STATE OF GEORGIA SELECT COMMITTEE ON CONSTITUTIONAL REVISION
Transcripts of Meetings 1977-1981

COMMITTEE MEMBERS:
GEORGE BUSBEE GOVERNOR CHAIRMAN
ZELL MILLER LIEUTENANT GOVERNOR
THOMAS B. MURPHY SPEAKER. HOUSE OF REPRESENTATIVES
ROBERT H. JORDAN CHIEF JUSTICE. SUPREME COURT
J. KELLEY QUILLIAN CHIEF JUDGE. COURT OF APPEALS
MICHAEL J. BOWERS ATTORNEY GENERAL
MARCUS B. CALHOUN SENIOR JUDGE. SUPERIOR COURTS

SELECT COMMITTEE ON
CONSTITUTIONAL REVISION
ROOM 23H 47 TRINITY AVENUE ATLANTA. GEORGIA 30334
404/656-7158

COMMITTEES MEMBERS:
AL HOLLOWAY SENATE PRESIDENT PRO TEMPORE
JACK CONNELL SPEAKER PRO TEMPORE
ROY E. BARNES CHAIRMAN, SENATE JUDICIARY COMMITTEE
WAYNE SNOW, JR. CHAIRMAN, HOUSE JUDICIARY COMMITTEE
FRANK H. EDWARDS SPECIAL COUNSEL
J. ROBIN HARRIS EXECUTIVE DIRECTOR
MELVIN B, HILL. JR. ASSISTANT EXECUTIVE DIRECTOR

MEETINGS HELD ON CONSTITUTIONAL REVISION

COMMITTEE TO REVISE ARTICLES IV AND V

COMMITTEE
Full Committee Subcommittee Subcommittee Subcommittee Full Committee Subcommittee Subcommittee Subcommittee Subcommittee Full Committee Subcommittee Full Committee Full Committee

DATE
August 29, 1979 September 10, 1979 September 20, 1979 September 20, 1979 September 26, 1979 October 15, 1979 October 17, 1979 October 17, 1979 October 31, 1979 October 31, 1979 November 8, 1979 November 14, 1979 November 28, 1979

# OF PAGES
55 62 115 59 123 127 90 90 39 175 50 153 180

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CONSTITUTIONAL REVIEW COMMITTEE

I
I

ARTICLES IV & V

CHAIRMAN: SIDNEY O. SMITH, JR.

SUBCOMMITTEE ON GOVERNOR AND LIEUTENANT GOVERNOR

MEMBERS PRESENT

Chairman

Nicholas P. Chilivis

Legislative Rep.

Rep Joe T. Wood

Reporter

Edwin Jackson

Rep Lottie Watkins

Judge Emory ~indley

J. Henry Wisebram

f\1EMBERS ABSENT

Vice-Chairman

David C. Garrett, Jr.

SUBCOMMITTEE ON CONSTITUTIONAL BOARDS AND COMMISSIONS

MEMBERS PRESENT

Chairman

A. H. (Billy) Sterne

Leg:islative Rep.

Sen Hugh M. Gillis, Sr.

Reporter

Prof Melvyn Williams r1s... [)O r r 1 s D. Holmes

Hi{\;'<DENBl ilH; /5:. IIAST)
.,' II i'~ltlj{ Rll'UIZlI\!C J't, ((:];:>;1\1 iKi\il., I)llLjl,IA:';\,IUI:, CH)j~U:\ j(1))\
')-12-(11:->2

2

Vice-Chairman

MEMBERS ABSENT Sidney B. Shepherd Ms. Berta Adams Edward D. Smith

SUBCOMMITTEE ON OTHER EXECUTIVE OFFICERS

MEMBERS PRESENT

Chairman

Justice Harold N. Hill, Jr.

Vice-Chairman

David C. Garrett, Jr.

Legislative Rep.

Rep. Thomas B. Buck, III

Reporter

Dr. Frank K. Gibson

Kenneth English

Senator Janice Horton

Thomas J. Harrold, Jr.

Ms. Delores Crockett

MEMBERS ABSENT

None.

PAGE 3 CHAIRMAN SMITH: I am Sidney Smith, and 1 am chairman of this Committee on Articles IV and V of the Constitutional Revision Committee.
We have present us with us today, besides members of; our Committee, Mr. Robin Harris who is the chairman of the overall Constitutional Revision Committee.
With him today, is Mr. Melvin Hill, who is the assistant executive director of the central office of the Constitution Revision Committee; and, also Mr. Mickey Henry, a young attorney who is also employed by that office.
All of these personnel will be available to this Committee as we proceed with our work.
Also present is Tom Thorne-Thomsen, a young lawyer here in my office, who has been assigned to this Committee and will exclusively be available to our Committee.
We also have as visitors today, Mr. Charles Tidwell who is the Executive Counsel to the Governor, who is deeply
./
involved in this effort and had a lot to do with this organizati~n: and Verlan Slaton and Cindy Nonidez, who are representatives of the Legislative Counsel's Office, headed by Mr. Frank Edwards.
I think it would be appropriate if we had a few words from Chairman Harris as we begin our deliberations on this first meeting.
Mr. Harris. MR. HARRIS: I think some of say through two months of a

\i

4

special session of a similar constitutional revision in 1964.

Tom Buck, I know, went through the effort in 1970, which resulted

in passing of proposed documents through the House.

,1

We have the second longest, in words, constitution

in the 50 States. We need to have a document that's flexible,

() is rea~able, where a reasonably intelligent citizen can pick it

7 up and look at it and see what his rights are, vis-a-vis the

State.

There's a lot of legislative garbage in the present

10 document; you're faced with some tough decisions that you'll
I;}
7.
II ~ have to make and obviously whatever is done by you will have to

its way through the General Assembly.

These two articles, the Select Committee would like

~ to have introduced in the 1980 session of the General Assembly,

15 ~ which means that, hopefully, the work of this Committee could
16 i be completed by around December the 7th, it would then be subCo'
17 ~ mitted to the Select Committee for approval and then follow from

that the torturous path through the Legislature.

So, we're hoping that in the next two years, that
20 Georgia will have a product--a Constitution that will allow us 21 to live in the future without being faced as the electorate was

in '78, with 36 general amendments and 81 local amendments, or

in excess of 1,000 ratified amendments since 1945, and probably 'J in excess of 2,500 amendments proposed during that period of time.

That cooperation will exist from the leadership of

PAGE 5

the are

::::em:::e::n::e:h:h:e::::k::m:::t::~-~~eutenant

~:;~rnor

--I

I wish you a lot of luck, you'll need it, along withi
i
an ability to reason one with the other. I have my own personal:

preferences about many things, but I will not express them,

because that's not my job; my job is to take what you say is the

best thing that Georgia ought to have in these two Articles and

try to persuade the General Assembly to pass them and then for

the people to ratify them in 1980.

But, the Governor, particularly, appreciates the fac~

that you would take the time to be involved, to help your State

and the people who have to deal with it in the future.

CHAIRMAN SMITH: Robin, do you want to tell them about

the other articles--kind of what the plan is.

MR. HARRIS: There are 10 Articles that will be revised

in a two year period. Two of the Articles were passed in the

'78 session of the General Session, and it was not thought that

there would be any difficulty in having them ratified.

No effort was made to -- and they are two really

innocuous Articles, the elective franchise and scholarships; but~

1/.' <i'e ' ,'1'

;: /, "

the people in a fit of anger, unstanderable, at being faced with]

36 Constitutional amendments, ,just voted them down.

Those two will be reintroduced in the form that they:

pass the Legislature; there are four others that we would like

I

~.=_~_,I ~~_e_1 to have introduced in 1980, the Bill of Rights, Art i

_.,

(',

6

two Articles, which are IV and V, and the Legislative Article,

which is Article III.

3

We would hope to have six of them on the ballot in

4 '80, and the remaining four, aimed at the 1982, general election.

5 So, that for some of us it will be a three year effort. Perhaps

(, I the major part of yours can be done in 1979, but then we will be

7 calling on you, I'm sure, to help generate support for the rati-

8 fication in 1980, and for the remainder of the Articles in 1982.

CHAIRMAN SMITH: Any questions from Robin?

JO

Well, as you can see, he's set our own Pearl Harbor

l? Z
11 ~Day for December 7th of this year. n

MR. JACKSON: I have a question about the procedure between

>-
~what we do and what ends up on the ballot.
~

The sub-committees will make their recommendations
','
~~
I
15 ~which will be voted on by the full committee in this case, that
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16 ~" recommendation will go to the Select Committee which you -- that Cl
7<:
17 ~recommendation will go to a standing committee -- the standing

III icommittee will have authority to amend that and change it?

19

MR. HARRIS: The House or Senate committee, whichever one

20 it goes to, could change it, and then, of course, when it gets on

21 ,the House or Senate floor, it's subject to change by the vote of

~, 'the membership of either of those bodies.

I learned a long time ago, when I first went to the

21 ,legislature I took good legislation down there that I knew was

absolutely perfect because it was mine; but, I learned early not

PAGE 7

to be offended if somebody came up with a better idea or made

,changes in what I did, or even if it was a worse idea; but a maj r

r esponsibili ty of mine will be to try to get the House and Senat

to enact what the committees propose in as nearly exact form as

possible.

Now, it's not possible to get it done exactly; it's

the nature of the beast that there's going to be at least one

word change made, and then maybe a sentence or -- it won't go

through exactly like it comes out of this committee, you might

as well

MR. JACKSON: Well, I have no objection to that.

My question was this, in the 43--44 commission, the

records of that were used by the Supreme Court from time to time

in intrepreting the Constitution. I was just wondering, would

this contribute to the Supreme Court's intrepretation of the

,Article?

MR. HARRIS: Well, Supreme Court Justices are fickled.

i

They've even been known to break their legs rafting; but, Georgi1's

never had a real history of using legislative history in the

intrepretation of laws. But, the record will be available, and

if the Supreme Court choses to use it then they could.

That's a very fascinating -- I assume you've read it

as I have, that's a very fascinating two-volume work.

CHAIRMAN SMITH: All right. What I had conceived as our

way of proceeding, by breaking ourselves into SUb-committees, andl
. ~- .~- -----"- --- ~--- -~-)

rr ------ ----
!i time, definitely has something to do with this. Any of you who
if
2 have worked on commissions like this, 24 people are a pretty

3 unweildy group, and you can't get a whole lot done if we just
I,
4 meet periodically, and start thinking off the tops of our heads;

5 and the idea would be that the sub-committees will have their

6 independant meetings, that we will meet periodically and consider

7 recommendations from the sub-committees back to our whole Com-

8 mittee.

9

The way the thing breaks out, I would hope that this

10 Committee as a whole, could meet about once a month, in other

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11 ~words, we would have about the end of September and the end of

""-

~""'''' ~that's ~sv d

12 ~'" October and the end of November, and that would be it, because all the time we have, basically three months to get the

14 ~jOb done; and that in between, the sub-committees will have their l~ :r
15 40wn meetings, draft their own proposals and report back to us for t~ r:t: ~
16 3discussion by the group as a whole. oz
This is a long, tortuous road to approval by the

18 II people, as Ed Jackson's have brought out. I worked on the Fulton

19 County Study Commission, and we went through the process we're

20 now going through, and finally got it through the Legislature and

21 then it went down the tUbe with this bed-sheet ballot. I said

I felt like the halfback who had run 99 yards and fumbled on the _23 one yard line.

So, it is a long process, but the best and surest

way, in my opinion, to get something done is to come up with a

PAGE 9

good Article. If you have something that can be sold, then it

can be sold at the Legislative level, and sold with the people.

So, the main purpose today, is to get the sUb-commltt

tees together, so you all can make your plans for a meeting
I
between now and the last week in September, and we'll talk about I

that date before we leave.

I

In terms of the sub-committees, I think one very necfs-
I
sary function, right off the front end, is going to be for each i

sub-committee or representatives of that sub-committee to meet

with the affected office; it's at least politics, if it's not

informative, but, if we are going to rewrite the Articles that

very good ideas with what's wrong and what's right about the current Article; and, we certainly don't want to get down to the General Assembly and some board member or elected official say, well, gee, nobody ever asked me. I just think it would be a cardinal error; so, I think one of the front end things that has to be done is for somebody to go see the Comptroller General, th1 Attorney General, the various board chairmen, and see what their!I thoughts, if any, are.
How many of these offices have their own counsel; don't most of them?
MR. HARRIS: I think most of them have counsel assigned

10

from the Attorney General's office. I don't think anyone has a --

2

MR. TIDWELL: Some of them have in-house counsel, they

3 are not supposed to.

4

CHAIRMAN SMITH: But, at least at that meeting it would

appear to me that the person assigned from the Attorney General's

6 office ought to be there at that meeting so that they can keep 7 I:'up with it.

8

In terms of the scope of our work, as Robin Harris

9 ::has previously said, the sky is the limit, and we can make

10 radical changes or minor changes.

11 I-
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()

As he mentioned at an earlier meeting, some of the

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~States have gone more to a cabinet type of government, where your

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Rother elected officials beside the governor, or like the Federal

~Cabinet, they are appointees of the governor, and they would

'" 15 :; change with the administration. That would certainly be a violent
~
16 iachange in Georgia, but it's the kind of thing that we need to 7 A
17 i:i think of.

18

We have this conglomeration of boards of different

19 kinds, for example, it is already been suggested in the press

20 I that maybe we'd do better if we had an appointive public service

21 commission, rather than an elected one. Again, this is a violent

22 change, but, I would say that if the people were ever going to

2J
, buy an appointed public service commission, right now is the best

24
:time in history to get that done.

There are combinations in between, and one of our

PAGE 11

boards, I believe, already has this, where the members are

elected by the General Assembly. I believe it's the Transportat on

Board, so, that's yet a third alternative. I suppose that gets

into the philosophy of whether you have a strong executive or

strong legislature, but, it's something that has to be balanced

in the course of our consideration of it.
1nd1cate~ I certainly agree with Robin, and I think I

in the letter to you, that there are too many specifics in our I

constitution--too many minute and specific items about the operar

tion of these various offices and boards.

This

has

caused

a

great

deal

of

constitutional

I
amendt

i
I
ment in my opinion, because if the thing is drawn so tight, if

a new need comes along, then you have to go back and amend the

constitution.

We have the option in the constitution of speaking

broadly, and say that powers and duties and so-forth shall be as

provided by law. Well, this gives the Legislature the power to

pass a statute that will meet that need at the time, instead of

having to go the -- this is Joe Wood, who is a representative,

and we're glad to have Joe, here

and, the Legi~lature would

have the power to fashion a need as it arose during the course

of history.

The down-side of that is, of course, that if you've
got a runaway Legislature, you have some exposure there for the i I
people. So, it's all a matter of trying to balance these entrief
_.. .. --.----------- _... -._-~._----,

i'Ar;!; 12

without having the longest constitution of the 50 States.

2

I mentioned to you that Tom Thorne-Thomsen, here in

3 our office, is assigned to work with this Committee. Tom has a

4 very broad over-view of the different articles.

5

As many of you know, the more recent effort since the

h '45 constitution was adopted, took place in 1964 and '69; in

7 other words there was a draft constitution in '64, which was not

8 adopted. There was an effort in '69, that Robin has alluded to

9 that he was very much involved in.

10

There are actually two versions of the '69 effort;

11

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~one

was

the

constitutional

commission version,

and

the

other was

o
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~~rJ 2 :...the version as adopted by the Legislature--or the House, only, ... ~at that time. So, we really have three different versions that ~
I
14 ~are on the table now to compare with our present constitution.

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The so-called '76, constitution was really a repas-

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16 '~" sage of our existing constitution, and it was to put the dif-

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17 ~ferent amendments in the right place, simply to make it make

18 I sense, or try to make it make sense; so, it was more of an

19 editorial effort than a subs~tive effort, but at least it got

:?o everything, hopefully, in the right category, so that we could

21 use that as a basis on which to compare the proposals that were

made.

I thought today, as I say, I think the most important 24 part of our meeting is for the sub-committees, and I'm going to

25 suggest that we kind of part in groups here in a minute, consider

l PAGE 13
the times that they meet, and when these initial ca~~~--c~~-gO

to these various constitutional boards and offices; but, since \

we have present in Robin and Charlie ,Tidwell, and perhaps Verlon,
and Cindy, I would like for us maybe to run through this memo, I,

and see if they can flag other suggestions that they know about
./-,." !,.\
through their long experience in the jobs th~lr in, and of cours~,

the Senators and Representatives who are here, would be the

experts on this question, because they hear them every year, I

guess, over at the General Assembly.

And, we might make notes on this overall memorandum

as to possible things that should be considered by that parti-

cular sub-committee.

As indicated, the memorandum is just pointing out an

over-view, and then it gets into the actual boards and offices.

On page two is the Public Service Commission. You

will note there that in the '69 proposal, it was suggested that

there be one board that had responsibility for transportat~on,

which is your highway system, as well as the function of public

service commission.

That seemed unique to me when I read about it, but,

I suppose that roads have a natural infinity to trucks, busses,

trains, all kinds of transportation, and the theory was to put iT

all into one.

Do any of the members of the General Assembly or the!I

I
,

staff from the Capitol,

know of other suggestions on the Public

I
i

_______J

Service Commission other than the obvious one, I mentioned earlier,

that we ~lght consider appointing them.

3

Incidentally, on that score, I understand that there

4 are only 11 States left, who elect their pUblic service commis-

5 sion--there are only 11 of the 50 States, still electing their

6 public service commissioners, and of course, the purpose there

7 was to be able to make sure that you had somebody who had quali-

8 fications for the office. The down-side, of course, is that it

l) removes it that much further from the people.

10

But, have any of you heard other ideas in regard to

l~

7.

1) Spublic service commissioners?

o

n.

~

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12 ~

MR. TIDWELL: Judge, I think now the proposal is getting

'some pub He1ty. not to go just str1et ly e lee t1ve--appo1nt ed by

14 ~the governor, but to the Department of Transportation method

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15 ~with the members of the General Assembly in caucus would elect

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16 a~; public service commissioners. Now, that's been mentioned.

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17 ~

CHAIRMAN SMITH: I suppose a variance would be appoint,

IS i' subject to ratification--another way to do it, in other words, 19 where the appointments are initiated by the Governor, and ratified 20 either by the Senate or both Houses.

21

MR. TIDWELL: All of his appoints are confirmed by the

22 Senate.

"_.J

CHAIRMAN SMITH: Okay. In the proposal on the Public

24 ~Service Commission, would it be by geographic area?

25

MR. TIDWELL: Congressional districts -- of course, I don't

PAGE 15

know whether you want 10 public service commissioners or not,

but, that's -- it might be some combination of that. I have not

-

seen a specific proposal other than just being talked about. The problem that you run into there is the House and

Senate can't get together. The Senators don't have as much say

so as House members do. We have never had another one since the

Transportation Board has done that, and I think it's strictly

because of that very reason, they can't strike a compromise.

CHAIRMAN SMITH: Now, I'd like to know, as we go through

here, if there are any boards that we can get rid of, you know,

do we have to have all these boards, or can some of them do

-double functions as we've just talked about.

-'

I think streamlining is important.

DOCTOR GIBSON: You mentioned that only "X" number of

:.States still have a body such as this; can we get information

,from the staff on comparative State information?
i
CHAIRMAN SMITH: Yes, sir. That's what they are here for~
I
While I'm thinking about it, Doctor Gibson, it appeals

to me that the form that our proposals should take would be to I

'J layout the existing provision then put the proposal, and then

I
[

have a comment section, and we have used up our three professors!

on the three committees in the hopes that they can be scribinors i
!
:
for the sub-committees; but, the comment section, it would appea~

to me, would be very helpful to the Select Committee and to

i

legislative history and everything else, if ~~~_di~~:~ent c~nsid1ra

tions that went into the adoption of that recommendation were

2 briefly set out in a comment section; it would be a typical kind

3 of thing that we run into in the law when they revise the uniform

4 commercial code, or revise this type of law or that one, and there

is a comment section, and hopefully the reporters will be respon-

6 sible for that.

7

As we all know, historically, the power of pardon

8 and parole, traditionally, was in the chief executive, and it

9 has been placed into a board, and I would assume, somehow, it

10 will have to stay in a board. I think that's the will of the
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11 ~ people rather than if I were the Governor, I wouldn't want o .,
~~,~ Of 12 c~ that power myself. I believe he has the commutation for a delay capital crimes, that's the only place that he's involved any-

14 ;: more with the handling of State prisoners.

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":.::)::.

So, the Board of Pardons and Paroles is probably one

16

al
~ board

that

we

have

to

have;

at

least

it

would

be my

instinct

z

~
17 ~that we have to have it.

18

Wasn't the Board of Corrections, at one time, con-

19 nected with the Pardons and Paroles, Charlie?

20

MR. TIDWELL: They've always been separate, Judge, but

21 they were physically located rather closely together.

22

SENATOR KENNEDY: They were in the Department of Offender

23 'Rehabilitation for administrative purposes, and a bill was passed 24 during the session--last session of the Legislature, the session

25 before, making them a separate unit altogether, I think maybe what

PAGE 17
you're referring to. They are no longer connected-~~~-;th--:---l

Department of Offender Rehab, but they are a separate division

altogether.

I

CHAIRMAN SMITH: Well, while they are concerned with the

i

same subject, of course, philosophy, I am certain that the

ii

I writers would say it's not desirable to have the keepers and the!
i
dispensers of mercy be the same group; in other words, sometimes!

!
those interests are inconsistent, where the keeper has a securit~
,
I
situation and the other group is supposed to temper justice Wit~

mercy, and I would think philosophy they probably ought not be I
!

the same people.

I

i

SENATOR KENNEDY: Well, right at the present time, they

-are completely separated.

CHAIRMAN SMITH: How are those people chosen on Pardons

and Paroles, it's probably in Tom's memo.

MR. KENNEDY: fhey are appointed by the Governor.

CHAIRMAN SMITH: And, are all these confirmed--these

appointments?

MR. TIDWELL: By the Senate.

CHAIRMAN SMITH: By the Senate only. Okay.

The next one is the Board of Offender Rehabi1itationl,
I
which I assume is the old corrections board. Now, you say they

were under what department?

MR. KENNEDY: Department of Offender Rehabilitation.

That's the official

f',\t,F 18

CHAIRMAN SMITH: You mean this is a separate department of

the State, now?

SENATOR KENNEDY: Yes, sir.

CHAIRMAN SMITH: Okay.

5

SENATOR KENNEDY: It encompasses the prison system, pro-

(, bation and, parole, at one time, was under it also, but now they

7 ! are separate.

CHAIRMAN SMITH: Is there anything about probation in the

9 I constitution?

10

MR. TIDWELL: I don't believe so.

SENATOR KENNEDY: I don 1 t believe there is.

I,'

12 ~

CHAIRMAN SMITH: And, if the probation system is under

~)~,~ ~this board, it probably ought to be mentioned somehow, or given

~0J I

14 ;:: some sort of light.

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15 .0

MR. TIDWELL: Well, the controversay now, the judiciary

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16 3a:J now belongs to the probation, or some members of the judiciary,

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17 ;; they wanted

they feel that it is a jUdicial function, and

18 ought to be taken out of the executive --

19

CHAIRMAN SMITH: Well, that is the Federal System.

20

MR. TIDWELL: Yes, sir.

21

CHAIRMAN SMITH: The probation system is an arm of the

2.~ : j udic iary .

What's the current judiciary articles say in this

24 ,'regard?

25

MR. TIDWELL: Probation is not mentioned in there, although

PAGE 19
there will be some a~~-:r:~~ts that ObliqU:~;-~~-cre~tes a jUdiC~l
i
function, but

CHAIRMAN Sf4ITH: Again you have a problem of philosophy
I
here. The executive department is primarily the accuser for th~I

people, they are the prosecutors, for example, the Department of!
!
Justice is an arm of the executive department and the Attorney

General's office is an arm' of the executive department in the

State, and many people co~sider it, again, a philosophical con-

flict for the prosecutor and the probation, which, again, is on

the rehabilitation mercy side of the judicial system, having

--them in the same camp. And, this battle has been raging, inci-

dentally, on the Federal level for at least 15 years to my cer-

-

tain knowledge.

There are proposals to put the Federal Probation

System under the Department of Justice, and the court system

has fought it for many years.

administrating his sentences, and his reports and his responsibility are really back to the sentencing court.
There's a strange -- well, normally in the Federal system, their parole system as well as their corrections, is in the executive department, but when a person is parolled, as
opposed to being probated, in other words, when he has served Ii part of his sentence and parolled, then a probat_~~~__o~~~~~~~~rvfs

CE i J ,_\

20

as parole officer. So, it's kind of screwed up, in a way, but,

2 again, that's a philosophical question we're going to have to

3 consider.

4

But, it ought to be somewhere--the probation system

5 'ought to be somewhere, and this is going to take some coordina-

6 tion with Wayne Snow's committee on the judicial article.

7

Board of Natural Resources. This is the old game and

8 fish commission, and this is the new fancy name for it.

9

What, Charlie, do they do besides the traditional

10 game and fish?

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:<:

11 ~

MR. TIDWELL: Environmental Protection Agency is one of

o

"-

@; ". . ~ sv d 12 i""their big parts; parks, air and water quality control, historic sites: The big things are game and fish, environmental protec-

14 ~tion division and parks.

:~c
15 0
co
~ '"
16 3 oz <l 17 ~ment.

CHAIRMAN SMITH: Well, are they a separate MR. TIDWELL: They are a separate division in that depart-

IS !:

CHAIRMAN SMITH:

!II'

19 a parks.

But, there is no board; there used to be

20

MR. TIDWELL: No, sir. They are all under this --

21

CHAIRMAN SMITH: In other words, this one board?

;"';

MR. TIDWELL: It's the policy making board for those,

.:3 'executive functions.

2,1

CHAIRMAN SMITH: And, as you see, there's one from each

25 congressional district, which would be 10, plus six; some of you

PAGE 21
legislators, a couple of these Counties are fairly ObViOUS~:--l
I
me, 'because of their heqvy interest in parks and the environmentl'

I

but, why are all of those Counties?

I

SENATOR GILLIS: The coastal Counties

MR. TIDWELL: It's just one from --

CHAIRMAN SMITH: Okay, I see. So, that's 11, then.

But, that member can come anyone of those Counties?

MR. TIDWELL: Right.

SENATOR GILLIS: Plus, you've got four, State at Large,

15.

CHAIRMAN SMITH: Fifteen. I know that just because of

a client situation, that they now have control, for example, on

the errosion question that's happening down on our islands that

you -- under an act, I believe the General Assembly passed last

year, you have to get permits if you're going to put sea-walls

up, and this kind of thing, so that's the kind of thing they are

involved with.

Next, is the Veterans Service Board. I guess that

was created right after World War II, wasn't it?

SENATOR KENNEDY: Created in 1945.

CHAIRMAN SMITH: And, it has continued on its own merry

way all of these years. It might be possible to put that func-

tion under some other committee, it would appear to me.

It was a very active group, and as far as I know,

still is active; but, its constituency is not as large as it

rr-- ------- .

FAGE 22

1 Ii used to be.

It

II

JUDGE WOOD: May I say this, it was attempted in '69, and

2 II

3 !' it met with a tremendous amount of objection, particularly from
II
i4 the veterans organizations and the work that the veterans service ii

Ii
5 I: boards do. I don't believe it could easily be worked into another

~i
6 Ii board. I think it ought to remain separate.

7 11

CHAIRMAN SMITH: You can see where Joe's interests lay;

if

8 'IlI:ihe's a former national commander of the VFW, very interested in

j;
9 I~he work of this board; but, anyway, it's there. It does appear

10 to me to be a limited function, is the only reason I mentioned it.

'z-'

11 ~t might go somewhere else.

o

"w-

~ 12 ~

State Personnel Board is what I assume was the old

- ~)""'" ~Merit System Board. You've kind of got to have it.

14 >

What is the percentage of State employees who are

~

."

15

:I:
~

under

the

Merit

System

now?

"'"::J
16 ~
c.~ z

MR. TIDWELL: I don't know, I --

<l
17 ~

CHAIRMAN SMITH: What, 96 percent?

18 'I

MR. HARROLD: We had -- we only had two in the Revenue

I,

19 Department that are not in -- under the Merit System, out of

20 1,014 employees.

21

CHAIRMAN SMITH: Well, this Board is pretty critical now,

22 i:i because of all of the activity on the employment front; discrimina-

'-)-'' tion, age, sex, race, all of these things, and it's a very import-

24 ant Board, and obviously one that needs our attention, because

25 it has to be very carefully administered, or there can be a lot

PAGE 23
._._-----------------------\

dissatisfaction and chaos for the State.

\

The next one at the top of page five is the Board I

of Industry and Trade.

I

I

MR. JACKSON: Before you -- on State Personnel Board,

I

there is a paragraph in there on veterans preference. I know

that's been a big issue in the State. I don't know whether you

want to address that or not.

CHAIRMAN SMITH: Well, certainly I would expect us to.

The Supreme Court recently ruled that it was constitutional in a

Massachusetts case. It is preserved in Georgia, but, I believe

that the previous draft omitted any veterans preference.

Risking the rath of Representative Joe Wood, who's

.-

.'almost a life-long friend of mine, at one time I served on the

Board of Bar Examiners, and there was a veterans preference

:there of five points.- In other words, it took 70 to pass, and it

I
:you were a veteran you started off with a score of five, well, II
i
was sympathetic, as I was a beneficiary of that preference, but,!

it doesn't have anything to do with the competence of a person t~

I

be a lawyer.

Ii

1 So, you've got again, a philosophical question that

,, " we have to go to here. I would assume though, insofar as legali y

I

-

!
is concerned that the matter is put at rest by the Supreme Court I

decision this spring, coming out of Massachusetts. It kind of

.'1

J surprised me--the ruling, to tell you the truth, but at least itl
is valid.

- ----------_.._-_._- --- - - _ . _ - - - - - - - - -

Do you want a little equal time, Joe?

:2

MR. WOOD: No, sir. You covered it pretty well.

3

CHAIRMAN SMITH: Okay. At the top of page five is the

4 Board of Industry and Trade; now, this has become a very import-

5 ant Board to the State, as you know, particularly Governor Busbee

6 has been active in the development of industry and trade for the

7 State.

8

Again, it's a specialized Board; probably it's of

I
9 ! importance to keep it on its own. I don't know where else it

10 could go. Perhaps natural resources, though that might produce

11 "~a conflict if it's a new industry wanted to come and dump waste
e - " i'o" "12 ~in our rivers and the same Board was telling them they couldn't that might be pretty difficult. I'm just trying to grasp for a

14 ~ possible conflict.

lV>
<4: :r
15 .:>

MR. HARRIS: Judge, let me add on thing here. Going back

'e::">' 16 ~to '69, there was no effort made to eliminate the Veterans Ser-

az

17 ~<4: vice Board in '69. But, what was done, was to say that the

18 jVeterans'Service Board and the Board of Natural Resourses, and
jl
19 Ii1\ the Board of Industry and Trade, should be legislative boards,

Ii

20 II instead of constitutional boards.

II

!i

21 II

They were left in existence, the proposal was to leaVe

22 them in existence, but in that context, they were subject to be-

23 ing changed by the. General Assembly, as against having to go the

24 constitutional route in order to enlarge the number of members

25 of the Board of Industry and Trade, which was done; or to change

PAGE 25
the maker; ;;-w~;-;el~--~ack-~~-~ 6-~ :--t~at the others--there wasl

sufficient reason that they be constitutionally embedded, that

was the thinking then, that they could function, as well, as

legislative boards as against being in the constitution.

I

I

CHAIRMAN SMITH: Was there a general article that confer-Ii

II
red on the legislature, the power to create boards from time to

'time, or something like that?

i

I

MR. HARRIS: There was a provision in there that any

I

board that was eliminated from constitutional status remained in\I

its present form as a legislative board until otherwise providedl

.: by law.

I

CHAIRMAN SMITH: Well, could the Legislature create addi-!

I

-

tional boards other than those that were in place?

MR. HARRIS: Oh, yes, sir.

I
i

I

MR. TIDWELL: Yes, sir. The General Assembly can do any-

!' thing not specifically prohibited by the State --

CHAIRMAN SMITH: So, it's a negative rather than an affirr
i
mative power?

MR. TIDWELL: That's right.

MR. HARRIS: They can create all manners of boards, and

it was just felt that these three, at that time the legisla-

tively constructed boards instead of constitutionally mandated

boards.

CHAIRMAN SMITH: That's a broad philosophical subject

that we'll have to come to grips with, is whether to make them I

----- -------

- . ------_._-~

[:--_.._--- - - .... _----

II consti tutional boards or legislative boards.

II

I"'

2 Ii

JUDGE HILL: Let me propose for consideration, perhaps

Ii
3 livery briefly, the creation of another board, and then I'll take

Ii
4 :1 that back in a minute. But, there are over 20, I believe, regu-

5 latory boards of the State of Georgia, none of which of these--

6 the statutory boards, regulating doctors, dentists, nurses,

7 beautitiQns, architects, engineers, land surveyors, just on and

8 on and on; and, at the present time, they serve both the function

9 of licensing and then determining that there is cause to investi-

10 gate one of their licensees, and then determining that there is

(~\

l:l

Z

11 ~ cause to consider revoking the license of the licensee, and thenX

o

0..
iw
12 determining that there is cause to revoke the license of the

r;
~

~r~ ~ licensee.

14 ;.
~.

Well, it puts tremenduous pressure on the same group,

15 ~and quite a bit of legal pressure to say that that is too many

"'::">

16 ~ functions within one board.

"z

<t

17 ~

Now, if there were a board which could review their

IS Ii decisions, or they could initiate charges and another board could
!I
19 I: hear those charges, a lot of the problems, I think, that they

20 presently experience, could be eliminated and a lot of the pro-

21 blems of this pressure to say that due process will not permit 22 this unitary license revocation.

I hesitate to suggest that -- the possible creation

24 ,of another board; at the same time, it occurs to me that perhaps
I
25 the duties of the State Personnel Board could be expanded to
~!"- -----------~---_.-

27

include this function, or perhaps even the Public Service Com-

mission in its whatever revised form, whether with or without

the Transportation Board function.

The reason I allude to the Public Service Commission

is, it seems to me that one of the problems being experienced by

the Public Service Commission at the present time, is the con-

flict among its constituents, and I use constituents there to

include the industries which it regulates.

Here they are, elected from the public at large, and

yet another element of their constituency, I think properly so,

are the utility, or perhaps it would help them if their consti-

tuency were not so limited, that is, if their regulatory functions

-

were barred; I throw it out for whatever it may be worth.

CHAIRMAN SMITH: The first part of that is very pertinent

as the lawyers in the room know, there are a series of cases in

the last eight or 10 years that say that it's not due process

for one of these State Boards to be the accuser and the judge.

That's what it amounts to, is that they adopt their own regula-

tions, then they cite somebody for violating those regulations,

and then proceed to judge them. After these cases came out, the

State, through the Attorney General's office, I guess, had to

-

scramble and come up with part-time hearing officers.

In other words, they -- in order to meet those legal

tests, they had to go out and create hearing officers; most of

them, I think, are private practioners in the law, who are brought

Ir------~---~- ~
d in as the judge, and it was to prevent the whole thing to being
Ii
2 lia void and useless thing, because of this unitary function that

3 II Judge Hill has mentioned.

Ii

4 I~'i

While you all are doing that, why don't you see what

Ii

5 i!other States are doing in connection with that problem, because I' " "
6 I!it is a very current problem allover the country, and I'm sure

7 l it 's been dealt with in some other states, in various and dif-
8 !I ferent ways.
"
The next section gets into the qualifications of the

~

10 Governor. Now, in looking over this memo --

..,

z

I I f0r<

MR. STERNE: Judge Smith, before you get away from Boards,

~

[2 ~'" I ask this out of ignorance; where do the Board of Regents stand,

~-'_. ~iS that an Article--is that a constitutional board?

14 ;
<fo-
:r
15 .:>
":':">
16 ~
:::
z -< 17 ~

CHAIRMAN SMITH: There is an education article, Billy. MR. STERNE: But, our responsibility does not go to those CHAIRMAN SMITH: Right. It's over in another Article.
Now, in looking over this memo about qualifications

18 of Governor and Lieutenant Governor, I was somewhat astounded by

19 the proposal that you had to be a resident of the State for so

20 long. I think there's some legal danger in this. I'm thinking

21 of the situation over in South Carolina, Ravenell (sic), and if

you recall, he was disqualified, even though he was a native

South Carolinian, he had been off to the east somewhere and came 24 back, and they -- I suppose the thrust of that was, he couldn't

25 jattack his residency, it had to be five consecutive years before
Il L . . . - . - __.. _ _ .~

PAGE 29
r-
II he offered for office, and I see some possible danger in making

those terms too long.

There was one 15 year requirement; you know if he

is 30 years old, it would mean that he would have to spend half

his life in Georgia, and we might get some very good person tha~

we would like to have as Governor or Lieutenant Governor.

So, it's just something that's worth thinking about.

I do think there's a little legal exposure by having it too long.

1

,

(' !

ii! There was a

number

of

constitutional

cases

that

I'm

sure

the

10 members of the General Assembly are familiar with that relate,

!~y~\

lz7
II ~ for example, welfare, that you -- we have such a transitory n Q..
'2 ~poPulation in the United States now; I don't know how many people

__ ~Vf~~ ~in Atlanta, or in the Atlanta area who were not born, had lived

14 ~here very long in Georgia, but over on the welfare side, it said

<l
:r.
15 ~you could not deny welfare aid on a residency requirement.

'"::J

!() ':"lu

In other words, if somebody happened to move in the

Q

L


17

0:
"'State

that

was

in

need,

you

couldn't

say,

you

have

to

wait

two

IE years, that that was an unreasonable requirement.

19

So, it's along that vein that I think we have to

2u ,consider these residency requirements for anything.

21

I suppose with the adoption of the successive term

:~of office, that at least for the present that matter was put at
,
,rest, but its been changed 18,000 times, I guess, since the State I
24 started, so that particular sub-committee may have the question

2~on whether you want to do anything about limiting terms of office
;!

"\CL 30

in terms of time or in succession.

2

As you can see from the memo there, I guess there were

three different versions in the '64--'69, and current constitution

4 in regard to that.

Turning to the lieutenant governor, as I think Ed

:Jackson said earlier today, in many States the lieutenant governor

7 !runs for office with the governor. This would be an innovation 1; in Georgia.

9

I suppose that the interests in that regard has been

10 demonstrated when our Governor and Lieutenant Governor were on

,~W.~.

zOJ
11 ~opposite sides of any particular issue, and many States require
o."
i2~. them to run together, just like the President and Vice President

!~(('~~'!if~'!~'!.""
~\ /,!,l

~.
~

ru

n

together

on

the

National

election.

,/

14 '"

So, this is again a philosophical question.

I noted,

IS ~I believe, Robin, in the '69 proposal that the duties of the ':J '::">
16 ~lieutenant governor were limited to a particular committee; was Q z
<!
17 ~t rules committee?

18

MR. HARRIS: Yes.

i9

CHAIRMAN SMITH: And, he could not serve on any other

2U committee; does he now?

21

MR. TIDWELL: No, not the chairman now.

),

CHAIRMAN SMITH: But, that's all worked out--its been

worked out on an ad hoc basi~, I assume, I mean it'~ just done

that way, because it's done that way, is that -MR. TIDWELL: Well, he's really not a member of the Senate.

CHAIRMAN SMITH: That's it.

MR. TIDWELL: He's the president--the presiding officer;

he's neither fish nor fowl as far as legislative or executive,

-

he floats between the two, probably in practice, he's more of a

~ legislative officer than executive.

CHAIRMAN SMITH: Well, maybe that never, never land needs

I to be clarified as to --

MR. TIDWELL: It's something that this group can deal with,

<) whether we need a lieutenant governor.

10

CHAIRMAN SMITH: Well, that's been suggested too, that we

co
II [do away with the office.
\)

I note from the memo, that it's really uncertain

his vote, from a legal point of view, whether you've got a.

I assume he does vote.

MS. NONIDEZ: No, he is not regarded as -- by virtue of

!(, ~ the fact that he's not a member of the General Assembly, he does r:, 7
-'1
17 ~not have the power to vote--and, he does not exercise it.

CHAIRMAN SMITH: So, if there is a tie, there is nothing

1'1 he can do.

MR. TIDWELL: I think he votes by rule, though, not by

-. constitution.

MS. NONIDEZ: That's correct--you're correct--that's cor-

_~1 rect, yes.

MR. TIDWELL: Which, you know, rule might be suspect, but

25 he does vote on rare occasions. I don't know

1

Senate rules state that he has an option
Ii
2 IIii of voting in case of a tie, he can either exercise it or not

Ii
3 1\ exercise it.

jl

4 !!i'

CHAIRMAN SMITH: Well, we ought to either make him or not

5 let him, one of the two.

b!

SENATOR GILLS: I think, though, in all cases in the past,

7 our present Lieutenant Governor has not voted; if a bill is tied,

)0\ he just announced it did not pass.

q

CHAIRMAN SMITH: It appears to me that that ought to be

10 clarified, that he either does or doesn't. I suppose he could ":.--:
il ~ ab stain though, if he was clearly given the power to vote, he n

(~ ~ ~~,

12

~ could
~:

abstain

like

anyone

else.

......

MR. TIDWELL; I be l1eve our ru Ie s say, at the present,

14 ~ you cannot abstain.

"

.(

r

J5 c,

CHAIRMAN SMITH: All right. Age requirements I had

('.

:':">

J fJ

,c~o
o

touched

on.

The matter of succession, as I read it, currently

<I
17 ~ goes from the Lieutenant Governor to the Speaker and stops.

]1'1 ! Perhaps there's some confusion if you had a succession, as to 19 how you replaced the Speaker or the Lieutenant Governor, whoever

20 had moved up. That may be simplified; but, I think there's a

21 little fuzziness, if you had a succession, then do you fill the

office that was vacated by the succeeding person, and that's

23 obviously something, I think the Federal one goes on and on,

,'1 doesn't it, down through six or eight successions.

MR. JACKSON: One question, that is acting succession;

I'ACE 33

many States have a provision that if the Governor is out of

State for so many weeks or months. Governor Busbee will be gon~,

for instance, in October and November for three weeks.

The constitution and statutes are solid as to who

the executive power divolves on during that period, if a question

came up. CHAIRMAN SMITH: I think Jerry Brown is having a hell of

a time with that out in California, from what I read; everytime

) 'i he goes trucking off with Jane Fonda, or whoever it is, the

!(I Lieutenant Governor just runs wild out there. I assume they are

"7-
II }n opposite political camps. o n. ,~
but, I -- obviously we

He vetos bills, spends money, and you could have an extreme emergency

1:. w

isn't the Governor out of the country, isn't he going to

,~.", Europe sometime this fall, getting some industry and trade for

!';the State, and obviously somebody ought to be running the store

~t.

