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 to clarify the conflict-of-interest rules that apply to a Commissioner who is a practicing attorney. Three scenarios came up. (1) Can other lawyers and staff at the Commissioner's law firm lobby, even though the Commissioner himself or herself cannot? (2) Can the Commissioner and the firm practice administrative law before state agencies? (3) Can the Commissioner and the firm represent state agencies and local governments? The AG said: lobbying by other firm members is permitted, subject to case-by-case recusal where a lobbying case against a firm member comes before the Commission; administrative law practice before agencies other than the Ethics Commission is permitted; representing local governments is permitted as long as the local government is not taking action adverse to the state or to the Commission; and Special Assistant Attorney General appointments are available. But under O.C.G.A. § 45-10-22(a)(2), the Commissioner and the firm (if the Commissioner has a 25%+ interest in the firm) cannot transact business with the State Ethics Commission itself. Other constitutional and statutory ethics rules require avoiding the appearance of impropriety in any context where the Commission's work could be affected.

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's analytical framework leans heavily on Georgia Ports Authority v. Harris, 274 Ga. 146 (2001), which had recently overruled Georgia Department of Human Resources v. Sistrunk, 249 Ga. 543 (1982), and adopted a new ad hoc conflicts-of-interest standard. The pre-Harris rule had been more categorical; Harris moved to a fact-and-circumstances inquiry. That shift made it possible for the AG to give more permissive answers to several of the Commission's questions than the older framework would have allowed.

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 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: permitted in general. The 1983 AG opinion (1983 Op. Att'y Gen. U83-6) had limited lawyer-legislators to a narrow administrative practice, but its viability was called into question by Harris. Outside the specific context of the Ethics Commission's own jurisdiction, the firm could represent clients before state agencies subject to standard recusal-on-conflict rules. Note that a former Commission member is barred by Rule 189-1-.02 from representing a client before the Commission for two years after leaving.

For representing local governments: permitted, subject to the Harris-era rule that the local government should not be taking action adverse to the state or the Commission. This was the same framework the AG had previously applied to lawyer-legislators (1984 Op. Att'y Gen. U84-34).

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: this is where the categorical bar applied. O.C.G.A. § 45-10-22(a)(2) makes it unlawful for "any public official who has limited powers" 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." A State Ethics Commissioner is a part-time public official with limited powers. The firm in which the Commissioner has a "substantial interest" (defined as more than 25% ownership in O.C.G.A. § 45-10-20(11)) cannot transact business with the Commission. Additionally, when read together with O.C.G.A. §§ 45-10-3(3) and (9), the firm cannot transact business with other state agencies if the work is directly or indirectly for the benefit of the Ethics Commission. § 45-10-25 contains exceptions, but the constitutional and statutory ethics rules counsel against using those exceptions absent a clear justification.

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 Commission could draw on attorney members for legal expertise without categorically excluding their firms from lobbying or administrative-law practice. The Commission should adopt clear recusal practices for cases involving firm members.

For attorney Commissioners at the time

The Commissioner had to refrain from lobbying personally and from representing clients before the Ethics Commission. The Commissioner and the firm could not transact business with the Commission. Other firm activities (lobbying, administrative law before non-Ethics agencies, local-government representation, Special Assistant AG appointments) were generally permissible but required case-by-case recusal analysis under Harris and the Code of Ethics.

For law firms with Commissioner partners at the time

The firm's general practice was not crippled by the Commissioner's service. Firm members could lobby. The firm could not have business dealings with the Ethics Commission. The firm's other state-agency work needed conflict screening to ensure it did not benefit the Commission directly or indirectly.

Common questions

Q: What was the Harris case about?
A: Georgia Ports Authority v. Harris, 274 Ga. 146 (2001), addressed conflicts of interest in state-officer service. The decision adopted a more flexible ad hoc analysis and overruled the more categorical Sistrunk (1982) rule. The shift opened up activities that would have been categorically prohibited under the prior framework.

Q: What does it mean to be a "limited powers" public official?
A: O.C.G.A. § 45-10-20(7) defines the term. A part-time State Ethics Commission member fits the definition. The classification matters because the conflict-of-interest bars in §§ 45-10-22 and following apply differently to limited-powers vs full-time officials.

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." If the Commissioner owns more than 25% of the law firm, the firm is treated as the Commissioner for purposes of the bar on transacting business with the Commission.

Q: When should a Commissioner recuse from a specific matter?
A: When a member of the Commissioner's firm or family has a direct or indirect monetary interest in the matter, or when an appearance of impropriety would otherwise arise. The Commissioner should look to O.C.G.A. § 45-10-3(9), which requires avoiding action when the Commissioner knows or should know of such an interest.

Background and statutory framework

The Ethics in Government Act, O.C.G.A. Title 21, Chapter 5, regulates campaign contributions, financial disclosure, and lobbying. The State Ethics Commission is the enforcement body. The Commission's lobbyist registration authority under O.C.G.A. § 21-5-72 includes denial, suspension, and revocation, all of which create potential self-judging problems for a Commissioner who lobbies or whose firm members lobby.

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 anchor is Art. I, Sec. II, Para. I (public officers as trustees). The doctrinal line, articulated in Mayor of Macon v. Huff (1878), is that no officer can both perform a service and supervise the performance of that service. Ethics Commissioners do not supervise lobbying directly (they enforce against violations), but the line gets murky when firm members lobby in matters that may end up before the Commission.

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