Can the Georgia State Election Board direct the Attorney General to bring in outside counsel and outside investigators to investigate election complaints?

Plain-English summary

In August 2024, the Georgia State Election Board (SEB) took several actions at a public meeting, including directing the Attorney General's office to seek conflicts counsel and to retain outside investigators in connection with an administrative case involving election conduct in a particular Georgia county. The SEB further directed the AG's office to provide a report on conflicts counsel so the SEB itself could "hire outside legal counsel and investigators."

AG Chris Carr issued this Official Opinion to formally address two issues raised by the SEB's actions.

Outside counsel. The Attorney General is the sole legal counsel for the Executive Branch of Georgia state government. This is established by:

• The Georgia Constitution at Art. V, § III, Para. IV: "The Attorney General shall act as the legal advisor of the executive department . . . and shall perform such other duties as shall be required by law."
• O.C.G.A. § 45-15-30, creating the Department of Law with the AG at its head.
• O.C.G.A. § 45-15-34, vesting the Department of Law with "complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch" and prohibiting state agencies from "employing counsel in any manner whatsoever unless otherwise specifically authorized by law."

The result: only the Attorney General can engage outside counsel for an Executive Branch agency. A client agency (like the SEB) cannot direct the AG to retain conflicts counsel, and cannot hire its own outside legal counsel without the AG's express approval.

The SEB also raised a possible conflict-of-interest concern arising from the AG's representation of both the Secretary of State and the SEB. The AG addressed this by reference to the constitutional and statutory framework: Georgia's executive branch is represented by a single legal counsel, the Attorney General. The role of the Department of Law is to "advise units of the Executive Branch whose interests may be in conflict as to proper statutory interpretations as they affect their legal rights" (1976 Op. Att'y Gen. 76-93). The AG does not have a conflict by carrying out the representation of the Executive Branch as directed by the Constitution and statutes.

Outside investigators. The Election Code (O.C.G.A. § 21-2-31(5)) gives the SEB (or by authorization, the Secretary of State) the duty to investigate election-law violations and to report violations to the AG or appropriate district attorney for further investigation and prosecution. The Code does not authorize the SEB to direct the Attorney General to investigate, and the AG does not have independent investigative authority under the Election Code beyond the limited context of a criminal referral.

The opinion notes (footnote 1) that several other statutes do grant the AG investigatory authority for specific contexts (e.g., gang investigations under § 16-15-4), but no equivalent grant exists under the Election Code.

What this means for you

If you serve on the State Election Board

Your investigative authority is in O.C.G.A. § 21-2-31(5). Either conduct investigations through the SEB or authorize the Secretary of State to do so. After completing an investigation, you may refer the case to the Attorney General or appropriate district attorney for further investigation or criminal prosecution. You cannot direct the AG to investigate as a stand-alone matter, and you cannot hire your own outside investigators without statutory authority.

If you're an Executive Branch agency dissatisfied with the AG's representation

You cannot hire your own counsel under § 45-15-34. Your remedies are limited: speak with the AG about the issue, escalate to the Governor (who has appointment authority under § 45-15-70 in certain limited circumstances), or seek statutory amendment.

If you're an attorney offering services to a Georgia state agency

The agency cannot retain you directly. Engagement must go through the AG's office. § 45-15-34's prohibition is comprehensive ("in any manner whatsoever").

If you're a journalist or election observer

When the SEB refers a matter to the AG for prosecution, the AG (acting through the Department of Law) takes over the case. The SEB cannot dictate the AG's prosecutorial decisions or insist on outside investigators.

Common questions

Q: Did the SEB get any of what it wanted?
A: The opinion says no. The SEB cannot direct the AG to seek conflicts counsel, cannot direct the AG to investigate, cannot hire outside lawyers on its own, and cannot direct the AG to retain outside investigators.

Q: What does the AG say about its own conflicts?
A: The AG explicitly disclaimed a conflict in representing both the SEB and the Secretary of State. Both are Executive Branch entities, and the Constitution and statutes contemplate that they share a single legal counsel. When their interests diverge, the Department of Law's role is to advise on the legal-rights issue, not to recuse and hire outside counsel.

Q: When can the AG act as an investigator?
A: Only when statute expressly authorizes it. Footnote 1 cites several statutes granting peace-officer investigative authority for specific contexts (gangs, certain frauds), but the Election Code does not include such a grant.

Q: Can the SEB just hire its own investigators?
A: The opinion does not directly say. It says the SEB cannot direct the AG to use outside investigators. Whether the SEB has independent statutory authority to hire investigators on its own would depend on the SEB's enabling statutes. The AG opinion was responding to an SEB action that combined the two questions; the Department of Law would not pay for or engage such investigators without authority.