~" while he's gone.

o

,7 .
.

]., :r

MR. TIDWELL:

We are in contact with him just about all

lithe time, and it hasn't proven to be a problem. I think Governor

Busbee is -- has probably been out of the country more than any ) "other governor, and -- but, some of these other governors that
,
-,1( Ihave similar positions, they do have problems; they can't go to

a national governors' conference because they're scared to death

of the lieutenant governor, not just Mr. Brown, we've got some

southern States that are in that same situation.

CHAIRMAN SMITH: Well, it's something that needs to be

addressed.

2

As one of you mentioned earlier today, these next

3 Articles really cross over to the legislative articles, and I'm

4 I not sure, some of you professors can guide us, as to whether the

5 business of confirmation--ratification of appointments, this type

(; of thing, ought properly to be in this section or over in the

7 legislative section.

8

It may be that we would simply state in our part

9 Ii that appointments were subject to confirmation, and then the

10 mechanics of that confirmation be put over in the legislative

"z

11 ~article. I don't know what from an academic point of view, is

o

n..

w

f@t~~r~ ~ v
- \"'~~

12 ~the better approach. ~
It seemed to me there was something here about dis'7

14 ~ability and suspension, which follows right on it. That would

'<"l
I

IS 'I"fall into the same category. It seems to me if you are going to
:'">
16 3'"' be able to remove somebody from office for disability or this a z -<l
17 ~kind of thing, there has got to be some way in the constitution.

Ig :!1 don't think you could just throw that out into the air, unless I
19 taken an elected official--a constitutional officer, if he's

20 going to be removed by virtue of a disability--imbecility or

21 senility or any of those good things, it appears to be it defini-

22 itely has to be in the constitution, but I raise the question 23 whether the mechanics of it ought to be here or over in the 2.+ legislative section; and, we might want some guidance from the

Committee on that, Melvin, you and Robin.

PACE 35

JUDGE HILL: I was under the impression that there is, if'

that's what we're addressing, the disability provision, which

presently prescribes that the disability shall be determined by

4 the Supreme Court, I believe, upon recommendation of four of the,

5 constitutional executive officers, and --

CHAIRMAN SMITH: I believe the Supreme Court is the ulti-

mate, Judge, on the length of disability, but not the initial

;"j question.

MR. THORNE-TOMSEN: There are actually two different

\0 provisions in the '76 constitution that dealt with suspension
I,')
!! .~ of officers.

~;'

I'"e...,

C~ 'i

In paragraph number 15, I quote quite a bit of that

,,;V'"

/"':";'--"'\;1\

\~~)/'""" ~ _

paragraph, or that provision, and it seems to apply to department

14 theads and constitutional officers, and how that operates or the
J>
x
JC ::frequency of that operation, I don't know; and that maybe what

If) ~ Judge Smith was initially talking about.
o,
I
But, there is also the provision that you were talk-

II ing about for the disability, and I think that is related only

11..) to the elected executive officers as opposed to -- or constitu-

~ I tional officers as such. I'm not sure how they interrelate, but

I was discussing paragraph number 20, I think the paragraph or

-

the provisions that you were talking about the Supreme Court

rules in the disability.

JUDGE HILL: Well, I'm not anxious to have the authority.

On the other hand, I'm not anxious to see that the general assembl~

36

nave to have a special session to remove somebody who is

temporarily disabled; or else leave that person in office when

. they should be temporarily removed.

CHAIRMAN SMITH: Well, it sounds pretty confusing to me,

what we're talking about here. Are you distinguishing department

heads from elected constitutional officer, are there two pro-

visions in here; in other words an appointed department head,

like Mr. Childress was, would be under one of these sections

where the elected Attorney General, say, would be under another

section?

MR. THORNE-THOMSEN: That's the way I read it, and let me

see if I can get the citations to the constitution.

CHAIRMAN SMITH: Has this ever happened to anybody?

JUnGE HILL: No, but it was needed on one or two occasions.

CHAIRMAN SMITH: Well, I'm satisfied with that.

1. t 1 '

Well, I think this is a whole sUbject that really

ought to be clarified. It may be that department heads would be

in a different category from a member of a constitutional board

or an elected constitutional official.

I would assume these would be non-Merit System

appointees, is that what we're really talking about. That raises

a question, if you had a waring legislature and waring with the

Governor, they might just wreck his administration by continually

bringing some sort of charges.

All I know is we don't what whatever it is Florida

i'AGE 37

has, they spend all their time down there, throwing people out

of office, their State legislature.

They must have more impeachments in history than all

4 the rest of the States put together; they impeach everybody from

~ judges to department heads, to public service commissioners, and

6 everybody else down there.

Ii

I
7

Do the current provisions go into the matter of

~ defaulcation or dishonesty, this kind of thing?

9 ili

MR. THOENE-THOMSEN: It doesn't specifically refer to the

IU reasons for the suspension. In Article V, Section II, paragraph

I,,)
z
lJ ~ A, it's a paragraph entitled, Information From Officers and
o

!' ~ Employees and Suspension of Officers, and they just kind of just

. ' / " \ \ ,\:}\I/t,j,

~

;(('"\G",\')r'~~'''_'! : sneak it in there, and it states: The General Assembly shall

- \::-- -:// 'I

--

l4 t have the authority to grovide by law for the suspension of any

':;
:c
15 ~ constitutional officer or department head in the discharge of l,'.'
.L
~)
JD ~ the duties of his office, and also for the appointment of a o z ~ :;; sui tab Ie person to discharge the duties of the same.

I don't know how that operates, but it seems to be

restricted to the employees and constitutional officers as 20 opposed to Article V, Section 4, paragraph 1, which is just about

-- well, it is, the last paragraph in our 1976 packet, the last

.-

paragraph of Article V, which provides for the disability of

executive officers. It's a detailed provision there for that

disability, and I noted that in the 1969 proposals, they just

" referred to the fact that the Lieutenant Governor would take

~-~--~ ---

_ _ _ _..

._Ji

rr-- ----------
!i power upon the disability of the Governor, but did not go into
'i
Ii
2 il the detail for the declaration of disability.

3 II

So, that's something that the 1976 has, that neither

II

4 Ii the 1964, in fact, or the 1969 proposals have.
II
j:
5 !: unique.

That's something

6I I

CHAIRMAN SMITH: So, suppose we had avowed crook in office;

Ii

7 ilwhat do you now do to get rid of him?

MR. TIDWELL: There are statutory provisions, Judge --

CHAIRMAN SMITH: Statutory.

10

MR. TIDWELL:

that disqualify someone who is guilty of

"z
JI ~a felony or a crime involving moral turpitude, prohibiting them o 0. w
l@)-,. . ~12 ~from holding public office. This whole area is a little fragmented. There are

~

i

14 ~speclfic provisions for removing members of the Pardon and Parole

'".~
r
15 ~Board that are different from these, because

as Mr. Harrold

'"::l
16 <~Xl well knows, we had a problem with the Pardon and Parole Board

z

<0:
17 "'" 'a few years ago, and a specific constitution provision was put

J8 in there that the Governor and Lieutenant Governor and the

19 Attorney General could adopt rules to remove them from office.

20

Right now, if you've got a constitutional officer,

!
21 iand he's just a bad man, about the only way you can get rid of
i

22 him is through impeachment, which is very, very difficult to do.

23

CHAIRMAN SMITH: I assume this is true with the judiciary

24

'I
",

too?

II II

I'

25

I
!

iL

MR. TIDWELL: They have a qualifications commission.
.

CHAIRMAN SMITH: Oh, that's right. MR. TIDWELL: That's a rather recent innovation; we didn't have one for the judiciary . JUDGE HILL: It seems to me we've got, perhaps the problem that these provisions appear under two sub-committes, which I think, is going to have to be worked out somehow.
The other thing I think is, that we have various categories of officers, one, the elected constitution officers; then, of course, at the other end you've got your Merit System employees which are pretty well taken care of by the State Personnel Board.
In the interim you have department heads appointed by the Governor or appointed by the Board which supervises that department, and some of those may serve at the pleasure of the appointing authority or they may be for a specific term; so, if they are at the pleasure, then the problem of really doesn't arise. The appointing authority can end if. If those appointments were made for, and prescribed by law, for a term, then you may have a problem with this category of people between elected constitutional officers and your Merit System people.
CHAIRMAN SMITH: Well, is that variance, for example on the terms and serving at pleasure, generally handled by a statute, in other words, say you created another board--a new board, and is that generally handled by statute as to terms; is that the way it now works?

-- - --------

r

JUDGE HILL: Yes.

I

1, 2i

MR. TIDWELL: It could be either specific terms for a

'I
3 II number of years or at the pleasure of the appointing authority,

4 Ii subj ect to somebody else --

I'

5

Ii Ii

CHAIRMAN SMITH: Well, generally speaking, I think it

6 II oughtn't to be all tied down in the constitution by terms, and

I

7 II stuff like that. I think that's the obvious kind of thing that Ii
8 II:i we don't want to encumber the constitution with; but, this disIi

9 II ability and removal thing does concern me.

10

You say I've got it under two sub-committees?

"z
11 ~

JUDGE HILL: It's apparently -- it appears in two places

."o.-.

12 : in the 1976 constitution and the breakdown happened that it

~ ~ ~~

~

-, would show up under two -- it would be under the Governor and

14 ~ Lieutenant Governor, I take it; and, also under the other.

'"
r

15 ~

CHAIRMAN SMITH: Well, I believe in terms of workload,

""":::>
16 ~ why don't we just move that sUbject over, Nick, to yours, because
oz -<
17 ~ he's got a bundle of stuff in his, even though it might end up

18 I back over in his section; so, why don't your sub-committee take
i
19 I responsibility to run that rabbit.

20

MR. TIDWELL: Judge, this points up one thing, I think

21 you're perhaps are going to have to contend with before you get

22 through; while we're dealing with executive boards and commis-

sions, in these two articles, that doesn't mean that you're going

24 to be able to ignore the rest of the constitution when you deal

25 with some of the subjects here, like there's quite a bit of the

!f-----

PAGE 41

I 11 Governor also found in the legislative article, and vice-versa,
i~ Ii so, your staff can help you with this; but, all of the article I

_\ Ii committees are going to have to kind of know what the others are: I,

4 doing so that -- you say that, well, we would like to deal with :;
:; IIi, it this way, how are you going to handle it; will you take it

i:1l
6 'Iout and let us have it and -- you know, some coordination made, Ii

7 II because we're not -- we will have to have a great deal of

II

8

I: coordination. II

"

9 Ii

Robin, I know you've already anticipated that.

10 Those of us who are going to try to watch what everybody is

lJ ~doing and try to help you a little bit. You can't do it just ini

o

0-

w

~.3~!~t i 2 ~ a vacuum.

- (\(~(~d-)?~j("'."~ ~'~

CHAIRMAN SMITH: All right. Mixed in that is this busine~s

-- 14 'of the veto. Is there any problem with the way that works now,
<

:I:

J S ~Senator Gillis?

r:<

::J

16 ~~

SENATOR GILLIS: Well, it's in a problem about time, in

-,-

<t

17 ~other words, the legislature adjourns and goes home and the

18 : Governor vetos after we go home, especially in our second year

19 of office, it might have been my bill and I might not even be in!

20 the legislature next year . There's a time element in it.

.:1

MR. TIDWELL: There some technical problems with that

-

22 Ii veto section. As a practical matter it's handled pretty smoothlV

23 i right now, but there could be a time when there would be a con-

frontation between the legislature and the Governor on when they

if. give him a bill, whether he's going to accept it or not accept

_. __.__..... . __.. .

.

. ..

._ _ .J

42

Now, they just don't send them unless we ask for

them. One of these days the legislature might have a bill they

want the Governor to do something with while they are in session,

,I and they may send it down there to me and we may throw it out

the window or something another like that, because we can -- I've

got some -- when that comes up in that sub-committee, not any

real changes, but just so we won't have that problem.

CHAIRMAN SMITH: I assume that's your only weapon is to

jl give it to him early.

SENATOR GILLIS: Yeah, and I think as the law says, 30

days after he receives it, and what he's talking about is, the

Governor, he may not want to receive it today, he might want to

receive it 60 days from now.

,

MR. TIDWELL: He's got five days when the General Assembly

J' "is in session to either sign or veto a bill, if he doesn't sign

Ii> it within five days, it becomes law; and, as a practical matter

1; the secretary of the Senate and the clerk of the House, just

don't send us any bills during the session, even though they have

passed, they don't present them to the Governor.

CHAIRMAN SMITH: Why not, I always ask the ignorant ques-

tion, but --

MR. TIDWELL: For one thing, the members of the General

Assembly are not all that anxious, believe it or not, to have

them, when they have a problem they will ask us, we'll take a

look at it; if it's something we can sign, we'll accommodate them

on an individual basis; but, while the Governor is preoccupied

and his staff, as are members of the legislature and their staft,

they just don't simplY have time to devote to review that bill

-

to see if it's a good bill or doesn't prompt a bill; a lot of

times we'll be asked to veto something because it's messed up.

He doesn't get any bills until after they adjourned

CHAIRMAN SMITH: So, that there's more time.

MR. TIDWELL:

to reflect on them, except those that

are specifically -- there's some reason why they ought to be

signed very quickly, then we'd do that. But, as an accommodation

to the Governor's office, they do not send bills unless I ask

specifically for them.

-

MR. HARRIS: Of course, I'm sort of legislatively pre-

disposed. I've supported legislation that Senator Gillis had

to change the method of veto, because the General Assembly was

deprived in the second year of a session of having the opportunity

to override a veto under the present set-up; and the Governor's

office has always been very jealous of keeping that, basically,

like it is, just historically, the Governorts office has always

fought changes in the veto provision.

So, I suppose it's up to you to say, is it fair that

--

in the second year of the term of the General Assembly that it

has no chance--no second chance to override the Governor's veto.

And, they have been overriden, I think in '73 or '74, a good

number were overriden.

44

MR. TIDWELL: Until that, though, Robin, overrides, they

just don't try; it's worked out as a practical matter. The

Governor veto's a bill --

MR. HARRIS: He'll help rewrite it the next session.

MR. TIDWELL: Right. Take care of his problems and they

won't override. I've been serving both the legislative and

executive branches for about 22 years, and until this instance,

Governor Carter, where he vetoed some local bills, dealing with

the specific subject matter attacked the matter, there has never

been an override in all of my experience until this time, and

there hadn't been any since, I don't believe.

You just don't override that much, but, it is

f'

extremely, and in all fairness to the legislative branch, it's

extremely hard to override.

There needs to perhaps be some better mechanism from

that standpoint to override.

SENATOR GILLIS: The Governor normally keeps everybody

pretty well pleased. If I had a bill I was real interested in

and went down to see him during the session after it passed, and

asked him to sign it, then more than likely he would send for it

and sign it before the session is over; he has normally kept

everybody pretty well pleased. That's the -- there's been no

realy uprising about it during the present administration.

There was in the past.

CHAIRMAN SMITH: Well, I think that raises the question,

I'\U,: 45

. you know, I'm satisfied that everybody in this room is pleased

with the current administration; but, I think we have to think of other kinds of administration when we're doing this work.

I think, Melvin, you all -- how the veto is handled in other States, ought to be an early research effort.
Okay. We talked about the suspension; we get down to the elective executive offices. Again, a big question, how many should be elected, how many should not be elected, or are some of these offices better served if they are run by profes-

sionals as opposed to elected professionals. There's some broad

questions there.

The current one has the Governor, Lieutenant Governor,

-

Secretary of State, Attorney General, State School Superintendent,
Cd~troller General, Commissioner of Agriculture, and Commissioner

of Labor; I believe that's all of them that are elected.

MR. TIDWELL: The Public Service Commissioner.

CHAIRMAN SMITH: Yeah. So, we have the same question

here, we did in connection with our discussion of Boards, about

how to go about it.

I think the rest of us are going to have to lean very

heavily on our members who are in the General Assembly to guide

'-

us here; there's no point in making some recommendation that hasn,t got a snow ball's chance in hell of getting through.

I know -- it appears to me, just looking at them that School Superintendent might be the most controversial one there.

46
I'm suggesting here is that perhaps an elected school official is not the best qualified person. This happens on the County level all the time, where you have elected school superintendents, and it's a constant battle.
If that subject is to be dealt with, should it, for example be under the education article, or over here.
MR. HARRIS: Currently, he's an elected executive officer. MR. TIDWELL: He mentioned both places, so it's somewhere where you just can't make a unilateral decision to allow coordinating with David Gambrell's committee on what their wishes are. CHAIRMAN SMITH: Well, you see at the higher education level you "get away with" not having an elected chancellor, you have an appointed board of regents, and then an appointed chancellor and president of a university and that kind of thing.
It's a basic problem of whether the voters ought to have a choice in their highly specialized area, and it's a tough question.
MR. WILLIAMS: One observation, hopefully it bears no coordination on that matter, is the view which might well be philosophical also, ac to whether or not, looking at the County level superintendent of schools and the board, would both be elected, and that does pose a problem that some of you may be aware of, and that needs to be looked at in the context of are we considering the State Superintendent and the appointed board

I'\l;i'; 47

there; if there could be some, I guess, similarity in terms of

the designation of those individuals, it certainly would help u~

.-

to translate down to the local level, how that coordination or

function with respect to the board and the superintendent.

CHAIRMAN SMITH: I guess you've got every kind of com-

bination known to man in the 159 counties.

MR. WILLIAMS: You do have, and there are some side

problems that's associated with it, and that is the term of the

superintendent; in systems where you have elected superintendents,

you have have a person elected for four years, and there's a

little quirk in the law which speaks to the notion of they are

employees of the school system and whether the County School

-

Superintendent is an employee, where's he's appointed or she's

appointed, and in that case is it legal for the Bchoolboard

to award a contract that would extend

CHAIRMAN SMITH: Well, most of what you say, I would assume

that David Gambrell's committee will be working with; but, your

suggestion, as I take it, is that the pattern ought to be the

same at the State level if they adopt a uniform system for the

Counties, that we ought to track it.

JUDGE FINDLEY: The problem also haan't been addressed,

.-

but it's in the constitution and in the statutory laws and

-- pursuant to it, on your area school boards, and this is some-

thing that is going to have to be addressed by the people of

Georgia in the near future; we had the authority to have an

48

area school board which could be elected, and the superintendent

_ of that would be elected which could encompass a number of

3 Counties.

All of these things are in the constitution at this

time, but I don't know of any area school board that is in

{, existance. I think one of the reasons Is, it can be initiated

. very easily, we all know, but, perhaps this constitution, whoever

s is going to handle this part of it, needs to address this very

9 specifically with a view towards making the possibility of an

10 area school board a reality more rather than --

i,

CHAIRMAN SMITH: On a consolidation question.

JUDGE FINDLEY: Yes, sir.

In line with your comment of 159 Counties and 159

11 views--well, 153 and then you have your six independent school 1-
T
,~systems, Chatham, Moscogee, Bibb, Richmond; so called consti tu-

16 .!tional schools, Chatham has moved out of that now. That -- and

17 that is another part of it, should we continue with the old

IS constitutional system.

IQ

When you start working on the educational side of it,

lO I don't know who is going to handle it, but it has such a long

~: history that has risen at the grass roots, so any substative , ) changes of this are very, very difficult. And, as we all

recognize they would ought to include something, I would think,

from a possibility of making area school boards a reality.

CHAIRMAN SMITH: That raises a question, Billy; there has

"AGE 49

been some discussion in the past, and I think it's a fact, Judge"

in two or three places, where they have area correctional--for

example, two small counties maybe share a jailor something like

-

that. I'm not sure that rises to the level of the Board of

Offender Rehabilitation, but it's just something to flag as to

whether you want to give them some sort of power to consolidate

we're paying a high price for having 159 Counties in this State,

in terms of administrative costs.

MS. HOLMES: Just from the view point of the average voter,

I would like to say that I think the average voter, if there is such a thing as an average voter, may follow to some extent a

lieutenant governor and a governor's race; but, really, they

-

aren't too terribly concerned about the Secretary of State or

the Attorney General; and, frankly a short ballot would attract

more people to vote.

r don't think the voting record in Georgia is that

much to be proud of, and a short ballot does attract people.

Of course, getting 36 amendments off the ballot certainly would attract a few more people; but, I think the Federal system of having cabinet appointees has worked pretty

well for 200 years, and it's something we really should consider.

-

CHAIRMAN SMITH: Do you have any suggestion how to grand-

f ather those that are currently in office, I suppose that would

be --

MR. JACKSON: I would suggest as a mandate, maybe to the i

50 two sub-committees who are going to handle executive officers and boards and commissions, that rather than the burden of proof being on them to justify why it should be taken out; the burden of proof why it should be in there in the first place, and to come up with some kind of criteria.
For instance, one of the largest agencies in State government is the Department of Human Resources, it spends more, it's politically controversial, it's statutory, yet you have the Board of Natural Resources, the Veterans Service Board, as a constitutional board; you know, why, I can't tell you, why.
You know, to change the name of corrections to offender rehab it took a constitutional amendment; that's ridicu-
.~,
lous. So, I would like to see some type of criteria for
why an agency is going to be included as a constitutional board or commissioner or officer.
CHAIRMAN SMITH: I think that's a good suggestion. I think what the rest of what you have here relates
to qualifications of the elected constitutional officers, and disability. At the very end, and this is something, I think is something we're going to have to address very early.
This district attorney's, there have been proposals from time to time to give them a home; they are not really in the judiciary and not really in the executive, and there have been prior suggestions that they be officially be designated as

51

executive officers.

They are constitutional officers, aren't they, alon~

with the judges of superior court, and I recall in some earlier

-'

work on the judicial article, they are really looking for a home,

they don't know where they ought to be.

The conversation that I heard was that they are try-

ing to decide whether they ought to be judicial officers or

executive officers.

What is the current thinking on that; district

attorney's, I suppose everybody knows, are the local prosecuting

attorney's in each of the circuits in the State.

MR. HARRIS: Judge, I think my recollection of the last

meetings--last year of the judicial articles committee, the

Attorney General wanted to be in the judicial article and the

district attorney's wanted to be in the judicial article.

MS. NONIDEZ: That's my recollection also.

JUSTICE HILL: Rather than clarify some of these areas,

and this is one, it seems to me that we ought to also recognize

that in some instances there are mules; and, I don't carry that

analogy too far; but, let's -- let's say this, that I think the

district attorney's are the bridge between the executive and the

-'

jUdicial, and if you try and cram them into either one, it may

create problems which do not presently exist--maybe we need that

bridge, and maybe we need a little lack of clarity with respect

to that particular situation.

52 CHAIRMAN SMITH: Of course, the Federal System, they are all part of the Department of Justice, and that's what -- whenever this proposal was, was really proposing. They are independently elected, however, and your Federal District Attorney's are all appointed; so, that makes a decided difference.
I have a high regard for the response of local district attorney's to the electorate. I think it's an important function.
Some of the appointed prosecuting attorney's, and I do not omit Federal in these remarks, exercise entirely too much discretion as to deciding who will be prosecuted and who will not, and if the electorate has a check on that local district attorney, he's more inclined to do his job whether he wants to or not, sort of in that respect.
So, I certainly wouldn't advocate, for example, appointing your district attorney's and I doubt if you could get that through one day of the legislature. But, it's obviously something that -- it doesn't make much sense to me, though, for the Attorney General to be in the judiciary.
MR. TIDWELL: He happens to be mentioned in both places right now, and I don't know that -- where a particular officer happens to be mentioned in the constitution, whether he's executive or legislative or judicial officer, it's what he does more than where he's mentioned.
But, I think the present attorney general would like

, \ 1;1< 53

to be a member of the judiciary, and I don't know whether you

can do that or not, by just saying -- taking him out of being

mentioned here and talk about him in the judicial article; but,

he does a little -- he probably does more executive than he doe~ judiciary right now, but, he does both, whereas the district

attorney's, they seem to be -- fairly clear to be judicial

officers.

CHAIRMAN SMITH: Well, under the law they are at least

quasi-judicial, I mean all the cases say he has a quasi-Judicial

function as well as ~t the prosecuting level.

MR. TIDWELL: We treat -- I think in State government

when I say we, we treat a district attorney as a member of the

-

judiciary, when we try and decide whether he's violating separa-

tion of power by trying to serve on an executive board or a

legislative board.

CHAIRMAN SMITH: Where are they budget-wise?

MR. TIDWELL: They are in the judicial appropriations;

superior court appropriations.

CHAIRMAN SMITH: Again, Judge, I think from conversations

with Wayne Snow, it's going to be appropriate there.

Well, as we can see, there's not 100 percent clarity

-

in our present constitution. At least it doesn't appear to me,

and we have some interesting things to explore.

Let me discuss two general things, then I'm going to

suggest that we take a little break and hopefully the sub-committeE

54
can meet and decide on your next sub-committee meeting. The way this conversation has gone this morning, I
.i I think in our meeting approximatelY a month from now, that we ought I think some of the specifics we can probably handle fairly rapidly. But, I think these sort of philosophical questions are the ones that we ought to get out of the way at our next meeting; in other words, as the sub-committees have identified, are we going to leave this in and take it out, should this go
11) there, and so-forth. All this ought to be the first order of I: ~business from the sub-committees the next time.
(~
Subject to you all's approval, I would like to arrange a meeting here in this room for the last days of September, 1~ ~which would be approximately a month from now; the two Monday's
<:
I' are the 17th and 24th. Is there a particular day that's more ~convenient for people, today is Wednesday, and every time I've
!-;
'ever had a meeting on Friday, there's a lot of folks not there. Does Wednesday suit everybody; why don't we shoot for
!"f Wednesday, September the 26th, which would be the last Wednesday .'.).t."J in September, it would be approximately a month from now.
The last -- the other matter of general information, 22 -- we can go off the record, this has to do with how to get paid "'"l for your attendance at these meetings.
(Off the record discussion.) All right, ladies and gentlemen, we have agreed that

1',',1;1' 55 the sub-committees will meet as follows: First the committee on Constitutional Boards and Commissions, chairmaned by Mr. Sterne, will meet on September the 20th, at 3:00p.m.; the sub-committee on the Governor and Lieutenant Governor, chairmaned by Mr. Chilivas, will meet on September the 10th, at 10:00 a.m.; and the other sub-committee on other executives officers, chairmaned by Judge Hill, will meet on September the 19th, at 10:00 a.m., and, as we previously agreed, the committee as a whole, will meet back here on September the 26th, at 10:00 a.m.
With that, the meeting is adjourned. (Whereupon, at 12:15, the meeting was adjourned.)
-000-

INDEX Committee to Revise Articles IV and V Full Committee Meeting Held on Aug. 29, 1979

FULL COMMITTEE MEETING, 8-29-79

Proceedings. pp. 3-13

ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS SECTION I: PUBLIC SERVICE COMMISSION Paragraph I: Public Service Commission. pp. 13-16
SECTION II: STATE BOARD OF PARDONS AND PAROLES Paragraph I: State Board of Pardons and Paroles. pp. 16-17
Former Board of Offender Rehabilitation. pp. 17-20
SECTION III: STATE PERSONNEL BOARD Paragraph I: State Personnel Board. pp. 22-24
Former Board of Industry and Trade. pp. 24-25 Creation of Boards by the General Assembly. pp. 25-28
SECTION V: VETERANS SERVICE BOARD Paragraph I: Veterans Service Board Commissioner. pp. 21-22
SECTION VI: BOARD OF NATURAL RESOURCES Paragraph I: Board of Natural Resources. pp. 20-21
SECTION VII: QUALIFICATIONS, COMPENSATION, REMOVAL FROM OFFICE AND POWERS AND DUTIES OF MEMBERS OF CONSTITUTIONAL BOARDS AND COMMISSIONS
Paragraph I: Qualifications, compensation, and removal from office. pp. 34-41

ARTICLE V: EXECUTIVE BRANCH SECTION I: ELECTION OF GOVERNOR AND LIEUTENANT GOVERNOR Paragraph III: Lieutenant Governor. pp. 30-32 Paragraph IV: Qualifications of Governor and Lieutenant Governor. Paragraph V: Succession to executive power. pp. 32-34

pp. 28-30

Fuli Committee Meeting 8-29-79 Page 2
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph IV: Veto power. pp. 41-45
SECTION III: OTHER ELECTED EXECUTIVE OFFICERS Paragraph I: Other elected executive officers; how elected. pp. 45-53

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLE V of the
CONSTITUTION OF GEORGIA
11th Floor C&S Bank Building 35 Broad Street Atlanta, Georgia Monday, September 10, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE. GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVbNTIONS - CONFERENCES

PRESENT WERE:
NICKOLAS P. CHILIVIS, Chairman CHARLES L. GOWEN J. HENRY WISEBRAM JAMES EMORY FINDLEY JOSEPH WOOD LOTTIE WATKINS EDWIN L. JACKSON VIRLYN SLATON THOMAS THORNE-THOMSEN CHARLES TIDWELL MELVIN HILL VICKIE S. GREENBERG

PAGE 2

Peggy J. Warren, Court Reporter

PAGE 3
PRO C E E DIN G S CHAIRMAN CHILIVIS: We'll call the meeting to order. Have any of you some of you, Melvin and maybe Torn, have you been to any other meetings? Has any of the subcommittees held any meetings? MR. HILL~ No. CHAIRMAN CHILIVIS: I thought I might get some advice about how these things are set up and what the methodology is. I understand Melvin Hill will be keeping up with who is attending for the vouchering purposes as mentioned at the last meeting. What we were discussing before the rest of you got here really was the methodology to follow. Charles Tidwell can perhaps give us some advice on that and maybe Vickie Greenberg and Virlyn Slaton and Melvin Hill and Edwin Jackson as well as members of the Committee. One of the things that I would like to do subject to any suggestions that anybody has is try at our next meeting, whenever that may be, to have some definite alternatives in mind for the various sections with a recommendation and I thought that perhaps our discussion at that meeting might be rather lengthy and might cover the alternatives, the reasons for the alternatives in terms of what other states are doing, what our particular needs are,

!'ACE 4

what the other constitutions that have been drafted and in

which I'm sure has gone considerable work, what their

provisions are, our own ideas and how they fit in of course

.! with the other articles of the constitution. I've already

talked this morning with Justice Hill --

(,

(Brief pause.)

y'all all know Representative Joseph Wood, Joe Wood.

8 We just really had gotten started. I started to say I have

') already talked this morning with Justice Hill and he pointed

lU out, as an example, a provision that he has under consideration,
,. 11 ~whicy may overlap with one of the provisions that we have

12 :~ under consideration, and that type of coordination has got to
t (~'~~~.~)_\/~-)~/Y~~~~~' take place. At that meeting, too, it seems that we ought to i4 ~ have some recommendation, that we ought to have the case law, < 15 <, if any, on the provisions available and we ought to have a c!: ,~-
Ie '; thorough discussion of the provisions with the idea that at
<-
17 ~ the end of the meeting we will either do one of two things:

18 One, we would have a fairly firm recommendation to make to

19 the whole committee or, two, we would have a recommendation

20 that we study any particular provision further with some sort

21 of deadline to corne up with a final recommendation. In the

meantime, too, I thought that we ought to either visit with the
,,
..' Governor or his representative and the Lieutenant Governor or

24 his representative and determine what their ideas are about

25 'this. Now the Governor is fairly simple because I would

assume that Charlie Tidwell would be his

he's at the meeting and can give us that input, but I don't

know for sure who we would talk to in regard to the Lieutenant

, Governor. Somebody suggested Bob Stubbs, that we ought to

talk to him, not necessarily for the Lieutenant Governor, but

because he is apparently knowledgeable and has dealt with,

on behalf of the Attorney General, the separation of powers

, issues.

')

Charles, who should we talk to for the Lieutenant

If) Governor?

MR. TIDWELL: Either Zell or Bill Burson.

\,\./,(':,:,~~,V~fJ';),",\)J--".'"~"

CHAIRMAN CHILIVIS: ,:' accomplished before our next

And I thought that ought meeting, whenever it is.

to

be

,-r

Now I'm open for suggestions on any of this, but I

I' "~would like to review -- know what the committee thinks and also

!, ii.l

it seems to me that we might want to divide -- we've got

~essentially, as all of you know, three sections. We've got

Article V, Section 1, which is divided into nine paragraphs

and which deals with the election of the Governor and

Lieutenant Governor. We have Article V, Section 2, which ?! deals with the duties and powers of the Governor and there's " eight paragraphs. We've got Article V, Section 4 which has
, ,'
only one paragraph and deals with disability and those are the

three areas in which we are involved. One of the possible

methodologies may be to divide those three areas with groups

of two working on them. Whatever we decide to do in that

regard it seems that we ought to keep everybody on the

committee posted during the interim between meetings with

memorandums of what is occurring.

Mr. Jackson -- Is it Dr. Jackson?

MR. JACKSON: Ed.

CHAIRMAN CHILIVIS: Okay. Ed mentioned earlier that

one of the things we ought to address ourselves to this

morning is the general concept of our Constitution and as

everybody walked in we were discussing something which we ] i hadn't finished discussing and which I would like to finish

discussing and I want

I know all this is being recorded

and I always hesitate to show my ignorance about law and I

[I haven't prepared myself to talk about this, but we were

,'-'.

discussing the case of Thompson versus Talmadge or Talmadge

versus Thompson and my recollection of that case was that it

initially held that anything that was not prohibited by the

Georgia Constitution was permitted and then we started talking

about exceptions and this is where we left off. Ed

mentioned that one of the exceptions was where you gave

certain powers and he gave an example. What was the eXample

you gave, Ed?
,:
MR. JACKSON: We're talking about scholarships for

dental students and medical students. CHAIRMAN CHILIVIS: That by I guess sort of the

PAGE 7
doctrine of HO~'::~~=~~:r~s-thatthat b~-c-omes l;:~~~~ to- th~

and I was about to mention another exception which I'm not

I

sure I fully understand concerning taxation. As I recall,

I

i

those of you who are lawyers may remember this, but as I

recall they used Thompson versus Talmadge to say in a taxation

case that powers not prohibited in taxation were permissible,

were granted. Then as I recall that Mangelli versus Richmond

County case, I believe that's what they finally entitled the

case, that they went back the other way and they said that in

taxation if it's not expressly granted it's prohibited. Is

that the recollection -- How about it, Charlie, isn't that

what that case said?

MR. TIDWELL: It is, Nick, and I wonder if the

Supreme Court realizes what they have said in that case.

CHAIRMAN CHILIVIS: I really don't think they do in

all due deference to the Supreme Court of course. I'm not

sure that they have really were certain about that.

MR. TIDWELL: It is a reversal of what has been long

understood to be the law in Georgia and I think that when they

are called upon to confirm what they have said there they're

going to say oh, we didn't say that, what we meant was

something different. I don't know, but it's pretty alarming

what they did say.

CHAIRMAN CHILIVIS: Well, my recollection was that

it was a complete reversal of the previous constitution

_________ .

-----lI

PAGE 8

interpretation doctrine and yet my -- if my recollection

serves me they did not overrule the cases that had held to

the contrary.

MR. TIDWELL: That's correct.

CHAIRMAN CHILIVIS: Which supports what you're

saying, that is that they may come in there and say we really

didn't mean that, if we had of we would have overruled these

other cases. But I point that out there because I do recall

that case and what we thought we might do this morning is

talk a little bit about the concept of what the Constitution

is and maybe we can even identify a little bit of the problem

areas.

Have all of you or any of you read Ed Jackson's

memorandum?

1"

MR. FINDLEY: Yes, excellent.

CHAIRMAN CHILIVIS: Well, I'll confess that I had

good intentions. I started reading and I did scan it and it

does appear to be excellent. My daughter interrupted me to

1() help her with something. This was yesterday and I never

:J' finished it. Has anybody else?

MR. GOWEN: I didn't get mine until this morning.
} ...,
CHAIRMAN CHILIVIS: Well, that's a perfect excuse,

but I don't have that excuse, but it is good and I would

like if Ed would to give us a little bit of a discussion about

the constitutional concepts and I want to mention one other

- - - - - - - - - _ -- ._--_._-

-._ . ._._--~._-.._-----~_. . .......

..

PAGE 9

thing and maybe Joe Wood can give us some ideas on this. I

notice that two of the areas that were beginning to be

identified when I read this was the question of legislative

authority over regulations of executive departments, another

was veto power. I guess when you get into that you're going

to get into the concept of really division or separation of

powers and whether you have a weak or weaker executive or a

strong or stronger legislature and that those may not be

exactly appropriate terms but, again, I'm not certain under

our Constitution whether or not we are considered generally

to have a stronger legislature than executive, but I thought

we were -- I thought that was the normal concept.

Ed, would you give us a little bit about

constitutional conceptualism in Georgia?

MR. JACKSON: Well, I prepared this memorandum just

to give a background to the study of the executive branch

because you can't take the executive branch apart from the

legislative branch and apart from some of the other articles

of the Constitution and it was just trying to give what the

courts have said and what the current Constitution and the

previous Constitution have said about the relationship of the

executive and legislative branch. It's true we have separation

of powers. They're coordinate branches. I wouldn't call them

equal branches cause the~r functions are different, but in

theory we have three separate branches of government. Now the

PAGE 10

courts have held that in the nature or in a representative government the legislative branch has to be supreme. It's the 3 one that provides the executive branch salaries and powers 4 so what I tried to do in part is explain the relationship. ) i" Now one object of this memorandum was to discuss something
:
b that's going on -- Representative Wood may have been involved

7 in the legislature, and that is across the country -- and this

R is literally in the last five years -- legislators are really

9 ~ trying to step in and play a greater role in overseeing the

10 executive branch. In part, they feel we've gone from a state

II ~or a nation of laws to a nation of rules and regulations and
()

:!what they're trying to do is step in and playa greater role
~.
r-
Sin what these rules and regulations are going to state and
'I'

~this involves separation of power.

-<

1:

15 ,~

Now my concern was that so much has happened in the

16 "'C~'""D last two or three years, including Georgia adopting a rule

Q

~

<l

1"'1

X .1,

review

process

in

what,

'78?

18

REPR. WOOD: I believe it was '78.

19

MR. JACKSON: Those are some unsettled issues of

20 constitutional law. Does this violate separation of powers and

21 in particular, there's a provision in our Constitution, Article

2.1 v, Section 2, paragraph 7, which poses some grave problems. It

says every vote resolution to which the concurrence of both houses

.~l may be necessary, except for adjournment, should be presented to

the Governor for his veto, and our provision makes exception.

'I;

1,

._._~

,

PAGE 11
Unless two-thirds of the house approves it th~~-~~ =~~n~~--l

go I'm sorry, no. If two-thirds approves it, it will not I
I

go to the Governor, so there is some case law -- This was

\

,j. adopted by the way directly from the U. S. Constitution and

there's some case law in other states, but so much is

happening so quickly, what I was trying to do is to give a

framework to the members.

CHAIRMAN CHILIVIS: Under that '78 act, would you

9 ii explain that a little bit to us? I know I recall very vividly

;'j that in '76 there was an attempt made to pass that type of

'I act and it finally came out in a different form than this one,

'"
,~ but would you explain this one to us?

,.,,:-,:,v/1,;1 \

,.

(&:r.J))r'!~'''''' ;:

MR. JACKSON: Let me preface that by this one

\<:::~//
t! ';, statement. A lot of state legislators were upset because

<

]',) administrative agencies would seek a new law giving them power ~:J r..:;:

it, ~ to do something. The legislature would not pass the law and ;:,

17 . they would turn around six months later to find the very text

of that law in the form of a rule or regulation so they were

i'i upset about what was happening. I think in part it was a --

to a degree their own fault because they were in some cases

.2 i delegating authority, but it was clear agencies were going

beyond what the legislature intended so what they're trying to

I

, ,, do, since our system of government is going more and more to

I

, .,, administrative rules and regulations to carry out broad

I

statutory guidelines, is to set the legislature up to decide I
..__ ~_.J

PAGE 12

whether agencies are complying with legislative intent and as

you know in Georgia that's a judicial determination,

legislative intent. But anyway, whether agencies are complying

with intent. What they did was they set up a procedure where

a rule or regulation before it goes into effect is sent to the
,
t.t standing committee, I believe this is correct, and that standin9
i
committee can propose a resolution to disapprove that rule or :

regulation. If a majority -- If less than two-thirds of the

members of both houses pass that resolution it goes to the
1f'
Governor for his veto. If two-thirds of the members of both

houses pass that resolution to disapprove the rule or

regulation to veto that rule or regulation then it does not

go to the Governor. The assumption being, I guess, that that's '4 two-thirds of the number necessary to override a veto.

CHAIRMAN CHILIVIS: Let me see, if two-thirds of

16

...:'';:1
.
'

both houses

approve

the resolution nullifying a

regulation

I7

c"-
'"

then it doesn't go to the Governor?

>I1''>

MR. JACKSON: For his veto.

CHAIRMAN CHILIVIS: But if less than two-thirds of .!U both houses do i t but i t passe~ if the resolution is

defeated then there's no problem, but if it passes but with

less than two-thirds of both houses then the Governor has the

right to veto the nullification of the resolution?

MR. JACKSON: Right. Now there" s inference in Articlt m
I
it says no provision of this Constitution for two-thirds vote ._~. ._..__.. ._.._~__,_~_ .._.._., .. _. '~~'_-----Ji

---------, ---- ---~------ ---

PAGE 13

houses shall be construed to waive the necessity for

the signature of the Governor 50 there's some constitutional

problems and all I'm suggesting is that by looking at these

,+ ; matters and corning up with a balance where the executive branch

is representing the legislative -- we can solve a lot of these

t, legal issues before the litigation comes and the litigation

hasn't corne up at this point simply because these procedures

are only you know, the ink is not even dry in some cases.

i

"

CHAIRMAN CHILIVIS: Well, as I recall now, Charlie, yo~

I
I

to and Joe, Virlyn may remember some of this -- my recollection mayj

,. be erroneous, but as I recall the original proposal that

I

I' ultimately resulted in this act was that after it went to
,.
~ the standing committee if the standing committee resolved to
I...;
!
14 t nullify the regulation it then went to the house, actually to

J5 ~the House of Representatives I believe, or maybe to the
71
in 1: Senate. I don't know, but to one of the houses. If one of
17 ~ those houses -- Well, here s the way it was. In order for

l~ the resolution to be overriden it required either a majority

]'; or a two-thirds vote of the two houses. Is that right, Virlyn?

20

MR. SLATON: I think so.

