When most of a Georgia professional licensing board's seats are vacant, how many people does it take to make a quorum, and how many votes does it take to act?

Plain-English summary

This opinion is a direct sequel to 2003 Op. Att'y Gen. 03-05. After the 2003 Senate adjourned sine die without confirming 65 of 80 professional licensing board appointments made by former Governor Roy Barnes, nine of Georgia's licensing boards were left without enough current members to satisfy a "majority of those serving" standard. The Secretary of State (which administratively houses the licensing boards) asked the AG to address how many people make a quorum, and how many people must vote, when board seats are unfilled.

Attorney General Thurbert Baker concluded:

1. A quorum is a majority of the total statutory positions, not a majority of currently filled seats.

O.C.G.A. § 43-1-2(h) provides that "[a] majority of the appointed members of a professional licensing board shall constitute a quorum for the transaction of business by that board." The Secretary of State's office had been reading the phrase "appointed members" to mean those actually serving. The AG rejected that reading, treating "appointed members" as referring to the statutorily authorized number of board positions. So an eight-position board needs five members present, not (for example) two when only three are appointed. The AG's reasoning: if the Secretary's reading were correct, "a state licensing 'board' with only one current appointee [could] meet and transact board business," including rule-making. That would be contrary to the entire legislative design of dispersing regulatory authority among multiple members.

This conclusion lines up with O.C.G.A. § 1-3-1(d)(5)'s default rule that "a joint authority given to any number of persons or officers may be executed by a majority of them" and with Aliotta v. Gilreath, 226 Ga. 263 (1970), which held that the majority required for official action is a majority of the total positions, not a majority of those then holding office. Stepp v. Lance, 131 Ga. App. 193, 193 (1974) and Beall v. State, 9 Ga. 367, 369 (1851) reach the same result.

2. Once a quorum is present, ordinary business can pass on a majority of the quorum.

So if five of eight positions are filled and all five are present (a quorum), three votes carry general business. This is the standard "majority of those present once a quorum is established" rule.

3. For specific disciplinary or licensing actions under § 43-1-19(a), it takes a majority of the entire board.

Section 43-1-19(a) gives a board the authority "to refuse to grant a license," "to revoke [a] license," or "to discipline" a licensee "upon a finding by a majority of the entire board." The AG read "entire board" to mean the total number of statutory positions. So an eight-position board needs five votes for those actions, regardless of how many are present. If a quorum of five members is present and they vote to discipline, all five must vote yes; the abstention or absence of any sixth member does not lower the threshold below five.

4. Existing rules continue in force even when vacancies exist.

Under O.C.G.A. § 50-13-4, all rules, policies, and procedures lawfully adopted by a board remain in force until amended, modified, or rescinded by that board. So board staff can continue to implement existing rules even if a majority of the seats are vacant. Vacancies do not reset the regulatory environment to zero.

The opinion also addresses the Secretary's argument that the Secretary's office had administratively interpreted § 43-1-2(h) as authorizing the simpler "majority of those serving" rule, and that an agency's interpretation deserves deference. The AG accepted that agency interpretations are typically entitled to "great weight" (citing Kelly v. Lloyd's of London and Environmental Waste Reductions) but rejected the deference here because the Secretary's reading would lead to absurd results, including a one-person "board" exercising the regulatory authority designed to be shared among multiple members.

Currency note

This opinion was issued in 2003. 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.

Common questions

Q: How does this affect a licensee facing discipline when the board has vacancies?
A: It is harder for the board to discipline. The "majority of the entire board" rule under § 43-1-19(a) does not relax just because some seats are empty. So a licensee facing revocation may benefit from board vacancies in the sense that fewer board members are available to vote to discipline.

Q: What about routine business like fee approvals or scheduling?
A: Routine business needs only a majority of the quorum, once the quorum is present. So an eight-seat board can do routine business with five present and three voting yes.

Q: Can a board with too few members to make a quorum do anything at all?
A: It cannot transact new business at the board level. But existing rules and procedures stay in effect under § 50-13-4, and the staff can continue to implement them. So licensure renewals, processing of completed applications, and other routine staff-level functions can continue.