Q: What was the underlying matter?
A: A specific administrative case involving a Georgia county that had been the subject of a prior SEB public reprimand under § 21-2-33.1(a)(3). The opinion does not name the county.

Q: Could the General Assembly change this?
A: Yes. Footnote 5 cites O.C.G.A. § 45-15-18 as an example of an "express statutory grant of the authority to direct the Attorney General to conduct an investigation." The General Assembly could amend the Election Code to grant similar authority. Until that happens, the existing framework controls.

Background and statutory framework

Georgia's structure for executive-branch legal representation is built on a single-counsel principle. The Constitution names the Attorney General as the legal advisor of the executive department. The Department of Law sits at the apex with the AG at its head. State agencies are categorically prohibited from hiring their own counsel.

This single-counsel structure has practical consequences. Conflicts between executive-branch agencies must be resolved through legal advice from the AG, not through outside-counsel arrangements. The AG cannot be directed by client agencies; client agencies receive representation but do not control it. When client interests diverge, the AG advises both sides on the legal questions while preserving the unitary representation.

The State Election Board is a creature of Title 21 of the Code (the Elections Code). Its powers are defined statutorily. Under the Bentley rule, the SEB has only the powers expressly granted or necessarily implied. The power to investigate is express; the power to direct the AG to investigate is not.

The August 2024 SEB action sat against a backdrop of high-profile election-administration disputes following the 2020 election. The opinion's careful tone and its reliance on long-standing constitutional and statutory authority reflects the AG's effort to keep the dispute resolution within the existing framework.

Citations and references

Constitutional and statutory:

• Ga. Const. Art. V, § III, Para. IV (Attorney General as legal advisor)
• O.C.G.A. § 21-2-31(5) (SEB investigatory/referral authority)
• O.C.G.A. § 21-2-33.1 (SEB sanctions)
• O.C.G.A. § 45-15-30, § 45-15-34, § 45-15-70 (Department of Law structure)

Cases and opinions:

• Bentley v. Board of Medical Examiners, 152 Ga. 836 (1922) (state agencies have only powers conferred)
• 1976 Op. Att'y Gen. 76-93 (no inter-agency lawsuits brought by AG; advise on conflicts instead)
• 1995 Op. Att'y Gen. 95-1 (no attorney-client privilege between agencies and their employed legal personnel)

Source

• Original PDF: https://law.georgia.gov/document/document/081924-ag-office-official-opinion-seb-chairmanpdf/download

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

CHRISTOPHER M. CARR

GEORGIA DEPARTMENT OF LAW
40 Capitol Square SW

Atlanta, Georgia 30334-1300 www.law.ga.gov

ATTORNEY GENERAL (404) 458-3600

OFFICIAL OPINION

John Fervier
Chairman
State Election Board
2 Martin Luther King, Jr. Drive
Suite 802, Floyd West Tower
Atlanta, Georgia 30334

Re: The Attorney General serves as the sole legal counsel to the Executive Branch of state government, does not have a legal conflict in doing so and further is not required to engage other counsel at the direction of a client. The State Election Board is not empowered to direct the Attorney General to conduct an investigation under Title 21 whether on his own or through outside investigators. The Election Code does not empower the Attorney General to act on his own as an investigator beyond the limited context of a referral of a case to the Attorney General for potential criminal prosecution as referenced in O.C.G.A. § 21-2-31(5).

Dear Chairman Fervier:

While this Office has not received a written request, we have become aware of requests directed to this Office by action of the State Election Board ("SEB") at its meeting held on August 7, 2024. This opinion is written to officially address the law related to two of those requests.[1]

First, the action of the SEB made certain requests related to this Office and the engagement of outside counsel. The SEB directed this Office "to seek advice of conflicts counsel to determine who should represent the State Election Board in investigating this matter." The SEB further directed that this Office provide a report regarding such advice and report to the SEB such that the SEB "may hire outside legal counsel and investigators."

The "matter" is an administrative case involving a particular Georgia county that has been the subject of prior SEB action in the form of a public reprimand under O.C.G.A. § 21-2-33.1(a)(3).

The authority to determine whether to engage and to engage outside counsel rests exclusively with the Attorney General. This Office is not required to engage outside counsel at the direction of a client. Nor is a client of this Office entitled to engage legal counsel on its own without the express approval of the Attorney General.

Under the Georgia Constitution:

"The Attorney General shall act as the legal advisor of the executive department, shall represent the state in the Supreme Court in all capital felonies and in all civil and criminal cases in any court when required by the Governor, and shall perform such other duties as shall be required by law."