CHAIRMAN CHILIVIS: In that situation you've got

1 an entirely different situation. You've got a committee which

effectively can override regulations of a department and of

course that was the -- literally faulted at the time and I

> guess this is what arose out of that. But what you're saying

PAGE 14

is that we need to address this

MR. JACKSON: We just need to be aware of it and

if it's the committee's will and ultimately the legislature's

will in proposing this at least we can address it by some

S alternatives. It's my feeling that in some cases just a

oj deletion of a word or phrase or the inclusion of a word or

7 phrase would clear this up and there would be no problem. I

~ realize it's more complicated. We're talking politically

that the Governor would have to feel the executive branch was

not infringed upon and the legislature would feel that it's
''"' 7"
rights were not infringed upon, but it's possible by addressing

this we can prevent a lot of litigation in Georgia and move on

to other things.

14

CHAIRMAN CHILIVIS: I would like for the committee,

if it would, the members of the committee, if you've got any ; /., ideas on approach, if we should break this down or what we

should be doing between now and the next meeting I'd like to 18 hear. For instance, I know Judge Findley -- I think I know III has already spent a good bit of time studying this and

probably has studied it more than any other member of the

committee. What are your ideas, Judge, as to how we should

approach this? JUDGE FINDLEY:

I
The question that has arisen is whether:

we maybe.:oughtnot to address the issue of the advisability

the various agencies writing the regulations in the first

place.

PAGE 15 ------------------- -------------,
The further delegation of authority by the legislature

to the point that we really are becoming more and more

bureaucratic which is a word that I guess is unsavory if we

ever want to get this -- a new constitution or a meaningful

constitution adopted by the public or passed by the public

and the legislature. It's the ability of each of the

commissions without addressing the question of the great

number of different agencies and commissions that exist which

is a separate issue altogether but it's their almost

unbridled authority, number one, to write a regulation; number

two, to judge whether it's enforced or not; three, to invoke

the punitive measures if it's not enforced. So your

commissions are doing what neither -- either of the separate

branches can do. They are combining them much as a grand

jury could do. They're acting in a legislative capacity, a

judicial capacity and an executive capacity and almost

totally without regulation. So what the legislature did at

this last time, whether it is or is not constitutionally

sound, it addresses a serious question so I'm wondering if

perhaps the committee ought not to back up and maybe devise

or at least consider a constitutional provision as to how a

regulation itself can be bo~n as it were, whether it can be
i
initiated by the Department of Industry and Trade, Department I
I
of Transportation, by any separate department. Can they in I
I their own right initia~e-"h,,-finalr,,-gUl~i~~itself an~ then

PAGE 16
----------------- ------ ------ ----I
having decided that question should there be a separate means