Q: What if a board's enabling statute specifies a different quorum rule?
A: The board's specific statute controls. Section 43-1-2(h) is a general default for professional licensing boards within the Secretary of State's umbrella. If the General Assembly has set a different rule for a particular board (a smaller threshold, a supermajority, etc.), that rule governs.

Q: What about emergency rulemaking?
A: Emergency rulemaking still requires a quorum and the votes specified by the board's procedures. There is no emergency exception to the quorum rule.

Q: Does this opinion apply to the State Ethics Commission, the State Election Board, or other non-licensing boards?
A: Not directly. The opinion construes O.C.G.A. § 43-1-2(h) and § 43-1-19(a), which apply to professional licensing boards. Other state bodies follow their own enabling statutes and the default rule of § 1-3-1(d)(5). 2003 Op. Att'y Gen. 03-05 (the companion opinion on gubernatorial appointments and quorums) addresses the broader picture.

Background and statutory framework

Georgia's professional licensing boards (cosmetology, dentistry, nursing, and dozens of others) are administratively housed under the Secretary of State and operate under a common set of procedural statutes in O.C.G.A. Title 43, Chapter 1. Two of those statutes set the rules for quorums and voting:

• O.C.G.A. § 43-1-2(h): "A majority of the appointed members of a professional licensing board shall constitute a quorum for the transaction of business by that board."
• O.C.G.A. § 43-1-19(a): a board may refuse to grant, revoke, or discipline "upon a finding by a majority of the entire board."

The interpretive question is what "appointed members" and "entire board" mean. The AG's reading is that both phrases refer to the statutorily authorized number of seats (the "entire" board, including vacant seats), not to the number of seats currently filled. That keeps the regulatory threshold consistent regardless of staffing churn and prevents an attenuated board from exercising authority designed to be shared.

The default Georgia rule for joint-authority bodies, codified at O.C.G.A. § 1-3-1(d)(5) and reflected in Beall v. State (1851) and Aliotta v. Gilreath (1970), points the same direction: when a duty is given to a definite number of persons, it must be executed by a majority of that definite number.

Citations and references

Statutes:
- O.C.G.A. § 43-1-2(h) (quorum for professional licensing boards)
- O.C.G.A. § 43-1-19(a) (majority of entire board required for disciplinary or licensing action)
- O.C.G.A. § 1-3-1(d)(5) (default rule for joint-authority bodies)
- O.C.G.A. § 50-13-4 (existing rules remain in force until changed)

Cases:
- Stepp v. Lance, 131 Ga. App. 193 (1974) (quorum applies to statutorily defined number)
- Beall v. State, 9 Ga. 367 (1851) (majority of the definite number must execute joint duty)
- Aliotta v. Gilreath, 226 Ga. 263 (1970) (majority required for official action is majority of total positions)
- Kelly v. Lloyd's of London, 255 Ga. 291 (1985) (agency interpretations entitled to great weight)
- Environmental Waste Reductions, Inc. v. Legal Environmental Assistance Foundation, 216 Ga. App. 699 (1995) (same)

Other AG opinions:
- 2003 Op. Att'y Gen. 03-05 (companion opinion on gubernatorial appointments and quorums)
- 1980 Op. Att'y Gen. 80-31 (official action requires majority of officers to whom authority is given)

Source

• Landing page: https://law.georgia.gov/opinions/2003-6
• Original PDF: not linked from landing page

