney Commissioners at the time

The opinion addresses the Commissioner's refraining from lobbying and says that business with the Commission is subject to § 45-10-22(a)(2)'s bar and possible § 45-10-25 exceptions. It discusses administrative-law practice before other agencies, local-government representation, and Special Assistant Attorney General appointments under the stated conflict principles.

For law firms with Commissioner partners at the time

The opinion says firm members may lobby if the Commissioner does not, subject to the facts. It applies the transaction bar to a firm in which the Commissioner or a family member has a substantial interest, while noting possible statutory exceptions. It also addresses work for other state agencies that directly or indirectly benefits the Commission.

Common questions

Q: How did the opinion use Harris?
A: It cites Georgia Ports Authority v. Harris, 274 Ga. 146 (2001), as adopting a new ad hoc conflicts-of-interest standard and notes that Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543 (1982), was overruled in Harris.

Q: How does the opinion classify a State Ethics Commissioner?
A: It describes a Commission member as a part-time public official with limited powers under O.C.G.A. §§ 45-10-20(6), (7), and (9), and applies § 45-10-22(a)(2) to transactions with the Commission.

Q: What is "substantial interest" in a business?
A: Under O.C.G.A. § 45-10-20(11), it means "the direct or indirect ownership of more than 25% of the assets or stock of any business." A firm in which the Commissioner or a family member holds that interest falls under the transaction bar, subject to any applicable § 45-10-25 exception.

Q: When should a Commissioner recuse from a specific matter?
A: The opinion leaves voluntary recusal to each Commissioner if a lobbying case against someone affiliated with the firm comes before the Commission. It points to § 45-10-3(9), which prohibits official action when the Commissioner knows or should know of a direct or indirect monetary interest in the matter or its outcome.

Background and statutory framework

Article 4 of the Ethics in Government Act, O.C.G.A. §§ 21-5-70 through 21-5-73, regulates lobbying. The opinion says the State Ethics Commission has duties concerning the registration and conduct of lobbyists, including denial, suspension, or revocation of a lobbyist's registration. It uses those duties to explain why lobbying by a Commission member would be inappropriate and why affiliated-firm lobbying may raise recusal or appearance-of-impropriety questions.

The general Code of Ethics for state officials is at O.C.G.A. §§ 45-10-1 through 45-10-3. The transactional bars are at §§ 45-10-20 through 45-10-28. The Special Assistant Attorney General appointment statute is at § 45-15-4.

The constitutional provision quoted in the opinion states that public officers are trustees and servants of the people. The opinion also quotes Mayor of Macon v. Huff for the principle that an officer whose duty is to supervise a service cannot undertake that service for others. It applies those principles to lobbying by a Commissioner and affiliated people.

Citations and references

Constitutional and statutory:

• Ga. Const., Art. I, Sec. II, Para. I (public officers as trustees)
• O.C.G.A. §§ 21-5-70 through 21-5-73 (lobbying)
• O.C.G.A. §§ 45-10-1 through 45-10-3 (Code of Ethics)
• O.C.G.A. §§ 45-10-20 through 45-10-28 (transactions with agencies)
• O.C.G.A. § 45-15-4 (Special Assistant Attorney General)

Cases:

• Georgia Ports Authority v. Harris, 274 Ga. 146 (2001) (ad hoc conflicts standard)
• Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543 (1982) (overruled in Harris)
• Welsh v. Wilson, 218 Ga. 843 (1963)
• Mayor of Macon v. Huff, 60 Ga. 221 (1878) (no self-supervision)

Source

• Landing page: https://law.georgia.gov/opinions/2002-4

Original opinion text

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. 1. Lobbying by lawyers and others affiliated with a Commissioner's law firm. 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. 2. The practice of administrative law and the representation of clients before state agencies by an attorney member of the State Ethics Commission and other members of his or her law firm. 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. 3. The representation of Georgia governmental entities by an attorney member of the State Ethics Commission and other members of his or her law firm. 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). Conclusion 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. Prepared by: KYLE A. PEARSON Assistant Attorney General