for the enforcement and the judging of whether that has been

~~~til~~with. If. _'_, .,,: ,,. ':'

.

This to me is the crux of the matter. If we

-I aren't really getting ahead of ourselves shouldn't we go back

and address the real problem which is a usurping of all of the

legislative, judicial and executive powers by the commissions _. ! themselves or the departments -- the various departments, the

bureaucratic approach as it were and at the federal level it's

"

unreal.

CHAIRMAN CHILIVIS: At the federal level it's

il completely out of hand.

JUDGE FINDLEY: Yes sir, and I was wondering possibly

if we didn't want to take a look at that?

,,

1,'4

CHAIRMAN CHILIVIS: I don't think it's reached that

.', point in the state level, but certainly in the federal level i tl' s

i(,

a. real morass

:,

trying to get anything done. Virlyn, have

you got anything you could say about it?

MR. SLATON: As the judge says, without addressing
1()
i. " any of the constitutional questions I don't recall -- Joe,

you and Charlie can correct me on this, but I don't recall an

'I

instance where the legislature has actually taken a formal

step to override a regulation of a department, board, bureau

or commission, but it does have some practical applications

in some of the boards and departments that I work with in

that if the standing committee objects to the regulation then

PAGE 17
the department itself will take it upon themselve--:-~~=-;~~:ite-~

to

sort

of

satisfy

whatever

objections

may

come

up

in

the

comm-

I
!

ittee so I think it has some practical applications that causes

, the departments to take a second look at the regulation, perhaps

revise it or even reject it completely. But that still doesn't

(1 correct the problem that Judge Findley was talking about.

CHAIRMAN CHILIVIS: I guess we'll have to address

( ourselves to how unbridled we want to permit the bureaucracy

') in the State of Georgia.

MR. SLATON: Charlie, do you recall whether the
",
.'
;;; legislature has -- since this law became effective, whether
r) L
,. ~,they've overriden a regUlation?

MR. TIDWELL: Virlyn, to my knowledge they have not.

J4 :~

MR. SLATON: It's a right complicated procedure, as

j~ you well know.

1.5

"'':1

.:J
1(y :,

CHAIRMAN CHILIVIS:

o

I don't think they have.

Let me ask a question of the court reporter.

When

j(( anybody speaks do you think we ought to state our names?

;'

1, .,'

THE REPORTER: That isn't necessary.

,','l('
...

CHAIRMAN CHILIVIS: You've got everybody and as long

,.
.:.1 we call them by the first name -- You know where they sit

I don't think they have, and I do understand. I

don't know whether this is true or not, Virlyn. There have

been instances where the standing committee has communicated

with the department that they do have some reservations, maybe

PAGE 18

I I. an objection, maybe something just short of an objection, to

a particular regulation and that it has been worked out between

the department and the standing committee so that the issue did

not have to arise.

MR. SLATON: Exactly.

CHAIRMAN CHILIVIS: Which means it's probably a good

law.

I had a major objection, Joe may remember, to the '.j way the law was originally written because I felt that it IU transferred authority over the executive departments from the i J executive, that is the Governor, .to the legislature. If they

had to have approval in effect of the standing committee before

they could pass a regulation then their authority person,

supervisor, boss, whatever you want to call it, would be the

standing committee as opposed to the executive department.

I)

L

.-

JUDGE FINDLEY: Ed Jackson addresses that in his

memorandum and I think that's the constitutional question, I

believe,that we're looking as to whether that oversight or
!q j
overview committee is in fact under the Constitution as it's

now written. Can it do what it's supposed to do irrespective

of the soundness of the concept? Can it constitutionally

do it and that hasn't been passed on.

CHAIRMAN CHILIVIS: Well, that's a good area that

we'll have to consider as we get into these things hopefully

with a recommendation at our next meeting.

MR. JACKSON: Let me

about maybe dividing us up and

one. This point we've been talking about raises an issue

that does not come under directly anyone of these yet

dramatically affects the executive branch. I think another

question and one that hasn't come up in a major

confrontation yet is the question of executive privilege. Is

the Governor or constitutional officers or division heads,

how far down the line, are they secure from legislative

subpoena and contempt? We may not want to address that, but

I'm sure sooner or later it's going to come that the

legislature is going to subpoena someone for information and

they're going to refuse. Again, this is an issue that's not

under these provisions but it may be something we want to

address.

CHAIRMAN CHILIVIS: Is that anywhere in the

constitution? There is no provision anywhere that I know of,

is there, to cover that?

MR. JACKSON: There has been one instance. I'll

have a memo out on this next week. There's one instance where

Bob Stubbs refused in the Dean, censure hearings. He invoked

it in a way -- Attorney General Bolton gave him permission to
!
I
answer one question or answer questions about one issue. He I

~ n~tpermi went before the Senate and did that and some senators trie! I

to go beyond that and he said I m

tted to go b"Y0nd_J

PAGE 20
l"'
that and they accepted that, but I can find no court cases -, and that's the most recent instance where it's been invoked.
Again, it may be we want to avoid these issues and leave it f to the courts. That's fine. I'm just raising the issue that
it's unsettled now under Georgia Law. CHAIRMAN CHILIVIS: Let me ask you this question,
Ed. If we avoid it and leave it to the courts then we I ve got no problem as far as our drafting is concerned. If we decide that we want to put a provision 'concerning that in the Constitution would it come under one of these articles that
\)
z:
it we're addressing?
()
MR. JACKSON: Possibly come under a new article, a
,-
z
,~ new paragraph being the Governor shall be chief executive of the state government and proviso connected with that power of being chief executive. CHAIRMAN CHILIVIS: Well, let me say this and again
j7 . I want to hear from the members of the committee because I really don't know as much about this as a lot of you do and
19 certainly no more than anybody, but one of the things that I had mentioned earlier that I would like to have preferably at our next meeting are some alternatives and it seems to me that that might be one of the things if we want to address it, have a provision drafted that we might consider as an alternative because when we get before the full committee with whatever recommendations we come up with they may want to

PAGE 21
change it, may want to put that in. I -~:~~ --~~o;- h-~:--~-~-:-l
I
full committee will work. Charlie, do you know how they're

going to work? They will of course I'm sure discuss it in

some detail whatever recommendations we make.

I

I

MR. TIDWELL: Each of the committees I'm sure will

In adopt their own rules and procedures, that's how it's been done I

the past and traditionally. The full committee I'm sure

I

I will review and have the option of adopting or rejecting this

subcommittee's suggestions. That's just kind of how these

type things have worked in the past.

MR. GOWEN: They frequently revise them.

MR. TIDWELL: That's correct, as will the select

committee do what this full committee -- It will review,

adopt, check or revise provisions.

CHAIRMAN CHILIVIS: Well, let me ask Tom this

question. Do you know what will occur or what is planned to

occur at the September 26 meeting of the full committee?

MR. THORNE-THOMSEN: No, I don't really know the

specifics. I think we -- there would like to bea

consideration of alternatives, but I would thir.k at a minimum

the identification of the issues that the subcommittees

perceive and possible drafts dealing with those is the w.y

I envision it and the way the Judge is looking at it now, but

there isn't any set procedure that has been outlined to this

date.

PAGE 22

JUDGE FINDLEY: That's on the 26th, isn't it?

CHAIRMAN CHILIVIS: Yes, that's correct.

JUDGE FINDLEY: And a number of the subcommittees are

.:\. not meeting until the 20th at least according to the schedule

that I looked at. I don't know if we'll be able to have all

() that ready at that time, will we, for the full con~ittee?

')

MR. THORNE-THOMSEN: I think drafts -- expecting

;" that there will be drafts at that time is a little optismistic ,i

but I do think all the subcommittees need to identify what

ii' issues are involved at least for the purposes of communicating

i I '- with the other subcommittees since the committee as a whole

is going to have to make a decision on the various drafts so

I think that's the first step. The second step would be the

possible approaches to those issues. We've got a lot of
15 ,~ sort of housekeeping issues in these articles dealing with
su~ssion and qualification, age requirements, things like
"
that that we need to define and maybe discuss alternatives
jr; of what other states are doing. I think that's the way the

Judge is envisioning this next full committee meeting.

2i}

CHAIRMAN CHILIVIS: Okay, Mel.

MR. HILL: I see primarily a progress report from

each of the subcommittees at that time and they can indicate

the general direction they're moving to see if the full

committee seems to be in agreement and if there are three or
I I
four issues, 'as Ed brought out today I think this sUbcommitt~e
!

PAGE 23
~ will have four or five major policies YO:':e-:till:hinking

about and to get some general input from the full committee. i

I

I think that's what will happen at the 26th meeting and it

I

'f won't be until October yeah, October, mid-October that

I

I

we're actually looking at specific proposals and language.

I
1
I

()

I

CHAIRMAN CHILIVIS: Okay. So what we, I guess, need

to do is try to identify the various problems that we'll run

into such as we've been discussing this morning. Judge, do

you see any other major problems with this? I know you read

10 it all. You're probably the only person on the committee at
z.
~this point that's read everything.
''':"'
I
JUDGE FINDLEY: Well, no, sir, I'm sure that the other~

:; have read it all. I've just read it more recently perhaps
i
;:- than some of them. Mr. Gowen has read all this. I recall
,"
15 :~ when Mr. Gowen ran for Governor. I had the dubious honor of
---,,
~ arguing a case against him right after that in the Supreme
17 " Court and no one even spoke to me. I thought they were going

to genuflect when he walked in. I told the court I wish he

had won. So he's highly familiar with all this, but the other

areas, as I see it, are in the appointive powers of the

Governor or the executive. Back in the earlier times under

the Federal Constitution, I guess under the Tenure Act, when i

they declared it unconstitutional -- I guess it was maybe in I
,'
..~ '--1 1926 or somewhere along there, they declared unconstitutional thit

L~~_rovision the legisl_a~~re e~:ct~c:._~h~:~_t~e Sen~te__~ad to give J

PAGE 24

approval before the President could discharge the Postmaster

2 for instance. Now this has never been treated as I know of

3 in any of the constitutions -- In the draft, the proposed
4 II draft in 1968 I guess it was, the draft that I have in my

5 records here that was not passed in its entirety. This has

never been dealt with, the appointive powers of the Governor

7

i:
"

or

the

executive.

The next is to what extent is he going to

8 be bound by and does the constitution, should it address itself

9 i' to qualification commissions. Well, judicial appointments, for

10 example, cornet to mind right off the top of my hat, but in

"z 11 ~:: either -- in any of these areas should the constitution itself

4'
~ 1''" ~ca: ddress the issues of, number one, whether the legislature

~~ r=~- ~ to what extent is it going to be able to participate in

/

'"

/

I

14 Seither -- by, as the United States Senate does, acting on a federal

I') :~ judge after the President has made the recommendation or a

'"';)

II)

'"
Z:~

vet

0

power,

as..;. t were.

To what extent is the legislature going

Z <l

17 ; to participate in appointments and then to what extent after

18 : these appointments have been made -- to what extent will the

legislature participate, if at all, in the termination of that

20 , position either by abolishing the post itself and they're 21 prohibited from doing that at this time or by abolishing the 22 salary or not funding it, this sort of thing. I think this

has caused a number of problems in the past in some areas

where the executive and the legislature haven't resolved their

differences so that more and more boards, for lack of a better

PAGE 25
name, want to become CO~::~~~tionaMly~~p-efOr-us-no'~nea-~l-~~feTehl~l..Yng-~0l..ns'tthat~1
want to have legislative origin.
., this is not good. Once the board gains constitutional status

it's almost impossible to remove it, but the legislature is in

direct contact with the people at all times and can address

" this issue at every session of the legislature, but they

J aren't able to do so because again once it becomes a constitu-

,~ tional board they've lost out. A conflict arises then since

all of these boards theoretically once they come into existence

\U work for the executive. They work independently, but they --

IJ . he has overall supervision of the various departments as we all

" . know. This again comes back to the basic question that I was

::: mentioning in the first instance, how should the constitution

J~ i: address itself or address the issue of the creation of the ,,", <,
l~ '"various departments in the executive and are we going to look
.,. ~~ to the legislature to create the departments, therefore, 0.-::
]7 "remove them from the constitution or create a constitutional

lK I provision saying that the legislature will make all laws with

IlJ regard to Secretary of State, Attorney General to -- we have

::'u some nine or ten now that are constitutional departments .-"' What of these, if any, will remain as a constitutional board.

In other words, it is a di~ion of the authority between the

I

executive and the legislative and as I envision it, I would

I
I

....l'_~ like to have the legislature have greater authority in

I

establishing the boards in the first instance and legiSlatur~

__ ..._._ ---_._~-_.

... _----_._._~---_._----_._~-~--------

PAI;E 26 determine their continuation, but the executive have the power to -- without interference from the legislature in the operation of those boards or management or running of them as they were. Truly it's an executive function without 5 interference from the board. This then would come back into the rule-making propositions that we have to where the executive then could have his own in-house procedures for j..., seeing that all rules are properly coordinated between the various departments because so many of them overlap between Workmen's Compensation Board and the Department of Industry j! and Trade and between Department of Human Resources. Each .,\ :.:. one is dealing with the same subject but in a different way. There is no way to coordinate it all at this time. That's 14 clumsily put, but I believe the issue ought to be addressed as to how the boards are to come into existence, shall they be H, constitutional or legislatively created? Whether constitutionally or legislative or a combination of those the 10 executive ought to run the show as it were once they come into existence. The legislature ought to have power in the Constitution -- constitutionally provided to periodically review the continued existence of these boards.
),
The way that Governor Carter went about the thing and came up with that so called revision where the legislature-~ where the executive at that point and lasted for only one session -- I think where the legis-- executive had the power.

He changed it.

PAGE 28

-. ----- ------------~---~----l

If it didn't stay put then the legislature

i

it was all right, but it's the other way around again as I

i

\
understand it now. I'm not at all certain that this was a

step in the right direction. What it did accomplish is to

point out the real problem of the multiplicity of the various

\. departments and once they corne into existence the almost

total lack of supervision of them. There is no place where all

of their activities are coordinated or any of their activities

are truly coordinated and each one becomes separate and

distinct and becomes again legislative, judicial and

. executive in and of itself. I think in dealing with the

executive branch, this is the uppermost philosophical question

as it were. The housekeeping matters. that have been addressed

over here, much of that has been as it was since 1777 or

!., shortly thereafter and has worked well. I don't believe we're

going to have too many problems with that. The philosophical

1 issue is the one as I see it that could have -- that we could

really make a contribution possibly in that area. 1 doubt if

:; you get it passed, but --

MR. GOWEN: The first constitutional board was the

'j Board of Regents which carne about because of the executive

excess and the people demanded that a change be made to move

the educational system from political control to the

executive.

JUDGE FINDLEY: Yes, sir.

PACE 28

MR. GOWEN: And then after the Board of Regents

became autonomous then all of the other boards

I believe

Game and Fish if I recall was the next one that came on and

that was an idea that they were going to take Game and Fish

out of politics and have game wardens that really did their

job instead of being political payoffs to cronies, but that's

how they came about and I'm inclined to agree wit4 Judge

Findley that we now have an excess. I don't believe that the

people would ever agree to return education -- higher

educational system back to the Executive Department because

I think the Board of Regents generally has done a good job,

but my own opinion is we have too many.

CHAIRMAN CHILIVIS: I agree with that.

MR. JACKSON: Let me raise a question and solicit

a response. For a practical matter I realize we're going to

be killing the chance of this if we start recommending that

the superintendent of schools be appointed, that the

Commissioner of Agriculture be appointed, Commissioner of t J Labor. If we only had Governor and Lieutenant Governor. If

we come up with a,-, "ideal document" I realize that that wouldn 't

be a document that would be approved by the legislature and

the voters, but what are we supposed to be doing? Are we

supposed to be concerned in here, will it politically fly or

are we at this level trying to look at the alternatives and

come up with some recommendations without really worrying

about

whether

it's

politically

PAGE 29

- ------------------~ - - - - - - - - - - - - - - - - - - - - - - - - 1

feasible although you can't

I

really forget that, but not really look at what are the

voters going to say if we vote to make the Commissioner of

Labor a statutory appointive office? What's your feelings,

should we let that be decided at a higher level?

CHAIRMAN CHILIVIS: I don't know the answer to that,

but my offhand judgment would be that what we ought to do is

consider as one of the alternatives what we feel would be

. idealistic and practical. I know those terms may not be

synonymous, but I mean by that something that would work but

be idealistic. I don't mean practical in the terms of

passing. That ought to be an alternative to be discussed.

Then I think with all the people that we've got even at this

level we might decide that our idealistic alternative has no

chance whatsoever of getting anywhere. We might disagree with

it and come up with another alternative, but I think then we

can present whatever we come up with to the full ccrromittee

along with alternatives we discuss and that way the full

committee decides but we have I would hope a fairly strong

recommendation. I don't know whether that answers your

question or not, but I think it boils down to the fact that we

would have some alternatives that we would hopefully consider

what is the best thing which mayor may not be the ideal

thing and we've got enough people here I think that are

involved in the legislature and the executive and the

ii

__ _ _

--.--J

PACE 30

judicial and a wealth of experience and knowledge that's

present that I think we could do that.

MR. GOWEN: It seems to me that the decision as to

the ability to secure the passage of the document ought to

go to the full committee and we ought to present the

'i alternatives to them which I believe is what you had in mind.

CHAIRMAN CHILIVIS: with the fairly strong

recommendation. You know, they either accept that or one of

the alternatives and I guess one of the questions I had was

when we might reach the point where we have those alternatives

in some sort of draft form and I think the answer I've been

getting is that we're not going to have until after the

September 26 meeting because of what is perceived will be

discussed at that meeting and we need that before we can come

up with any firm recommendations. In the meantime, though,

I've already learned a great deal about what the problems

might be just this morning.

Melvin, have you got some ideas you could address

to us at this time about problem areas and considerations?

MR. HILL: I really was so happy when Ed agreed to

be on this because he has so much expertise in this area and

I don't have anything to add to what has been said this --

"

thus far, but I was -- There is one thing, when you were

;1
speaking it made me think that if we don't consider the ideal

Constitution at this level in this committee, when will it

PAGE 31 ever be considered?
CHAIRMAN CHILIVIS: That's right. MR. HILL: Let's not lose th~ battle before we begin CHAIRMAN CHILIVIS: That's a good point. If we don't consider it nobody will because this is the level where it needs to be considered. Virlyn, how about you? MR. SLATON: I don't have anything to add at this point, Mr. Chairman. CHAIRMAN CHILIVIS: How about it, Charlie, have you got anything? MR. TIDWELL: Not any of these great issues that we've been talking about this morning, but I do have a few things your subcommittee is dealing with that I have identified just by handling them for the Governor are problems and they're really not worthy of a lot of discussion until I can write it out and they're not great philosophical problems. They're just practical problems that you see and can identify as a potential point because of the way the Constitution is now worded anda small word change could perhaps prevent something occurring and I've got a couple of those that I'd like to have the opportunity to present to you and these other issues, that's up to y'all, you know. CHAIRMAN CHILIVIS: On these that you'd like to have the opportunity to present do you prefer to send us

PAC l'~

32

memos or do you want to tell us about them now?

MR. TIDWELL: The only one that comes to mind at the

3 present time is one of the ones that your subcommittee has

4 been dealing with and it deals with the section on the

.) Governor's power to fill vacancies and it says in substance

that he has the power to fill vacancies unless it is

otherwise provided by law. Therefore, if the law is silent

on the subject, let's say a state court judgeship, if the act

9 creating the state court out of Jones County --

10

CHAIRMAN CHILIVIS: Come in. Did you have trouble

]I:. finding us? I) REPR. WATKINS: I even went back home. I had C&S-ll.

CHAIRMAN CHILIVIS: This is Representative Lottie

It was C&S-ll even though that's not where we're meeting.

15 ~Somebody there should have been able to direct you. I'm sorry.

1.1:.
:0
!h r,S
,:;.

REPR. WATKINS: They sent me back down to the eighth

17 floor and told me to go through a door and go over there. I

18 decided to go home and get my book, when I did, I had C&S-ll.

i9

CHAIRMAN CHILIVIS: Well, I'm sorry.

20

Charlie, go ahead. You were talking about --

?l

MR. TIDWELL: I was citing as an example of state

\")
court judgeship. If the act that creates that state court

doesn't provide what happens when a vacancy occurs, then the
~<
-~ : constitutional provision takes over and the Governor fills ,, - .' the vacancy and we have no problem. There is a slight

PAGE 33
:: question. Does the Governor' s apPoi~-~~: serv~--~-~~-~~:------l

~:-.. ",\ /t'i

i i "', "

\ \(1];..,,,,)

\\

\. -

,

unexpired term or does he serve until the next general electiOn?1 !
I
The Attorney General has resolved that through opinion to say

.1 that he serves the unexpired term. We had the question come

up. It came up when Mr. Ben Fortson died. The question was

would DaVidPOythrefserve the full term and I don't think that'

a problem, but it could be and if you want to change it now is

the time to do that.

CHAIRMAN CHILIVIS: I think it is a problem as a

IU matter of fact. There is another provision that is currently

I; in Justice Hill's committee which I believe and I can't

quote you the constitutional provision, but in the appointment

:of at least some paope and I don't know -- it must be the J''1.!' constitutional officers, it does provide until the next

"general election I believe, instead of the unexpired term and

j'. there is apparently, if not a conflict a possible interpretative I' inconsistency between the provision that we've got and the one i:- that's in the other provision and we have discussed that as a
!'.}
matter of fact and we're up in the air at this point as to

whether or not they should be combinednto one provision or

2l just how it should be handled and you've got the additional

" problem of what happens about the senate confirmation

I

provisions for appointments if there are any, but go ahead,

I

"
;-1-

'Charlie.

I

I

J MR. TIDWELL: Generally, this constitutional power

PAGE 34 is triggered when there is an absolute vacuum as to any ~ statutory law as to what happens, the constitutional provision takes over. If there's a statutory provision you have no problem, you just follow it. But there's an interesting phrase that says unless otherwise provided by law. u There are any number of instances that we have almost been faced with where there is an otherwise provided by law and
it. is impossible for the otherwise provided by law to result in filling the vacancy. We almost had the situation 10 arise in Douglas County when the five school board members
,;
were subject to recall. It looked like all five of them were ~ going to be recalled and the as otherwise provided by law
,L
CfltHflfO '0.:
provision said that the board would fill that and the question was was the Governor going to have to appoint all five board members. We weren't faced with it because one of them survived.
CHAIRMAN CHILIVIS: So the one of them appointed the others?
MR. TIDWELL: That's right. There I was going to take the position that there was an otherwise provided by law that didn't trigger this oonstitutional provision and it was
'. )
just too bad that it was impossible to do that. The Governor didn't have the authority to appoint it, but we never had to face that point, but I think that's a practical problem that you kind of run into. We can handle it without any great

PAGE 35
- ------ - - - - - - - - - ------------------, '\
philosophical debate as to what happens. You can say if there is no other provision or if the provisions of law can not be complied with then he does it or if you don't want the Governor to do it, fine. That's the sort of thing I was talking about and it would be very simple to draft and present a position and I think the Governor cares neither way which way you go. It's just something that his counsel is pointing out to you. The matter of Senate confirmation is a practical matter to tell you how the Executive Department handles that. All of the Governor's appointments are submitted to the Senate for confirmation even if the statute itself does not provide for it. There are some provisions in the Constitution that require Senate confirmation. There are statutory provisions that require it and then there is -- As a practical matter the Governor will send to the Senate every session all of his appointments. For instance, my appointment, yours, are sent to the Senate for confirmation. If the Senate had failed to confirm you or L I think the Governor would have said fine, thank you and you would have continued to be the Revenue Commissioner, I would have continued to be the executive counsel, but that's a practical matter. That's how it's handled. All of the departments where there is a position created by law it's sent to the Senate and confirmed or rejected.
CHAIRMAN CHILIVIS: But there's no constitutional

PACl;; 36

provision which requires

MR. TIDWELL: Which covers all of them? No sir.

CHAIRMAN CHILIVIS: How about those that are

covered, what happens if the Senate, for example, has just

adjourned for the term and an appointment -- an office becomes

vacant, does it provide that it's held over for the next term?

MR. TIDWELL: Most of the provisions that require

that they take care of that contingency and the appointee

serves in the interim until the next general session. There

10 is a provision in the constitution that says if the Senate

Ii rejects or fails to confirm then the Governor can not submit

that name again. That is in the Constitution, but there is no

,~ general provision in the Constitution that says all appointees

of the Governor are subject to confirmation by the Senate.

I"

CHAIRMAN CHILIVIS: Do you have anything else?

, {)
'--j

MR. TIDWELL: That's the only one I have on the

I -, vacancy and I will send you something in writing so you can

j ;-, see what I'm talking about and you can deal with it or not deal:

19 with it. I identify it as a problem that can arise sometime

'i) in the future.

)j

CHAIRMAN CHILIVIS: Joe, do you have any thoughts

at the present time about some of the philosophical areas or

other problems that we might want to be thinking about in

.'.,

discussion?

REPR. WOOD: Of course it's already been brought out,

-l PAGE 37
I do think we ought to face it head o~--a~~-~isr~-~~~d~~:---

political aspects of it whether it would pass or not pass.

I

Let's come up with something concrete to report to the

I

committee as a whole and then we would take it from there.

I just want to clear in my mind now our subcommittee is going

to deal with the subject matters of the election of the

Governor, the Lieutenant Governor, the duties and power and

the disability and as far as -- That's as far as this

committee is going to go, is that correct?

CHAIRMAN CHILIVIS: That's correct.

REPR~ WOOD: So we've gotten off into another field,

haven't we, when we talk about boards? Well, we were talking

about the Revenue Commission, the Labor Department and so

forth. I'm just trying to clear in my mind is that in this

section we're going to discuss or is that in another section?

MR. GOWEN: Well, it isn't in any other section as

I understand it, but the question as I gathered from Mr.

Jackson was whether we should add to this section making the

Governor the chief executive of the state which then would

bring the powers of the chief executive and what he could do

into focus.

REPR. WOOD: I was thinking that Mr. Stern's committee

was going to handle the boards and constitutional officers.

That's just what I wanted to clear in my mind, just where we

are where the other committee is.

_.. _..

, .... ~.

~ _ ~.... ,_.. _ .. ~

~~

!
.._.J

PAGE: 38
JUDGE FINDLEY: It's of concern to me -- I think that's correct that he does refer to boards and so forth, but these are executive boards as you all well know so,it is a question that addresses itself at least philosophically and I think practically too as to what the powers of the executive are so there's no way to treat our articles without going into that. Now whether Mr. Stern's committee would also have recOmmen" dations on it and ours may not be the same, but it appears to 'J me is something we would have to address in dealing with the powers of the executive. What are you going to include? Is Ii he going to run it like a cabinet perhaps as the President " of the United States does or are we going to continue setting ,_ up separate constitutional boards or are we going to have a il general provision which gives the legislature the first authority to go ahead and create as need and remove as need 1", 7 with certain exceptions? As Mr. Gowen has mentioned, the Board of Regents ever since Senator Talmadge -- well, Governor Talmadge, ever since they marched on Atlanta from Athens that's never been the same since and I don't think it ever will be again, but the general issue -- I don't know. I just thought we had to address that myself, but if we don't then ours becomes very easy. All we do is go back and take care of the housekeeping matters it seems to me.
CHAIRMAN CHILIVIS: I'm not sure I've understood all of this, but insofar as the boards are concerned are we talkin~

about the constitutional boards?

PAGE 39
---_.._ - - - - - - - - - - - - -

JUDG~ FINDLEY: Yes.

CHAIRMAN CHILIVIS: Insofar as the constitutional

boards are concerned it would seen that our philosophical

or theoretical decision would be whether or not to provide

within the scope of our articles any appointment by the

Governor interplay or whatnot. If we decide against that then

ou]; function ends and it's"'up to Mr. Stern' s committee as to

what to do with the boards and how to handle the boards. I

think our narrow issue would be what part the Governor is

going to play in the boards or I suppose the Lieutenant

Governor. After then we don't decide anything else, but I

gues we have to consider those other things in making our

decision.

REPR, WOOD: Nick, where do we find the boards and

constitutional officers other than the Lieutenant Governor

and the Governor looking at our list of subjects?

CHAIRMAN CHILIVIS: I assume from what I've heard

that you find it in the powers or the duties and powers of

the Governor. I don't mean it's there now, but I think the

question being raised is whether or not it should be there

and I think once we decide -- if we decide it should be then

we've got a major matter to address, if we deoide it shouldn't i

be then that's probably the end of it, but I'm trying to

I

i

answer something I don' t ~~~~__~ ~ot~~o~t._~~b~":_~dge!indle~

PAGE 40

could answer that better or Mr. Gowen or Ed Jackson.

JUDGE FINDLEY: Ed addressed it in his memorandum to

a large extent also. I'm trying to find the provision here.

MR. JACKSON: The truth i~"executiveboards

are found all through the Constitution, State Scholarship

Commission, Medical Education Board, the Board of Regents,

State School -- well, he's not a board, the School Board,

They're allover the place and there are clearly executive

boards. I see some fundamental questions. If you say the

executive power shall be vested in the Governor then what does

that mean in his relationship with the Commissioner of 12 Agriculture, the Commissioner of Labor and these other

constitutional offices. Maybe we can address that and still

leave that where it's located.

'I C
:

CHAIRMAN CHILIVIS: Let me ask a question maybe of

Virlyn and Charlie and Joe and Ms. Watkins. I have heard a

number of times when there was a meeting of department heads,

and I won't say orders being given out by the Governor but

at least some kind of pronouncements, I have heard certain of

the constitutional heads saying something like well, you know,

.21

Governor, I'm the Constitutional Department head and I never

have heard that explained but I always assumed it to mean that

they didn't consider themselves to be directly answerable

~'. J
to the Governor or at least not wholly answerable to the

". J

Governor. Am I incorrect on that?

.. .'..-_.--.-.-.-. .-.----.--.-.-.--. PAGE J41

n

~'---_

II

JUDGE FINDLEY: Well, isn't it under the present

1

Constitution 228.081 Getting back to what Mr. Wood had said, i

says the Governor may require information in writing from con- :\
i,
stitutional officers, department heads and all state employees ;
:
I
on any subject relating to the duties of their respective officels
i
or employment. The General Assembly shall have authority to I

provide by law for suspension of any constitutional officers or

department head from the discharge of the duties of his office,

') also the appointment of a suitable person to discharge the duties.

Ii) There's another provision that I can't put my hand on right now;

I

;:that
o

starts

in

Section

3,

other

elected

executive

officers,

thatl's

I

I .~ cO all under our Title V. That defines Secretary of State, Attorner

oGeneral, State School Superintendent, Comptroller General, Comm-I I :
)4 ~ issioner of Agriculture, Commissioner of Labor, shall be electedl

<

!

i5 ~and so forth and all of these people theoretically respond

:,
io ~J back to the Governor, but the General Assembly, under Article
z.
I 7 ~"i V, Sec.tion 3 has the right to prescribe the duties,

authority and compensation for the executive officers and to Jll ' provide help and expenses for the operation of each branch.

So it seems to me when we're talking about the executive that

2i it's impossible to leave out people that work in the Executive

)
Department. I just don't -- So we do have a hiatus in there

I

or a conflict as between ours and the other committee, but

i

,)

t we definitely have it as a part of Article V time and time

I

again specifically naming some of the con~~it~t_io~a.lof.~~:~s~.-J

PAGE 42

but in addition to that there are a number of other

appointive places. It seems to me that it is properly a part

of ours. For example, on those constitutional officers in

Article V, maybe that's not one -- Is that one of our sections

) that's been eliminated under Article V, Section 3? Is that

IJ

assigned to us or is it specifically to the other committee?

'/

CHAIRMAN CHILIVIS: We don't have Article V, Section

3,' but we do now have Article V, Section 4 which has to do

'j with the disability of the executive officers and which

includes the constitutional executive officers.

JUDGE FINDLEY: Yes sir.

CHAIRMAN CHILIVIS: So, you know, it's going to be

involved in some manner or another, but I think you made a

good point, Joe. How far are we going to get into it and just

15 what will we do with it?

MR. HILL: Well, it seems like the perfect kind of

1. / question that the full committee can address on the 26th and

i;-,

try and decide to what extent -- if we feel that's going to

!9 be an issue that we have to know we're going to be working on

it or not and help get some guidance from the committee.

.)J'

CHAIRMAN CHILIVIS: Ms. Watkins, I know you got in

here late and you missed a lot of our earlier discussion and

I apologize for the confusion that was created, but you need

a compass and a string and some bread crumbs to find your way

around in this maze.

J

PAGE 43
REPR. WOOD' Can we meet at the CaPitO;f~~m-now o:~--l
CHAIRMAN CHILIVIS: It is easier getting out than I' it is getting in, but do you have any problem areas that you I
i
think of offhand that you would like to discuss with us? MS. WATKINS: No. After reading this over the
weekend I learned a lot. I really had never read the Constitution. That's number one, but I still don't understand the duties and powers of the Governor. I'm in accord with what the Judge just said, but maybe at the next meeting I'll be able to have something to say on it, but I'm just at the learning stage.
CHAIRMAN CHILIVIS: Several of us are. MR. JACKSON: Maybe it would be helpful from the Governor's Executive Counselor someone else, one of the staff attorneys, to prepare a short memorandum about what powers the Governor does have over executive agencies in general and constitutional officers in particular. For instance, the Governor can initiate the auditor, I believe I'm correct, to audit a particular agency. He does have budgetary powers only to the degree of recommending a budget though. I'm not sure once a budget has been approved what powers OPD has over an agency, but maybe a clarification exactly what powers the Governor does have would be helpful and maybe to contrast it with the powers of the President, what the President can use an executive order for and that's

PAGE 44
an unsettled issue, isn't it, in Georgia Law what an executive
order can be used for, it's legal status? What are the
inherent powers of the Governor?
MR. TIDWELL: There are a lot of unanswered questionsl,
Ed, as you brought up and this is up to the subcommittee in
, their wisdom to see whether they want to treat those or not,
but I make the observation that neither does the U.S.
" Constitution address executive privilege and it does not
address legislative overview. These -- They're issues and
they're topical issues and they're timely. They're real hot
,0
L
f- issues facing state government now. It depends on how you want
to resolve those issues. If you want to do it where the
legislature clearly has overview then the Constitution is the
proper and appropriate place for that to be done. I would havei
to confess to you that I don't have anywhere near the
expertise and knowledge to tell you how you ought to deal with!
the executive privilege. I think it's such a complicated
,
complex issue that you would have to draft something that woul~
It}
probably be far beyond the verbage that's contained within :11 Article V if you wanted to treat with it in an intelligent
fashion. Perhaps the court should resolve that question. It's
,\
worked out pretty much on a practical basis here as you all
know. I don't know of any executive agencies or judicial
,",i.
agencies for that matter that are not pretty well willing to
come to the legislature and tell them what they're doing and

PAGE 45

why they're doing it and that's not all due to altruism on

their part. The biggest stick that the legislature has got

is that power to appropriate and that always can command

presence and elicit information and there are some instances

where I can see that there would be some sensitive areas as

you cited in the example that dealt with an investigation that

was eventually going to go into litigation if it were not

already in litigation. There are just some things you just

can't talk about all the time whether it's executive privilege

or propriety or what have you or judicial privilege for that

matter. It's kind of difficult, in my estimation having

fooled with the Constitution for a number of years, to try

and address those issues they way they should be.

MR. GOWEN: I'd be interested in knowing what other

State Constitutions do with respect to executive privilege.

Do we have that information whether they deal with it and how

they do it?

CHAIRMAN CHILIVIS: Did all of you get this document?

MR. HILL: They don't have it yet. I brought them

today. That doesn't have anything about executive privilege.

If I could take a second to indicate what this is and I could

hand one out to each of you here. When I walked into the

office two weeks ago there was a pile of these materials

i

sitting there and this has information on the executive from

I I

I

other states. There's a model State Constitution provision andl

--- --

__ ~_________

-------.-J

PAGE 46

there are provisions from about eight or nine different states.

This was done by the former staff of this office and there

are very few -- I don't really know the source very well of it.

4

I'm giving it to you primarily because it's there and I though~

~

there is information in it may be of interest to you, but

the question you just raised about executive privilege was not

one of the topics addressed in this material so that's

something we can look up.

MR. JACKSON: Do you have copies of the Constitutions!

of the various states?

I i,-,

:I "'

states.

MR. HILL: We have those in the office, all of the

JUDGE FINDLEY: I haven't read this before, but the

administrative departments is treated there. I think that

'"-:,
.1,
1()
C I
1-, "

Ed brought up in his memorandum again the question of not so much separation of powers between the executive and the legislative and the judicial as it is the exercise of the power:

and there's no way to clearly delineate the executive and

19

the l~gislative and the judicial as we all clearly understand,

but what powers shall they have and to what extent may these

'1

powers be encroached upon by the other side? Clearly there's

executive power, clearly legislative, clearly judiciary.
,1
There's always that twilight zone that Charlie was making

reference to over there and this is where your executive

privilege is one of' those areas. That probably can never

PAGE 47
resolved except on a case by case method~--~-~on~:-:ee~~~--l
it could be resolved otherwise. I think in 1975 and '76
I this has been addressed some in the Georgia courts. It's been Ii
addressed in the Supreme Court of the United States on a number
of occasions over the years, but they've always -- of course
Ed would know a lot more than I would on this, but it appears
to me they've always approached it as a matter of power rather k than to try to follow the exact separation of power. Our
. Constitution as presently written and our earlier constitutions
IU all seem to make a specific reference to the fact that we shall
have separation of the legislative, judiciary and executive and
:,then go right on to abandon that theory almost as fast as they
:'put it in there. Do we really want to try to approach this
11 .. Constitution philosophically when treating the executive as v. , to what his powers are rather than trying to define exactly
Ie :-, what he will do in this area and that area and so forth? On 17 executive boards, are you going to call them boards or are you
going to call them cabinet members, this sort of thing? This ') is what I keep getting back to and that's why I think that
this -- Joe's point is well taken there and I really haven't ?J given that enough thought on Mr. Stern's committee. Quite ,,
frankly, that kind of catches me off balance there because I
think what we have and what they have has to be considered
together, so much of it does.
REPR. WOOD: I was just thinking that Nick might just
~_~._. .__~__~ .__~__J

PAGE 48

contact them and find out what pattern they're going to use and

2 we'd know which way to go. No use for us both to be following !

3 the same road.

4

MR. TIDWELL: I think that probably the next meeting

5 will be helpful because all of the subcommittees will have met

6 once by that time and you will begin to take direction. They

7 can take their direction. We'll just kind of all see what

8 progress we've made by the next meeting.

9

MR. JACKSON: One question. At what point are we

10 going to invite public participation or testimony? No matter

,.:) 7.
1] ~ how well intentioned or realistic we are that very few people w~ll ::'

~ turn out, I still feel we've got to allow the public the chance,

IZ.
~ to testify rather than presenting them with an accomplished fact.

I

; Will that be at the committee stage or subcommittee or what?

<

I

15 .~

CHAIRMAN CHILIVIS: I don't have the answer to that.

":.)
16 ~~;Q There was some fairly strong feeling I think expressed earlier n 1. <
17 ~ that it would be a waste of time to ask the public to come in

Hi at this point. I don't know at what point it wouldn't be a

waste of time. I suppose at some point before any final 20 decisions are made. If we approach this matter on the basis

that at our next meeting we have some alternatives to discuss

22 : that may be the time, but I would rather think offhand, and

I'm thinking out loud, that maybe the meeting after next.

Maybe at the next meeting we'll discuss some alternatives. I

25 said earlier that we would probably either decide to recommend

PAGE 49
an a1ternative or to~~nsid:'-;'h:--;;'1t:r~~ti-ves further.-After I
hearing the discussion today I think it would be fairly obvious that our recommendation will be to consider them further. I'll have to have at least two more meetings and I would think after we reach some point where we can have some direction on where we're headed, some firm direction, that we might invite them in, but that's just my offhand thinking.
MR. HILL: Mr. Chairman, I think this too is an issue for the full committee that we have to resolve. All of the committees will be working in the same way and whether there's a public hearing for the entire committee and all three proposals --
CHAIRMAN CHILIVIS: I think you're right. Let me ask a question that was alluded to earlier. We're talking about making a little memo of these various things so we could bring them up at the full committee meeting on September 26. Melvin, is that -- will you assume that function?
MR. HILL: I'm taking notes. CHAIRMAN CHILIVIS: If you could list these down for us and get them to us prior to September 26 then we could make our report and say that these are some of the issues that we have identified. I don't mean to cut off our discussions here, but what about our next meeting, is it the concensus that it should be after September 26 meeting? MR. GOWEN: I would think so.

PAGE 50

CHAIRMAN CHILIVIS: That's what I would think. Do

you think we could now at this point determine when our next

meeting might be and where? Let me ask you again, Tom, when

is the meeting after the 26 meeting of the full committee?

MR. THORNE-THOMSEN: The next full committee? I

" don't think it's been set, but it would be at the end of

October. I think he plans on one meeting toward the end of

each month.

CHAIRMAN CHILIVIS: All right. Has anybody got any 10 ideas about when we might meet again, maybe a couple of weeks i I ,- after the 26 meeting?

:\;'Y..EJ..1\

MR. HILL: Mr. Chairman, let me ask you this. You

" ("(rl.:,,J)/i-S'!.!"'.'" Z hatJ mentioned earlier that perhaps this committee would want '~~=~~~~, Ii to break down into subsubcommittees. If you're going to do

that would you like -- do you intend to assign people for the

subsubcommittees that will meet before this full committee woula
()
meet again? That might affect your timetable.

CHAIRMAN CHILIVIS: I think so. I think if the IJ committee -- if we would like to do that that we would follow

that procedure. Is that all right with the committee? What

I might like to do is get Judge Findley to take one of these

subject matters, either Section I or Section 2 really, as

opposed Article V, Section 4, but and I thought maybe based

on his study of this he might choose the one he would like to

handle.

J

PAGE 51

JUDGE FINDLEY: Section 2, I'd be privileged to look into that one.

CHAIRMAN CHILIVIS: I thought we'd get somebody working with him on that. Would anybody particularly like to

work on that? Really, Joe, if you would like to work on that

I thought you might be a good one to work with him on that. REPR. WOOD: Whatever you think.

CHAIRMAN CHILIVIS: Okay. If you don't mind. I

may -- I really don't think that this Section 4 is going to " pose any major problem and in connection with that, Charlie,
you mentioned earlier about the Federal Constitution and

executive privilege. Was the Federal Constitution ever amended to cover in more detail the disability of executive

officers? Does anybody know that? You know, at one time there was a proposal about that and I don't think it was ever

amended, but it may have been. MR. TIDWELL: The Federal situation has a very
detailed sucession of power, you know. Vice-President, then
it runs down through the cabinet officers and then it goes into the -- I think it goes .as far as the legislative branch.
CHAIRMAN CHILIVIS: The thing that was lacking as I recall was how do you determine when the office is vacant

through disability or otherwise and I remember ~- some of -you

may have read the book entitled The Year We Had No preSide;toj

It was an interesting situation of where you could not have a

__ - - - - - - - - --~----_.

._._----~----

- -- - -

--------

PAGE 52

President for a whole year and have no method of filling it

under the Federal Constitution. Well, the Article V, Section

1, what my thought might be -- and by the way, Ed, if you

don't mind I'll let you serve on all the subcommittees.

:;

MR. HILL: He's already agreed to serve on another

o subcommittee as well.

CHAIRMAN CHILIVIS: Has he? Okay. Mr. Gowen, could

" you sort of head up that subcommittee about the Article V,

'J Section I?

MR. GOWN: I'll be glad to particularly if I have
,"~I
1 i ," Dr. Jackson on the committee.

CHAIRMAN CHILIVIS: Well, he'll be on the committee

with you.

['!

Now, Ms. Watkins, do you have any preference as to

I" ) which one of these you'd like to serve on?

1(. 2.

MS. WATKINS: No.

]/

CHAIRMAN CHILIVIS: I tell you, since I've got Joe

Wood on the Section 2 if you would serve on the Section 1

Ii) I think that would be good.

20

MR. GOWEN: That would be fine.

21

MS. WATKINS: This is with Judge Findley?

CHAIRMAN CHILIVIS: No, no. That's with Charlie

Gowen. Excuse me. Now, Henry, would you sort of be in charge

of the Disability of Executive Offices ,Article V, Section 4 I

and of course Ed will help you with that too and I'll work with:

-- ---- - - - ----- - - - - - -

PAGE 53

all of you on any of these now. I think I got everybody

serving on something. Somebody mentioned to me something

and maybe, Melvin, you can help us with this or maybe we can

do it ourselves. They said that part of the methodology they

had used was to take the '76 Constitution and the -- what is

it, the '68 and the '64 Constitution and where there were

they were the same or similar provisions, in other words

where they could do it they cut them out and they pasted them

side by side so that they had all three of them in a row and

they could at least determine the draftsmanship and the

differences without too much trouble on that and they said it

was a mechanical aid that was very helpful to them. Justice

Hill told me that he had done that and he has already I think

come up with some sort of a draft on a number of his and it

helped him considerably.

Melvin, have you got a staff that could do that for

us?

MR. HILL: We would like to put that together for

every committee so we'll see what we can do.

CHAIRMAN CHILIVIS: Okay, that would be very helpful.

As I understand i'b.:nowMelv:in in addition to putting that

together will make a -- some sort of report to us listing

these issues before the September 26 meeting so we can report

to them, that between now and then and between then and our
J next meeting which we' 11 decid~ ~~__ t_~~_S~_~_Ubc_~~~~~ee_~~_i_~l __

PAGE

54
---- ... ------.-'1

function, the subcommittees of the subcommittee, and try at

our next meeting to corne up with something with some teeth

in it, some real alternatives. And I believe if we do have

something in writing, some drafts, that that might solve a

lot of our philosophical and practical and idealistic

(, problems too because when you start writing you get a little

different perspective than when you're discussing and if we

could at that time, and I know this is going to be a lot of

() work but I guess the committee itself has a lot of work,

ill could have some basis for a discussion of what's going on in

i I other states in regard to this, any interpretative case law

I,: that we might have in Georgia and how these things mesh with

other articles like we were talking about the boards and so

J1 forth so that the chairman of the committee or his designee

I '" when this presenta,tion is made at the next meeting can give I ( ,~, us a pretty thorough understanding of what we're talking about.!
o
1/ Then we can have a discussion of that. I know that's asking

for a lot by then, but I think that might be a good idea.

1." Now if the chairman of the subcommittees could also and their

committees if they want to, but at least the chairman meet

21 with -- Who did you say for the Lieutenant Governor?

))

MR. TIDWELL: Bill Burson, he's the administrative

aide.

CHAIRMAN CHILIVIS: Meet with Bill Burson. You

think there's any need, Charlie, to further meet with you

PAGE 55

before they come up with these?

MR. TIDWELL: No sir.

CHAIRMAN CHILIVIS: But you would be available if

they needed to talk to you?

MR. TIDWELL: Right, or any other members of the

Governor's staff. I certainly am not his only staff and

certainly not the most important, but I'm going to try and

just monitor it all so I can let the Governor know because

