Can the State Election Board force the Georgia Attorney General to hire outside counsel or to investigate election fraud allegations on the Board's behalf?

Plain-English summary

Georgia Attorney General Chris Carr issued an Official Opinion in response to actions by the State Election Board (SEB) at its August 7, 2024 meeting. The SEB had directed the AG's office to (1) "seek advice of conflicts counsel" and report whether outside counsel should represent the SEB so it could "hire outside legal counsel and investigators," and (2) investigate certain matters related to the 2020 election in a Georgia county, using outside investigators.

The AG concluded:

1. The Attorney General is the sole legal counsel for Georgia's executive branch. The Georgia Constitution (Art. V, § III, Para. IV) makes the AG the "legal advisor of the executive department." O.C.G.A. § 45-15-34 vests the Department of Law with "complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch" and prohibits any agency from "employing counsel in any manner whatsoever unless otherwise specifically authorized by law."

2. The AG is not required to hire outside counsel at a client agency's direction. That decision is exclusively the AG's. A client agency cannot engage its own counsel without the AG's express approval.

3. The AG has no conflict in representing both the SEB and the Secretary of State. The AG serves as legal advisor to the entire executive branch, including agencies whose interests may conflict; advising on statutory interpretation across agencies is a "proper role" of the Department of Law (1976 Op. Att'y Gen. 76-93).

4. The SEB cannot direct the AG to investigate election matters. O.C.G.A. § 21-2-31(5) gives the SEB itself the duty to investigate (or to authorize the Secretary of State to investigate). The SEB then "report[s] violations … to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution." The Election Code does not empower the AG to conduct independent investigations beyond the criminal-prosecution context.

What this means for you

If you are a member of the State Election Board

You cannot direct the AG's office to hire outside counsel or to investigate matters on your behalf. Your investigative authority sits with the Board itself — you can investigate directly or authorize the Secretary of State to do so. When you uncover violations, your role is to refer them to the AG (or the appropriate district attorney) for criminal prosecution. The AG decides whether to prosecute.

If you are a county election official subject to an SEB investigation

The investigation is conducted by the SEB or by the Secretary of State at the SEB's direction. Outside investigators retained by the Board lack statutory authority unless the AG's office has approved their engagement. If you receive demands or subpoenas from outside investigators purportedly hired by the SEB, request documentation that the AG has approved the engagement.

If you serve in any executive-branch agency in Georgia

You cannot retain outside counsel without the AG's approval. Period. O.C.G.A. § 45-15-34 forbids it "unless otherwise specifically authorized by law." A handful of statutes do specifically authorize agencies to hire counsel — those exceptions are narrow. If you think your agency needs outside expertise, route the request through the Department of Law.

If you are an outside attorney whom a Georgia executive-branch agency wants to retain

Confirm the engagement has been approved by the Attorney General or that a specific statute authorizes the agency to hire you. Without that, the engagement is invalid under § 45-15-34, and you may not have a valid attorney-client relationship with the agency for purposes of attorney-client privilege.

If you are the Governor

You retain a separate appointment power under O.C.G.A. § 45-15-70 to "appoint counsel to represent the State and state officials in defense of certain matters where the Attorney General does not provide representation." That power is limited to defensive matters and circumstances where the AG has declined to represent.

If you are a constitutional or election-law attorney

This opinion sets out the AG's view on three structural questions:
- Unitary executive legal representation under Ga. Const. Art. V, § III, Para. IV.
- Investigative authority allocation in the Election Code: the SEB investigates, the AG/DA prosecutes.
- Conflict-of-interest theory across agencies: the AG can advise multiple executive-branch agencies whose interests may conflict on statutory interpretation, distinguishing this from a private-sector conflict-of-interest analysis.

The opinion's reasoning relies on Georgia Supreme Court doctrine (Bentley v. Board of Medical Examiners, 152 Ga. 836 (1922)) that state agencies have only the powers expressly granted by statute or "necessarily implied" from those powers — meaning the SEB's investigative authority cannot extend by implication to commandeering the AG's office.

Common questions

Q: What if the SEB believes the AG has a conflict in representing both it and the Secretary of State?
A: The AG's view is that there is no conflict, because the AG serves as legal advisor to the executive branch as a whole. When two agencies disagree on statutory interpretation, the proper role of the Department of Law is to advise both. This is a structural feature of unitary executive legal representation, not a private-attorney conflict of interest.

Q: Can the SEB authorize the Secretary of State to use outside investigators?
A: O.C.G.A. § 21-2-31(5) authorizes the SEB to "authorize the Secretary of State to investigate." Whether the Secretary of State can use outside investigators within that grant is a separate question; the AG's opinion does not directly address it. The Secretary's office would need its own statutory or AG-approved basis to retain outside personnel.

Q: What happens after the SEB refers a matter to the AG?
A: Per O.C.G.A. § 21-2-31(5), the AG (or appropriate district attorney) is "responsible for further investigation and prosecution." That post-referral investigation is criminal in nature and falls within prosecutorial discretion. The AG's office decides whether and how to pursue.

Q: Are there any cases where the AG must investigate something specific?
A: Yes — but they require an express statutory grant. The opinion gives 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 into certain matters." Other statutes (§§ 16-5-46, 16-15-4, 45-15-17, 49-4-146.1) authorize the AG to employ peace officers for specific investigative contexts. The Election Code does not contain a comparable grant.

Q: Does this opinion apply to legislative or judicial agencies?
A: No. The AG's exclusive jurisdiction under § 45-15-34 covers the executive branch. Legislative and judicial offices have their own counsel arrangements.

Q: Could the legislature give the SEB authority to hire its own counsel or investigators?
A: Yes. The opinion is grounded in the current statutory scheme. The General Assembly could amend the Election Code to grant the SEB additional powers, including independent investigative authority or counsel selection.

Background and statutory framework

The Georgia Constitution at Article V, § III, Para. IV provides: "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." This establishes the AG as the constitutional legal officer of the executive branch.

The legislature implemented this constitutional role through the Department of Law statutes:
- 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 vests the Department with "complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch" and forbids any agency from "employing counsel … unless otherwise specifically authorized by law."
- O.C.G.A. § 45-15-4 vests the AG with the power to engage private counsel for executive-branch entities.

The State Election Board's authority under O.C.G.A. § 21-2-31(5) is more limited. The Board can investigate election violations or authorize the Secretary of State to do so — and then report violations to the AG or DA for further action. The Election Code does not give the SEB authority to direct the AG.

The 1976 AG opinion (76-93), cited in this opinion, established the longstanding view that the Department of Law can advise multiple executive-branch agencies even when their interests may conflict on statutory interpretation. The 2024 opinion reaffirms that approach in the contemporary context.

Citations and references

Constitution:
- Ga. Const. Art. V, § III, Para. IV (Attorney General duties)

Statutes:
- O.C.G.A. § 45-15-30 (Department of Law)
- O.C.G.A. § 45-15-34 (Exclusive jurisdiction)
- O.C.G.A. § 21-2-31 (State Election Board duties)
- O.C.G.A. § 21-2-33.1 (SEB sanctions including reprimand)

Cases:
- Bentley v. Board of Medical Examiners, 152 Ga. 836 (1922) — state agencies have only powers expressly granted

Prior AG opinions:
- 1976 Op. Att'y Gen. 76-93 — AG can advise multiple executive-branch agencies whose interests conflict
- 1995 Op. Att'y Gen. 95-1 — no attorney-client privilege between agency-employed lawyers and their employing agencies

Original opinion text

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.

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 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.

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.

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. 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).

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). 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).