Ga. Const. Art. V, § III, Para. IV (emphasis added). Thus, the Attorney General acts as the sole legal advisor of the Executive Branch of state government. Statutes support this as well. O.C.G.A. § 45-15-30 creates the Department of Law "with the Attorney General at the head thereof." O.C.G.A. § 45-15-34 provides that:

The Department of Law is vested with complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch of the government and every department, office, institution, commission, committee, board, and other agency thereof. Every department, office, institution, commission, committee, board, and other agency of the state government is prohibited from employing counsel in any manner whatsoever unless otherwise specifically authorized by law.

(emphasis added). Because the Constitution and statutes provide for a single legal representative for the Executive Branch, the Attorney General alone is statutorily vested with the power to select and engage private counsel to provide legal services for entities of the Executive Branch of state government. O.C.G.A. § 45-15-4. O.C.G.A. § 45-15-34 expressly prohibits the employment of legal counsel otherwise. See 1995 Op. Att'y Gen. 95-1 (Recognizing the lack of attorney-client privilege between persons with legal training employed by agencies and their employing agencies).

Related to the action of the SEB, there appears to be a concern that the Attorney General has a conflict of some sort simply as the result of providing representation to the Secretary of State and the State Election Board. As discussed above, the Attorney General serves as the exclusive legal advisor to the Executive Branch of state government and in such capacity represents the entities of the Executive Branch. As discussed in a 1976 Opinion of the Attorney General declining to appoint legal counsel for one agency to bring an action against another agency, "the Law Department acts as legal advisor for the entire Executive Branch of the State Government" and "a proper role of the Law Department is to advise units of the Executive Branch whose interests may be in conflict as to proper statutory interpretations as they affect their legal rights..." 1976 Op. Att'y Gen. 76-93. Thus, the Georgia Constitution and statutes contemplate an executive branch that is represented by a single legal counsel, the Attorney General.[2] The Attorney General does not have a conflict by carrying out the representation of the Executive Branch as directed by the Constitution and statutes of this State.

Second, the action of the SEB directed the Attorney General to investigate certain matters related to the conduct of the 2020 election in a Georgia county and to conduct such investigation with outside investigators.

The authority to investigate potential violations of the election laws rests with the SEB and not with the Attorney General. This Office is not required to conduct an investigation on its own or with outside personnel at the direction of a client agency.

Among the express duties of the State Election Board is the duty:

[t]o investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution.

O.C.G.A. § 21-2-31(5) (emphasis added). Thus, the duty to investigate is vested in the SEB or it may authorize the Secretary of State to investigate. There is no grant of authority to the SEB to direct the Attorney General to investigate. Nor does the Election Code empower the Attorney General to act on his own as an investigator beyond the limited context of a referral of a case to the Attorney General for potential criminal prosecution as referenced in O.C.G.A. § 21-2-31(5).[4]

The SEB's powers are defined by statute. In Georgia, agencies of the State like the SEB have only such powers as they are expressly granted in the law and those that are necessarily implied from the powers that are expressly granted. Bentley v. Board of Medical Examiners, 152 Ga. 836, 838 (1922).[5] As noted above, the power to investigate rests with the State Election Board itself or the State Election board can authorize the Secretary of State to investigate.

In light of the foregoing, it is my official opinion that the Attorney General serves as the sole legal counsel to the Executive Branch of state government, does not have a legal conflict in doing so and further is not required to engage other counsel at the direction of a client. The State Election Board is not empowered to direct the Attorney General to conduct an investigation under Title 21 whether on his own or through outside investigators. The Election Code does not empower the Attorney General to act on his own as an investigator beyond the limited context of a referral of a case to the Attorney General for potential criminal prosecution as referenced in O.C.G.A. § 21-2-31(5).

[1] Some of the issues raised by the SEB's action arise with some frequency and necessitate an official opinion.

[2] The Governor has the power to appoint counsel to represent the State and state officials in defense of certain matters where the Attorney General does not provide representation. See i.e. O.C.G.A. § 45-15-70.

[4] There are a number of statutes that grant to the Attorney General the power to employ peace officers for the purpose of conducting particular criminal investigations. See i.e. O.C.G.A. §§ 16-5-46, 16-15-4, 45-15-17 & 49-4-146.1. There is no such grant of power to the Attorney General related to the Election Code.

[5] O.C.G.A. § 45-15-18 is an example of an express statutory grant of the authority to direct the Attorney General to conduct an investigation into certain matters.

Issued this 19th day of August, 2024.

CHRISTOPHER M. CARR
Attorney General