he's Governor but also because he's Chairman of the Select

I.

Cornrni ttee.

CHAIRMAN CHILIVIS: Okay. Now this brings us down

again to the time of the next meeting and I need your advice

on when, where and what day and what time? I preface that

by saying that earlier it was mentioned that everybody would

prefer to meet on Monday and that still suits me fine. It

certainly works out much better for Judge Findley and Monday

is always fine with me so if there's no objection we might

look at a Monday. I would anticipate that that meeting would

be a long meeting because if we go into these discussions on

articles and sections and paragraphs that have been drafted

it will take awhile to do that and we may be talking about,

you know, starting in the morning and going through taking a ,

lunch break and going on out to lunch, but I think if we finish'

that meeting we'll have the worst part of it over with.

MR. GOWEN: How about the 15th of October?

PAGE 56

CHAIRMAN CHILIVIS: Is that on a Monday? That would

suit me fine.

JUDGE. FINDLEY: That's fine with me.

CHAIRMAN CHILIVIS: Is that all right? I have no

preference as to where to meet. If you'd to meet

JUDGE FINDLEY: If we can have the same guides we

could come back here.

MR. GOWEN: This is a very convenient -- Downtown

is really more convenient than the Capitol. I think this is

(1 an ideal place to meet.

CHAIRMAN CHILIVIS: Well, if you want to we can meet

in this same room. Now I will do this for you, I'm going to

show you out when we leave and the next time if you'll come in

the way I show you out you won't have the difficulties you

, had before, but I'll have to -- You'll have to knock on the
l-".
door is all because we keep everything locked up as does
17 Alston, Miller and King and Spalding except our main entrance.

Well, once you know your way then we can let you in. I don't

know why we do that as a matter of fact.

2U

MR. WISEBRAM: Before we adjourn are we going to

. i address the office of Lieutenant Governor or are we just going,

to pass that by?

CHAIRMAN CHILIVIS: Yes, that's a good point. I'm

glad you brought that up. Again, I don't know exactly. We

just started talking about this when everybody came in, but

PAGE 57
there's been a considerable thought at ~~~:: ';;'OU~~~:li-shingl

the office and of course you get into all kinds of questions.

Do you have a quasi executive person presiding over the

Senate? If you do do you elect him instead of calling him

Lieutenant Governor call him President of the Senate? I don't

know, but that is one of the issues that we need to address.

MR. GOWEN: Let the Senate elect their own presiding

officer like the house does.

MR. WISEBRAM: I think we ought to study it anyway.

CHAIRMAN CHILIVIS: Torn?

MR. THORNE-THOMSEN: Nick, I have a couple of

documents here that Mel asked me to look at over the weekend

and they have quite a bit of summarization of the provisions

from other states and we'll be getting copies of this and

it does address the issue of how many states -- how they elect

their Lieutenant Governors, whether it's a federal system,

whether it's like we do here in Georgia now in terms of two

different offices, could be two different parties. This is

all sumarized here and I will get this to you. Mr. Gowen, I

think it will be particularly helpful to your committee as part

of the housekeeping type stuff.

MR. GOWEN: It would be. Would you not only send me

a copy but would you send Dr. Jackson and Ms. Watkins a copy?

MR. THORNE-THOMSEN: I think everybody on the

committee will get one.

The other thing before we adjourn is

_.-_ _--_ I .. -.-.. .. _ - - --_.-.--- -. ---------_..

.._ - - - - - - - - - - - - - '

PAGE 58

if during the proceedings there are legal questions that need

to be researched I have been sort of informally assigned to

this committee sort of to emphasize any kind of legal research

.I that you may need. I think, Vickie, you've been assigned to

one of the others and Mickey has been assigned to another

(, committee so if you do don't hesitate to call me. I know a

couple of issues were raised during the morning such as

executive privilege, the Thompson case that we talked about

earlier. Those I can pursue if you'd like. Just let me know

and I'll be glad to look into that.

t.,

CHAIRMAN CHILIVIS: If you would reread the

,,
Mangell-i case in light of the Thompson. In the Mangelli case

it was clearly argued in the Supreme Court that the powers

not expressly granted when it comes to the field of taxation

ought not to be impliedly given, that if they weren't granted

they ought not to be there, that it had to be expressly

granted and the court held tha't. Now they may say later on

that they didn't because they did hold it in a manner that

they did not overrule a prior case which held differently and
if) it did confuse everybody, but you might check that. You might
-, I
read it with a different perspective and you might come up

with the opinion that it did not in fact overrule that but

just qualified it and I'd like to have your judgment on that.

MR. THORNE-THOMSEN: Okay.

CHAIRMAN CHILIVIS: That has to do with what is

PAGE 59

conceptual in the Constitution and that's the last

interpretative case on that issue I believe and it may just

apply to taxation. I think it was argued in that case that

it should be applied only to the narrow field of taxation and

that taxation should be considered a little bit different in

the construction of the Constitution than your normal

constitutional provisions.

All right, so the next meeting will be October the

15th and before we adjourn let me tell you this that we are

on the 10th Floor of the William Oliver Building. I'll show

you the way out, but you enter the William Oliver Building

I from Peachtree Street and if you will come to the 10th Floor

at our next meeting on October 15th at 10 a.m., if you will

come to the 10th Floor I'll have somebody looking for you.

In fact, we may can leave the door unlocked. They've just

put on new locks. I don't know if you can leave them unlocked.

You used to be able to leave them unlocked. You can come on

in and we'll be expecting you and it will be a lot easier than

going to the C&S Bank Building to the 11th Floor which is the

12th Floor of this building which makes it even more confusing.

Is there any other discussion? Mel?

MR. HILL: Mr. Chairman, I just wanted to say at

I

i

J any time myself or Vickie or Mike or one of the people from

I

I
our staff will be working with each of the SubSubco~ittee

so there will be someone to

PACE; 60
CHAIRMAN CHILIVIS: Provide continuity and in that connection anything that is generate4 including the minutes of : I the subcommittee meetings if you could distribute those to the other members of the committee so that we will all know what everybody else is doing because we're talking about now a lapse of a little over a month before this committee will get back together again as a subcommittee and by then we would like
,
" to have a great deal of progress. And one other thing, I don't '; want to repeat myself too much, but the next meeting I would !I, think will probably last past the lunch hour. Would you like
,I
for us to have sandwiches brought up or adjourn for lunch or 'f what? We can make arrangements to do either one. Anybody

REPR~ WATKINS: I think it would be nice to bring a

sandwich up. The door is too hard to find.

\(

CHAIRMAN CHILIVIS: That probably would be a good

idea. Then if we started at 10, if the meeting lasted three

or four hours and we worked during lunch we could finish at

1, 2:00. Okay, so I'll have somebody standing by to take our
:20
order for sandwiches.

Is there anything else?
l)
REPR~ WATKINS: Mr. Chairman, where is the September
.23
26 -- where will that meeting be held? Back in the Bank of

Georgia Building?

MR. THORNE-THOMSEN: Yes, that will be held at the

PAGE 61
same place where our ~:~~-~-Ul1 committee--::-~~-~~~~~:: held an~l
that's the 14th Floor of the NBG Building. CHAIRMAN CHILIVIS: Any other questions? Anything
else to come before the meeting? I want to say thank you for all of you coming, not
only the members of the committee but members of the staff and the Governor's Executive Counsel and the Legislatur~ Counsel for being here with us and Ed and Tom, all of you. If there's nothing else -- There being nothing else to come before the meeting, the meeting is adjourned.
(Whereupon, the meeting was adjourned at 11:50 a.m. on September 10, 1979.)
I
!
I
I
I
I
I
____________ J

PAGE 62 C E R T I F I CAT E I, Peggy J. Warren, CVR-CM, CCR No. A-171, do hereby certify that the foregoing 61 pages of transcript represent a true and accurate record of the events which transpired at the time and place set out above.
~~ Q Zl'a~-> i
PEGG~ARREN, CVR-CM, CCR A-171
J(I
1 ,lJ
it;
n'.1
1"7
,?U

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Sept. 10, 1979

1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1

SUBCOMMITTEE MEETING, 9-10-79
ARTICLE V: EXECUTIVE BRANCH (General Discussion) Proceedings. pp. 3-9
SECTION I: ELECTION OF GOVERNOR AND LIEUTENANT GOVERNOR Paragraph III: Lieutenant Governor. pp. 56-58
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph I: Executive powers. pp. 9-47
Legislative authority over regulations of executive departments. pp. 9-19, 46-47 (See Article I, Section II, Paragraph III: Separation of
powers) Executive privilege. pp. 19-20, 44-46 Constitutional Boards and the Executive. pp. 37-42 Paragraph VIII: Filling vacancies. pp. 23-29, 32-36
(Public hearings and division into subcommittees. pp. 47-55)

I
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

THE SUB-COmUTTEE ON OTHER ELECTED EXECUTIVE OFFICERS OF THE CmIjHITTEI~ TO REVIL'Vl ARTICLES IV AND V STATE OF GEORGIA

The transcript of the procGedings heard before THE HOnORABLE JUSTICE HAROLD H. HILI.. , ~Tr., Chainnan, corm,lcncing at 10: 00 0' clock a.m., Thursday, SeptFmber 20, 1979, in room 402 of the Stat.e Capi.tol Building, Atlanta, Georgia.

-000-

I
I
:

1----------------------
BRA.NDENBURG & HASTY
~UENTIHC REPORTING 3715 COLONl.A!. IKAIL. DOUCLASVILLE, CEORCIA 301.15
942-0482 DEPOSITIONS - ARBlTKAllONS - CONVENTION\ - CONFERENCES

----1I
I
I
I
i
!

1------------------------------------

A P PEA RAN C E S

SUB-C011HIT'l'EE !11~ImEHS: '.

.:TS'.t":;:Cr: IIl\.ROLD ~-J. HILL, Jr., C:~jai rman

lweI:, '~E:"PLSLI17l\TIVE THOHl\S 13.

III

I)n. ,rpl~!JI( l~. GIDS0tJ

;:[;!.;]\.TOH ,TllNICE IIORTOH

PAGE 2

..-'
... i .

VicLic

Gr6E.nl:crg

~\L'. Ed .Jackson

n.,-. Hamilton Ikllhortcr

1!:'3. Cynt.hia NGnidc.z

:~. Virlyn Sla~on

-TeGgl ~)idnE:-Y O. ~:aith, Jr., Comnit.:.cE Chail.-n~p

Hr .. Thomas Thorne Thompson

n}.~. Charles '1' ichwll

-000-

.':':', ;k..-!
" i ('. ')

TOPIC

PAGE 3
,._-------------------
TOPIC INDEX
PAGE

Stat~ School SuperintBnd~nt

5

thtion on State School Superintedent

31

!Sccretary of State

31

Cont:.ro11er General

31

Commissione.r of Labor

32

Commissioner of Agriculture

32

. Attorney GEmeral

34

ill Draft of proposed resolution

58

,)

IIDtion on residency requirBments

78

i'

-000-

[I'.

"

PAC} J

PRO C E E DIN G n

C!IAIRHAH HILL:

-'

For thE. record, I am Harold IIi 1'. ()ur v.ic-Chairn.'i.n,



Hr. Ga1n:tt, said he would not be herE: today. ThE. oUter

members are expected, and WG do have R6presentativ~ Toc.

Duck, Dr. Prank Gibson. I gUess that's it insofar as cur

7

mE.mbers are concerned at the mOM.nt.

Judge Sidn~y Smith is hE::re. For the Court Reporter,

I'll ask each of you to identify yoursslf, starting nGxL to

Jli

Judge Smith.

lz.?
11 >t-1R. THOMPSON: 'o"

Tom Thorne Thompson.

NONIDEZ:

Cynthia Honidez.
"'f'
I
L; '" MR. JACKSOn:

It, "

Ed Jackson.

"z
-<
17 " i:-lH. TIDWELL:

1~

Charlie Tidwell.

I I) HR. SLATON:

20

Virlyn Slaton.

i'

21 THE CIIAIRHAH:

I have prepared a tentative agenda \"luch we can follow

or deviatEl from at any tim6 it seems desirable. S:il1cC' Dr.

Gibson prepared a report for us on his visit with the-
State School Superintenuem:, let ne ask him ::-.0 nake that

l-r -

II

rcport at this timE:.

i

I'i.

I'DR. GII3SOlJ:

PAGE 5 - - - ---'--'---'---

This is the. question I should have raised last time,

before I went to seE the schoel superintendent, but I

found that he was particularly sensitive about making

statements that would be quoted on whether he should bc

cl:.ctcd or appointod, and I suddenly became aware when

",(. be.gan to talk. He happens to have served as a county

school superintendent under two different systems, one in

! (I

Thomasville Hhere the board \vas ele.cted and then appointed

1.1 .'~.-: _.o I).

him, and then in Clarke County, I guess he Horked under a boaru which is appointed and then which appointed him,

anti appointed by the Governor to this post and ran for

\i

n
"

i; "

'9

. "u:

,"

< i:.

,.'_."
'~J

~
I7 c ~j)

is

election, or ran for election I should say. His statement I believe was that he thought that the
running for election was going to be a horriblE. 6xporience.! It ":.urned out. to be not as bad as he thought it \lould be, but:. he '-las ul1\villing to state a distinct preference for

any system. lIe thought there \'/as certainly some advantage

to having a lit.tle more consistency in the way we operate

at: t.he Board of Rc,gcnts level for higher education and

a130 the \vay \Ie operate the local systems, which are a

combination of s0veral different things. I think it

.'4

would be fair, without fIuoting him, for mc to say that I

i ..tf'O,rred from hThat:. he said that he. ",ould be opposed to

PAGE (;

..
.'
()
10
.z"
I;
"
.i.', 'L '.!
14
';;

:I:
1S ,~
.~
':.. C>
ltl t::)
oZ..
17' lh
]'}
2lJ
.'el

;lecting the school board, primarily for Ule reason I

noted in thE: memo, that he thouqht '21ection of a non-pa.i<l

body ',""auld result in a sY..CWC(} system \-lhcrc only those

persons that coulll afford to run distLi ct-uiclE",. OJ: statcwid~.

would run and, therefore, your board would only rfpre~(::nt

a ~mall segment of the population. _ '-jet "".:he di stinct

impression l:ha't he IIwuld probably prefer e bJard iil)point8d,

as is the Board of Regents, and al10',oJ t.r:2 board to appoint

the school superintendent, which is a svstem uSf,d in

numerous states As you all know, thE three sysl.:.ems which are in usc

are election, appointment by the Governor or apI)oin7.:ncnt

by a school board, which itself is c:ishGr elEctGd or

appointed, and the states arc fairly well split. GGorgia's

.

.

system of having its superintendent E'lcctE'd is found iIi

about one-third of the states. The Gave.rnar appoints in

other statGs, and the school board appoints in still O-ch6l:'

states. So live' re not out of linE \/i tIl the CuiIlUOll l)ractic(' around the states, although it t;Toulci ;)8 Fair to SR~' the.:"

the tre.nd is away from elect.ion of the school 5up:...rintGn<lEnt,

as that offiCe has become much morE.. C01~\i).LC~. 7hE;rc gc ens to bB a r,10VE.memt tm-lard the appoint.Llen'.: c.~ a. pc rsori with or holding certain qual i fications, tin;.: \lOU lrJ c('r~a j n:.y

be happy to anS\vGr any questions.

>- 'r'llE CHAIRHAN:

_. ---_._---_._._... - - - - - - _.._.__.- ..

PAGE 7

Let me inquire. VTith respect to your last obse~vation

as ::'0 the, trend. 'J~hat is to the. state school superintendEnts

or county school superintendents in r.orgia.

+

State school superintendents, state school

supc.rintenuonts. The county systems I'm afraid like most.

'I

.Incal ~)fficers are so confused around the country it's

"

almost impossible, to say anything about it at all, but in

the state systems, there is a definite tremd a\olay from

,('

thE election of that office.

il ~ e; ~') ,~ "

I mentionEd in a memo that at. the. local level in (~;oorgia there. have been qualifications establishE.:d for the

office of county school superintendent, which changes

that offi6e considerably. These people either have to
.,",.
I
hold a particular educational degreE. when they're appointed

I" '~

en: I,"ust achievL that d(";gree wi thin thE. first tE'crm.

,

I7 ~

Otherwise they are not pernitted to stay on. So that might l

be ."mother ,'lay of looking at ths possibility of electing

i1 ~\<..:tson, but still having ce.rtain specified qual ifications~

'l'ha':: I S not. found in any other electEd officE' by thc, way.

,JUDGE SIH'l' II :

:rUd~.JT. Hill, ~~idniSY Smith. OnE of the thiners I had

it conv(' rsation Hi -ell Billy Stearns, 'v-1ho 0 f course is working

,}

D.ii t:h~ board:~. He no\-] have by constitutional amEndment

the i.)ossihili -:.y of a Governor s,-:--rving Bight yr.ars, and this!

PAGE is going to naLc it difficult in all of ::hcs( appoin~:ri1Lnts

board of any kine. than \'lhcn we had shorter terms, em ,I it.

our discussion, this wO'Jl(] ~,i ::hcr cnorr.l,)U:-:;~" incr'''~dsc the

size of boards' such as a ~;tat. Board 0+ J.:(hcation or ch;(

h

extend the tenetS Gut a long -:'ime so as to pre.ven:: that

'7

possibili":y.

;,

One of the things that night somehow Lr workcod in

(>

between is t.hat as the appointments alT approvcc;by thE',

10 I I ,z.,.

General Assf.mbly, it might take two or thrc(C sE'ssions of the General Assembly, two or three c3iffc:rEnt Gr,n"ral

Asscmbli:s to achieve a majority. There miLJht br: Somp. -,'lay

it could bE worded in between. DOE,S this Group ~p.:-:] that

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the appointment of a StatE Board of F,r1u('ation and thE:,,", tIlE. ap[)ointn1ent of a Superintend6r!t .is ~l.lfficiEntl:l clr)sc: to the people; through thr; election of fJovcrnors? I just raise that philosophical question. I ~an personally T very much favor the. appointment of State School Superintendent, but I do not think it's f6asibl~ to run

20

for the. State SCllool Board. Either as Dr. Cibson pointed

:1

out, you're going to have all wc,althy people or a bunch

,;

of incor.tpetents.

, ~, THE CHAIRMAN':

.""

The possibility that occurs to nE, Judg~ Srni~h, is

;,

that the Transportation Board presently is not subj E',ct to

PAGE 9

,

~

appointment' by the Governor, but it is appointed by the

!

1

r.1cmbers of the General Assembly from the congrE:,ssional

dis~.ricts from which they serv(', and utilization of that

t;'pL of a format conceivably could provide you with a

State School Board \.,hich was not packed by anyone

individual.

7 .i JUDGE SHITlI:

Hell, that's one of the in-betweens I think. I

Delievo the counter argument is you get a sense of

10

provincialism \vhen you arise from that source.

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CIIAIRHAH:
Yes.

.~,JUDGE SMITH:
~\

14 ,.~"

Hhereas an appointment by the Governor might give

<:

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you a person with broader vision and broader sense of

io ~
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17 ~

rosponsibility to the state as a whole. I think that's the counter argument to it.

Hell, le.t mo rephrase the question. If the.

appointments to the State Board are made either by the

~o Ii

Governor with ratification or by the General Assembly, it

!.,i

l'

SCGIT';S to me one of our basic philosophical questions is

Hhe-thcr that's close enough to the people to satisfy the

id~als of democracy and this kind of thing.
~ ;i DR. GIDSOI~:

I have kind of a check on that. I think the Board of

PAGE 10

[i-----------------

II

Pardons and Paroles, for example, sorves n s~ven year

Ii

2 :1

term. So that would go back to your original suggestion,

I

Judge, that if the tenn of the school board members was

4

seven years, for sxampl-, you still hav-. a very difficult

time for one Governor serving two terms to pack that board,

and that's the way, as you well know, in the fede.ral

system the way the regulatory bodies arc in effect

controlled against packing to allow them to serve rather

long terms, five and SEven years being common.

10 REP. BUCK,

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\'lhat's thE. present term of a present school board member?

SLA'l'ON:

,,--

Four years.

,_Il

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\; ~ REP. BUCK:

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16 ~

And DOT is five or six?

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17 ~ MR. SLATON:

18

Four.

19 MR. TIDWELL:

20

It's seven there.

21 THE CHAImIAH:

11

Let me note that Senator Horton has cone in, and

:~3

Senator, we're JUSt going through this proposed agenda.

24

We' r getting a report on our proposed 'visits .lith the,

2~

state constitutional officers, other elected constitutiunal

PAGE 11 ----,
officers. Dr. Gib~on was giving his report, and I believe

you attended tha-:: meeting \vith the State School

Superintendent. Did you come away with any strong

impressions from that?

iili SEn HORTon:

II

:1

No.

I read his report.

He sent me a report.

I was

unable to attend the meeting.

1\ DR. GIBSON: I think it's fair to say that most of the boards are

:0

four year terms, but there are a couple, the Board of

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: 1 I"

HGg6nts bcdng the one that usually comes to minej, ''''here

.,

'~ "

a definite attempt was made to keep the C":JOvernor from

packing that board by giving an extended period, extended

[4 ,.

tenn.. now, whether or not that violates some tenets of

1-

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democracy also by giving these extended terms might be

":'">
16 zco

something else.

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,7

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CHAIRHAN:

IB

This points up one of'the problems, Judge Smith, I

Iq ,

t.:.hink we're. go ing to have, and I'm not sure how to deal

20

with it, that here you have a board \-;Thich is not within

I,

2J iIl,

the province of the Sub-Committee and an elective officer

I

" 'i

which is \;Tithin the province bf the Articles or parts of

23

tho Articles which we've been assigned, and you really

24

can't deal with one without considering the impact on the

PAGE J ~

SMITH:

;;

Hell, I think it would b6 entirely appropriate for

.I

this Sub-Conuaitter, and then oar full Ccrunit:tec to reach :,

4

conclusion and direct that over to, I b:-:licve. David

5

Gambrell is chairman of the. ~ducation l\rticle, and so T

h

think that this group, and then sequentially :=.hc Committee

7

as a whole, needs to decide whether an appointed

8

superintendent is better than an elEcted, or vice-versa,

9

and thn the other can simply fall into line.

lO THE CHAI RMAN :

All right. In that connection, l~t l~C say tha~ onE

of the things that you have been furnished is the r;sul ts

of a computer print-out on where the various other elective

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16 ~

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officers that \vEo are dealing with appear in th; Constitution, and you notice on the first page that ~h':, Secretary of State, for example, is given duties throughout the Constitution. Turning then to the Sta::c School

lK

Superintendent, the Article V, Section 3 undoubtedly is

19

the Article we're dealing with, but h6 does appear

20

apparently four times in Article VIII, so that if we Ire

21

thinking about changing the nature of any of these

offices, not only the provision t,,,e I l:e dEaling with has to

l~

Le considere.d, but the other pro'/isiorlS. For' eXaIDf)lc r

Secretary of State is in tht Constitution on issuing

charters to corporations and all sorts of things.

PAGE 13

Speaking for myself, I think changing the nature of

electing or appointing any of these officers is of such

serious consequences that unless the General Asser,bly

4

is going to do it, for us to recommend changes that are

5

not designed to be approved by the General Assembly

really would embroil us in controversy which could be

unproductive and perhaps even counter-productive. The changing of the nature of choosing a statewide constitution~l

officer, it seems to me, unless the General Assembly were

10

, to say, "He think this ought to be done," for us to

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initiate it and then have it cut off later in the process,

"'

~,~. 12 :~,

it. occurs to me could be a lot of time spent.

((1"\\:.0)>>1 JUDGE SMITIl:

'14

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Well, my view would be this, is the one that there's

a chance. In the '69 draft, didn't they make hin

appoin,ted in the '69 draft, which did, Torn, pass the House?'

..

!

Didn't it?

. iH REP. BUCK:

]9

Yes.

)(1 I ,JUDGE Sf-UTH:

"I

The '69 draft. This is the one office, I think,

that a recommendation might he-Ip get done, but with the

rest of them, I think we're playing with fire.

MR. JhCKSON:

Last w.ek we discussed the same type of issue, whethe~

/r------------ -- -.------------- ----. -~-----~---.-.---- -. ----------P--A-G--E.-- 14

!!

we should try to second-<jtlSsS what the legislature will

II

i

I

buy, and turn out a document that they can live vlith, or

3

whether we should, you know, do something .le can

4

professionally liv~ with, and at this level, considering

~

the fact this has to go to the full CommittBe and then

(,

to the legislature~ to really tackle what we think should

7

be done, what we think should not, and maybe the

8

legislature is looking for the types of facts or th0

9

recommendations at this level to do something. It's a

10
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tough problem on these constitutional officers. lIve tried ,Iith great difficulty to come up with 3 matrix ()f what are the considerations of whether >-IE. should kenp the

constitutional officer. First, should they be

conStitutional or statutory? Second, should it bs electEd

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or appointed? He could have a statutory Elected officer \"/~ don I t anymore. At one time in the 3tatc we did have peoplE! who were not constitutional, but. they wert, statc\vide

Jij

elected.

19

IIII just throw out for your consideration a couple

20

of thoughts. One, the potential for the office being

2]

politically abused? I think if you look back at the

record of ,..hy Regents is in the Constitution, this has

ben a biy thing. Either abuse by the Governor or i1bus'C.

24 I !i

by thE offics-holder. Two -- and this is something Dr. Gibson "tas looking

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PAGE 15

at with the School Superintendent, the nepd for an expert

in -c.he office as opposed to someone who is not nE'"cessarily

an expert.

~hrEe, tradition. Docs th~ office have a long

tradition of popular election? Is there a clear record

of why it became. a constitutional office in t.lls first

placp? If you look at the '43 and '44 Commission on the

Commissioner of Labor, it's an interesting story on why

i o, became a constitutionally elected office. four, the. visibility of thE; office. Do voters around '

the. sta"t.. know the office-holders? I' VB dons somE:' surveys,:

and !' VB found out that. not one in ten people can tE':ll ms anY'~hing the Controller General does. Not anf', in

t.\.,rent:i can t.ell me the. diffsrence bE-tween ,Johnny Caldwell

and Sam Cald\vell, and yet we ask these people to vote. on

thGSE people.

Have the voters thrown out the incumbents in the past?

You knm-l the theory is the voters It/ill nake that person

responsiblG, but if you'11 look at the record, \'lil1 thE

vc-:" rs in Georgia th:r:own out these constituti.onal elpcted

,()rficl'"';rs? I thir!k only in the cas: of the d~.mocrats WllO

':~urncd rC;j)ublican baCK in the Goldwater days do you find

'-lny rEO cord where incumbents have bc~-n thrown out by the

'iF.psrd} i ty of the clientelE.

Does tIlt cffice affsct the statewidE. population? That

PAGE: 16

oppossd to a particular client group. If it's goin-.;

to b6 a statewidE f;lect:i V!2 officE,

3

offic. ought to effect "':".hE general pub!. ie" T;at j us':;' onE

4

discr:ts s;roup in the Fublic.

5

Is ,,:he officer carrying out fcoc,ra] pol icy or s::'atE-

b

policy? I think we have one constit,utional officer vlho

"I

is essentially a federal agent, carrying out ~s pr-rcGnt

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of his job and funding is carrying out feor raJ I a ...' t ,hIt

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statE; 1ml.

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SiZE of the agency in o.::.Erms of employees and funds. Recommendations of exper'::.s. PracticG in othcr states. Last, just thE basic :jolitical considE.lations r :/OU krll:)I,', \Jhat \vill the officers say about \'lhf'thrl that office should be elected or not.
I don't know if these are any goou.. I'm surE YO'l' V0. got some others, but thE.se arc:. somE; 0 f thr. considcratiow3 maybe at this level we can look at in dr ....:ermining \'lhe:thf r. to kE.ep these people in the Constitution or not.

19 MR. TIDHBLL:

20

Judge, isn't the point that you're trying to maks

21

the'rE. is that the Sta'ke Board of Education and "::.11('0 State

School SUperintendent is the only consti'::utional offi.cer

that is the chief eXE.cutive officer of a policy-making

constitutional board? I believe that's corrE.ct. that nowhere else does that happen. ~'lhere the Board of tIatural

PAGE 17

rr---- -- .-- -.---.- - - - - - - - . - -

1

~~agources is policy-making, they appoint their chief

I
I

I
I

I

executive officer. The Transportation Board is the same.

) ,jUDGE SIUl'H:

41

Regents.

-) HR. TIDHELL:

b

The Regents. Veterans Service. Public Service,

-, doesn't it have something like that? But I gather that's

8

what you're saying, distinguishes it from all of the

il

;1

9 II

oth6rs, where all the other so-called constitutional

,~,

10

officGrs are elected, and they have sole responsibility

7"! J I-
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11. I

of administering their departments; they don't have a policy ;)t")ard --

SNITH:

14 >-
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That's true.

"c

J 5 ." MR. TIDWELL:

'.~

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over them, and I don't know if the State Board of

l.
1,' ~"-

Education is over the State School Superintendent.

i .'~~ !, JUDGE SMIT1I:
!i

!')

Nobody knows.

That's a problem.

~() MR. rrIDHELL:

21

nobody knows how they work really because he's

elected. He could tell his board what he thinks about

them .

JUDGE srUTII:

I raise some question in my own mind about the need

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3 I',Ii

4

5

6

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PAGE 18 for the Secretary of State to be electoc. but setting that aside, I think this difference is a distinction that's worth noting, and if the State School Board is charged with policy decisions, then that's another argument to have their appointed school superintendGnt carry those polices out it seems to me. I would strongly favor his appointment.
Now, that does get into the next question, how are you going to get the board? And i.f th(. ComMittee as a

10
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whole reconunends it, there ought to be SaInE. clear recommendation on the selection'of the board I think too, even though it might appear in allother Article. Of course you could just cut him out of this one and move him over to the other A;rticle, if he's appointed. That's 'l,vlu"rc his appointment would be handled, would be in the other

Ie. ~

Articl..

Czl
17 ~ MR. JACKSON:

1M

That still doesn't make him not an executive officnr.

19 JUDGE SMITH:

20

Oh, no.

21

JACKSON:

,.,

You could move him around anywhere. you Hant to.

21 i THE CHAIRMAN:

,'4

Hhat is the timing with respect to the Education

25

Article?

PAGE 19

r--

-- --------- --------_. ------- ---- ------------------------------------------------1

!:JUDGI: SMITll:

I

II

!i:I

It's in '82, isn't it?

,;

Ii
'i
3 iiMR. TIDHELL:

II

Ii -~

It's in '82.

5 THE CHAr R!1AN :

b

This raises the Robin llarris problem, that.if we

were to delete the office of State School Superintendent

from the other executive Article in the '80 amendment

which we are targeted for, what do you do during the two

10

year hiatus when the Education Article is not scheduled

for review and ratification until '82? That would have to

be given some thought. It conceivably could work with
,
perhaps some legislation to cover the situation until '82.

15 .~

I defer to Charlie, but don't WE: have a provision \

that a person in office is there until his successor is

duly (IUalified and all that, which might be enough in

18

itself to continue the man until a subsequent change.

1c.; . HR. TIDWELL:

i

- I think you could deal with some of the things, some

of the caveats that Robin raised in his memo. You're not

just limited in the changes that you want to make in the

~rticles IV and V to strictly just to amendments there.

,:""~

~?O'l migl1t have a third section that goes over and

~,

conforms that rest of the Constitution to the changes

__ ----------_. . _ - - - - - - . _ - - - - - -

PAGE ::'0

you're making. They hays to be done, you know, thoughtf~ll)

'J

and carefully, but tha::. ~':as done in ':Lc CC:V,'.3J.Oh of

~

Your rSDcmber v~ry well, ~om.

J REP. lmo;:

I remcmucr.

,'icl1. TID\>JELL:

IV and V, Lut you can CJo out and cor: fOljH'.. 1.::Jst"

10

wanted "'.:0 say the School Superintendcn1::. ))c. abolishEd as d,l:

Ij

elective constitutional officer, I think us a draC~inq

12

problem it doesn't creat.E:: all that biq ,',f an oLstacle.

Do you agree, Virlyn?

J-f ~,HE. SLATOlJ:

Yes.

JiJ ~ DR. GIBSON:
'0
lJouldn't that automatically mean that a chan9f i1'l

lS

Article VIII, which is the Education Article? This deals

19

with the appointment of "'.:11e School Supsl'intcnc1c'nt. Hew

would you handle that as an issue? liTE ,:hang!? thE other

21

e:lectEld officials, and ,then \vC. also rC';commE:r;,'~ i.: ch::mgc

1'

in ArticlE:. VIII?

MR. TIDHELL:

'"

\J~,ll, Prank, I think it 'lOuld haVE. ':::0 pas::;!:];c test

of the ~)el('ct Conmitte.c saying that:. was wise and then tILL

__ _._._--.. .._._--- - - - -

PAGE 21

General Assembly saying it was wise and then the ptople

TZltifyinq it, and once. they ratified it, that probab1y

i'U Ls sor:IE, clear si]n\ls to David's committee about what

::hc ~H"op1e think about it. If they want to cha::vJE it back,

~ncylrG going against some pretty tough sledding there.

THE CHl\.IPJ-IAN:

Is the David Gambrell committee starting to meet and [unction? Do vie know?

JUDGE ;;iIITlI:

I don't think so.
~ I >;HS. 'ij('li InEZ:

Cindy llonide.z. They' re sch(~duled to meEt October

I.

"

24th, but. I was wondE-ring, Charlie, look if you would at

i\.'::.+.:i.cle VIII, Sc.c+_ion 3. You know, I don't thin}: we would

ha'.Jc- a Robin Harris problem here. If you chose to remove

i:) "'

'.;lE. State School ~;uprintendcnt from your execut.ive, you

Know, oc..her eX8cutivG officers and recommended to David

Gambre.ll's committ.ne that they consider, you know, what

-'-.his other modE of selection \vas, he would continue to bE;:;

elected until that Article revision committee did

o;,;,hcn,is6, wQuldn' ~~ he?

NR. ...' I DPEJ,:::" :

If you to(Jk care of it in your drafting of IV and V,

WEll, no. I sec. If you simply lett it out, yeah, you're

rir;:nt.

rr~~

-~----~~-~

_
--~._.

._._~-~-

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Ii HS. NONIDEZ:
I

PAGE 7.2

Hayue it.: would be appropriate if this COr;'Hittec just

said, "This is our recommendation, that this lc,ally fal] s

in the area of another rE:vision cor:unitt2c." I E12dll in

terms of really ratifying vlhat your thin}:ing is.

'.' THE CHAIRMAH:

You're correct. Evan if \..c werEl ~o delete it From

~

the other Article --

q MS. UOlUDEZ:

lU

He stands on his own.

,z-:'
[ J CTHE CHAI RMAN :

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."

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He's still here in ~rticle VIII, Section 3

~J>-Y4J,

(~)\I~!!''!!' ~ HS. NON IDEZ :

~-;/'
It

Right.


j; ,~, THE CH1\IRHAN:
~
:l":
So he, would be elected pursuant to that Ar~icle.
,,.1

l": HR. TIDvJELL:

But if you chose to do it, you could also go into
i'
it and strike Section 3 of Article VIII, and you just

2U

don't have a State School Superintend<:n::. anymore.

.'1 , MS. NONIDEZ:

I'm sure you won't do that.

_.> '1'HE CHAI RHAN :

Or you could in that amcmdment provide that thE::

incumben:: shall continue.
lL

PAGE 23

HR. 'l'.:tMELL:
To serve out his term.

THe CH.i\I RH.i'\H : ,
I Vlould propose this, that bsfore a step of this magnitude be ~aken, that we ask David Gambrell to sit in wit:h as and give it thorough consideration and perhaps <C.ven ,Judge Smith that such action might be taken in a H\0cting of the full Committee, which you chair

.JUDGE SIUTII:

II

Hell, what I was going to say, I hope thE'.SE next

m':".:'ings will bring these. broad philosophical questions

bacJ~ from t:hc thrG8 ~yub-Committees so that, for BXaIaplc,

~his Sub-Committea can get a sense of the Co~~ittes as a
".1
'.,hal Go on a philosophical question bc.cause.thr.re I s no need

;:.n I,-,Iorking in a vacuum, and if thE,rc is oven"hc.lming

"

r;l

sc.lltir~lE..nt one, wa~l or the otller in the Cornmi ttec as a whole.,

that really ought to be a direction back to this

~\lb-Con'lf;littec on all of thesE questions. So I hope that:

Lhis would be ons of the things that we can sort: of
\

He pIal. Cr) r :.l.iSE, this as a question at tlH'., full

\Jell, it. ".'lOu}c help if you had a r6comr'lenc1ation, but I

don't think it's nE'cessdry. DR. GIBSON:

.,I

rrore strongly about these elected an(~ i1;)i'O:.n-tccI ,.,ffidals.

I would have just as difficult a ti1':. \;ith thE ;)cc:n'.tary

of StaL':::: as you do, Jul1gc, ort:hc Cur:mlir;~;iol1er of La]'C1"
()
or the secretary of l\.gricul"':ure;, the CCTilwissioncr of

'-J
10
,,:)
, ';.~ 1 0; 0 -,0.. j / C<
')

Governor's office as it opcratr:.fi in:iw SLi:1''::C, :;u_ I den'.;..

think I fsel quite as strongly as I used to in ~lsc~tng

or appointing theSE people. l'n not StlHo.

Horton CGuld tell us. Hha"': do you :h i ,;": the r~"-.n ..'ra 1

Assembly .dll say af"':cr we S!1ggGst

Is

a popular office politically?
;,

<
1)-')TSEN HORTON:

j ~!

:;,
16 ~III a

I think any drastic changes \'/Ou1d he ~3lrJ\" Jll COLi} Ill!.

I' i DR. GIBSON:

You're always goinS to have some Friends I gu~ss

some. whc, re

'\I i REP. BUCl<:

:1 '.,

As a practical mattE' r, I agree v7i tl1 what ,]udgr ~nif.::h

says.

'. ~

this is one HE. night ':d.:', T,fork on; numbc.c (J{F, ( Dccause --

.':\

and Charlie: IlcDanic.l ,s a fine fellow. IT,' lla::;n",: 1)(,C::

there a long time.

PAGE 25

DR. GIBSON:

2I

No.

3 REP. BUCK:

4

He hasn't boen entrenched in that office as, let's

5

say, the Attorney General or some others. I think we

6

would have a heck of a hard time with the others, if we

7 II

want to change it, but I really feel like this is one,

8

and I would like to recommend that we delete it, but you

9

will run into a brick wall because, as a practical matter -tI

-,

10

and that's what we're going to have to deal with.

"z

11 ...

i ~.

.'o"
,c>. 12

~r~

Idealistically it's one thing, but as a practical matter, each one of those constitutional officers has a heck of a lobby, you know, and you can't get around them, and you

14 .;.

ought to know what I'm talking about.

l-

V>

:I:

15 ~ HR. JACKSON:

":':":> 16 o~
z
17 ~

I think it would also be good to talk with Jack Nix, who having been through it could. give you his feelings,

I

18 II

and also. the Georgia Association of Educators. You're

19 IIIi

going to have to face them sooner or later on this. They

20 I'

need an issue.

21 I REP. BUCK:

I!Ii

22 II

They've got issues.

23 il JUDGE S~UTH:

24 II

Yes.

I

25 II REP. BUCK: II

I'ACE 26

Don't l]iV6 them any morc.
, ii MR. TIDHELL:

3

I thi:1k ::'hE.ir advice on this issue \vould bs

predictable, and it \<Jouldn' t }x' all ::'hat ~'nl iqht<:,E::"n(j.

c: DR. GIBSON:

()

I found that ex-officr-holders aw} n:Eficp-holdcrs

"7

seem to differ radically on how they shoulc.i De: s<clec f'::f c1.

~

Judge IIill, how do you t'eel genera 1:11" about t.h;o.

)

difference bet\"een the schools and these other (' X~ClJt i vc

,0

officers? Do you see 6IlOUgh of a disb.r1ction tnat '"-IE

"
I

might seriously consider?

w

i ,2 'THE CHAIPJ1AN:

~,),,r~e~,y~~,!'!o' ~~

Hell, I think that. to Tr.G from I guess a legal and

------""'. ,

14 '~ ,le,-,'
:I:
J5 "

administrative standpoint the big difference I SE.C is that hsre you have a board -- and this has already been

observed whereas with none of the other elective

officers do you have a policy-making board.

lk DR. GIBSON:

19

Well, that Article VIII,is awfully vague about what

that State Board of Education does. It nEver d00S state

),
.1

that it maKes policy or applies it or anything else.

TIlE CiU~IRMAN' :

of course one of -the criticisms of cur Constitution

is sometiI:lE.s it's been too specific.

DR. GIllSOH:

LL

.

_ --------------

PAGE 27

Too specific. But in this caSE though I'd like to

sec a little direction as to ",hat that thing is supposed to

do.

: r1R. ,JACKSON:

There's a great deal in the statute saying what it

docs ..

DR. GIDSOll:

Yes, yes. I would grant that. I would grant that.

'-:"hat office is a terrible question p if it i.s to be

:Lcpresentative of anything, but it has no control over

1.1
:1

.~ts e.xecutivc office. It does create an anomaly

12

administrati vely, ce.rtainly an anomaly that we might be

able to attack ..

. THE CHi\. I RJ.1A11 :

He've had some expression of views, but thus far I

~ i : '

havE. not. heard a motion, unless Rap. Buck's --

flEP. !3LJCl<:

;>

HEll, I would like to put. mine in the form of a

notion as relates to the State School Superintendent. Now,

I think the point was well taken about maybe you might

.,rant. to talk to Jack Nix. ,Tack could not -- he ,vas not

<-1,-, f".ated, you know.. So I wouldn I t think he would have a

Cad taste in his mouth or some bitterness about having

lost an election.

THE CllAIRHAH:

Is there, a second?

DR. GIBSON:

I second. Are we just suggesting that WE go to

'-A'

some appointed method as 0Pi)OSI:':d to cl.!:'ctivc?

JUDGE SMITH:

l\.ppointed by the Board you're t.alkinq about?

DH. GIBSON:

1'1.ppointed by the Board of :CdllCi'ltion to serve at

'I

pleasure.

Ii) REP. BUCK:

i1

Is that the way the othErs think?

i,.' )' ,"-JUDGE SMITII:
<
1:
~vcll, we learned that.
:>
16 ~ HR. JACKSON:
CJ 7.
Well, that's the pattern by the way for all boards

1k

in the State except Human Re.sources an(\ a couple others

;y

have provisions that they serve at the plE'.asurc of thE.

board and the Governor. So before thF; board can dismiss

the executive officer --

DR. GIBSON:

That's rath&r interesting.

2~ MR. J ACKSOIJ :

.. .'

By the way, have you qat copies of t.hat big

1\ ,\l, 1<

organizat.ion chart? I don't know vJhcthcr this Comni ~~r.F

was sent: thos.. It explains in every c:asc t:hs power f the
relatiollship bet\Vcn the board and the Governor in::hc

footnotes on the back.

c

t.he Governor has a voice in a.pproving the. board's

appointment as HEll as their rejEction.
rom. TIDVlELL:

701.1, wi thoui: trying to have ye'u ::-hangc your nC'~. inn,

would you want to deal also with ho~ vau deal with ~h0

in"~umbcnt, that he \JOuld sc,rVE OU'" l',l ~)',C'rn in ~'0U.r

affics at January 1, '81? ~ REP. BUCE:

MR. TIDVlELL:
IUlink if that.'s in':":ll.lucd i:j, ',:I.a'.;., din=:c'cion -t.o bah' the full COl.1fJitt'?c -PLf. nUCE:
vir 11, what arE, ',IG going to gC3.Hy-C' nab:. il rccommcmdatioll or. ".hf'S'

non,'
+ .. 1' ',i.j.'-

parti~~lar ~hing to a head.

PAGE 30

Rl.gL-::'.

'l'HL CiiAIHt lAU :

Hcl:", thL:; '.111.11 brin9 thE'. matL';r to thE: attention

of the fuJ.l COi~ittee and perhaps to thL attention of thE

II'

State SchooJ ;:uperintendE.nt.

GI13S0lJ :

I I m :;lH:('. }1(: , 11 find out {~.Vout J. -:.

'.:'HL Clil\IlU1AN:

Is ::~lCr:E. iJny further discussion';>

(No re~ponse)

I !,li-:'TLt sa:; tLat at this poin'c 'vIE: have four of our

eight memb,'rs cf +:he Co~nrnittec prssent.

GIBsmi:

Are He going by any rules of quorum or anything a':

all?

TiiL CfilI.IHJ"1AN:
I don't believe we havE. set a quorur:1; which is nl:}' failure; not to have done so bE.fort. Is anybody here

sufficiently familiar \vith parliamentary procedure?

rm. :idJBOHTEH:

Do anything you \vant to.

PAGE 31
--, - - - - - - - - - - - - - - - -

'1'H CHA TRr'iAN :
All those in favor of the motion pleasE indicate by

saying "aye."

(Aye.S)

Itls unanimously carried.

I'll ask Rep. Duck for a report on the office of

S(.,cretary of State.

1 1"\1:.:1:'. DliCK:

; l ;:,:
()
l ' '_J

,Judge, Tom Harold and I both tried to set up a time t.o go see David, dnd Tom -- I was unable to ga with him. Tom has seen him, and 1 1 m sorry he's not hc,rc. So I

cannot givG. you a report on that.

Okay.

I 'J ~ RLl'. HueF; "

1") ~~,

And \t/llileyou' ve got me, we tvere going to see t116

l'-'

Controller Genoral, and I went to the Controller General's

il

0 iicc after our first meeting over at ,Tudge, Smith's

,.0

office, and the Commissioner \vas,the Controller was out

.'1

lie was on vacation, and he was goin'] to be gone for a

,'l,ck, and then WE'. tried to reschedule somE; appointments

las .. '.-leek and this week. Bis mother is in the hospital,

and I don It t.hink Johnny has been in the offi cc all weeJ~.

PAGE 32

THE CHAIRHAH:

All right. I noticed \v. do not have either of the
two members who went ::0 talk with the COl"jilissionc:c of

I.. abor. I1r. Garrett could not be here ~:oday. TIe and I

talked with the Conunissioner of l\<]ricc.lture, Tommy Irvin,

last VlCEk, and two things that camE' CU~ of that neeting,

one, he has considered, Lut did not f('el strongly about

changing the name of that office to the CommissionE:r of

';

Agriculture and Consume.r Services. He did not ask us to

lU
-z'
!I 1~-_~ ";r'~
:..)

follow through on that, nor did h6 sa}' that he '"",auld not want us to follow through on it. Ile siIilply proposed it as a possibility.
The other thing which he; mentioncl vIas that there

,,'
:1:
15 .~

''"x

1(,

,"
Z

Q

Z

<[

1

~

" I I

was a constitutional amendment several years ago whic:. permitted the Department of Industry <-ind ?rade to expend State funds for entertaining out of state business prospects, and he feels that his department needs that same capability in terns of their international r1ar.k.E.t~llg,

1'J II

which is not nearly as largE: or active as of courSE the

Department of Industry and Trade, and it's not subject to

our jurisdiction, but I pass that along because of th~

fact that he had ~entioned

One other thing which he mentivlicJ, \vhich is ~\ 150 not

-l"+'

subject to our jurisdiction, was thL probl".m of

constitutional amendments. and his J.".commenr}ation would be

li

._.

.

_

PACE 33
that t.hcy be voted on in off-years rather than at thE. time of the general ~lection.
, JUDGE [;!lITli:
Some of this material, this title of ConSUI:lor l~ffairs \'TaS mentioned in one of the earlier draft:s. I can't think of it ri<]ht now, but is there. a curHm'l conr~.ccti.on bet\v:en consumer affairs and the Department. of
Agriculture? They don't seem like natural --

.l;l I. "y, \(tt~.ll

1()

'I'hey have some consumer prot~ction duties and

,.
.,
I

H.St;(lDsibilities, but there is also an Office of Consumer

~:, r'1D.
,i.,"'

Consumr Affairs.

TIlL Chj\l:~'li\n:

~'

~Jhich is not a part of ~hE: Department of ~griculture.

"
;' Iu.:P. IHJCK;
.n

It's ':l:ttachcd to the GovE.".rnor's officc,right? Dr.

rylcs.

lIe. inspects f:'sat..

-;;t;'ighi:S, ga~,olinc.

Hilk.

PAGE

., ,
)"'-.t

>m. T IDHELL :

rEha-1: are somewhat (; f an agricul tUl:-a} natu.re, !.iu+;,

affect consumer~. I think gasoline, ~s~sur~2cnLs and

uaybt a lot of othel: '....ltiHgS t:~1ut vloulL.. Ji.rGc::.l:;.' iJffc-:;':

conSUille:t"S than I' IlG set forth.

(,

bE: a consumer advoca-tc in this day and': ifF.

JUDGL SlUTH:

!O
~.,
L

on tJH".rc. It doesn't

JUS"

have a pOi)ul.ar label, but I thinl. ci Iii)" n:3.;.;. ..,.~ <,,'

at hip, and tha c ought t.() be left th,.t+": ',Jay.

TEL ClffiIRB1UI ~

IS.,
\~
!() ~'""
"L
~f
17 ~~

I tend to agree, J~dge S~ith. I thin~ on~ of the problems ',/e havE. in, say, the offic- (' L C 'il '.:rollE-.r Gensral, .i.t.:' s re.fsrrcc"1 tu as thf: office ')1' Con::roll(.r General and Insurance Conmissioncr, :.md this is confusing

to thE. public. \Ve would be better off \'5.:::11 a short<:T

19

and clear~r designation than double d~sirnlations.

20

Tom Harold and S~mator Hcr-::on a:Hl T fi''::': ,-lith t:hc

21

Attorney Cencral.

you camE; ay;ay \li tIl in':ha<: mec-l:.ing? ,'3 SEl;. IIOHTON:

I'll let you do that.

THE ClIlUill1AlJ:

PAGE 35
-. --------------.. - - -
I qUE,SS the big thing that I Arthur Bolton (?;mphasiz~o
Tti, onE, that in his view the office of Attorney General

4
x :i
1
') i: II I
JO
5 I
I I r.C< J .~.
I .'
] 4 ;-
';;
1S .~
'.9
'";:)
]I) ~
t:'"~
1.7 .:,
"

"The othEr thing that he was aware of becausE of the ~)rk last year on the Judicial Article was the plac~rnent ':'1 :.1:1s office of Attorne~' General in the Constitution, and
:. -:. I,.;as his view t.hat. the office a f Attorney GEmeral
at)l)Cars also in the .Judicial ArticlE. and that's where it :::;b.ould be.
I sent you all an incorrect communication, which
thankfully Charlie Tidwll called to my attention. :r
thinK I Has correct in saying that thE:, officf" of Attorney C'llcral is seemingly creat.ed in hoth "':.his ArticlE. .:mel t.:he ::udicial l\.rt:iclE, and qualifications for that. officE are. ,,,(;':' in thG '45 Constitution. Those qualifications '"ere ,Ii fferEont for the officE of AttornE',y General, ospenoing en '>lherct.hey appeared. That inconsistency 'vas corrected in ~h~ '76 Constitution, whereas thE designation of the ()ffj.CE still app.ars in both the Ex'.cnt.iv and .Tudicial Articl0s. I~ leaves the qualifications of b~~ng 25 years ~))c1 and six years a rssidcnt cf -1-.:11 state the. same in ix),;:h ins:;;.ances.
Do you think of anything r: lSG, ~~enator Horton?

I!-~~~---~-~----- ---~~-~

Ii

Ho.

i

DR. GII3SOlj:

That was the najor thinqs.

PACE 3G

3

4

Attorn,.y General in the TtHEcial Branch? T':: cGrt.ainly

5

Smith, at the opening ~~0ting, and ~hat is that ths

7

Judicial Branch might well be sE,paratG fror:l :_lls

prosecuting branch, which is more an .E.\.xEcutiv6 function.

9i

Yet f11r. nolton's suggest-ion \vould say that H:'s r101T or a

]i)

judicial function than it is an executive function. So I

<.:i

l.
1 I >-

guess I'd like. to profit from hearinq \'lhat :leu ~"JO have -to

C~

'J

"-

,~

12 ~

say.

-@/~/ <rJ"\,~\ ~

u.
~

JUDGE

SHITII :

1-1 !_

-
15 .:.:,.

"'"::)

1(,

co l.

.~

U

Z

<

17 '"n

Well, I don't think t.here' s any question but that. all precedent says that a State I s attorney pr-rfonus a quasi-judicial function. He; is chargEd by l~nv with prfonning not just an advocate I s role, but a quasi-

III

judicial role in the sense of being fair ~o all psople

19

concerned, the public as well as the State, for exaluple,

?O

and so it really is sort of a two-headed rolE that he has.

21

I'd be curious to know about the situation in other sta~2S.

2,?

Somebody was going to check that.

23 THE CHAIRMAN:

24

I think Dr. Gibson. Did you compi lation sho'N whether

25

he was in the EX6cutivE Branch?

DR. GIBSOH:

PAGE 37
---"- -------"----- - -----------------

No. It did not show \vhethE;r it was in the Executive.

CliAIIU1l\N:

T'-
.I . ....

showed

that

the

majority

of

them

are

elected?

DR. GIBSON:

Yes. That's right. The majority of them are

",lscted. It's a very popular elected office, but I don't

know Vlhether

,JUDGE SHITII :

10

I think it should be. Let me ask a practical question.

of In terms money, if there is a budget approved by the

r;CHE:raJ. Assemtbly for the Judicj ary and the Attorney General

is in that department, would there he a separat~ budget?

14 ,"

You knov the power of the purse is something WE. have to

wa~ch here. If the Judiciary as such would control the

: C '"~

Attorney General through money, that's another

"

consideration you have here I think.

"

,,) . 'l'HE CIlAIRHhH:

I

There is a considerahl~ thought being given these

~I)

days to the so-called unified judicial budget, but I don't

think the control is re.ally a part of it. I think it is

(3impl:' that using the office of AOC, l\.dministrative OffiCE

of Courts, that they I;Jould assist the- Superior Court

.Tudgcs, ~.hc District Attorneys, the two AppellatE. Courts

}.n formulating a LuQ~let. and pres.nting it to the General

IT- --------.------------Assembly I and that has been donE, in the past.

PAGE 38 I do not

anticipate that there's any thought that any court or

3

group would have a partj.cular approval jXJ\.;{;r aVE: r tha':

4

budget at the present time. Of courStc it. conceivably

:'

could happen.

() JUDGE SHITII:

Hell, I don't infer that it would happn. ,Tust if it

could is something we nEed to consider hera. If the

Attorney General and the DA's arc all in the JUdicial

.~ {)

Branch, then I ',.,ould li}~c to know \'lho dUGS control ~:h:::.ir

1J

money, because as I say, monGY is pcn';E- r

The legislature.

~
",,1':

REP.

BUCK:

r

15 ,~,

The General Assembly, Judge.

-='
I () ; JUDGE SMITH:

c
Z
17 ~<l:

Is it separate?

1R J\1R. JACKSON:

1'-)

It could be.

20 HR. Tlm'ffiLL:

)i

I t,hink it would be helpful to point thi~~ all'';;, tha-:'

)1

the legislature on the judicial bud!Jc '::: J do no ;:. receive,

,,
'..

any scrutiny other than \vhat the::.' suhmit ':0 t110' CCNual

24

Assembly. In other words, thE, C',overnor looks a+_ s vf_r~'hody

.,

~~

else's budget, and he 5i ts down and hE +.;:.lk" \-/1 th sad:

II .__ . ~ ... .

..._.~

...

_

- - - - - _ . _ - _.._._------- --

'._....... ... ._~

.__..._ !

u

~_.

PAGE 39



_

of the agencies, budget agenci8s, and he goes OV6r their

LudgGt., and he rejects it or adds to it, but he does not

PC,lf'Onn. a revielil of the. judicial hudCJet. That <]oes 'to

:.-h{;. General Assembly as the ,Judi ciary proposes it and as

'_he legislature proposes it, because of the separation

0: powers, and as it p~rtains to the. discussion of this,

the Attorney General's budget is now SUbject to the

;;;

Gov~rnor's scrutiny because it's an executive agency

:i1' 9

budge!..:

10 .:'tJDGE [:5tlITH:

)

z

\'i'ho prepares the judicial budget?

THE CIV\IlU1AN:

Right nmV' each court does, althQugh there is somebody I

J4 ,>_

Lhat helps thE; Superior Courts to compile. their own needs,

,"
1{) u
.:,lfi:
;
I

and I t.hink maybB the Administrative. Office of the Courts has assuffid that r6sponsibility in recent years, whereas formerly I'm not sure \-1ho it \'las done. by.

,,'\

JUDGE SHI'i.'Il:

J ')

And in a purely philosophical vein, if the Governor

~,U

dOG'S in fact. control the Attorney General's budget., that

21

tr.e same problem if he remains in the Executive Department~

REP. nuel::

\'1Eol1, you get back into practical politics, you knm,,'.

:'4 ,

Tho Governor make.s his recommendation, makes his budget

message, and it comes over hc.rt'>.. Then it's just a brand

l'ACF: 40

new ballgamc.

::

SUITH:

:-
.1

I understand.

,J REP. BUCK:

"-

And at the present time, Arthur comes over or his

6

staff, his fiscal officer, and there might bs some things

7

that the Governor has recoITU'llended that he dOE-sn' t want 0:(

I'

there might bE some things that the Governor has not

9

recornmend.d that he wants. So h6 docs his 10bbyinC] so to

10
c" 1

speak with the members of the General l\ssembly and the Appropriations Cormnitt;ee to see if he may gE.t sOIl,ethinq

that the Governor would no.:. let him have. As far as the ~Tudiciary is concerned, they do come.

.r,
<l :r
15 .",'

j~X:

16 z.'.".

z

<:

if

a:
'"

is

Somebody from the Supreme Court comes oV12.r; sOInebody from the Court of Appeals comes over, and '!:hore is not a \.;hole lot. Well, from time -to tim I know 'thE.re are situations where they insist or they want maybE'~ some morE.: clerks 01. some. more help, but usually they get pretty much what they

want.

20 MR. Tlm'1ELL:

2i

H110 speaks for the Superior Court budget, Tom? Do

you n"call?

:'\ REP. BUCK:

24

I was trying to think if it was --

PAGE 41 . ,---.--.---- --J -.-----.--.-~-~-.-- --'-'~'-----'---~----------'-"--'-'------'-'--'------'---------------.---

Luther Alverson.

I

I

HR. TIDHELL:

I

I don't know \vhether it's the President 0 f the superiot

Court Judges' Councilor whether Bob Doss did that for

them.

REP. BUCK:

Bob Doss hasn't been too successful over the years.

MR. TIm-JELL:

J3ut. the Superior Court budget is not only the

1.1,
'.:J Z

Superior Court Judges, but the DA's also.

14

They're included in that also, but I'VE just never

~ l

.,

bc::cn up there \'lhen they made their presentation. I don't