Original opinion text

You have requested my opinion on various questions related to the ability of a state licensing board to conduct business when it has less than a traditional quorum. This is a matter of concern because, as pointed out in your letter, 65 of the 80 professional licensing board members appointed by former Governor Barnes after the conclusion of the 2002 legislative session did not receive the required Senate confirmation as of the conclusion of the 2003 session and, therefore, those positions became vacant. The result, again according to your letter, is that nine of the professional licensing boards do not have sufficient numbers to constitute a traditional quorum. Ordinarily, and according to general rules of statutory construction, "a joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared." O.C.G.A. § 1-3-1(d)(5). Two separate code sections in Title 43, however, pertain specifically to the state licensing boards and their ability to transact business. The first, O.C.G.A. § 43-1-2 (h), states that "[a] majority of the appointed members of a professional licensing board shall constitute a quorum for the transaction of business by that board." (Emphasis added.) The second, O.C.G.A. § 43-1-19(a), gives a professional licensing board the authority "to refuse to grant a license," "to revoke [a] license," or "to discipline" a licensee "upon a finding by a majority of the entire board." (Emphasis added.) For the reasons set forth below, it is my opinion that reading these two code sections in harmony with standard rules of statutory construction requires a determination that a majority of the total number of positions on a given licensing board is required to constitute a quorum, and a majority of such quorum is necessary for board actions other than those actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board. In other words, if a board consists of eight positions, a quorum necessary to conduct general business requires the presence of five board members, and action can be taken by a majority vote of those members present (i.e., three or more members). Under those same circumstances, if a quorum of five members is present and a vote is taken to act pursuant to O.C.G.A. § 43-1-19(a), all five members must affirmatively vote in favor of such action. There is sound legal support for the conclusion that a majority of the statutorily defined number of board members is required for the transaction of business as identified in O.C.G.A. § 43 1 2(h). As mentioned above, O.C.G.A. § 1-3-1(d)(5) provides that "a joint authority given to any number of persons or officers may be executed by a majority of them, unless it is otherwise declared." Construing O.C.G.A. § 1-3-1(d)(5), our courts have held, "When a public trust or duty is to be executed by a definite number of persons, such public trust or duty may be executed by a majority of that definite number." Stepp v. Lance , 131 Ga. App. 193, 193 (1974), quoting Beall v. State , 9 Ga. 367, 369 (1851). See also Aliotta v. Gilreath , 226 Ga. 263 (1970) (the majority which is required for official action is a majority of the total number of positions on a board, rather than a majority of those present at a meeting); 1980 Op. Att'y Gen. 80-31 (official action requires a majority of the officers to whom the authority is given, rather than a majority of those then holding office). I recognize, at least with respect to O.C.G.A. § 43-1-2(h), that your office has administratively construed that code section to require only a simple majority of the number of board members actually appointed and serving to conduct general business. Generally, an interpretation by a state agency of a statute related to laws the agency is charged with enforcing is entitled to deference. See Kelly v. Lloyd's of London , 255 Ga. 291, 293 (1985) (an interpretation of a statute by an agency charged with the duty of enforcing it is entitled to "great weight"); Environmental Waste Reductions, Inc. v. Legal Environmental Assistance Foundation , 216 Ga. App. 699, 702 (1995) (an agency's interpretation of a statute is entitled to "great weight and deference"). In this situation, however, the agency's interpretation would permit a state licensing "board" with only one current appointee to meet and transact board business. Indeed, a quorum in such circumstances would be one person, and that one person could engage in a number of board-related activities, including rule-making. In my view, allowing a "board" consisting of only one member to exercise that authority would be contrary to the entire legislative design of dispersing regulatory authority among the various members of a board, rather than granting it to one individual, such as a department head. With respect to the staff-level functions of any particular board, it is clear that all rules, policies and procedures lawfully adopted by a board remain in effect until such time as those rules, policies or procedures are amended, modified, or rescinded by that board pursuant to O.C.G.A. § 50-13-4. The fact that a majority of board positions may become vacant does not alter this conclusion. Therefore, lawfully established policies and procedures remain in effect and may be implemented by a board's staff, even where a majority of board positions remain vacant. Therefore, it is my official opinion that a majority of the total number of positions on a given licensing board is required to constitute a quorum as identified in O.C.G.A. § 43-1-2(h), and a majority of such quorum is necessary for board actions other than the specific actions set forth in O.C.G.A. § 43-1-19(a), which require an affirmative finding by a majority of the entire board. Prepared by: WYLENCIA MONROE Assistant Attorney General