,(, ""'

know.

'I
i i ': REP. 3UCK:

They usually have somebody from the District AttorneY'is

i9

Association. '

!( THE CHAIRHAN:

21

The "',ay that thing is set up now, it's mostly salary

"' '

I believe because th6 Superior Court Judges' offices,

the District Attorneys' offices and their expenses are

provided by ~:he counties, and no insofar as thE, montY

for the Superior Court Judge and the District httorneys,

the State money is basically salary I think.

PAGE 42

It.'s pretty cut and drif,d. You've (]~r,- so L,any ju6<jGs,

4

so many DA' s, and ybu fOul tiplc what they 1I;a1:6 by that,

and that's it.

;, 'l'RE CllAI RHAN :

And one of these days that will j)robabl:t cLange as

the State I thiny. is going to have to t<:lke OVf';r mol'':' am.:

more financial responsibility for the court system. Ie REP. BUCK:

11 1.X )
,,
I.

'rho State pays, for ths District l\ttornGYs' II,ss5.s;"'l.n": District Attorneys. Underl::he exist.iny Taw, 01. ~_ach
extra Judge ina circuit, you have an ~xtra Assista~t DAr

and then they also pay for the Judge.' b sN::rs~ari s, ~m(~

I'm not sure about the D1\' S sccH-;tariss.
-'
itl ~ THE CHAlIUUm:
o z
I might note that presently the District Attorney

l'i

is in the Judiciarl Article only.

19 , HR. JACKSON:

70

Dut there's a court decision about three years ago

,~ 1
., )
,;
24
, II
2~

declaring him quasi-judicial and quasi-~xecutive officers . I just Hant to mak6 on6 cornment about the loca-.:ioE of t.llt Attorney General. 'J:'!tc Attor'ney Gcns!"a} Lib':or:'c..ll J y ;m,.; T think in mas': states is thE:. chiE;' ]CCjd' -_. leg,::,.] j;-: ~1O': nEcessarily synonymous \vit.h judicial

:,[ficcr: of thE, Executive Branch.

PAGE 43
i lIe has an in,,~e;stigatory i

lIe can prosecute for thL State. lIe rcpre.sBnts

S';.2.~: '3.CJencics. lIe. provide,s official opinions '':0

Ez::-:c;u:iv6 Department Heads only, not in the L~gislature

'; i:

ox: ,Judicial Branch, and "[ think yon could look nt a number

II

~,

I

I;

of 2Lhcr factors. In fact no agency can hirE:: legal counsel

~xccp~.:. 'V'lith pcrr,1ission of the:. Attornf:y Genoral. Sc, i:' .;hi5

i:3 ': ron\::;, this rcJ at ions hip with the Executi.V2 Branch

te, !'LH~ hiT;l in thG Judicial Branch sould raise somG

(, ,I

~e~ardtion of powers issues, although in ~hc Constitution

:'OU could deal \vh:h him in the Constitution.

;:

: 2 ~ '.I'D: elli\.1 RH1\N :

,-.

i.

Wall, par~ of our prob1sn is that he is presently

...',

".Ii ',.he. .-rudicial l\rticle, and his duties eire spcl J_~~a out

:' ,"'.11'.1\d':. Articl..

Hha'C \.'0 u1 d yo u run inJ;~o i::"

., MR. 'I'l.DV]j~LL:

J;

Jus'.; because hE.' s locat(d somewhere., that. doc:-sn' t.

"
"

necessarily eakE:. him -- I mean you ~ould takE> him and put

I, ii

him in l\rricl.:: I.

') m~. ,}hCl:SOU:

Or create:. d 1,6W Article.

:r: :':hink it.' S :'1orc wha:~ hE: (~OGS that det.;e.rminE'.s ,,,hat he;

~

,

._~

.

~

J

n----------------- --_.-_.----------.----.---.- _..- '. ~--

-,--"~',~-,~,------,---",-,-,---,,

PAGE -1 <1
_.---- --------_..._-, .. _'---_._.'-" --- -_._- ---..

il

is, un4:Gss you put him in t:he Judi ci al

!'I!

~ :I

he. shall bE a Judicial Officer of this

, '-. you

know

you

don't

\vorry

iJ.Dom:

~
......

i\s I indicated at the las'J.: Cor;m.i _":::: ~ Flcc:-.inq f T "'::llinj~ the District:. Attorneys and t.iL: l'.':torne~r C:":n;.;raJ. '1<-1'/(-; 'Jot u

foot in bot.h branches, but from a prac-'--.ic:al standpoint in

x

terms of languagc, the IluEstion is arc. you 90inCj ::0 i'u:::hGm

~

in both Articles or in onr Article?

10 REP. DUCK:

z~_ I)

r

,(.)
~

, ,. a:

''>

,~.

/~~\ '-- .. !, ((.'h-"

\ coo,,,,,.

:z.
'

\," / )

~_/

- 0 ---... ... ---------

I

14 >

f-

.-:( !
1<, '.'',:>' :' it, ",.)

':> Z

'l

1 ;'

,~
n

If you E.liminatE.d -'::h8 l\-'::torncy GE:IH.. l:al from .::hE. LXE.cutivE. Branch and put hif'l ovc:r in '::hc ,:'lJ8icio.1 J\r:::~clG, no,v let' s talk 'about tIl-is for a r~lillt.ltc,. "'Jlla~t. ti S (jaill':] ~o happen as the chief legal person for ~hc StatG when ~hE
, , ci GOVDrnor says "Okay. !1r. A.G. ".; ( ~"an "j'C1l..l -'::0 (30 Sl) ull " , , , so, and he s goin<j to , sa~l "~10 I 11 nu \: q(l~n9 -i,,:.() ,.lu <: 11.1-:'
because I'm not in your ~rticl~ ilny mor~. 1'1Il f:lcctc:d,

IX I

and I'm in the Judicial Branch of govr.rnruEnt"? 'I'bat would

19

cause a problem, but you could cure-. it, coul(~ you not, \'lith

20

language; you put him in the Judicial Ar~ic10, but set

.'.1

forth his duties and whatnot. Houldn I': thc.___. taLc carE of

..., )

all tha-;:.?

rm. TID\vELL:

Hell, you know, he has statu'':ory duti cs now. I':hc..rc

2'\

he is independent:, sta tut.orily he: has '0 },-~;ponc. U) dire ctiVE:.S

r---

PAGE 45 i

I,

of the Governor for opinions, to go defend a case or go

"\;I

through somclK!dy. That.'s all statutory, but I don't think

i'\rdm.l: or any Attorney General has any quarrel with that

'~f :i

sort of thing. Somebody has to make that sort of judgment,

"

bu~ the anS,"ler is yes, you could.

b

Judge, how did you all in thE. federal system -- did

I

you consider the U. S. Attorney General -- \vas hE: neither

",~

fish nor fowl?

l}

IIJUDGE
:1

SHI'l'l1:

iil

lit?, , s purely Executive under the federal system.

It's

all th5 Department of Justice and separate budgets.

1) ~,M.R. TIm-JELL:

Although he did as the U.S. Attorney General perform

a quasi-judicial function kind of like ours?
<: r
j;-:.JUDGE SHI'l'H:

Yes. It \vas on an individual hasis though. In other

(1

<1

\\lords, these are ethical concepts that would be under the

individual's performancE'_ as a United States Attorny.

I) ,

HCE";(llrss to say, the courts have, some influence on all

.\

lattY'yt:rs who appear before them, hut hE"; , S purely Executive.

'DR. GIBSON:

Hhy does Arthur Bolton want to be in the Judicial

Article? Is there more prestige in b6ing in the .Judicial

i\rt.icle? Does he feel like he's more of a fOYil than a

fish or a fish than a fowl and therefore he wants to be

PAGE 46

cleaned up. I'm not quite sure why hE w~m1:'.S to be

'-

2

someplace

.' rrHL CHAIR11AN:

4

I guess what he saiLl was that h~ was more at hamcin

the Judicial Article.

(,

\'1e11, let I s back up and start f:.on this proposj..'::ion.

Presently the office of l\ttorncy General is crea~sd in

the 1976 Constitution in hm places. NOH, I guess th.::'

q

first question is, should that situation continuc-;?

Assuming without dt;ciding 'that the arlS\"Er is that t.hat
,
dosn It mak really good sense, then t.he question 1_:;;;,

where should he be?

GIBSON:

And if this Committf-.fi voted and the Grncral Asser:1bly,

<?
'"

rt.l
.I. () Z "0 '
L

"

I

i.:.:i

lR

the full Committee and the pe:opl in thEoir ,dsdom acted
accordingly, then in line with what Charlie Tidwell said,
-
by statute you could provide for the Executive duties that he now has. Is that right? And keep his Executive;

lY

duties?

20 THE CHAIRMAN:

21

But that part of the Judicial l\rticls which deals

with the office of Attorney General presently says that

23

it shall be the duty of thE', Attorney General to act_ as

24

tl~ legal advisor of the ExecutivE Department, repres~nt

2S

the State in the Suprer:le Court and in aJl ca.pital fE,lanies

PAGE 47

an4 in civil and criminal caSBS in any court when required

by ::.h8 Governor and to perform such other services as shall

'

he TGfluire:.d of hiY" by law. So I take itthcr<" would be no

n~ccssity for a change eithel' in the- ,Judicial Article

or in any of the statutes which prGs(mtly establish the

rsponsibilities of that office.

srUTIi :

It vlould appear to me if he were put in the. Judicial

')

I

l\rticlc t.hat there could at somo time be a situation

whcn:~ the Governor would say, contrarily I know to Hr.

J! -

'(")

~
w

'" I .'~

.1

Bolton's present.. wishes, "Hell, I'm going off" and getting my c,wn lawycr,"\'lhich would bs defoating to really what I

i ., ,.
I
""
1
.,

-;.

!r

II.'
I

'.c'",

"
iI

""'

j "\ Ii
I 1')

understand to be his philosophy, that he is thE~ STate's lawyer and should exercise control over all representation of Lxccutive functions, and it would appear to me that a GOVErnor could say, "Hell, look you're over yonder. I haVE- tho responsibility of the Executive Deparb'1\ent. I'll go over and get my General Assembly to give me my own lawyt.l:s," ~;ihich would not be a good situation. It would be

20

at least counter to the trend of the last ten or fifteen

)1

years in that connection

. J .TIll: CHi\IIUIAH:

I think that could hapPEn under the present situation.

I'm not sure tha~ therE-'S any cons:'itutional prohibition

Ilrssently. ?he prohibition is statutory, if it exists at

- - - - - - - ._.-'-_._~._---' - - - - _ . _ - _ . _ - - - - - - - _ . _ - - - - - - - - - - -

______.J

PAGE 48

1'--------------------------------------

IIi'

all.

:,

.: Ii JUDGE SMITH:

I;

.

il

3 i!

Hell, all I'm thinking is if h6 Here soli(Hy placed

4

in the E;-wcuti vc Departr.1E.llt, you could naj 1 all that dm-vn

it appears to me.

(, THE CHAlill-1AH:

7

Well, there is one othsr aspect of it, and this may

be another defect in my letter. Charli-: or sor,lebody :la5

9

got a proposed revision of the ,Judicia.l llrt.icl c.

J(\ JUDGE SHITll:
Cl Z
I was going to ask about Wayne Snow.

Hhere is it? And Ylhat is its status?

I I
>- MR. TlmmLL:
t:;

<1 T
My impression is that he. is going t.o renain in tha"t

l'J
oc :>
16 .~...

Judicial Article under what Wayne Snow'R coricept

I

CI

Z

<l
17 ~

don I t believE> they intemd to dt-letE bin from there and

18

leave him in the Executive only, and I havE. not \vorked

19

that closely with them, but r believe that that's the

.'0

posture.

21 I JUDGE SMITH:

Hell, the ultimate decision then would be. the

.' .!

Select Conunittec's. l'lell, thE ultimat:. dfcision of l;ours('.

is on dmm tho road, but the ultimate ini t ia1 decision

25

would be the Select Committee's. In other words, if it

'-
' ......

- ----------------------,---------

PAGE 49 ----------_.,

came up from our group in the Lxccutive and carne up from

l':ir. Snow's Committee in the Judicial, then somE-body has

.3

t.o rc-Bol ve t.hat.

Ii

I
I.
~ i:HR. TID'mLL:

5 IIII,i

Or leave it like it is.

6 !I.HS. l:JOlHDr::Z:

Cindy Nonidez. In addition, he's a member of the

Sr..lE1ct Committee. So there might be a need to r.1ake a

rGcon~Gndation to the Select Committee, if you wanted to

address, if you wanted them to address the question, you

know, and answer the question.

GIBSON:

~',1hen you say he's a member of the Select Committee,

):+ >

you mean Arthur Bolton?

~
1.,
1S .~MS. 110NIDEZ:

,~
;;::.'

16 ~'"

The Attorney General serVE,S on the Select Committee.

,~
L.
:'r'm. 'I'ID\TELL:

'r:

At one time to have the Attorney General clearly in

ii

!)

t.he Judicial Branch would have raised some real serious

Ii
20. I,

separation of power problems with what the Attorney General~

i
-'I

did. I don't think that that is true now because I think

ii

,,

I
II

::

he has statutorily been remov(,":d from all of the boards and

comraissions that he used to serve on, \"lhich were. clearly

..., ,~ -r ,~,

Executive boards, not because of any separation of. powers

quest.ions, bUt; because of conflict of interests since he

. - --- ----- - ---.._---_._------------------------._----------_. - - - -

_J

PAGB~

50

1',------------------------------- ------'---------------------------'----.-.----"-

i"l

represented these authorities and boards and commisf;ions.

"

II 2 I!

The Legislature thought that he ought rl():~ :0 also serve

3 II
Ii

on them. The same thing with the Auditor. He's kind of

I""

b(;n taken off these Executive, boards because he audits

5

them. So unless there are sorae boards and aut.hority that

I'm not all that familiar \'Jith, I thinJ: hE" s off all of them

7

except for the Finance and Investment Commission. I knou

8

he's on that. He's on that pursuant to constitutional

9

authority. So there i? no separation of powers problem.

10 MR. JACKSON:

Isn't there a basic philosophical and constitutional

problem if he is in the Judicial Branch to tell thE. ExecutivE; Branch that they can't hire the:i r 1 awycrs unlcs~;

"
-r
15 .~
"I>-
';,
J6 a'z" z 17 IX
r.Q

they go through thE, .Tudicial Branch to get thel~G' s approval?

Some of these other functions I don't think

they nay be

quasi-judicial, but so a,! re some things \/ith th;. Public
ServicE Commi.ssion and some of the things the C'xanining

18

boards do, quasi-judicial, and in the, opinion Rich v. S'.:atc

1'0'

whGre: they look at the Auditor, they :,<1,/, "Is he in -the

20

Legislative because the Legislature sleets him?" And the

21

Court said, "no, we look clearly at ;~is powers. The ',i D,H

yo,

cle.arly not- legislative in nature. Thcr<:.fo.r-s, th.:,y arc,

23

24

25

11
~---

E}<Scutive in nature." l'hcy have tak&.n ~:ha;:.l:ind of attitude.
Now, we could change that by yom: \-lordinq. You could

PAGE 5] stat.e something in the Cons::.-itution that this i~) not. an Ex~cu~ive officer and his powrr~ arc not Execu~ivs in nal:.urc, bu'c still I think as curnmt.l:z- interpret.en t.h()' would loo}~ at thE. essence of his committee or his role as E::c.cutive as opposed to Judicial.

SOIiletimc.s the three branches get to fussing Hith

:,ach 0 thor, and it. gaGs to the point whEre thEy go to

litigating vdth EdCh other, and that has happened. The

tU
c)
i!~7:

:\t.t.orncy General used to do all of thE: lc,gal work for the C~,nc.ral i\ssembly, and they vlould get sued, and hI? would

1-->
r

c..~,~, i~ (

_'.1

r ....pl.TScnt thE-raw ThE; LegislaturE: and '::hc EX('.cutivE: got cn)sscd here a' ff.Vi years ago by the sDparation of powers

l;

F.J:ovision, and thE. Attorncy GGnEral sued the Lc:qislaturG.,

1,; .)

'C!

.<

.'

'~

.. I

~....

o

(
!7 '~

cli'.dn't havE. anybody ':0 defend them but some pOOl.-
little inexperienced lawyer, and as accinscquenc0, the
i.:'j .... :;).uturc. losc.. I told them thy were. going .j.~o lOSE too.

I " i PEl). T.llJ (~~I~ :

'I<I' I

':'hat"s irvhy you're in the ExecutivE Branch today.

20 jim. 'I'IDPLLIJ:
I

-,-~ I

I wcn~ on the winning side.

rrhat could co,nceivably hap-pbn. '1'he Ex<"cutive and

,:

::.h<:.- LegislaturE. might; get to fussing again I and it would

U,' d bad s1 t.ua-cion \vhE;;n t,h~ ExecutivE. Branch didn't have

,i.. C;co lawyer and he '.las over reprE.s(;nting sOfl\body else.
---_._--_._--_._--------_._----------~---_.------_~._--~-----_._ _. _ - - - - - - _--!

Usl1, you can't reallv tsll hm" "'::~10SC p:rOb},;lns ~lP':~
'loing -:.0 arise.

4 ~,11~ TIDWELL: That's true.

6 'I'HE CHAI RHi""\N : You I v;... got thret: LranchE:s, and .:1r1/':r,./(; () f ,::11(;:1'n call

havG di ffcr~nc8s. You \\-ill recall tha'... '~htrc W.3S a ':imc

when thG chisf executivE. of thG State su('d ".:hc ;:;tatc. :':0

1~"U
zl~""
11

haVE declared thE. one term limitation '':0 h::: unconsd tutional and then i t became thE> duty of t:hc i~,"':.0rn('y G<:ncral tD

represent the ConstH_uticn aqainst. ~:r,c r,ovc.rnor, i11.,1 ::dC

the Governor been able to say, "Go taJ:c i1 dive," ~'C',l ""(Juld

have had. a cliff,ren'i::. situation. So I'l not surE tha-:' you

15 .~

can d6cide nOtt! how thes"" problems arE; (jOlng "to arise

.)

'""
::>

16 a~

bet\oJ6Em which brandIes and. '-lho shaul (1 n.:l'r"cscn::' Vll!OLl d::.

z

<l

Ii

~

that timE.

1'cj' I'lR. TIDWELL:

!lJ

That \'1ould not b,,; a con~..:rollinq is!,;uG of th.:.:: I/JdY \If:

20

ought to go.

21 REP. BUCI~: ;rudgc, you \vorked for the l,ttorncjl C;c:n,~ral'S 0 fficc

.:' i THE CHAIRHAN:

'-l

I die...

':' HEP. BUCK:
i.

PAGE 53

-,--_.,.." - - - - - -

'Ii,

lImv do you feel about it? Do you fG.l 1 H;"'C we ought

~. 0 take hin out, leave him like he is over hl.:'rc. in Stoction

1~: cf '-lie Judicial Article provided then::' s qOiIlq to bf'

SOUL hand and glove \\'it.h \';ayne SnoVl's Commi":tE''C on

5

lar.guage, if wc're going to changs it?

CHhl PJ-1AN :

I fccl this way, that one of the. most important duties

I :ni!1k of thE. Jl.ttorney Genera] is not in litigation, but

9

in rendering opinions and unbeknownst to many people, the

In

office of Attorney General renders I would guess five. or

1
! I .-

six hundred official opinions a year and many other

e<

'~

1 -, -

unofficial opinions, but these are. official opinions to

1..:11", Executive Branch officers, saying, "Yes, you can do

I'

SOlact.hing," or, "Ho, you cannot." For e.xamplr" at on

,--;.

time we \vere talking earlier about the. Commissioner of

Agriculture and his' consumer services, his inspection.

Y;e. had onG Exc:cu-::iVG officer inspecting grocery stores,

ano;:JH.':r one inspGcting the sandwiche.s in the grocery stores

I ..,

and perhaps one of the others or at least the first one

inspc.ct.in9 the meat inside the sandwiches inside the

":1

9rocsry store, and through an opinion of the Attorney

General, he was able to say, "You will do this and you

Honlt. do that," and it took -- and to I'18 that's a judicial

function. It's a little court to resolve disputes within

and inside the Executive Branch.

PAGE

[" _~
..J "f

HR. TIIOHPS0rJ:

Tom Thorne Thompson. Still it seC[:1S like he's alMost.

3

thE; other way because if you hav~, thE's.~ o;)in ions be inq

promulgated, I would thinktllerc T,voulu be some probltr.l or

some concr:rn that these opinions waul ,~l the.n bt: treated as

.,,

judicial statements and t.here ~vould bc::u, sncroachrnent

upon the sphe.re of influence of t.hE'.Judiciary. Ii you have

instead the Attorney GenEral placed SSl1iLl..'cly ",i-:-hin th<:;

Executive Dpartrnent, t.hen thOSE opinions rer,ld.in <c.xae::'}y

cz:l 1 i:.:

"
1

;.-;

what they are, opinions subject to baing overruled by a Court of Appeals, by any court, and i.t: -:.:-hc,t "Jay you look at the opinions for \vhat: they are, an opinion. to the

Governor as to' what hE: can and can't de and merely an

opinion.

15 ., THl:: CHAIRMAN:

;)
lh .~.. Q Z <
17 ~

Hell, certainly I don't think thE.; SupGrior Court':; or the Appellate Gourts consider thE"ms(~lves bound by thOSE:

j,h

opinions, so in the hierarchy of judiciary opinion status,

19

if they are opinions, they are below the Sup2.rior Court

20

level.

21

The one thing that gives them enforceability is ~hc

At-torney General's rcprcsEmt.ation of those department.s if

they get sued and thf.y h~ve takn a positiun contrary to

.'.. 1

one of hi;;;; opinions, hE.' conf~sscs j UUJ]I,l('r, : : i n c ffcc ':.. as

does the United States Attorney GenEra].

~--~_._-- --~-----------

PAGE 55
~--'-----~--------------

SIUTH:
i
"]ould it be possible before. noxt He.dnesday for somebody!

~o find out where he is i~ the other states?

-I THE CLAI Rl''L\11:

He'll sure look into it. Vickie, would you do t.hat

::ax us?
1'15. GREr:W.nmG:

Sure.

TIlE CIIAIRJ.1AN:

1.1

Do you have one of those lists that shows where he's

., ?
,I

elected?

~ I I HS. :;. GHEENBEltG:

I think I've got a memo from Dr. Gibson.

If DR. GE'.SON:

1

.. :>

I think you I H" going to find he's an Executive

Clll\I HHAlj :
Well, historically I think in Georgia he was in the
\
Judicial, and i~ was in the '45 Constitution that he was
put in bOth l\.rticles.

Do He have any organizational memo ~ha.$.._ tells us \'\That
:lappcned in '69? I no4::icp.c1 that in this document which
";;:),6 passed by ::hc Ilouse that i .... \tIas apparently no change
,
mad" which affe;cJ:.ed anyone other ~:han the Supe-rinten dent i 0 .-.t='

'r----- ------------- ----.--.

PAGE 56

School sand ":h6 Commissionel: 0 f Labor r ;lcth of 'dhich ":h8

House reinserU:"c] after thE:. COInr:li".:t<::.c.

3

Dy -;:.h6 way I i t is in '_:his docuD6n-: \:hc.-;:-c~his

consumer affairs

first

comes

up too,

tm(I "':he EOUS0

l ' -. (.lQ

in

that dOcUTtl6nt change the Comridssioncr of l\griculcure's

title. to make him Agricu1 ture and ConSUT:\cr .7\ff airs 4

JUDGE SHI'l'H:

\1611, I take it the consensus

CommitteE". fEels h6 ought to be c1ectE.<~, lUlU ::hc. only isst1(;

10
L
Ii ,c~ .o".-.
J1 ::X::

The way I sort of hear it this morning seems to me that there's probably raore reasons of logic to'save him

in the Executive Branch and there mighL be S01,18 sort

v
"

I 'j

,~,

protective language as part of that provision in "':hE: Article that would relatE; to his indcFu-,dcncE of a lIU,-,si-

judicial function.
z
17 :ii DR. GIDSON:

IS

Yes. I think that could be done. I can't sos sort

of a functional Saturday Hight HaSSd.CrE occurring sor,lfc::

20

night.

21 JUDGE SHITH:

Yes. 23 DR. GIBSOlJ:

~ think you could l~cep him in hiE; 'luas i - judicial

, -~

functions.

PAGE 57
HR. TllOfvlPSON:
Judge, there was one other ~inor issue I wanted to L~ntion before we left the Attorney General. The other constitutional proposals all came out with specific ~l1Jalifications that the Attorne.y General would have to folCc.t in tenus of years of practicE 0 f 1a", , law degree, and I can't find that.
Q, TilL .cIllI.IPHl~:t!:
It's in the Judicial Article.

tl, I

Arc there specific qualifications in the Judicial

u

Article?

~

;~ ltlR. T IDHELL:

25 and six years.
t r.
c', TIlE CEll. I RrlAN :
.'J
It's under the:: qualifications of JusticEs, ,1udges.

;; REP. BUCK:

~ -''I

Page 44, Tonl.

i" I f.1R. THOMPSON:

,U

Okay.

TU},; CllJUillu\N:

,)

It's Section 13, paragraph 1, about the middle of

Lhc sentence.

:. DR. GlfS:JN:

Yes. Practice law for seven years.

PACE 5 B

THE CHAIR!1AlJ~

2

If tv; may then, I::.: me rC:.cOI:1rn(..nd ~:hat W6 r6tu:r:n nm..

3

to this draft of resolution, and le~ UE say ~o you I guess

4

the Office of Legislative Counsel very kindly prEcpareuthis

and did such a good job, they put a cap~ion cri it and a
. voter's resolution on how the 'lotfrs \..;ould 'lots on .:.. +.

Actually t.his \'1ill bGcome part of a rn '_1ch larger proposal, and so you can disregard I think the titl~ up ":hcr-?, ":h2

first six lines, and the section thres can be disreuarded

; I)
l'J
[J

entirely, starting on page four. Earlier I had passGd out to you a l:inc3. of a papC'.r-c1011

reproduction of the three Constitutions, JdC] i\r'.::icle on

one page. USi11g that, I went throu~Jh llf.rc and would

suggest that Wt consider these proposal~;.

i 5 .~
."l'J
16 ";J
~
a z < ]7 ~

The changes down at ~thc bottm.l of paeJ(' onc ,the First changes are pur6ly grammatical. Tha-:' is to ~;ay to strike the "they" unO. insert "',,,ho" and strike "',:hc (',ovsrnor"

IX

bcause the Governor appears at ".:.bc -::nd of that scn'::cIlcc,

19

and we can accomplish the. same thin9 \"i:'h j us:. one

iO

"Governor. "

21

lIow, the proposed change, thE', wore: "tins" to "-:'epn"

I think has a little bit mon:. subs';.:.an:.;':. ':'hE present.

Consti~ution says that these officers shall holu thair

office for the same tiI<1C as -thE: Govi,~r:nor. ~):11, ii::. US(J

to be that the GovE,rnor sErved for four years. HOi.. he

scrvss for sight.

PAGE 59 -------_._-------_._---,
I don I t thin}~ any of them would

cc...ntcndthat if the Governor is rn-elcct.d, that automaticatly

l.i.:-'-" l(.(~"..:r; "them, but I suppose such a convolu...:Gd a.r:qmnent
.
Illig::': he madE., bUt. in any ('vent, if \'lC change tha':' to

II::'"1:"I(i, II it would clarif;r the situation. As has already

OE..t:;n indicated, these offic6rs are slected for a term of

four years, and until their successor qualifies.

1\11 right. You could havE; a Governor go out at the

:.wi of four ye.ars, whcn:as therE. for some reason would not

bt... a rc:.t->Iaccmellt. for onE:; of tllCSS corlst,itutiollal ()fficc.rs.

~jO\:', thE. argument could DC made that:. siner ".::h8 GovErnor's

tiLt::. has run ")ut, :::he rE'. is no holdover provision. As to

:;'~;E. ::;ccreta:r:~l of ~;tate, for E',xample, I think it [>lakes it

]clore manageable. the.n for us ~.o say ';:.ha':~h::,'y sh2,11 bf'

}, ..:.,(: '::t (' for the sar.1G term as the Governor, \ h1.ch is four

~!c."U.> I until >t.lle SUCCE.ssor is ,',Jill ifi,- d rat.h(',r +:han for

."
[,

tlK. :s.:u'1C f:imE. as ::'hc GovE-rnor. l\nu -::hcm th: last sntcncr:. I qUt"lSS -t'.o tJ1(' -I::op of

:'1

I rGfcr to ::'his as the Talrladqc-Thornpson

prOV1Sl.On. 'Ntis prDvision prc.sE..w.:ly provides that in ":hs

; ,:(11:' a lH.. rson i!:> clcct(.(~ '':0 onG of t..hsc cons,;_itutional

uf f ier 5 2.nO ;.~i :,3 Friar to takin.q of ficc, then tht;; incomin9

C,;,'/cr:nOl' \lOulci havE. the powE..r of ap!.)ointmcnt as OPPOSed to

;.E:Lc :,cc':ion o-f I:-hc COllsti ~:.ul~ioh on t..:he Governor ~'ihich

PAGE GU

allO\IS thE. Governor to ilppoin": if son:01H. {~iFS in oEf'ier".

')

That is to say if one of ;:-~1"S2 consd "'u:.ional offict::rs

w;rc, to die or n:;sign :'o(}ay ,:.h8 C;Ovc. LllU.L v:ou12 ;)avc ':h:
I

'.

appointr.lsnt.

qucst:ioH <lro Sf',

have tala:m care of that ~;jtuation. re.cOmncndat ion that we transfer ".:11i5 ': _. 4,' r:ovc: xricr

10
'z"
11

into ~:hG provision ,tlhich all GWS the Ccn L,lnur '':0 d:']X,j.w:in ths casE:. of a vacancy '::hat beCOInE,S cp II 1.11 '::hs 02+'3.c,

~oday and have that provision in the

in

Consti~ution .:J,S one of the powsrs 0 f '.h, (;0 \1' l"llor.

T!IOHl'~XlN :

15 '"
L,
< 1'7 :;;

'?lay I a:3k you a qUt,fjtion on that. ') that to !1r. Chavis' Comnit~cc, is this"";T~~n:i"::.':c:: (;oinq _1

1("'
II
1'1 IIi 20

t.ha't provision?

Do 'Xv u

or

just

are

you

talking

about

a

plac8Pcn:

sort

,..
:.) .C

2J

as opposed to a substance issue?

n THE ClUUll.!':Il.!':

23
24 jl

Hell, therE. is this onE differenCe that in th(;

appointiv~ power

no, the.-rc arc two cU. frc :::c,nc"s in "'::1:c

2~

appointi vc. iJowcr of the Governor, anl~ you Dl(.jht. wan""; ,::,~,

PAGE 61

n---

-------,

!"!

1unk at that, if I can find out ,,,here it is. DoGS

.:ony body },now offhand?

SEction 2 ,~)aragraph 4.
S TEL (111\ IlUiAU :
]"11 right. Have you got a page number?

K

Page 33.

q TEL CiiliIPJ.'lAH:

il)

33.

i\ 2ru?. TImn.::LL:

~:L

:>

C<-

'"

niSlht. at thE' ::op.

ClU\IlU'll'...H:

i t ,,.

<:

i; ,_')
l,':"
:r:

'" i ["} :z-

'.'

~

; "7

..:r:
CD

"Filling vacancies. 1I All right. At the prE-sent '.:inH:. if thE. Governor appoints someone, they serVE; the un :oxpired term, which could be up to almost four years. TIlt so-callE.d Talmadge-Thompson provision says "until the nGxt general election." So in case it dccurred during

the first two years, it would only be a two year

appointment.. The so-called Talmadge-Thompson provision

pl.'ovides that it is subj (';oct to confirnation by the Senate

whereas the appointive power of filling vacanci~s on

page 33 does not requirE. Senate confinuation. It seems
::0 me that the provisions ought to be. the same, either

two years or for the unexpired te:rr1, and it either ought
--_._-----_.j

PAGE 62

.,,

to be set for confirmation by the Scnat.s, "i thc>r ,-.ray you

:!

:1

go. If WEo want to makr, a recommendation on that,

certainly I I In sure they ,vouid be wiliint] to sn'::,:rtain it.

I ';,1R. JhCKSON:

Judgf:, let me. ask one question. I In a li"~tlL bi".::

,\

confused. If a new Secretary of State was nlct~d in

'J

HcvEombcr and the previous one was dcfE';atcd f the incumbent

x

was ds feate.d, and the ne\-J one. diE.s in DGCC:I:lbsr, but. th:

office still is not vacant because the new term COfsn' i,:

10
..:,J
z 11
~;
o
~ ,",:'.1

begin until January, what would hapPGn nO\v undEr your recommendation?

'the defeated Secretary of State, ,vithout a provision

<\
r
15 "-,
c,
,,;
::1
':.l~
16 Z. ~ .~
Z. <l:
"J c'"o

of this type, the deft;ated Secretary of

could say,

"Hy SUCCGssor never has qualified ana I therE-forE'. hold

over for another four years." Under ".:.his provision, ':h""

Governor, ':h6 incoming Governor could appoin:.

18 JUDGE SHITH:

lq

In January?

20

THE CHAIRHAll:

21

NmJ, \vithout this provision, the outgoing Govern0l'

22

conceivably could appoint because thE outgoing Governor

)~

is in office for a period of time, fOL 2 day or two while

2.+

the new General Assembly is beinq sworn in, and so on,

2S

so that thE; outgoing Governor neverthelGss has some

'_:_--~--_._---------------_.

PAGE 63
ap?ointi~(~--;~~~-;:--~ve~th-~-:91~--11~.--~~~-not beton rC-6~~-~e~~-l
,
!; RLI'. 'JUC1~:
:1, S~atutorily like on Superior Court Judgl?:s, Charlie,
now they don t t get appointed for thE llnexpire.d t.rm. Don't
they get appointed until the next general election?

~o th first day of January following the noxt

>i

gcn~ral election.

I) \..TUDGE SnI'l'll:

1U
,:' ;'
i'
-')~

...

(..I

UsII, I think thE. transfer to put. it all'in one place is good. I think there's no question about that. It all ought to be consistent.
J'u<1gs, I hate to go back to something, but wha t

aLout the Dh's as opposed to the Attorney Gancral?
"t
J:
J" ~~) TIfl:; Clil\TPl1Al1 :

HGIl, from a parliamentary standpoint, you havE. not

.,
; .'

assigned thf;m to us. From a parliamentary stanc1point, I' Tn

noc sure thcy'ie in the Article, but if you say we ought

to consider ie, we'll sure do it.

:2{) JUDGE SHITH:

21

\Jell, at lcas~.:. in the sense of a recommendation. It

_0- 'l.:.)~;cars to lile, you knm<l

are. they in thE". Snow d ra ft nOlrl?

'l'IDFLLL:

Yes, sir.

i

... .

J

PAGE G~
They're not in the ~xscutiv~ Article at alJ.
I
~qR. T IDHELL: \

I Delieve the only place the DA's arc ~~~~ionGd are

in the JUdicial Article I believe.
, 5 i~m. THOHPSOlJ:

(.

I beliEVE: they were t.ransferred in -:hc other previous

-,
!

proposals ::0 the Executive. There dr~. V'o,..i t,lt:-r.s in the-

1969 an~ '64 proposals to include D~s.
I
9 iP'UDGL; SHITII:

10

'~

Ij

1--

I don't know what ~:c do wi::h then. Ha:chc '",e ought to just aholish them.

TIDHELL:

It doesn't say anything we don't alreaJ~ know. There's

'<":
r

15 '" I~

-~

16

a;
z

f)
Z <l
)7 ''""

18

just bEen a Court of Appeals case \-Jherc <J. 'JA and a JU~<fc. I
"t were. sued, and they HerE. 9 iVE.n immunit.y of j ildici al
officer. The District .i'\t-torllEYs werE; tJiven :~12: same

immunity as Superior COUJ:t ,Tudges I an(~ -tile_::;' talJ:ed abo'ut

that they were, the District AttorilC} -das a \juLlsi-j udicial

.

(

I bel iev; thlS was a Court of Appeals case, an ...1 so I think

that's been consistent with kind of 'vha~ \'16'V bc<:'n sayin~J

'.:""~J

herB. The DA's are in kind of a loophole.

n p-UDGE SHI'J.'H:
!
\1:,11, this is impor:.ant.

As yo\' knuw, ~..:.llerf.. arc

24 I

fcdGl:al decisions that go thE other Hay. For example,

on civil rights damagE claiEls, while ":::h(. Cour:: has iY1!'i~~mity ,.

PAGE 65

f:hs District Attorney can be subj cctcd to damages for his

iJl:osccution 0 ..- a casco So it's not a small i'tfn. I mean

if Llur.t:ing him in thE.. ..Tudicial !\rticlc cloaks hi!'1 with

.SOf,\(,; sort of ir-.nunity, this is a consideration on6 way or

:'hc. other.

C> Im.. ':'IDHl~LL:

I could gst that cas; and bring it to you. It didn't

day a whole lot about it. Thf case didn't turn on the

(,

poin::. that thE. DA's were in the Judicial Article..

'!

Tht::.reforG it was morc. of what they did, and it was a

Dis::.rict Attorney prosecuting 'this case, pErforming a,

quasi-judicial function, and therefore he had judicial

imP1unity.

': ,>-- JUDGE :;L11'1'11:

Vl

T

I'

\'lE'.ll, of course the ul timatG case of that \'lOuld

li'~:

probably be in SOffi.' fe.dsral forum.

~
: 7 :; ~!.'HE Cllii.IR:lAN:

I',

non, than likely a 1983 damage suit type of

"J ~m. TlmmLL:

?his was on civil rights. It was a lady complaining

about:. she. diun' t get justice or ~:h6 DA wasn't (loing what

11~ was SUI)pose;d 'to bf~ (Ioing, \1-1aSn t t. l)f:rforming liis

1.: . t"

functions right, and they said he. is not going to be

called on anywhere else to answer to his discretion,
)
_____________________________________ .J

PAGE hG

whether he: should or should not prose.cute a case becaus:.:.

it's a judicial function.

01<. GIBSON:

4i

liE does appear in this proposed Consti:'t:tion. 'I'he

~

District Attorney appears in the Exc-cn-'-_i VI::; lI_rticlG. So I

suppose -::hat \ve could say from the fac'..:thsv' rc onit.ttd

from ours really doesn't leave us the. rcspon"d Lili ty. 'i'hcy

(,

are a part of this docurnent that VicLic lJrouqht to 1.:5 this

liiorning.

(, 1'.!

JUDGE S1'1ITH:

'z":
1J ..
:;(.

Hell, you have a di fferEnce there.

Thf.y are no!::: the;

government's lawyer exc.pt for the prosEcution of cri:tinal

cases. They don't represent the; county, for e.xamplE.

They have county attorneys. They don't reprc,sol:: CliJellcics.

They simply have the limited function of criminal

>:<~
::>
IG ~

prosecution.

Q
z
~
17 ;;;MR. TIDHELL:

IS

In haLe as corpus proceedings thEoY do represent the

19

State.

20 JUDGE SHI'l'H:

21

That's right.

22 THE CHI\. I Rl"l1UJ :

Well , it' 5 primarily an obligation on habeas corpt:s

.'of

. what is that? Uniform Reciprocal Support? It's non-

25

criminal, but nevertheless a litigation function of the

office of District Attorney.

PAGE 67
- - - - - - - - - - - - - ------,,

2 JUDGE SHITII:

Well, that's just to put the expense on thG counties

-I

instead of the State.

MR. TIDHELL:

I think we do have some statut.e that maybe the DA's represent -- I'm trying to think of \vhat it is -- public

~

officials.

'l 1'13. N'ONIDEZ:

'-

!i./

Yes.

i 1 "2HR. 'l'IDHELL:

,~

o
c.

~

"

I think it's back in the segregation stage.

((~1~:5))I_'~~"!"V "_:,./.-~;-V.li< 1\

>-
; I,m. ,Ji~CESOH:

\::~-<///;

e>

11.
1,---
-.(
T
J'

Do they have any rol"o vii th rGgi'u:d to the grand jury ci.vil function?

;'-

"~
II, ~_ HR. TID\lELL ~

c
l.

District Attorneys?

i1R. JI\.(:FSm~:

Y

District Attorneys

.\1 HR. 'l'IDHEIL:

Ys.s.

,TUDGl: SHITli:
Couns~l ~o grand jury.

They' no the only counsE:l. ThE" can't have any

",
other.
TIlt: CHi\IH111'111:
:r: guess the granu jury
hi: a j UtH c:i..ll [lOUy. ,JUDGE :ml'l'll:

PAGE GB
~-.\,)

A::torhG~' C,:.r;cral, just. 2;.5 '..ie 'calk IE: rc , ~,ca;lSE, thc'/ n:aJ.J

court ~L(.y 'n.; i.:1.
i" DR. GIBSON:
..
.:L_
" ",
I .

no func:.ioH 'J):ilcr than ';:.hc judicia] l11:'-,c.lOll

,"

they an, \.11 :.1'.;: r:xccutivc I\Y;:.i-..;1.c.

:',
i.o i HR. TIDHLLL: .~

ISUI..l;:' ':::.11c '69?

lk Dn. GIBSm~:

That's -:.hc propoSed '69 <.uuendnen::..

;'(j HE,. lJONIDEZ:

rE::port.

..\ I '-)

Th<..t._' s his ~J:t:oduc": f:.hcrc.

I rCffiemb.r ::.hSD t.alking about i t I bu'_ I can I~: rCT:1cmL,,,: r th::,

n: [;sons for it...

PAGE 69

was

'64 Cons~itution ~ro.

"r.-. ,J. t..~ ;C;')

Judge Smith?

T ',las :ius'C <]oing to say, \'Ioulc "~)U add tJns onto thE';

ii:;. r:p:LLmrn.C:

i',

\lhat. is Llla'..:: 'lucstion?

'"
~,JUUGI:
.~..

.C._~.I:.

ij

1 .....

'Plf
.J,. . . .

..
..

a"::t,orncy3 ar,c

r: ... Zl -;':"c. oS

"he oth0.r

he's an ~lGct~C consti'Cution21 officer

" r>:,org.i.a, S8 he's an jndr-,pcndcIlL pl.'son froIll the

,'.',',:')rney Cc'nc L\l. ' ','];sy' rc

in du: fed'?,ral

2

Disc.rict j:"::~,)l:1iGY.

.,'

.7' '.-. ".. 'u- rnr,.,, ':- ' r, :.c."".''-'.J;'1-.."~"-'d' 1t .

(,

7

place from em. 2\rticlE. '_i)

'} 'i.'IlL CHAl Plll'J J :

10
<z.'J
]1 1-
"(l

';:ransfe::r this prov ision fror,i "'::his Couni:'::""c, do "}'" \,'an+:. ".:0

shaul d ilL ~HO y,ar or fs ur ;rcar -terms ,.dld sul.>j C'.C-:: '::;:0

con f i nna".:ion bv ~.:.h(: S cn u;:.2 ?
.,
1:
i:; ,~.JUDGE f;l'H'1.'Il:

:J
I h co

So T unuErsi.:.anu it, 'dould this, ('sr "xanplc, i!l\/o1vc

~
I 7 "cO

th~ <;:.0

"'.ua'g("; ..,

! r: THL ClIAr RlINI :

,)

ll.ccordillg to its prEscn;:: placE.T1c.n,:, it: \'loul(; not::

because i t relatEs sulcly to tIlE: "O":hE:.1.' ::'(;113': i':JJtiona 1

officers."

in;. TImJELL:

is qualific(l"? vlould changt ".::hc. ,Judgc:; r si t.uation, be ca'.l sc'J1f. Cons':.:i. ":117.'. ion

PAGE 71
-----------..- - - - - - - - - - - - - - - - - -..1
i\J-'\7iclC5 specifically that it.' s till thE': first day at
] idi:lary follo ..linq the next g~ncral elcction. _I ~.... , .v.

-,'hEn it'~; for: d full -::'",rm is when t.hE.rc' s jus:: absolute

~_al.:n.cf. on the qucstion.

In nakinJj -- I talk too r.111ch whcr. I'm not. evon a

(,

member of this, but in making recommendations, v"hen you' rc

going to transfer it to Hick, thEy might no::', you know --

I'm sure they lik" it, bu"': \\TC don't want -to gEt: -the hlO

Sub-r::ommi t.tccs at loggerheads. If you're going to let

~Lick wr;:stlE', with it, maybe they

"1
t: 1 ; THL~ ChAI RHNJ :

;..:

;)

"-,

I want to recommend that they reconcile le

o.. iIH. 'n m:ELL:
'-}

Hsrc it is, and you handls it

. .TULJG1~ srUTP:

_J
it> ,'.r:

l\nd bring 3. t. back to the full Committee.

\ i ~rm. TID\vLL:

You might make a rE'.al good r-.coJT1rncndation, and they

Flight. have a bethsr one they think, and then you're

fussing

with

tach

othGr

on

..
It.

21 'DR. GIBSON:

-.,

'i/e \Voula hz:vc an opportunity to comment on what they

decidEd.

JUDGE ~;m:':eII:

Sure. StIrc-.

PACE 72

DR. GIBSON:

2.

HE'll jus~ transfer thE. jurisr}ic~ion 0'1('1:' there.

3 THE ClIAIPJ,1l\[1:

'1'hc consensus is that it. be tran.:;"'cn"""::'1. I\J.J righ":.

DraHing a liTH: aroWld line 18, pre sen':.:. 1:.:' the qualifications

for the constitutional officers onlv are applicabl C J' J::Lat

you I ve. got to have them at the tirlf~ r;r ~rour ",,] cc~..:ion r

and most of thcse officr,s an'. fil1l~d in the firs'!:: ins::;mcs

q

by appointment.s, anll s.o conc::::ivably a r'.Erson '.;1.0 diu no::'

10
u
z
jj ,.
'o"

havE. thE; constitutional quali fications could be appoir":l.d, if he ,'laS going to acrluire them at least by the tir:u:. he
~)uld be tlDcted, which would create a si~uation. So I

have rf..commcnded we add the "lords "or a.ppointment" thE:.rc

'."'
<.l
.'(

15 ,~

:.:J
.x

'" 16

r.:>
z.

'au

Z.
1-; e-.,

after "election," and since he was going to possibly be
appointed as opposed to being lected, hi" or shE' ,you} d possibly be elected or appointed -- )(})1 the ,vords "",hen c.lected" and certainly thE:: word "then"on line: 18. Both

IS

the '64 anll '69 proposals had provisions ~hat the offi~~r

19

must take an oath to be prescribed by ~hl2 r,C'ne.ral l\ssembly.

20

Rathe.r than having a separatE paragraph to that: effcct,

Ij

I thought it. might be added on line 20 and "regulation"

mad8 p~ural so as to cover both the b(JIH~linq n::quirf.I~l(;n::

,,

...:...)

and the requirement of the oath

.HR. ,JACI<SON: Before you go on, can I just ask a qucs~ i.on on t~'lO

PAGE 73

.~ J

'.: ry irJj '::.0 tT"l arf' Dr

2'-'U) d LOC be cause of ~.his [lroTi~iOIl. lind sE.conu, i.n "'::hc Ednca:':.i.on sFction 0:- ': :.~.~

Thc:cc lS t:hr princi.ple ':ha::' tLc ,. ~:sla:"ul:c canl1:'J:' prescribe r;r2at~'r -r-cql1ircmc.n'.:s for an
. .;.. " ~ J .:. '~',

C0mpElis~tion as May be fixF2 by law."

PAGE

SupsrintcndE'.nt" shollldn' t even appear here.

go back and dE-lete "State Schuol ::;ujY.:~~irl".:.?nJ.c:n'::" !~L;~\~.:.

tJlrC and also from the f"L:t~::' par'3.qrcipi,. ~ r l,.}( :: akc "'::1:a':':'

out, that ',vil1 solve .::11O:t. pr0bler.l J Uii'iL.

t-1R. .JACI'SOlI:

Ok<lY.

THE CILiUR11AH:
If it comes bac k in, Ul a:" 's .:l good pi,) ifi::: ",1(: n -:':1 to

:remember.

10 JUDGE mU'I'Il:

7f! II

It SUrE, is.

,):.

()

Q

" ~'THE CIIJ.l.l RHNJ :

@r~i

110\',1, that' does point up

should '::hcs,::. 'IUu1ifications

-'-'

II ~

be S6t here., or should shere bE' sir1lpl"/ ":':ill.'"!11 have such

15 .~I

qualifications as arc prescrih(~d L~' 1m,'''?

<!J
'c".J
1(; ~ JUDGE SrH'rII:

az

7j

~<i.

You mEan for the. constit,utional of::~c:::,rs?

I k I THE elIAl ro1A..~ :

I 19

YES, sir.

)() . JUDGE SMITH:

)1

I think theY ought to bE. herE:. r,1yscl f. YGU could

!'

haVe a pP.t l.ppoint'.\:"; that might havr;' <I ~~uicL bill

"

tailored.

2-1 HR. SLl\TON:
That's never happened, has it, Tow:'

PAGE 75 ---------1
i
I
I
! r,m. TJI:'I'ILL.L: Or try to change the qualifications in mid-stream
to get somebody that you didn't like.
!l ,; .JUDGE SiUrrn:
That's right.

q

Didn't do what you wanted him to do.

IU JUDGE ::;HITH~

'.'.1

Z

II

I'n:vGl"\1:.ing him from running for rG-clection or

()
,cu.-,

r!(\\,(~~'='~.\.~)~.~~\h\r'''''D

"
~
~I

SOine ching. I think it's important enough to rise to the
~onstitutionallevel.

I ;1 ,HR. Jl\CI~SON:

VI
'i 1
I; .)

You think six years is not excessive?

I I' ~ JUDGE srHTH:
1
Hell, :Iou know my vic\vs on that. I expressE\d ~hem

before. The population is more and nore moving and

)-,

shifting, and one of these things was fifteen years.

I] TIlE CliI\IP.!ll..n:

I Ulinh t:his USGd to DC :. sn at:. one time, so it has

bee.a :n:.duce-d.

:.r think thre~, years is enough mySElf as a native-born

G:.oJ::qian. \Ie talked about Ravenal, if you'll rEmember

... ..__ __

. _.__ ._.

..

...J

PAGE 7{j

THE CHAIRHAH:

2

That's somewhat of a problem, a SlX year rE:quin:,ment

3

n6xt preceeding his election. Hell, YQU take t.he

4

si tuation of a person \\'ho has been a rL~il'c.tent.: uf Georgi;'!

all his life., J<lOV.S for a month and t-,a.l'IC Lad:. Par all

of thE:. reasons for the residency n:quirc.n1cnt are net,

but the language of "next precedinu" i.s not mEt. 'fhe

x

three. year shortening would help t.o alleviate the harshnsss

')

of that si tuation.

10 JUDGE SMITH:

o
"'u.
12 u
(/(~)~)r~':!,.'!.!!!!!!!. ~u.

'<:::::.::;//

14 "
.~
r
I)"
"':"J
16 ~
cz 17 ~DR.

It \vould be a compromise. ':::'hc 0 ~hcr gross Examph. would be the. fellow who was born in Georgia and lived here six years and then had DEEm gone for 40 years and came back . So it's a compromise, but I would favor shortening it becaUSE: you might miss a few good mEn that (Udn' t nake: it to the Marines. GIBSON:

IS

There aren't too many of thelLl. I GXpt:ct ::hat I

19

subscribe to the idea that democracy l'2:"E~ pc:ople makE. fools

20

of themSElves, and I would like to keep thos8 qualification$

21

as restrictive as possible. Three: yEars is fine "i:-'h me.

I'T,1 not sure of the ci ti zcnshl.p or anythinq E ls('" but I

would support a move. which would reducr:':!losc s tatr,d

qualifications, although I do think that for political

reasons there has to be. something in then.. Threr. yEars I

PAGE 77 - - - - - - - - - - - - - ' ,,
think I would support, and I don't thihk that a person

\'Juuld have. much chance of being electEd in Georgia on

t:.hrcc, years, but if Georgians Hant to elect him in three

years; then all right.

JUDGL SHI'l'H:

\,1edl, apparently New York people mov: in the.re just

t8 nm for the Senate. Just like: thE; nri tish system

",

v:h.:.:.rc they ca.. stand in any borough or ,."hatEWGr it is tha't

t.lley \vant. So thGrE' s an ,argument to havf:i some;

~-cstraint
", Z.
I; ;: I-m. J 1\CKSOU : ",)
\lhat is it for the. Senate?

Four years for the

Se-nate. It's two years for the House I br,lieve and four
','

II _

for the ~)cnatE.

1

!" :, TEl: CII.i\I PJ1AJ J :

t', '.r.' ')
lh lXJ

\ID11, '.:hGre might be soracthinq to be. said for a

"l
fOUl: year requirement. 1\t lEast you \verc hE;re the last

election and h.ar'd the campaign, know v-1ha t th6 issues

1<)

.J!l.CKSON:

Four years for the SenatE.

,]L'DGr: ~3III'.i'1l:

.,

h'e 1~', f or u"nlfOrm.lty

THO Yf:ars for t.hE. lIouse.

rr--- ----------------------- ------ --------------- ----------
HR. TlmmLL:

PAGE. ...., ~... i ~)

'I'hrcc. is a grEat C011prOl,1isc L,:,:\'"c.n'.:.llcLl

.3 DR. GIi3S0N:

.,,

So you'rE suggestin~ four years

I TEL c.lmIRl'l1l.~J:

t)

H.ll, i-:.:. \lould provide ;mifonti~.:~/.

DR. GIBSOU:
Okay. I'll support ~hat. consensus. I would like to propose :hcn as .J. no':.;.ion ':_1:'-
10

IJ

CliAIPJ-1luJ:

Is there a sEcond?

BUCK:

,-

I'll second it.

t~

r

]:i '~TIlL CH1URJ.lAN:

'"~"
;:/

!I- ~

1my discussion?

o

7-

<
1'0: ~

(lIo response)

All t.:hosc in favor, please iltdicat c?

J9

_(l'.y (~s)

2u

Any opposition?

(:Jo response)

1,

It carries.

down thc:n: in the batten ~:hat looks IH:: it's add'd.

PAGE 79 mo\~ ~hat "no ~xccutivc offic~rs shall be allowsa any fee

ab,,(nt fl.'OIn the. scat of govcrnrr,snt. em busin,,:ss of t.hE

h
'I
1<1
,oj !I

;.( ::::)~a..::)S that. \;c could combine it. wi t.h the provision on cm,ipcnsation, add the words "f:-;cs (1"d perquisites" to the ::.it:.lci and put.:::''vJO things which I think are logically conn<..c;b(3 in ~'hL :,arne paraq-raph; the de let ion of. thE. words "ll.:lV power to" I >.::.hink will give ~~hc constitu:;..ional ,.)ffic, rs SOI:lt. consolation T:hat. it thGn bccom<,s a duty

C:u.-.;.ics ( ,mLhority and comptmsalioll a.nd allmvanc;,[; of the l:XC.Cltt~ivt, offic:-~rs Sil7qlly ra~llcr tha.n a.uthoriza+.:.ioll t.o ell: G2:ncral l\ssembly to do so.
l"
:':Udg6, may I raise sor~ct.hinq?

,\<j.:::ill ,one 0 ftht:. chargcsl~hat ':hc SElcc: Conmi tte~

,1~vl~":..c.:,1.:.

scntGncqs

PAGE 80

thac statu tory nacurc. that t,hey need LD be there. 'f'hrrc

2

is an oath chat's prcscri !)CQ by lay! ~:h3 _ all pulJU.c

3

offiL;ials have tu takE.

there, and ~.:o say that the~' have to (:0 ~_~. i.n ths

Consti'::ution , it's a few words, IJut i i;/O'l':<lL2:c':.ho 80 out _i
\

h

and the Sill:1C COHU'1Cnts abou:: ''::hi8 l.ast :~~.c".::i.un. l~]l 0""

7

thE. LXGcut.i VL. officers, llOW their comp~'nna~:ion

.,
~

+.....

8

9 1j

elsE. urllcss it's right here, you f:UO,I.

10

the: Supremr: Court Judges is pegged, and I just point ":hat

]]
0i2
~\\(\~)rJ/"~ '~/I 14
15 16 17

,"z'o"
r:\.
":'~TIIE
;~
,_
:-
'A
<>: :r.
,~"
,.(
co
3
Czl
3

out, if you want to make
CrIAIIU1At~:

GconoMi~,s.

Hell, I do not think I can necessarily accept thE.

first. HE've alre.ady noted you cannot add to the

qualifications of a constitutional offiCEr ~xcspt where

they appear in the Constitution. Unless 1 handinl]

requirement is in the ConstH:ution, the 3rgur,lGnt can be

10 ii :, il
19

made that that's an additional qualification prcscrib<:'c1. by a statute, and Gven though I have bank rupted t.hrE.e or

20

four times, I nGvertheless can become COllptroller and

21

handle the State's money, even though T can' 1~ qct iJ. l-;cnd,

becaUSE:: you can't by statute requirE me t() ha'llE any

23

qualifications for this offic,;, ;dlic!IU;~ Constitution

:2 i

dOE-sn't say I have to havt'" and th(~rcforc, i.f I'r:l 2'3 years

of agr, and four years a n,.sidE"'nt, even tho ugh I can't (jr:t

PAGE 81
-l a bond,--~-~~;:---~-~~--~~la~-~-f-~~~~'~~-~;-~--~hin~--~ht"re :~ ~ome

justification for including the bonding require,mellt in

t.hs Ccmsti tution, and perhaps along the same. lines, the

cath requirement, I'm not sure that requiring an officer

:>

to '::ake:. an oath wculd require him to add qualfications

":0 his office, but you conceivably could have somebody

say, "I'm not going to take that oath. You can't make

~e. I can hold the office because it's not in the

Constitution I have to take the oath." That's the reason

10

,1

Z

ij

I-

tha-c I did not delete it along the lines of simplicity.
I don't feel the s~ne thing is true so much of the oath as
I do the bond. I think it could create a problem. Now,

t.llE. other I think is perhaps very well taken.

Sl"lITlf:

<s:
] 5 '0

Let me ask.

C,"J

](,

~J DR. u,

GII3S0lJ:

n

<

" J

"-

I \"rould obj ect to the other.

I don't obj Gct so much

II'

to the oath and bond as I do the other. Hith full respect

19 Ii

t.o tJ1C I~lehlbErs of t.he. General l\ssmbly I I'd liks some

-,Ttl '

restriction on the fet compensation in the Constitution.

"

~hc GGnsral Assembly has a history in the past sometimes

, -, ..

on swpetht1art bills and somE; of t1ns. I think I "muld like

.:0 {'.ave that. ThE. only thing I \V'ould obj Ect to, Judge,

._,

in making that. change, you change the wording. Some plaCE:

whsre. it says, "tIo State official naraed in paragraph 1 of

PAGE 82

,~~-"-~-------------"----"-----

__ _-_ _--- ~-----~._-_...

-~._----_._-----_._.

..

.._.-~

"

II

this sEction It and then you become. all-inclusi VQ., "of any

i

I

2 i!!

Executi vc officer. It

li\

3 :i THE CHAI Rr-IAN :
!

4

I should have pointed that out.

Yes.

It would includ~

5 ,I

all ExecutivE: officers this "ray, which would add to i L

6

the Governor, Lieutenant Governor -- I 1 m not~ sun~. IIE

.,,

may be on another bridge between branches

8 JUDGE SHITH:

9

Aren't there statutory Executive officers too?

10 THE CHAImIAN:

;1 ',z".
;;(
o
'"

Yes. SHITII:

Let me ask an underlying question hGrs. lid really

like to hear from our student.s. If there is a constitutional

''::"">

l l\

on
L

~

Q

Z



17

ox
<Xl

18

elected official, what happens t.o the Fower of +;)18 purse? As I understand it, the original concr+~ in this country was the Legislature through the pml.r of thG purs'E'; could sunset or do away. If you arc an elected

19

constitutional officer, is there SOTJC obliqation to fund

20

and not e.xercise the power of the pursr? I'm raising the

21

qUE-stion. I donlt know.

" i MR. Jl\CKSON:

~'3

'i'here's one case wherE;; a Constitut~i0n provided, a

~" I

local consti tu~ional amGndmcn t provide d PC)): tl county

treasurGr. It ;)rovid-:d for his functions. The COW1::'y

PAGE 83
11-
commission decided not t.o fund that office. The Supreme

Cotirt said where you have an offiCE constitutionally

p:r'ovidcc1, you r,lUst provide a salary for that officer. To

~._aLs aHa'] his salary in offect is to take avlay the office,

and you're doing by st.atute what you're prohibited to do

b~' direct action.
I
-; ! JUDG1; ~;NITH:

So thE.y couldn't do that.

8

<)

Ii
'I

"

!O

~~ll, beyond th~ salary, was there any rulings -suppose he had to have an officr: and secretaries and <:,quipmcn't..

Ji\Cl(SOU:

He prepared a ml"mo, \vhich I can <jGt for you before

next time, on \-lhac. happens if a Le.gislative Branch

,.
<: x.
(')
tt. .:>
16 ""z",' i) L

rGfUSLS to pass an appropriation act, you know. What happens to the legal obligations of all officers, including constitutional offic~rs, in the absence of an appropriation?

J!-i "JUDGL SHI'l'I!:
)1

1'.1

To perform their functions?

20 MR. ,JAC];,SOlJ:

'I

Right. \'lhat. the courts haVE. held, whether an official

can be r<luirec1 to carry out or function even though the

iJc..rson is not funded for that function.

JUDGE

SI-lI'l'H:
For. exampls,

it says

here,

liThe

General

i

Assembly

I,,

I

--- i ----_._"~

r---- PAGE 84 sha-ll-~-;~~id;-hel;- an~-~xp~~-~e~--~r'~E~a~~'--~;;--~he- op~-~at~-o~-;

:1'1'
2 !I

of tl1c,O... de~1)artment." !Jov:, what dOGS that DEan? Docs "'::hat I

I

mean that an elcted Exccu.:i ve officer c0111d go into

I

4i II II I
5 I:
II

court and say, "They didn't give me cllouqil"?

n v e r , y .
lidS

~

...
...

happened?

6 Ii,iI lR. TlmJELL; i: 'i

7 II

Not on the State level, Judge, but it has on the

8 III

county level.

,I,

9

IIDR.
(I

GIBSON;

10
<., 11 ~MR.
'o"
"w-
(~~r 1 12 ~ 14 .~... V> :<r IS ,~ "ex ::> 16 .~.. o Z 17 g<

Certainly in the Sheriff's Department.
TIDHELL:
Where t.he county commissioners didn't fund thE, sheriff's budget at the level that he thought he. nr,ed2d to perform properly his functions, and there thE. Judiciary did: look at it, and I think they agreed with the sheriff if I remember right and said, "You're going to have to giVe. him some mre deputies and some more cars."

J8 ,,JUDGE SMITH:

I

,i

19 ii

There might be a case now with the Judiciary and thE

"
1" ,1

20 Ii

County Commission, isn't there? It seems to me the \.vay it

i":
'_)I ' ! i"
I

reads now that it's a powerful statement ~.:hat -tht General

22

Assembly must fund at least -- well, this says all

23 i

Executive officers the way it is now.

24 iHR. TIDWELL;

25

There ~s a statement in the proposEd new Judiciul

PAGE 85

ArticlE' that does SOnlEM'hat -- it doesn't say that in the

.Tudicial Article, and in the new one being ,propose.d, it

dors say that'. mostly becausE. the Chief JusticE: ~:hought

tha::. it ought to be, in t.here, you know. You've got to fundi

it. ad.<.:quately. I think there's some. feeling among the

I

I
Judiciary in the State that it really doesn't get its fair'I

share.

R THE CHAIRJ.1AN:

o

Less than one percent.

i () JUDGE SEITH:

11

.,uc'
, '"

(. l)

\>, "."",. (?~'-~\.'2"Ut.~

\

~l

"\
lWi

Ir-'-

'. - ./)1

,

'--.- _.,// '

14

~
.t:,

".I

,J

l.~

"

j ~J

-.'
T

('

'"t~~
Jj

I don't want to complicats it, but just as I read this thing, it crossed my mind that therE f:1ight be. some obligation on the part of the General Assembly under the Constitution to fund to a certain level, not to a discretionary leve.l. If it wErc, I would certainly want to limit it to these constitutional officers and not just any old Executive officer.

, HR. ,JACKSOU:

j'l

rrechnically the people are called constitutional

:'0

of2icE':rs. At least that's what "'16've come to call these

six or eight. The role of tht Public SI:'vice Commissioner

W\i:' no. not surE.: whether they're t.echnically constitutional

officers wi-::'h a big C and 0 or not. It's a constitutional

board, but it's not clear. I~: says, "Allowances of the

l~xccutivs Officers." \vould i t Iacar.. :::he above-named?

r------ .------------.-..-.

PAGE 86
'--, -_ ....... '--- -_. ---------_. --_.

j j

JUDGE

SHITH:

i

\j

i!

2i

That's the point.

,jIi

3

I'
II

THI:;

CHAIRHAN:

'i

II

II
4 if

Surely \Je can do that, and that "vou1(1 solve a lot of

I,

i:

' i,
5 Ijl'

the prolJlem. I agreE. wit.h you, tha": if the arguffien::' were

II

II

!
6 Ii

made that this is all statutory :Cx.cutivf. officsrs, you

"I !I

couldn't 1 irai t the officE':. Then thE. GE'n,:'.ral l\ssembly

I'I,

~i,
i< "

couldn't; control it.

'I:

q 111-1R. JACKson:

10
"z
11 .xo. c. ~
12 :
@r~

The Court has relied on this ptovision I believe in t.he past to uphold the right of th('. Grn2.ral ilssemhly to take away powers of non-crnlstitutional officers by saying, you knm", this is a grant of powE'.r for -'::hc Gtnc,ral J\ss'2.r,lbly

J4 ,,....
'i"

1"..;:

:>

16 '.z"..

Cl

7.

<{

17

c:
'"

to prescribe thGir powers and duties. 't'hcJ:":'.' s becn sEveral cases where somebody has sud lwcausE', their powers '..,ere shifted to another ckpartment. 'T'llfy sued, and the Court relied on this provision.

18 \I,JUDGE SHITII:

19 'I

11s being the only one that could --

20 HR. JACKSON:

21

As giving the General Assembly wide au~hority over

22

the; structure of the Executive Branch l::u ~;hi f~_ powcrs,

~o providE tlu::.ics and not, and I thinL ~Lis ',as applic<.; ,:ll.sO

to cases involving non-cons"..:itutional of fie!: n:; \'1ho sHcd
becausE they lost powlO.r in a r80rganization; i -':- ,vas shif~Ed i
.... __ _--_. - .... --_.. ._---_._.._._. _..._----------------------_.-.....

':0 sor"chody else.

PAGE 87
------------

ii HFll, "'c:hat wording is vEry Lad thouqh. If you look
I
the ticle of that paragraph, paragraph 1 says, "Executivt
() ffieers; IIOH ElEcted," and then paragraph 2 talks about !

(

"1.0rnpr,nsiltic)ES and Amoun'cs of OthEr EXEcutive Officers,"

n-nc1 the; substance of it is thE: ExecutivE: officers. So it's

r(-,all~... vf2ry ar:tbiguous. q ,;UDGI= SilITIl:

10

I think that ought to be cleanfin up somehow.

lz?
11 0:: DR. CI13S0N: 'o"

I think it should be.

c,
1:
I) ~
<:>
-:.Y
:>
j() ~
"

You could use the term "Constitutional Officer" in the beginning, constitutional Officers in paragraph 1, "Con::H:i tutional Off i'ccrs; How I:lccted."

lK

But:. that. really docsn' t, hmrc a meaning though,

1')
,
20 I]
!
21

!":o11s..:itutional Officer.' It's a popular connotation, and \;c ;.ind of all kllO\v what '.'.16' rct.aU~ing about. Sheriffs say, ""'eIre cons::.itutional officers."

JUDer: _-,

DA 1 s.

T!lC question arisGs whc,ther a nP1ber of th('o Board
['. ,-

PAGE 88

rr----------

---_._-------------.------ ----

Ii;i

of Pardons and Paroles, is he a ~Emb~r of a board or is hE

!I

., I' i- ii

a constitutional officsr?

II

li3 HR : JACK~)ON

4

Ii
'I

tli th sI,wll 1 c,tters, hE, is, buz- not usin9 a bi~l C.

!!

ii

.) Ii

You laugh, but in law revi6w articles, tl:.c~r do -c.lla:'

ii

6 Iili ELP. BUCK:

II

Ii

I.
7 I!
II.i

we. have. a Superior Court Judge at hone who says,

I'

8 Ii

you knmi, :'Ln the Chattahoochee ,Judicial Circuit -- and

III

9 II Ii

he says h6' s got statewidE. power i hE': can qo OVFr in another

10

-circuit and raise hell.

Ii t"z DR. GIBSON:

o

.0..-.

~~)12 .u'.".

I've heard that statemEnt madp.

I-

; REP. BUCK:
~

14 >. lV> :r

He says he can issue orders and all this.

15 .., THE CHAI rolAN :

"~:
;;>

16 ~....

Will this do i't? "The General l\ssGmbly shall

Q

Z

17 ~

prescribe the duties, authority, compEnsation and

18 Ii

allowances of the above Executive officers."

:1

Ii

19

I:
::

DR.

GIBSON:

!i

il 20 II
:!

That would take care of it if we restricted it to

i,\

21 i!
ii

those nar:lcd.

I'

22

!i
IIIi

JUDGE

SHITH:

iIl'

23 1\

No, nu. You want them t.o bE. ahlt ':0 control the

if

24

duties of all Executive officers?

Ii

II

25 II 'I'HE CHAI RHAlJ :

LL

_

_

. __.

J

PAGE 89

----------------
'1'0 the Extent that they

have

created

a

s":atuto~;--I

:;xccutive officer, it Sf'~ms to me the General Assembly

i

clGarly would have the power.

~ ,TUDG'S 811 ~rl'H :

S

That may be the. answer.

6 THE CHAIRl1AH:

Control those in that situation.

is JUDGE StU TIT:

q

That may be the answer to that. How, when you get

10

'.:;J .
1I 1-

,o':c..

! .,L"'

~~~~\) lf (, l0) rn-."."-o, :~

\

/ Jj

,:t.:

\.,'--'///

1'1 ,"

~ ,"
r:

down to theSE: feas and perquisites, I assume

I don't

know vha::this out of the seat of government business is.

I WEan why is that in there? It appears to I'1e that if they

can control him except if he IE-aves the seat of

<JoVE-rnment, then he's entitled to get all of his necessary

~xpcnscs when absent.

;)

J c. ~... THL ClIAIHH1\H:

:;)

I

17 ~

He gets no pay and no compe.nsati.on from the. State

l:<

(-xccpt his compensation and his expnnses out of thE. seat

;9

of government or necessary (;-.xpenses absent from the seat

2U

of government.

:' 1 JUDGI; ~;IH'l'H:

I mean ",hy is t.hat in there?

\ic~ll, isn't it like this? If you're within the seat
of government, you know, if you go out of state, then you
--------- ..-.---------._-.-- - - - -

PAGE 90
rr------run in-t-::-:ctual eXP6nSt:--:n~~~~d-~-~-:tatutoryexpenses on

!i

2 Iiii

mileage and per diem.

I'II
~; II MR. TIDWELL:

I;,

4 IIi

That' 5 for members of the General 7\sscmhl -v. Tom.

Ii.

S REP. BUCK:

6 II

T11at' s right.

;

7 THE ClIAIRHAU:

8

Judge, I think one of the reasons for t':lilt is t.his,

')

that during the pEriod when the constitutional officlSrs

10

were not able to get what they though<:: \\7as compensation

II 'z~"

and pay raises, th~y acquired a large number of duties,

.''o."".

@ ; ~12 ~

service on other boards .

JUDGE SMITH:

-- 14;

I remember that.

~

'"~

1:

15 ~ THE ClIAIRI>1AN:

""
:::>
16 ~

And each of the members of the:. Board of Authority of

Czl
17 ~

Stone Mountain would get $100 per month, but if you got

18

on enough boards, it gave you a pretty si~E:able income

19

over and above your statutory compensat iun. This pre.vents

20

that situation from reoccurring.

21 ,HR. TID\'lELL:
I
Hell, no, it says, "Other than as prescribed bv law."

23 i \ THE CHAIRl1AN:

N!

Well, you're right.

25 MR. TIDWELL:

PAGE 91
-- -~~----------------- - - - - ' - - - - - - - - - - - - - - - - - - ,
It really doesn't -- it just prohably had some

significance back there. Haybe the Centroller General

\Vou1d charge: somebody a fee for a copy of an insurance

4

application, you know, something like that, but that was

5

way a hundred years ago. That kind of helped make up for

noi: being paid enough.

TIlL CHAIRHAN:

g

A statewide fee system.

9 MR. TIm-TELL:

10

Something of that nature I imagine, but now that's

il ~

sort of taken care of statutorily, and they are all given

!) .1-

12 :"~'

salary, and they can't get anything else.

(~~}= ~ ''6V~

;':' JUOGB GJ1ITH:

14 ,. "<'l
I'

Hell, I'm wondering why not stop it at "prescribed by I

")
10.,: :>
! b ~ HR. SLATOH: o

4
l ' ~';

I ag ree \'1i th you, Judge.

I x , ,TUDGE S!HTH:

:9

If I want to take a junket to Tokyo, I could argue,

20

"1'1211, I'w on business, and I'm entitled to all my

n

,:xp"nses. "

" ) Tm; ClIAIRHAN:

.,\

~xpenses prescribed by law.

-f JUDGJ~ SHITH:

Sure:.

------------------ - -------,---------

PAGE 92

10

Just add "expenses,"

"z

II ~ TIlE CHAIRMAN:

.o0..-

@ ..,.. i12 ~

In lieu of allowances?

JUDGE SlUTH:

14 ~

Hell, that may be, redundant.

~
:<rl

15 .:> MR. TImffiLL:

"'"::J

16 ~ Q z

Cindy". what is that phrase you used throughont

<l
17 ~

the Constitution to try to conform all of this?

18 HS. NONIDEZ:

19

They w~mt back to "COffiI ensation and allowances." I

20

think it would be s ...fficient if you just e.ndE,d it thsrb.

21 r.1R. TIDHELL:

y,

"Compensation and allowances" is everywhere in the

23 i

Constitution now when it talks about this sort of thing.

--,-.., -,

Is that correct, Cindy?

'i

:1

Ii 25 MS. NONIDEZ:

1'---

------------------------

r-That's correct.
I

PAGE .93
I

:.- JUDGE SHITH:

I

3

About redundant, I heard Lewis Grizzard make a

I

Ii
'-1 :I

speech, and he vIas talking about a fellow \'1ho couldn't

\

I'

.(, .I1'

read and write, and he says, "I realize that's redundant,

II
II

i

II

()

like a fellow that commits suicide in Hacon."

I

MR. SLATON:

I

I love that.

I

91 THE CHAIRHAN:
!I

I

So we terminate that last sentence and just put, lias i

I

prescribed by law. II I think what we're discussing is

i

I

perhaps applicable to the next paragraph, and I question

I
I

i

whether or not we need it. That is that "No State officiall

I

l t >-

shall be allowed directly or indirectly to receive any

~;


1:
15 .:,

fee, interest or reward from any bank, personal bank or

'-'

!~

-:>

.- 1 lJ '"

corporation for depOsit and use of public funds, and the

aw

7

c'

I

~ 11,'

General Assembly shall enforce this provision by suitable

I Ii

p6na+ties." I think we can rely on the General Assembly

I ')

to do that and prescribe suitable penalties without it

20

being in the Constitution. I don't believe anybody will

i.)

worry that there is suddenly going to be a lot of profit-

,,

taking from the use of bank funds if we delete it.

,, JUDGE SMITH:

.'1

Is there any other provisi~ in the Constitution

_1.'.::

that relates to the deposit of public funds? I know this

---------------

J

r

was a big issue 40 years ago.

2 ii

other

II

3 II THE CHAIRMAN:

PAGE
I mean is there any

94
--------1

4 II

Not that I'm familiar with. Uow, as you may know,

5 II

the Constitution is now on computer, and if you want us to

6 Ii

look up "deposit of public funds" or "public funds" or

II

7 II

"deposit of public funds," it's easy to look for.

8 !! JUDGE SMITH:

II

9 i:

I'm just raising the question whether therELshould be

1'1

10

some general prohibition against profiting from public

"z
11 ...

money, period somewhere. I mean if th~re's --

'o"

Q.

w

e, ~ ~

12 ~MS. NONIDEZ: Isn't there something in the election Article?

14 .,...MR. TIDWELL:

'"
:r
IS -0

It is in the franchise of the holder of public funds

16 3"'~" az
17 ~

unaccounted for, that he cannot hold public office or something like that.

18 ,IJUDGE SMITH:

Ii .

19 IIiI

Well, if the principle is just somewhere in the

20 IIIi

Constitution, I think that's enough without beating the dog

II

21 IIII

to death, as here.

II
il
22 IIMR. TIDWELL:

23 i

The days when that sort of thing went on --

24

SMITH:

25 I
II- L

Are past. _

----------------------------.---,-------------P-AGE--95j
TIDWELL:

are now gone.

3

SMITH:

I

{

Let us hope.

:) MR. TIDWELL:

()

The money of the State is very, very 'professionally

managed, with bids and all sorts of safeguards.

8 JUDGE S.HITH:

')

All by statute?

10 MR. TImmLL:

<!1

Z
! I ,-

Yes.

'o"

<l.

12 ~ JUDGE mUTH:

(,(c~~).\-~,,~~ ~~

But just if the principle is mentioned somewhere, -I

\'\-.~..::~--,,/1./1-

'" i

~-

14 ~

see no need for the paragraph at all, which I assume is

i s ,~x,

what you are saying.

<:J

I'!:

3:J
i 6 THE CHAIRMAN:

za..
[7 :ii

Yes.

It could be rather than limiting it to bank

deposits, if you wanted to have some general provision,

19

State official shall be allowed directly or indirectly

2tJ

to receive any fee, interest or reward from any person."

2i JUDGE SHITH:

For anything?

THE CHAIRMAN:

2-l

Well, you could have a private business.

2' I JUDGE SHITH:
'----------------- ---- -------- ----------

rr--------------- ---

!I

011, yes.

PAGE 96
--- '- -- - - - -- ------- --------- ---,

2 II THE CHAIRHAN:

"

3 IIII

That you were engaged in that would be perfectly

4 II

legitimate. There's got to be some language, but it

5i

could be all inclusive that you don't get any pay from

II

6 II

any outsider for being an office-holder, and I'm not sure

7 II

what the languaqe would be.

, il JUDGE SMITH.

9 !i

Well, all I'm suggesting is they shouldn't profit

!i

10

from the office any more than they should profit from the

Czl

11 fao:.

use of the money that goes with the office.

"-

~r~ ~~ 12 ~ THE CHAI Rr-1AN : Precisely-.

14

DR f>--



GIBSON:

<'-",:.

15 .:.

Right, right.

3""";;)
16 JUDGE SMITH:

oz 17 ~

We might strike a blow at conflicts of int~rest here

18 Ii

or something.

Ii

il 19 THE CHAIRMAN:

II

20 Ii

Hhat about "No State official shall be allowed

Ii

21 I

directly or indirectly to receive any ,fee, interest or

II

22 IIII

reward from any person by reason of his holding public

il

,I

_1....'..

office"?

24 JUDGE SHITH:

25 lL-

That's a thought.
_

We might tinker with it a little
------- ---- ------------ ----------------'

PAGE 97

n-----------------------------------------.--- ----------------,

Ii

bit.

:(

2 IIIi DR. GIBSOll:
Ii

" )
.'

I don't think that thing that Cindy and Charlie were

talking about does that. It just says if you hold public

5

money, you can't be elected until you account for all of

h

it. It's a different thing. There should be some general

I!Ii

provision somewhere.

8 It JUDGE SHITE:

1\

i
L; II

Hhat \'las your last phrase, .Judge?

Reward from any

10
.-.)

person?

"By reason of" -- and I think this might be a little

bit of an improvement. "By reason of the holding of pub1i

I ,1 ~,

office."

n

i

Ii .~ DR. GIBSON:

<:J ::t:
:J
i6 ~

That's the important thing: we don't want them

{}

7:



17 ;;;

profiting just because they hold public office, and the

1>->

wording herr;

'rEI: CHAIRHAN:

20

",e This is awfully vague. Should

leave, in, "The

21

General Assembly shall enforce this provision by suitable

penalties"?

JUDGE SllITH: Hell, I suspe.ct they have. They have bribery

statutns, and malfeasance and misfeasance statutes and all
--_.,-----

PAGE 98

11-------

-------__------~----------I

II

of that, and if there is a particular new evil like

I

2 II,I

compute.r theft or something, they can come out with

I
f

d

Ii

another one.

3 III

4 :,\ THE CHAIRHAN:
;\

5 I'Ii

~'Je wouldn't need to change the title pE'rhaps from

6 11

what it is to "Profit from Office Prohibited"?

7 II MS. GREENBERG:

I: ov IIII

could that not be incorporated into paragraph 3?

I:

Ii9 THE CHAIRHAN:

I'

10

Yes.

zCJ

11 ;::HS. GREENBERG:

'o"

"-

'"

On compensation after the last sentence, "Prequisite

(@);i

or compensation by reason of public office other than

...._ / /

I

14 .~..

compensation and allowances as prescribed by lat"."

.'".:
r

15 ~ THE CHAIRMAN:

":':">

16 a~

Yes.

z

17 ~< MS. GREENBERG:

18 II
II

Starting with line 30.

!I 19 MR. JACKSON:

Ii

20

1
!i

Is this a blanket provision applying to all

I:

21 Ii

state officials or just to the constitutional officers?

'i
"
22 JUDGE S:MITH:

23

It really should apply to all.

MR. JACKSON:

25 Iili
LL

If it applies to all, you either need to put it under

PAGE 99
----------------------1
Section 2 of the Bill of Rights where h6 talks about tho

people in one branch can't do that in another branch or a

new section in the Executive Article. There should be a

4!

relationship to each of these paragraphs to the chapter of

5

the Article.

b I JUDGE SHITH:

7

Or maybe it ought to be shipped over to the Bill of

8 iIi

Rights with this recommendation.

'I

i':I T HE CIIAIRHAN:

II

10

Are the Bill of Rights currently being amended?

:z:J

11 ;: JUDGE SIUTll:

'':

.:>

~ ""

12 :

There is a meeting this afternoon.

(@);",,= ~ MR. JACKSOH:

~.----/

1,+ ,"..

Does this apply to Judicial officials?

\,'"

I :;

'r".
~

THE

CHAI RHAN :

[.~j
,<

:J

II) ';! ''.":l

It ought to.

17 :~ JUDGE SUITH:

J8

Sure.

i':l MR. JACKSON:

If it's going to do that, I think it needs to come

21

out of the Executive Branch.

'I JUDGE SHITII:

I'd put it under the Bill of Rights.
II
~4 MR. ,1l\CKSOH:

Under origin and structure of government.

CHAIRMAN:

PAGE 100
--.. - - . - . - - - - - - , - - . - - - - - . - - - - - ------1
!

Is there a motion to that effect?

GIBSON:

The motion is for transferrance of this particular

subject and question to the conunittee concerning the Bill

of Rights?

TIDWELL:

These sort of changes -- the District Attorney receive$

a fee for representing --

10 THE CHAIro~:

11 ",z..

URECA?

'o"

Q.

@~I 11 ""''MR TIDWELL: URECA cases, $50, and even if he's on salary, he gets

14 ;.

it, and, if you put that in there, it's gone.

f-

VI

.<l

:r

15 ..:.,. JUDGE SMITH:

'"::J

16 ~a

Why?

z

17 ~<I: MR. TIDWELL:

18 II

Because it's a fee, because he gets it by virtue of

,I
19 !i

servi~g as District Attorney of the Atlanta Judicial

Ii

20 I:1i

Circuit.

21

\!
IIII

MR.

THOUPSON:

22 'i

Well, there's all sorts of indirect

.. !i

23 II MR. TIDWELL:

24 IIII

.I ' m just saying that I s one I can think 0 f right now.

iI

Ii

25 l_._._T~~_re~~~.~ be some_othe~_~gitima~:_~~.~~.

..._...

: ~-;~~-~~~~-~N

PAGE 101

II

, III

vlell, if you propose it, you'll sure find out where

;I''

3 ::

they are.

.f I!'IIi JUDGE SMITH:

IIi

!!
5 I"i

Well, there might be some ~ay --

~J ':ii MR TIDWELL:

The Clerk of the Superior Courts receive fees.

JUDGE SHITll:

Other than from the Stat~? I mean that's what you're

talking about, is where various fees are paid by the State

or political subdivision thereof. We're talking about

12 :

third persons.

(!~~~)J;r i~ THE CHAIRMAN:

14 '

From any private person.

>-

'~"

1:

15 "MR. TIDWELL:

":"J"

10 ~

If you put that in there, that takes care of it.

o

)7 ~ MR. THOHPSON:

18 I'
I'I,

I
19 I"Ii

.:0 ""'I

!I

~I

21

II
II

:1

:'

)}

i

I ,I

'I

"c.,)

Ii
I

,24

1,;;,:

But a person may receive some type of compensation,
reward or gift which may be very small sort of thing by
virtue of that person holding an office, and it may be in
a very, very indirect manner. I mean if a ~tate official
is also a practicing attorney, someone may come to him as I
I
an attorney because of his reputation within the state or II!'
because he heard of him through the state. If you get
u thatki~~~~~rO~d :anguage, somebody could come in and sa+

PAGE

Constitution."

4 i,'1

You make a speech to a Lions CI ub; you're inevitably

I'Ii

Ii
5 il

going to end up with a miniature lion.

I'
!!

b II JUDGE SMITH:

Ii,

7 I,:

This is an anti-baked ham amendment.

:1

8 II REP. BUCK:

Ii

I!

9

II
II

This may be stretching it a little bit, but I

10

consider myself a State official because I'm elected, but

~

Czl 11 I-
...ooe
l>.
12 ~

I practice law. I'm sure I'm employed from time to time. by virtue of being in public office, because I know

~r!

somebody in some office in Sta~e government.

14 ~

t~ cut my throat with it.

l-

V>

<I.

:r

15 ~ MR. JACKSON:

t.

I don't want

Cl

':":>

16 ~...

But the, langua'qe is "for the deposit or use of public:

o

L

-0:
17 ~

funds. " It's not just you can't recleive. extra compen sationi

18

or you can't consuit. It says if you receive these fees

19

for the deposit or use of public funds.

20 MR. TIDWELL:

21

\ve're taking that off. Ne' re just making, it "by

22

virtue of public office."

"...',,J I MR. JACKSON:

24

I'm s9rry.

25 THE CHAIRMAN:

---_._---. ----- --------------

Ir-----

II

It's in the Executive Department.

" IiI MR. TIDWELL:

PAGE 103

3 Ii:I

One of the things I'm thinking of is the Governor

might want you, Ton, to serve on some advisory council

that he creates. Well, he couldn't pay you anyway because

of the separation of powers, but he puts a small $30 per

di9m, and you're on it because -- well, let's take the members of the General Assembly, take out members of. the

9 ii

GenE'.ral Assembly. They can't do it. ;Let's say some

:1'

10

Executive officer~

C)

11

;"o"

JUDGE
'

SHITII:

0-

W

;""1 ~
@!-:~"

'Hel~, I think we agreed to exclude the State as payor, didn't we?

i ,+ ,>--THE CHAIRHAN:

':;(

:x:

15 ,,,

Yes. I think we ought to add "private" in front .of

,'C")
:>

1() ~...

"person." Hell, if the Governor goes to Japan, he's

Q

Z

~

17 ~

obviously going to end up with the keys to the city of

18

Tokyo, and maybe the Qetter thing to do is to' go at these

19

things by prohibitions rather than prohibitling everyth;Lng

20

and then permitting some things.

21 MR. THOHPSON:

Well, with the language you have kept in paragraph

3 that ther~ shall be no perquisities, compensation, et

cetera except as prescribed by law, this gives the

Legislature the ability, at least the ability to prescribe

PAGE 104 ---1

those kinds of compensation they can receive.

[
I

,I

I 2 JUDGE SlUTH:

I

f I = .
3 II Ii

That's a good thought.

4 II MR. THOMPSON: :1

5 I:1I

If the Legislature wants to draft specific prohibition~

6 IIII

!
I
as to the Kiwanis or whatever, the Lions Club lion, what

Ii

7 II !I

have you, they could, and I think they will have a better

il

8 II

ability to focus in on the individual possible situations

without the sort of big dragnet clause that might

10

otherwise take place.

z"
11 ~ JUDGE SMITH: o "w"
e-:~iREP' Which might msan you could eliminate it entirely. BUCK:

14 .;... '<
:l:
15 ~
:""J" 16 ~a
z
<l
17 ~

I'xl tell you what happened to me the other day The Firemen's Association had a district meeting down in Columbus, and I was invited to corne, and I helped them with some legislation during this past session. They gave

18 II

me a big clock, hard carved, beautiful. What am I

1y Ii
ii

snpposed to do with that? Turn it back to them or give it

II

20 III

to tha State government to hold down there in the Archivas

21

Building?

22 iiI MR. SLATON:

23 il ,I

Keep it.

REP'. BUCK:

I will.

- - - --------------- -- ------------

PAGE 105

Tom is probably right. Let's just eliminate

I

4 i THE CHAI RJ.1AN':

I

5 IilI

If you changs your mind, will you let me know?

6 II JUDGE SHITH:

Ii

7 ii

It's something that maybe ought to be signalled to

il

H II

the Bill of Rights Sub-Committee though that they may want

!!

9 :1 II

to look at that provision you've referred to, Ed, and see

10

if it needs to be strengthened in any way_

11 ~ THE CHAIRHAN:
Q.o...

12 "

(~sv)')r~ ~:::'

~_-/_// I'

'"I

All right. Do I hear a motion then that we ought to delete paragraph iv from the prQposa1?

]4 ; REP. BUCK:

'4
[

]5 " ',0""
::>

I movs.

16 :3 THE CHAIRHAN:

Czl

'1
1'1 ~

Is there a second?

18 SEN. HO RTON :

(Nods affirmatively)

20 JUDGE SMITH:

i J 1

I

~. 1 .

Tom, one of the law firms here in town has a rule

that if you can eat it, drink it or wear it, you can keep

23

it; otherwise it belongs to the firm. I dQn't know where

your c10qk fits. 25 REP. BUCK:

___J

I'm wearing on the wall in my office.

PAGE 106 ._----,

CHAIRMAN:

All right. \ie have removed paragraph, what was

paragraph iv and included it in. what will now be

paragraph 3, "Fees and Perquisites Denied."

The Great Seal of the State. The only changes

there are grammatical. Both the proposed '64 and '69

Constitutions used capital letters on the Great Seal,

and following that lead, I have raised those to capital

10

letters and put a period after General Assembly and started

Czl 11 ~

a new sentence there.

~

'o"
i."..-.
12 MR JACKSON:

~r~

I'm not amember, but could I proposE. that that is

14 ;.,.".

statutory language? I mean in a great organic document

~

J:

15 ~

of the State as to who is going to have the State Seal --

'1)

'"::>

16 o~THE CHAIRMAN:

z

<:

17 ~

I agree with you, but although I suspect when W6 had

18 'I

two Governors and they both wanted the Great Seal, it

1911

was considered quite significant.

ii

20 II MR. JACKSON:

I,

21 II

But you could change that by law, couldn't you?

Ii

I

221 MR. TIDWELL:

23 ,I

It is provided by law.

GREENBERG:

I question why it is under this section under
- - - - - - - - - - _.. _--

PAGE 107

Ir-----

----- ---,-----------------------

II

Executive officers.

1\

THE CllAI RHAH :

3

Because of the Secretary of State I suspect. It gave

4

him a duty. Has the suggestion been made that We delete

it? The State Seal is provided for otherwise is what

you're telling me.

TJ;DWELL:

Yes. Statutorily the Secretary of State i~ the

9 )1

keeper of the Great Seal. It says 'that he keeps it.

10 JUDGE SHITII:

11 ~-
o'"

I'm not that worried about the Great Seal myself.

"w'-

(~:~) c~~ i12 ~HR. SLATON:

\~ /jr '"

I've never seen it.

~:./

I
14 >-THE CHAIRMAN: >-

:1
:r

i5 ~

If we had fifteen minutes, I'd tell you a great story

"::<
::>

16 ~

about it, about the Great Seal.

w

Czl

17 '"<Xl

If you want one, by the way, you can't get it unless

18

it's attached by order of the Governor or the General

19

Assembly, but if you find a Justice of the Peace, you

20

can get the Seal of the Superior Court Clerk saying that

"_1

the signature of the Justice of the Peace is the Justice of

)1

the Peace. Then the secretary of State will give you a

2.3

certificate not under the Great Seal that that is the

24

Superior Court Clerk. Th6n the Governor will qive you a

certificate that that is the Secretary of State, and now

PAGE 108

,II

----- ---'-~- --~-------- - - - - - - - - - - - - - - - - - - -
the law prescribes that you can get the Great S~al on

that certificatE';.

II 3 II JUDGE SN.ITH:

!I

41I'

Then you proceed to extradite. I don't SEe any point

5 Iil,

in the thing being in th~re.

6 !IIi MR. TImvELL:

I,

7 Iii:

You'd be surprised how many folks call me., \..,ranting

8 II

the Great Seal, because of this provision, wanting it

9 II:

put on something or to use it.

10 JUDGE srUTH:

Czl

11 ...
'.oc."....

To get the Governor to authorize its use? .

12 ~ MR. TIDWELL:

@r~

Yes, sir.

14 ~ JUDGE SMITH:

'<"

:I:

]5 ~

Well, would 'it help you if we just eliminated it?

'-'
IX

::J

16 .~.. MR. TIDWELL:

Q

Z

< 17 ~

I kind of took care of that by statute, but you

18

know, they'll call the Secr6tary of State because he's

19

got it, and they'll say, "Go talk to Charlie Tidwell,"

20

because the Governor under this provision could authorize

21 I

it being on anything, except there ar~ some statutory

I

221

provisions that limit \..,rhat it can be: used for.

"

SMITH:

'Endorsing products and that kind of thing.
25 ~~. TIDWELL:
----------------------

r----------- That's right, specificallly.

PAGE 109

II2 THE CHAIRMAN:

3 Ii

v'1hat' s the pleasure of thr=. Committee? Should we

\:

4 ,I

eliminate it as a constitutional provision?

;I:I
5 i HEP. BUCK:

:1

() II

I think so.

Ii
7 ii MR. TIm'1ELL: :1

8 II

I suspect it's a doable thing now that Hr. Ben is not

Ii,

,I
, II"
Q !I

....W,-I.-..ll us.

10 REP. BUCK:

...,

z 1 ] ~.

lIe \'{ould raise hell about it.

.'oa"...

J.2 ~ JUDGE SIlITIl:

~I>..:",..YS~Y-l"t.\A".),\') \'__-'kJ I

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;

He would.

)4;.- THE CHAIRMAU:

',f)

<:

1:
15 .~

Section 2 there would simply provide

for

the

l?

'"::J
16 i..'.

transfer to the Governor and Lieutenant C~vernor of the

Cl
,-

< 17 ~

material we've already covered. I think that that carries

U~ Ii

us through the proposed changes unless somebody else has

l'
Ii

some other matters or other changes that they think ought

to be made.
I: 21 JUDGl:: SIlITII:

n

I

Would it be possible for what has been done here

"

23

i I

today to be put in a form for Wednesday?

24 :I MR.

2:5

Yes, sir.

PAGE
-------------------- --- ---'------------- ------
JUDGE SHITH:

110

2

~Vith that little paragraph of what happened to the

3

missing person?

4 THE CHAIRMAN:

5

We can't, Judge. I don't want to rush the Committee.

6

I presented it here, and if it's their pleasure that we

7

present it, if they want to go ahead and approve it, we

8

would be delighted to have it available for your meeting

9

on Wednesday. We can get it redone, but because this is

10

the first time they have seen it, if the Committee didn't

" 11 ~2:

want to turn loose of it this earlier, I certainly don't

'o"

"~

@r~:'1 W:: JUDGE

:: rush them.

T

! 14

Okay.

~

'-"<

15

::t
~MR.

THOMPSON:

Cl

16 ~.~ '.".

One thing, Justice Hill, you may ,.,ant to consider. I fi,

Q

2:

17 ~-<

you want to present it to the full Committee, it may give

18 II

the other Sub-Committees an idea of how you're operating.

19 II

This seems to be a very effective, efficient thing that's

:1

20 !:1I

been accomplished. I know of one Committee that is not as

II

21 II

far along as this, and it is to me a really good way of

!i

22 I

going, and it's just a suggestion.

i

23 ';1 JUDGE SHITII:

I" i

i: 24 ::

You've really got to put it down in writing before

25 !,

we can get anything done. vle've got to have something to

"Ll

_

f]---_ ------ - ..----- . -

PAGE 111

I

chop at.

II

2 iMR. TIDWELL:

I

I I

You could at least presont it to them, "Here, this is I

I

il

4 II

what we've done, but we're not -- this is what we've done, I

S

II
ill

just but we're not sUbmitting it for your approval. This is

I:
b Ii

our methodology. n

IIii

'7 IIMR. JACKSON:
I


At this stage, does this mean that this group stands I

9

10

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.uo:
,a.

12 :
\IF~:)~\};~9~

'<:,":::,,//

I l~ r
:1;-;-
:I:
15 '~DR. <!J a: ::>
16 ~.. D 'l.

i behind all these constitutional officers, that they should

I

be in the Constitution? You know some reports on these

i I

officers haven't even been discussed, concepts of

I

grandfathering some of these officers out after the currentl

incumbent leaves and that office would then be a statutory III
office. I
GIBSON:

I guess that was the only question I had, Judge, is

we haven't heard anything about the Controller General

]8

and the Commissioner of Labor. Are we assuming that --

19 MR. TIDWELL:

.~[\

This is a document of what we've done so far, but

it's not the final vote on it. , .,
DR. GIBSON:

23

That Controller General's 6fice, for example, I

...") ""'

don't know enough about yhe politics about it, but we're

weird with reference to that one. That office is almost

PAGE 112
simply unknown among other states, and for us to continu~

2

to put that on the same level with the other offices seems

3

to me highly questionable. I don't know how much power --

4 ,REP. BUCK:

5

Considerable.

6 DR. GIBSON:

7-

That answers me. I guess I would go along with

8

Charlie in saying that I would support the idea of

9

presenting this document to the Committee simply as an

10

illustration of the way we're proceeding, but I guess I

<:J Z.
11 Ot-<.
.oQ...

would like more time to look at it.

~ri ~ ~ 12 C! REP. BUCK: I think that's fair for everybody, especially those

14 ~

not with us, because four of the group are not here.

t-
V>
<l
:::
15 .:> THE CHAIRMAN:

'"'-"
::>

16 .~..

I plan to go over it with them on Monday afternoon

c

Z

<l
17 ~

and bring them up to date, but can we do this? Can we get

18
19 I

it reworked with the changes which were ~entatively approved at this meeting and we will recirculate it to

20 II

the Committee members and present it to th~ full Committee

21 IIIi

next Wednesday as being the draft we have pres~ntly under

Ii

i!

2"-1'
- :;

consideration?

I:

23 DR. GIBSON:

24

Right.

,

~5

i
'i JUDGE SMITH:

iliL

.

Okay.
_

That's good.

--------_.-

__

-~-""._-------------_._~---_.

._~--_._---

I

Ir-- ----

PAGE 113

And then if there are any red flags, they ought to

!I
2 II

come out of the pack at.that point.

.' rt:I REP. BUCK:

II
4i

That's right.

<; :i DR. GIBSON:

Ii

(1 :1

That's right.

i

7 II THE CHAIRMAN:

That's fine.

Are there any other proposals that ought to be

incorporated into it or, any other things that ought to

10

come before the Committee at this time?

srUTH:

Just so I understand, are you leaving open ,the

question of th~ other officers, about whether to leave

them in or out?

'<"
15 .J..:, THE CHAIRl1AN:

'-'

:"',-

16 ~

I think everything is open at this point, yes.

w

Cl

Z

1' 7i

~JUDGE SMITH:
~

I

18

I know, but there has been a tentative decision on thel

lSi

School Superintendent.

20 DR. GIBSON:

21

Yes, but that again raises the question of a quorum.

22

I'm not sure that the four of us dropping out the,

Superintendent of Schools, when four of our colleagues

>+

aren't here, is quite fair to them. So I guess that we

:5 I

really aren't binding the Committee at this time.

lL___ _

_

PAGE 114

~REP. BUCK:

-----.-----.----------------- - -.. . - - - - - - - - - - - - - - - - . - - ,
i
!

,I
2I

JUdg~, Do we have enough persons today to set a quorum?

3I

what do you think? Maybe we ought to \/ait and possibly

I

4I

have a small rneeting.Hednesday within th~ group and set a

i

5 Ii
Ii

quorum.

6 !:iITHE CHAIRHAN:

ii

7

.1 :1

A quick meeting first thing Wednesday morning at

:1

8

III'
Iil

9:55.

9

":1
!i

DR



GIBSON:

10

That's fine. That's fine.

"z
11 ~THE CHAIRMAN:

oa.....

@)-,:11~ ~

Let's do it this way.

JUDGE SMITH:

< 14 .:... J:

Let me say this In a sense it's academic because

1S '~

all of us are reporting up to somebody higher.

":'>"

16 'az~" REP. BUCK:

<

17 ~

True.

18 II JUpGE SMITH:

19 !I
1;1
il! 20 II

And we're basically a volunteer group. A stiff quorum is a hard thing to get.

IiIi 21 DR. GIBSON:

.1

22 'I

That's true. On the other hand, one of the people not

23

here might object strenuously to what we've decided, and

24 I

he or she at least should have the right to say, "I object

25
L

to that," and they have not done that.

_

--------------------- - - -

- ------------------- ------------ ---,

PAGE 115

.JUDGE SlHTH:

A majority of those present.

THE CHAIIU-1AN:

4

Is there anything else to come before the Sub-

5

Committee?

(No response)

C.7

If not, let's adjourn.

8

nVhereupon, the above-entitled matter was concluded.)

-000-

IIJ

C E R T I F I CAT E

GEORGIA)
) CLARKE COillJTY )

I hereby certify that the foregoing transcript was

taken down, as stated in the caption, and the discussion

1,.

.)



":':">

I.h

O.l
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17

a<:-.
"'

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thereupon was reduced to typewriting by me personally; that the foregoing pages 1 through 115, inclusive, represent a true, correct and complete transcript of the matters discussed at

19

2U

~ l! '

(SEAL)

I

-''"'

~

INDEX Committee to Revise Articles IV and V Subcommittee Meetipg aeld on Sept. 20, 1979

SUBCOMMITTEE MEETING, 9-20-79
Proceedings. pp. 4-5
ARTICLE V: EXECUTIVE BRANCH SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph VIII: Filling of vacancies. pp. 60-63, 72
SECTION III: OTHER ELECTED EXECUTIVE OFFICERS Paragraph I: Other executive oifice~s; how elected. pp. 5-57, 63-71, 73-75
State School Superintendent. pp. 5-31, 55-56, 73-74, 113 Secretary of State. p. 31 Co mm iss ion e r of Insurance. p p. 3 1, 34, 111- 11 2 Commissioner of Labor. pp. 32, 56 Commissioner of Agriculture. pp. 32-34, 56 Attorney Gener~l. pp. 34-57 (Former Department of Industry and Trade. p. 32) District Attorneys. pp. 63-71 (See also Article VI, Section VIII, Paragraph I: District
Attorneys; vacancies; qualifications; compensation; duties; immunity) Paragraph II: Qualifications. pp. 74-78 Paragraph III: Powers, duties, compensation, and allowances of other
executive officers. pp. 78-93
See The Constitution of 1976: Article V: Executive Branch
SECTION III: OTHER ELECTED EXECUTIVE OFFICERS Paragraphs III: Profit from use of public moneY, and
V: Fees and perquisites denied. pp. 93-106 (No comparable provisions)
Paragraph VI: Great seal; what constitutes; custody; when affixed to instruments. pp. 106-109 (No comparable provision)

1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1
I

r----.-
I
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........._._..._ - _ . _ - - - - - - - - - - - - _ . _ - - - - - - ,
STATE OF GEORGIA

COMMITTEE TO REVISE ARTICLES IV AND V SUBCOMMITTEE ON CONSTITUTIONAL BOARDS AND COMMISSIONS
of the
CONSTITUTION OF GEORGIA

Executive Conference Room Trust Company Bank Atlanta, Georgia
Thursday, September 20, 1979 3:00 p.m.

...----.---.---------ii

i

HHANDENBl 'f{(; l'\' HASTY

I

i

SCfLNTIFIC I\YPORI ii;(,

, d .,,n,\L iRAIL, 1)()lJ(,!,\SYll U, (,[()}-U,lf\ j(JJ))

942-0482

,
, __ ..-Ji

,
L

PRESENT WERE:

COMMITTEE MEMBERS:

4

A. H. (BILLY) STERNE, CHAIRMAN

SIDNEY SHEPHERD

"

MRS. DORRIS D. HOLMES

EDWIN JACKSON

10
I i I
n

OTHERS
MR. MELVIN HILL MS. VICKIE GREENBERG MR. MICHAEL HENRY MS. CYNTHIA NONIDEZ MR. JACK LITTLETON MR. TOM THORNE-THOMSEN MR. CHARLES TIDWELL

1:
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19
'I

11

PAGE 2

PAGE 3

-PR-O- -C -E -E -D-IN- -G -S
CHAIRMAN STERNE: Let's get started. Mrs. Warren is

the court reporter and I think it would be helpful to her --

4 she's got a diagram there of the table -- if we would introduce

ourselves so she can identify us.

I'm Bill Sterne and I am the chairman.

MS. GREENBERG: Vickie Greenberg, staff attorney.

MR. HENRY: Mike Henry, staff attorney.

MS. NONIDEZ: Cyndy Nonidez, Legislative Counsel.

MR. LITTLETON: Jack Littleton, Legislative Counsel.

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II j:
(Y

MR. HILL: Melvin Hill, Select Committee on

n. ~..

-,d

l' ~', Constitutional Revision

.~;;:Yl( ~1,

1\~iL.j))(,.~,,,,," ~':'

MR. THORNE-THOMSEN: Tom Thorne-Thomsen, I work with

"- '''-.

',,/.:

,',1 ,~. Judge Smith.

MRS. HOLMES: Dorris Holmes, Select Committee --
')
I () ~c' no, not Select Committee, just committee, subcommittee I guess.

MR. TIDWELL: I'm Charlie Tidwell, Executive Counsel.

MR. SHEPHERD: Sid Shepherd, Committeeman.

J ')

CHAIRMAN STERNE: Well, we have talked about attendance,

absences.

2\

MRS. HOLMES: There are really only three committee

),
: members, huh.

CHAIRMAN STERNE: Melvyn Williams did prepare a "_i Minute of our last meeting and I hope and believe there are
enough copies here. Letts see if there are. Certainly there

4

are enough for the Committee members and maybe we'll ask the

2 staff people just to share one if you will.

3

(A document was distributed.)

CHAIRMAN STERNE: Ed, we're glad you could make it,

5 I have a seat anywhere. This is Ed Jackson.

(,

As the first order of business, we will listen to

7 the results of interviews by the Committee members by those

8 , boards and commissions whom they were assigned to contact.

<)

Senator Gillis, who is not here, did contact both

10 the Natural Resources Board and the State Department of
"z
Transportation and he has a letter, a copy of which was sent

to me, from Tanner, Commissioner of the Department of Natural

Resources and Moreland, Highway Commissioner, which I'll read

in each case if that's agreeable with you.

15 .'..>,

This is from Tanner and it is to Mr. Gillis .

ex:

:;)

16 ~ ~

"Dear Senator Gillis: We appreciate the opportunity

Cl

Z

17 ~"< which you have reported for us to make suggestions concerning

18 II the State's Constitution as it relates to the Department of
Ii
19 Natural Resources. After reviewing the matter at length with

20 our legal staff, we have concluded that there are no changes

21 which we would recommend for your consideration. I would point 22 out to you that the current Board of Natural Resources was

created by Constitutional Amendment adopted by the Legislature 24 in '72 and later ratified by the voters. In addition, members

of my staff were involved in the last reorganization of the

PAGE 5

-~_. . - . - - - - - - _ . - - - . - - - -

_.---_ ..._-------._-----" -

_.-_._~---- _._~-_._-----_.-

I Fonstituti=~~-;~ ~ re~Ul~ of these actions, we do not have

, i any changes to recommend for. your consideration as the State's
!
Constitution relates to the natural resources area." That

1 is the sum total of what I know about that one visit.

From the Highway Department, from Torn Moreland to

Senator Gillis:

"In accordance with your request as a member of the

Committee on Constitutional Boards of the Constitutional t) , Revision Commission, the State Transportation Board and officials

IU of this department have reviewed the Constitutional Amendment
<' Z
1\ ~ which established the State Transportation Board. After o <l.
i~' i'"~ reviewing the Constiti tion and the responsibilities and
I
J:
~ activities of the Board, it was the opinion of all concerned

~ and their recommendation that no changes are needed in the
':i
:r
1'\ ;~ Constitution as it is presently written. Paragraph I of ;.._r.., r"l
Ie ~ Section 8, Article IV of the present Constitution was reviewed
17 ~ specifically to determine if it could be written in a more ]8 concise format. It was again the opinion of the reviewers that
It.i the language contained in Paragraph I did not need to be modified
~:U ,due to its present conciseness and clarity. We appreciate very
.'1 much the opportunity to review the Constitution and present our

"comments to the Committee and the Commission."

Now Senator Kennedy had the Offender Rehabilitation
,, .."+: and Pardons and Paroles and I guess we do not have a report

2) : from him. I have none. Mike?

fi

)1

MR. HENRY: No.

ii

2 Ii

CHAIRMAN STERNE: Mrs. Holmes, Personnel.

3 IIIII,

MRS. HOLMES: Well I met with the entire Board

4

Ii
:i,

yesterday.

That was their regular Board meeting and Mr. Storm

5

Ii
i;

suggested

that

that might

be

a

better way

to

do

it

than

to

just

I,

6

i I

try

to

speak

with

the

chairman,

that

I

would

get

a

little

bit

Ii

II

7 Ii more opinion in that the two women on the Board were both

'I

i!

1

8

1
Ii

lawyers

and

therefore

I

would

get

some,

maybe,

more

legal

"

9 , opinion.
"

10

Yesterday was the day that I met with them and it

".r.
11 (wasn't until yesterday afternoon. I did take some copious

('k)
W

U : notes but I haven't had time to really get them in order since

~ ~ ~ ,~

".

"... it was such a short time.

14 ~

I do think the few points though that they made were

V>
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15 ~ worthwhile. I had a conversation with -- I keep saying Storm

LO

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16 ~ and somehow I believe it is Strong, isn't it?

oz



17 ~

MR. TIDWELL: It's Storm.

18 !~

MRS. HOLMES: Is it Storm? I don't know why I suddenly

19 i thought I had the wrong name.

20

To sort of give a little background of the process

21 they go through, none of which of course is written into the

22 ,Constitution and, of course, it shouldn't be. They seemed to

23 be satisfied with the fact that it is working fairly well.

24

Mr. Storm, of course, had very strong opinions about

25 keeping the Board as a Constitutional Board, as did really the

PAGE 7

members. I didn't indicate one way or the other, you

I felt I was coming from a subcommittee that had made no

-- hadn't made their feelings known at all about a merit

system and I was not going to have my own personal feelings

5 known. I feel strongly that they should be kept as a Constitu-

tional Board, but, you know, that's beside the point.

7

They felt that the Board would like to have full --

more authority really than is written into the Constitution

9 because they said that some of the problems that they run into

10 of course are political problems, as they understand anything
,!.
z
I! ~to do with the Constitution always is, that they have job
.<,)
HI
,~~Wf(1' I' .~ classifications and that theJ;e are cases where, there has been
~(0~/""o ~ in the past and probably will continue to be, where groups of
'~, ...-_.,~
14 ~ __ I hate to use the words special interest but that's what I r"
15 ~will use -- will get together and with enough pressure can get
1() ~'.~ the legislature to go beyond their rUling and maybe change a
.,
17 ~classification or certainly change the pay grade. And they
!~ i felt that that was not a good system to have and with more

power, that they could set it and keep it that way. And it

_2(j 'would get the legislature off the hook

.I

I don't know if you wanted me to go into this much

detail. Did you, Mr. Sterne?

CHAIRMAN STERNE: I think so.

::.+

MRS. HOLMES: Okay. Because they get, you know, the

pressure from their constituents. For instance, I immediately

thought of groups like, you know, teachers aren't under

2 this -- but social workers who could band together in a

3 professional group. They talked about highway patrolmen that

4 were a strong political group of people. Every legislator

5 knew these highway patrolmen and that they could really bring

6 pressure to bear and even the legislators felt that if they

7 could say, hey, you know, that's -- the Board does that, we

really can't do anything about it, it would get them off the

9 hook from changing a classification that they really weren't

10 too familiar with. They were only going to change it because

"z

11 ~ they were getting political pressure.

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@ . . . ~12 ~

So they felt that maybe the Board's authority should

be widened, if anything.

14 ~

And as I said, they definitely saw a need for

.,-
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15 ~ continuing the system and for keeping it in the Constitution.

u: ::>
16 ~ They felt that -- they said it very, very nicely, but really a Z
<l
17 ~ what they meant was that they didn't trust it to be a statutory

18 I Board, that the legislature could decide one day to vote out

19 because someone had stepped on someone's toes.

20

We discussed the veteran's preference, which was one

i

21 : of the things I asked them about and I had read a little back-

ground about how this got into the 1945 Constitution to begin

2.~ . with and it was an amendment to the Constitution in 1943 and in

24 : 1945 they just incorporated it, but not in the same language.

25 i They used an Article that the American Legion apparently was

PAGE 9 -... ---..--.------.-- "'1
very much for and they cut out things which I found extremely

interesting. They had veteran's preference that also went to

a widow when the husband died. And I thought well, gee, we

4 were doing that back in 1940 and we're not doing it now.

5

They had, you know, mixed emotions about the veterans.

They felt that as an issue it was sort of like dying out and

7 that you would probably get some feedback from veterans' groups,

but that it was not the issue, of course, that it was back in

1945. And that, you know, they thought it went both ways.

10 They felt that someone who had been taken from their profession.

"z.

11 ~ qr from their schooling or whatever and put into service,

o

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/~~c-.y.-LU-d\ ,., ~ certainly should be compensated -- not rewarded -- compensated

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.-._._..-

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these

five

points

that

they

are

given.

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On the other hand, they had a very strong feeling

4:

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J5 ~ about professional military people who automatically get the

"-

16 ~~ five points also. You know, they stayed in service for twenty z ~
17 ~ years and then they come out and they take a test and get five

I~ points added onto it. They did not want any kind of system

19 whereby people who really deserved raises -- it isn't hooked onto

::'1) a raise, it is only hooked onto the initial testing -- you

21 know, that it would safeguard the system so that they were

j'" I,
hiring people on merit. So that, you know, they really didn't

say yeah, let's get rid of it or let's keep it. They really

didn't -- they wanted equity for both sides.

And really, you know, unless my notes go into an awfu~

t>.A(.:}". 10
~-~:-:--:~~~-~ff' that I~-W~~-~-I glean~~;~om looking at them quite

i:

2 i,ll' quickly this morning.

1

1

3 Ii

They said that there is a case before the Supreme

II

4 I: Court about veterans' benefits right now in Georgia. We talked

5 i about the one in Massachusetts, but there is one pending right

h Ii now that is before the Georgia Supreme Court. But they seemed :1

7 II to think that the ruling, the two lawyers seemed to think that
8 IIII the rulings that have corne down do safeguard veterans'

9 IIIi preference.

10

And I think that's about it.

CHAIRMAN STERNE: Before we go further, Mike, are

will you -- let's call it minutes of this meeting. I

you are recording the entire thing?

THE REPORTER: Yes.

\.:'

MR. HENRY: Okay.

a;

..::>
16 ,~
o

CHAIRMAN STERNE: Because our absent members,

z:

<l:

17

'"
It)

particularly,

need

to

know

what

transpired

and

without

necessarily

18 ! getting the entire record and I think it would be helpful to all

]lJ
of us.

20
I should have said one more thing about the Natural

21 : Resources Board that Hugh Gillis said to me. He said that

while he did not consider it a major issue, that the question

of whether fifteen members was a few too many arose and that

:: there was some feeling that they might better be elected
25 !
~~~!~he ~=~~r~~_~~~ern~~X_s_omewhat in the sarne fashion that Highway

PAGE 11

Board members are elected, as opposed to being appointed by

the Governor.

Melvyn Williams had the Veterans Service Board and

4 he is not present. And I had the Public Service Commission

5 and the Department of Industry and Trade.

To report first on the Public Service Commission, I

/ met with Chairman Pafford on the fifth of this month. He had

along Doug Lackey and Mike Bowers, both attorneys with the

Attorney General's Office, who were doing work for -the Public

JU Service Commission.

J I Ie<

I raised the question of why do you think you're

()

"'W

1)

fe.

'- ~ a Constitutional Board rather than a statutory Board. He

1-

Sdidn't know and the~ attorneys said it was likely happenstance.

~They didn't find anything -- they didn't know of anything in

1

I

15 ~the history of it that suggested one way or the other.

c;::

-:'1

J6 ~

The question of whether members should be elected or

.!
<
j 7 "~appo~.nted. As you know, they are now elected by the voters of

18 I the State. I believe I am correct in that they qualify by

J'J i area but are elected statewide. Isn't that the case?

::0

MRS. HOLMES: They are elected statewide.

2J

CHAIRMAN STERNE: Pafford's comment was right

humerous I thought. He said that those states which elected 23 public service commissioners now were clamoring to have them 24 appointed and those states that appointed them were now

clamoring to have them elected, that everybody is unhappy with

their public service commission. It is a fact, and I think

2 this fact was brought out at our first meeting, that three-

3 fourths or better of the states appoint rather than elect

4 public service commissioners.

5

The membership, which is five in this case, seemed

6 okay to the lawyers and to the Chairman. The point was made

7 that typically in other states they range from three to five.

8 You probably noticed the passage in the Constitution that relates

9 to the Public Service Commission is the shortest in the lot.

10 It puts the Public Service Commission to life, it says that it

~

'z"'
11 ~ will have five members who will be elected, that the terms
o
u. w
1"~) ~'" will be six years and really everything else as provided by law.

~~'V-"" ~ -~

It's pretty simple. They like it and frankly I like it. It
I

14 ~. makes sense to me.

v

<i.

r

15 ,'>

As to why they were a Constitutional Board as

l?

'":;)

16 ~rtl opposed to a statutory Board, I told you that they really gave

z
1
17 ~ no answer, had no answer for that. They think -- Chairman

18 II Pafford thinks and indicated to me his other Commissions

19 thought, that they should be a Constitutional Board and his

20 reasoning was that he is distinct from the other Boards whose

2 1

!I,iI functions

are

largely

executive

and

he

and

his

lawyers

consider

!:1I 22 ii his legislative. They fix rates.

i 23 !i

He thought it might be a good idea, this is Pafford

24 now, thought it might be a good idea to consider changing to a

25 I, four year term, stac;1gered among the five members. The term is

LL__. _. _~_. __._--------,._.

-~. -_.' --------.~ -.-.~-.-~----- . ---_._.-

PAGE 13

now six years. Although he indicated he thought that might

make the situation a little more political than it is now. In

this discussion, the facts came out it is now possible for

4 a Governor who serves eight years to have appointed everybody

~ on this Commission and I guess probably every other Commission

we're looking at, or Board. Isn't that right? I don't think

7 we've got any longer than eight years, six year terms.

~

Well that was the essence of my discussion with Mr.

9 Pafford.

]0

I spoke with Mr.F.old. of Industry and Trade on

e? Z
11 ~ Monday of this week. He likewise would opt to remain provided

()
~1_

J2 ~ for in the Constitution as opposed to statute. The reason

/;W4 1,,\

~

\~~~r" ~ being that he thought that removed i t one little step further

---

14 ~ from politics.

';i
r
No problem with the method of appointment. The

'".::>
](, ~ number on the Board is large, two from each Congressional o L
17 ~ District, a total of twenty. He felt that a smaller number

Ix : might be better, but had no suggestion to make and recognized
I
\9 :1 that it would be hard to reduce unless you reduced it by half

20 so long as you had one from each Congressional District -- so

long as you broke it out by Congressional District.

22

The term of six years he thought appropriate.

There is some language in the Constitution, and I'll

find it -- he and he tells me some members of his Board would

2~ like to see removed. Let me see if I can find it. (Pause. )

,

- - - - - - - - - - - - - - - - - - - - -~--- ------------~

---'

14

the last -- well, no, it's the next to last sentence in

2 the provision, and it reads: "In making appointments to the

3 Board, the Governor shall insure that there is representation

4 from local governments and area planning and development

commissions as provided by law." He thought that was not

that while it probably had some meaning at one time, he thought

it did not at this point.

You probably know that these Board members' terms

9 are staggered and that the members serve without pay.

10

He brought up another issue which, Mike and Melvin,

J] ~; goes back or relates to something that Robin Harris said at

o
c..
w

I: _,:_ our original meeting, that some things that come out of our

~}~" ~ F~~'

,_
subconunittee hearings transcend the prerogative of our

14 ~ particular committee and I think this is the case. He referred
-I r
15 ;~ to what he called a "gratuity law", said it is in the

!() ~ Constitution. I don It know anything more about it than that. c--, <
17 ~ But he says he is inhibited by it and that the Governor is

18 inhibited by it. Now this sounds like a minor matter but it

JC) may not be. They would like, as is custom in industry and

~o 'trade development, to be able to make modest gifts. One

21 example he used was that when a new plant is opened in the

State, Industry and Trade likes to give them a State flag to

fly on their flagpole. It costs twelve dollars. They can't

24 I do that. That's a gratuity and he says the interpretation out

of the Attorney General's office says they can't do it. The
- -- -- - -- - -- --- - --

ir-~:v:~~~:

---~ --~--- -~- - - - - - --- ---- - - --~------_. --~ ------- - - .__ .. -
~~-~~-;ewise inhibited, he tells me.

PAGE 15
.. --------------------_._-

I!

I'

::' :1

The other aspect of it that limits them is the

I'I,

,1 I"i exchange of gifts, which I do know is common. We send a

il
4 i:fi mission to Japan, they give our mission something and customari~y

"l!

5

Ii
II

our

mission

gives

their

host

something.

The same thing is true

III'

6 !! when they come over here. He says all this is not an

II

i'

7

!'II
"
!.I,

appreciable

amount

of money,

but

it

is

a

problem.

He's got a

i

R II cure for the problem that nags at him. He goes to the banks

;1
~ :1 and begs money from them, a few bucks here and a few bucks

10 there, banks and others, to accomplish these purposes. I

"z
II ~ think that is worth looking into, anyway.

o

'",

(~r iI.'. ~

MR. HILL: Mr. Chairman, I think the Constitution

was amended not too long ago to authorize paYIllent of expenses,

'---. . -

14 ~ meals and to try to help with bringing industry into the State,

4 I
,. 15 ..., and I know that there was some exception to this gratuities " ::>
16 ~provision of the Constitution made recently. Now I'd like to c Z
-4
17 ~try to see whether the Committee that studied that, whether

18 they went into this broader question.

!9

CHAIRMAN STERNE: Fine.

2U

MR. HILL: Because it sounds to me like that provision

21 goes to what you are speaking of. They may have already considered ,', and rejected that possibility.

CHAIRMAN STERNE: Might have.

24

MR. HILL: So--

CHAIRMAN STERNE: I think it is worth looking into,

PAGE 16

anyway.

2

I then, on the next day, which was Tuesday of this

3 week, spoke with Bill Culkee, who is the Chairman of the Board

4 of Industry and Trade. He agreed with all that was said by

5 : "Felds with one exception. He liked the twenty man board. He

6 thought you needed two members from each Congressional District.

7 I asked him if that idea of appointing from Districts generated

8 ward politics and he hadn't seen any evidence of it he tells

9 me.

10

I mention this because I suppose one thing the

"z

11 ~ Select Committee might do is look at the possibilities of

"ow,

i ~sv

12 combining boards, as provided by the Constitution. They are

e ". ". ~ holding joint meetings with the Ports Authority and with the

14 tBoard of Community Development. Community Development, he
<
I
15 ~ tells me, was split out of Industry and Trade within the last
'Y.. :)
16 3'" couple of years. His feeling, this is Culkee ,and ,Folds, is Cl Z <!
17 ''"" that Community Development serves a completely different

18 purpose from that of their own and they see no reason to

i9 consider recombining.

20

Well that was about the -- let's see. No, there was

21 one other thing that I didn't record but I know. There is

22 language in Article IV at Section VII, paragraph II wich says

that Industry and Trade shall be authorized to participate with 24 !any county, municipality, nonprofit organization or any
combination thereof in the operation of any facilities operated

PAGE 17

by such agencies for the purpose of encouraging and promoting

tourism in this State, notwithstanding any other provisions of

the Constitution to the contrary. He cited an example where

(J that cramped his style, or the Board's style.

Recently Eastern Airlines and Delta Airlines had a

promotion, asked Industry and Trade to share it and participate

in it with them and they weren't able to because of this. This

8 is Folds. Folds would like to see the private sector added
:1
')!II to that. Some lawyer would have to think through what the

10 ramifications of that might be in other cases but I think in

"z

II

~ the
o

instant case

it would have been a

good

idea.

'1-

W

,,;

"

Just as a personal thing, Mel, that whole section

z
~ looks to me like it:. might be left out of the Constitution. It

-- I
~ seems to me the legislature could do all

anything that is



I

\5 ~ in that.

u:

;:1

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0,

MR HILL: That paragraph.

<

.1 7 ;;

CHAIRMAN STERNE: Yes.

II':

MR. JACKSON: Mr. Chairman, before you move on --

ill

CHAIRMAN STERNE: Yes?

MR. JACKSON: What happened, there was a Department of :'1 Industry and Trade originally and then a reorganization and a

Constitutional Amendment to rename it Department of Community

,Development. Then later they created a Bureau of Community

iAflairs and Bureau of Industry and Trade and then they had a

Constitutional Amendment in '76 to rename it Industry and Trade.

18

They apparently liked the logo and contacts they had nationally.

Community Affairs separated apart. Yet there is some language

3 in here I don't think is really needed and I'll give the

4 analogy of when the Game and Fish Commission was renamed the

5 Board of Natural Resources. If you look back it just says

6 "There shall be a Board of Natural Resources . " It doesn't

7 say there shall be a Board of Natural Resources in lieu of a

Game and Fish Commission. Wherever the words Game and Fish 9 Commission shall be used, it shall mean Natural Resources.

10

What you have here beginning in the first paragraph

"z

11

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all

this,

"There

shall

be a

Department of

Industry and

"-

~ ~ -'''~ ~ sv

(

"

12

0<
U Trade

in

lieu

of

and as successor to the Department of Community

~

I-

llevelopment." This language is really superfluous at this

14 ~ point.

-1

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15 ."
r,o'
u. ::;;

CHAIRMAN STERNE: I believe so.

16 .~.. o.z,

MR. JACKSON: I just thing, "There shall be a

17 ~ Department and Board of Community Development."

18 !

CHAIRMAN STERNE: I'm glad you mentioned it. As a

JLl matter of fact, Fowles and I read this together and he had the

20 same idea, and it does seem to be superfluous at this point in

21 time.

Was there anything else, any comment or question on 23 those two reports?

I would think that we ought to ask ourselves a 25 question with respect to each one of these, why is this Board or

PAGE 19

Commission provided for in the Constitution. Who can we look

to to make the arguments in these things, obvXusly each of the

Boards has some reason for wanting to be or not to be.

MR. TIDWELL: Mr. Chairman, are you talking about

5 historically why they are there, or why --

()

I

i

CHAIRMAN STERNE: Why now. We're talking about

7. :I revising the Constitution. Should they be statutory or done

8 I otherwise than through the Constitution?

I

9I

MR. TIDWELL: I throw this out for whatever benefit

]0 it might be that after the Committee feels that they are

"z

11 ~ comfortable with learning something about what the Constitution

<'

u.

(((~j))(~~~ ~ ,~'j2Y!td

12

<"
i s 0~.~

in

this

area,

you

might

want

to

in

your

future

meetings,

hav~

the Boards, a representative of, corne and plead their case

','--._"- /'

--.--

14

~ before you as to why they should be continued and they could

':1

IS ~ answer questions that any subcommittee members might have. Now (:( -;)
]() '~" whether that's a good way to approach it or not, I would think

]7

'1
"c< they

would

be

the

strongest

defenders

of

the

reasons

why

they

1/\ need to stay like they are and would be the ones who would be

!'J the strongest proponents of why certain language ought to be

modified. If that's a good way of approaching it --

CHAIRMAN STERNE: Well it is a good way, but I think
))
we need an informed source and perhaps more informed than the

members of this committee, to take the other side of the

argument.

MR. TIDWELL: Be the devil's advocate.

I.' !' J i!',

20

CHAIRMAN STERNE: Be the devil's advocate, so the

2 committee sees the thing in proper perspective. I certainly

3 am not in a position to do that.

4

MR. TIDWELL: Let Ed Jackson do that.

/ MR. JACKSON: I think we suffer from acute

6 Constitutionalitis in Georgia. Everybody wants to be in the

7 Constitution, they want local amendments, it's seen as

8 prestige. You know, the nuts and bolts though, I think the

9 ii question is what does it mean when you're a Constitutional

10 Board.

Cz?

11 :;;

This language says the General Assembly is going to

e "-.";o 0w 12 : provide what you do, that's the guts of it, you know, what is

it you do. what powers you have. and that' s provided by law.

14 ~~ so what does it mean. It means your name can't be changed
VI
<l ::t
15 ~ without a Constitutional amendment. This seems funny. We
:'>"
16 ~ just went through a period of six years trying to get the a z <t
17 ~ Department of Corrections and the Board of Corrections to be

18 renamed the Board of Offender Rehabilitation and it took two

19 Constitutional amendments to get just that change to rename the
20 I Board of Corrections to the Board of Offender Rehabilitation
21 . because it was a Constitutional Board. So what it does, it 1, says the name is protected in the Constitution, you can't change
,.
~.' the name and how they -- how the Board members get there is
2-+ provided for, so you can't change the number nor the term or

the qualifications.

'L~~

~

-

CHAIRMAN STERNE: Well let me put the question

maybe another way. Granted -- and I think you can grant this -*

that the legislature could do all this. Now I guess since

4 they are in the Constitution they would have to be taken out

) of the Constitution by amendment that would have to be voted

by the electorate. Why are any Boards, why do we need for

any Boards to be there because it says so in the Constitution?

That's not a loaded question, I just think we need the answer

to that question.

10

MR. TIDWELL: I think that's the inquiry that this

\] ~ subcommittee -- that's the very essence of your charge I think,
,.-~
is to inquire into that.

MRS. HOLMES: Don't you think that the Boards feel
,
14 ,:: protected by being in the Constitution? I know the Personnel
,; .[
i') ') Board does. ',? :)
CHAIRMAN STERNE: I know two that do.

MRS. HOLMES: Well I think we can say that of all

I'j ,of them. The Personnel Board, you know, I really felt that

a decision of the people would be better to live with than a

decision from the legislature who could just write them out,

you know, without too much effort and I think the leaning

there was more to the Executive Branch of the government where '3 they would be more protected by having to have a Constitutional .' I amendment to get rid of them. I mean we're talking about civil

servants when we're talking about the Personnel Board, and I

!;\ (x t' 22

don't think there's any argument against having that and to ", keep it protected in the Constitution might be a good safe-

guard.

4

I am not like Mr. Harris that I sort of lean toward

the legislature. I have lobbied too long down there and I

don't lean toward the legislature. I like the safeguards for

? I a few things.

kI

CHAIRMAN STERNE: While we're on this subject, I'd

9 like to read to you from a letter that Sidney Smith, our

]() Chairman, wrote me this week. He wrote to say that he wouldn't
C}
7
11 ~ be here but that Tom Thorne-Thomsen would represent him.

Tom Thorne-Thomsen here (indicating).

"In reflecting on our conversation Monday, I have

~ a first blush reaction to abolishing some of our Constitutional

<

15

,~
l?

Boards.

I believe that the following have sufficient public

ltl ~~ interest to be given Constitutional powers (and limitations) : -z

Public Service Commission because of the

IS

tremendous effect on the consuming public,

J9

Pardons and Paroles to insure against re-

20

investing this power in the Governor,

State Personnel Board to assure contin-

,) uance of the Merit System.

,
,~

.''

It appears to me that a good argument can be made

against perpetuation of the other Boards provided we can guard

against anyone Governor attacking a particular Board. Would

J'A.GE 23

it be possible to make a specific grant of power to the

2 General Assembly to create Boards (not necessary as I

understand it), but limiting the motion to staggered terms

:+ which would not permit a majority to be appointed within now

an eight year period, or alternatively, providing for

approval by the General Assembly of all such appointments on 7 a schedule which requires two or three separate General

Assemblies to obtain a majority of such Boards? I would like

q
to know the thinking of our academicians on this approach.

10

In reviewing the proceedings of the 1945 Commission,

l? 7.

11 1, the creation of Constitutional Boards seemed to be willy-nilly.

0.
/~)?Yl!;~> 12 "~' At least we should rethink this problem carefully."

~ (~)r~

I'll hand you copies of that.

14!~ those letters I read to you earlier.

Here are copies of

-.t

1:

1S ,~

Any other -- I think we have hit on an issue that

)

j h ~~ we need to come to grips with.

z

4.

J7

'"
00

or

suggestion

at

this

point?

Is there any other comments

MR. HENRY; Mr. Chairman?

1<)
CHAIRMAN STERNE: Yes?

_~(i

MR. HENRY: Maybe I could pass these out right now.

?l These seem to almost follow the lines of Judge Smith's. The

22 '70 proposal here, they proposed that all but three Constitu-

tiona1 Boards be taken out, one of them was the -- well I'll

I pass them out and let you look at it.

The material under consideration by the subcommittee

will be on page 18 through 21. The rest of it would be just

~ for your general information.

3

In this, I think the first one is kind of -- the

4 first paragraph --

CHAIRMAN STERNE: Mike, I think after you have passed

6 these out we'll let you take us through this.

MR. HENRY: Okay.

X

MR. JACKSON: Could I just say one thing, Mr.

9 Chairman, before we start that?

10

CHAIRMAN STERNE: Sure.

"z

11 I-

MR. JACKSON: I am generally amused at the semantics.

e>.

0

u.

w

1~ :There's two ways to run a department, you can appoint or elect

@ ' ~ _. ~a single person as in the case of our State Revenue commissioner

14 ~which handles all of our taxes, regulates wine and beer. The ~ <! :x:
15 .~.., other way is to divide it up and to put five people there. Now
:'">
16 3if the Governor, one Governor is allowed to name that one person a z <!
17 ~nobody says anything, that's good government, as the Governor

18 : names the Revenue Commissioner. But if one Governor names the

19

I
!

f~ ve

Board members,

that's

quote

"packing"

a

Board

and

suddenly

i I

20 everybody is up in arms no matter how important the function is.

21 In the case of Industry and Trade, you're talking about people

11 who try to bring movies into the State, but for one Governor to

"pack" and name all five, that's packing, but for one Governor

24 to name the head is just good business. So I guess that's

~s :Ijust an editorial comment.

PAGE 25

CHAIRMAN STERNE: Well said. You want to take us,
,
.~ beginning on page 18, right?

3

MR. HENRY: Yes, sir.

4

This was prepared by Mr. Blackmon, who was the

5 previous Executive Secretary of the Constitutional Revision

() Commission in 1969 and it is good in that it shows the proposal,

7 it shows the source of where the proposal had come from and then

K it shows what happened to it in the '69 revision and then it

9 gives a comment at the end on the changes that happened in it.

!O
c,

The section on Constitutional Boards and Commissions you

z

(.IIt. ,

I I ~ will note at the top of the page that there e.~)five of them

12
(.'I'Pt'L~l~tt)\\)r'~

._'~" that were taken out, removed from the Constitution by this
~ Revision Commission and there were three left, which was the

',------,''/ 'J 14 I

~State Pardons and Paroles, Public Service Commission and the

I
:r:

15 ".:> State Personnel Board. Judge Smith --

:">'
1(J ~ ,(:,:.

CHAIRMAN STERNE: Says the same thing.



17 ~

MR. HENRY: Went along with the same three. Okay,

i>< so the first paragraph here seems to, at least provide for

J9 consistency throughout the Boards that were kept in that you

20 'don't have different Constitutional Boards in the Constitution

21 that maybe one section would grant a specific power as in I

believe the present Board of Pardons and Paroles, it tells

23 ! specifically what it can do and what it is prohibited from

24 : doing and you have a provision for the Public Service Commission

~~ . where in essence only their existence is Constitutionally

ll_

._.. -.-----.~_.~----

-~ -- .. - -----

11::~~:~~d and the rest of it is at the discretion of the
il
2 ! legislature so in this -- I'll read through this

3

"All the Constitutional Boards and Commissions,

4

... , having heretofore been created, are hereby re-

s

created and continued as Constitutional Boards and

Commissions. The members of such Boards and Commissions
ii it

7

shall consist of those in office at the time of the

8

effective date . "

9

This is, I think, transitory language in order to

10 move from pre-Constitution to post-ratification Boards.

"z
11 I-

t<

()

0w

12 :

; (/~rJ~)~t~, ~

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14 )_

>-

"<'

I

"Appointments for full terms and to fill vacancies on all such Boards and Commissions, except the Public Service Commission, (which is elected), shall be made by the Governor and confirmed by the Senate. Appoint-

15 '"

ments to fill vacancies shall be made for the unex-

l"

t<

.::l

Ih ~
o

pired term. In addition to such powers and duties

z



17 ~

as may be prescribed by the Constitution, the General

18

Assembly shall define by law the powers, duties,

19

qualifications, and compensation of the members of

20

such Boards and Commissions and of the Directors, except

21

.. "(except the Public Service Commission again, and

the State Board of -- and the term of office for

which such members were elected or appointed shall not

be diminished.

"Such Boards and Commissions shall have such

PAGE 27

other powers and duties as may be prescribed by law."

Then when it goes into describing the Boards, it

seems to just state that it shall exist and the first paragraph

seems to allow for the General Assembly to give it its duties,

5 I jurisdiction, powers, compensation, etc.

"State Board of Pardons and Paroles. The State

7

Board of Pardons and Paroles shall be composed of

not less than five members and shall be vested with

and shall exercise all of the powers of executive

In

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~

f". 'C~ b.'..'l";,\).1 r,'..-."~,,,. u

" ',. '-_.~_,</!

V1

I f

clemency except as otherwise provided in this Constitution. The General Assembly shall provide by law for the composition of the State Board of Pardons and Paroles "
I believe the present provision for the State

15 ~Board of Pardons and Paroles goes into lengthy detail of who

I:...:.
::>
lil '~" serves and who can't serve and who appoints.

?

~.

1'7 ~

"The General Assembly shall provide by law the

manner in which the Board is to exercise its powers."

J'.i

I believe in the present Constitution it goes into

fairly extensive details what the powers are and what the powers

21 aren't and I believe at the end of it, it says that the General

2' Assembly may provide

shall not enact~gislation inconsistent

23 with the provisions.

"The Governor shall not be a member of such

Board." Which is I think also in the present provision.

[1-- .. ~-- -----

, >~\ t

28

:I

" Its members, acting in an ex-officio capacity, shall

:j

2 Iiii

compose the State Board of Probation which Board shall

administer the Statewide Probation System."

4 ::

"Public Service Commission. The Public Service

5

Commission shall be responsible for the regulation

of utilities and transportation, and shall be

7

vested with such jurisdiction, powers and duties

9

lU

l'

7.'

II I-

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12 '"" lJ

(;~~(=...

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15 .r.,

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16

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17 'c"o

IX

19

20

21

2.~

I

,,
--'

relative thereto as may be provided by law." [Which is the same as we have now.] "The Commission shall consist of five members who shall be elected by the people. The terms of office (sic) shall be for six years, dating from the expiration of the previous terms of its members. A Chairman shall be selected by the members of the Commission ...
[which I believe is the same as today] In case of any vacancy, the same shall be filled by appointment by the Governor and the person appointed shall hold such office until the Tuesday following the next (sic) Monday in February . et al."
"State Personnel Board. The State Personnel Board shall administer a State Merit System under which the State personnel under such system shall

be selected on a basis of merit, fitness and eff-

25

iciency. After initial appointments, the Board

shall be composed of ten members " [I believe

there is

MRS. HOLMES: Five.

MR. HENRY: Five now.

5

" who shall serve for sta<;Jgered terms of

6

office of five years each; provided, however,

"1
i

nothing herein shall affect the term of office of

any person who is a member of said Board when

this Constitution is approved, and any such

10

member shall represent the Congressional District

Lz'

11 ,

in which he resides , Each member shall

represent a different Congressional District.

This subsection shall be implemented by general

1'+
t~

law."

.,~

t

I'm not sure but I believe the present section also --

:;.

i() e 3 h t /Xl. present section says:

Q

7.

"\

17 ~

"Under said merit system, State personnel

It

shall be selected on a basis of merit, fitness

lSi

and demonstrated ability according to law."

:'0

So again it is the legislature providing the --

21 : implementing the direction of the State Merit System as

dictated by the State Personnel Board.

The Veterans Preference --

.'''+

MR. HILL: Mike, I think we can probably refer to that.

The point about these Boards is they kind of compile them together

and then took out a lot of the legislative language that is

2 apparently in the Constitution we have and retained the three

3 Boards which Judge Smith -- and he had never seen this document,

4 he came up with his list kind of independently.

MR. THORNE-THOMSEN: One thing that should be pointed

(, out and I meant to ask you, Mr. Sterne, when we were talking
:I about the Public Service Commission, was there any discussion
I
x with respect to combining that with the Department of

9 Transportation as the other proposal did? I don't know

10 whether you noticed but in the, I guess the '69 proposal, it

11

'z"
;::

was

combined.

r<

o

n.

w

12 ~

CHAIRMAN STERNE: I did notice.

@ ' r-~\\ (r

e,"",,""

\ In;:;/))'-- u

~'

~

MR. THORNE-THOMSEN: The regulate both public

14 :~;; utilities and transportation and I wondered if either Mr.

<0:

J:

15 ,~Moreland or Mr. Pafford --

"Ct.
::>

16 ~
wa

CHAIRMAN STERNE: Well of course I didn't talk t-

z

<0:
17 ~Moreland, somebody else did. But I pointed that out to

18 Pafford and he saw no merit in it.

19

It does look to me like that combination is pretty

20 far fetched.

21

MR. THORNE-THOMSEN: Uh-huh.

CHAIRMAN STERNE: That's just a personal opinion.

_~3

I'd like to say for the benefit of Mr. Jackson and

24 Mr. Shepherd, and to put the matter of our visits to these

25 Commissioners and Board Chairmen and Executives and so forth

PAGE 31

in perspective, we thought it a courtesy to start there and

that was our purpose. We didn't think that would be

necessarily the end result of anything, and that's the way I

'1 put it to the two I called on.

5

Anything further on that, Mike?

MR. HENRY: I think perhaps responding to what Tom

said about regulation of utilities and transportation, the

Public Service Commision was created -- and I got this out of

9 I Ed's book, so he knows more than I do -- was created as a JO railroad commission and perhaps that was the transportation

Itf:'V:~I\

11 ~; they're talking about in that and not perhaps the responsibilin :J.
1: ~ ties of the Highway Department or Department of Transportation.

(~~b))))""~!.!.'''~ ~ I'm not sure, I just thought that might clear it up.
\. ' - - ' - "'-... ..," .../ CHAIRMAN STERNE: Pafford thought that, he assumed

, c0'

;~ that.

"'

MR. JACKSON: At one time --

CHAIRMAN STERNE: I assumed the other, you see, and

1<') Ii asked him about it and he said no.

19

MR. THORNE-THOMSEN: It's the 1969 proposal that

'0 combined them again, transportation and utilities.

"

CHAIRMAN STERNE: Well his interpretation of that

was

MR. THORNE-THOMSEN: Of the 1969 proposal?

CHAIRMAN STERNE: Yeah. He didn't understand why it

was in there because he said we're already doing that, you see,

i 1 '\ [

32

already regulating railroads.

2

MR. TIDWELL: One thing, Mr. Chairman, that might

3 i explain why something perhaps might have been more attractive

4 in '69 than it is in '79 is that in ten years ago the

5 Public Service Commission, if they had one major rate case in

6 a five year period it would -- we had cheap energy back then.

7 They were

8

CHAIRMAN STERNE: Prices were going down, as a

9 matter of fact.

10

MR. TIDWELL: That's right. They were mostly

t.,

Z

II 6: regulating the trucking industry, utility rates -- the.( just

o

"~

~) ~ SV

.l-' '':"' hadn't had any cases and we all know what's happening now.

....... They probably have more than they can say grace over ther1n0W

----.-/

I

14 ; to look after to try and handle what they're handling. And

15 :, that may have it has changed a good bit.

"".
.
16 ~ u.,

CHAIRMAN STERNE: A hundred and eighty degrees.

a

7

<

17 ~

MR. TIDWELL: Yes, sir.

IS

MR. THORNE-THOMSEN: Mr. Chairman, I talked with

19 Judge Smith quite awhile when he was putting together that

20 letter and we conversed about differe~ concepts and as you

21 had mentioned earlier, what do you accomplish by making it a

Constitutional Board, I think one thing that you do accomplish
,)
---' is if you create these Boards in terms of there shall be a

"+ 1 State Personnel Board, which shall regulate the employment of

state officials and that employment shall be on a merit system,

PAGE 33

then you have regulated -- you have created a Commission and

you have also created a system of appointment that cannot be

3 changed by the General Assembly. In other words, the creation

4 of the Board has also, coupled with that, created the concept
ii
5 or the philosophy of that Board. Then you are protecting, you

are guaranteeing that there will be a merit system and that

7 that Board will be there in enforcing that Merit System. Some

of these other Boards where you just say there will be a Board

of Industry and Trade and you say that the General Assembly,

iO will determine what that Board will do and how it will operate

"z II f and what its policies will be, it doesn't seem to me you are
"~i"
; ') U
~"~;,y-~" .I~" ~ giving it much protection of any substance at all. So maybe (\(,~,C"::\:),/')'I-c-o.-"-',,. \~.~ that's where the Constitutional protection comes about, or

'-"- -

I
[, ;-. the sense of more confidence that you were talking about from
'.t
r
1" ;', your interview with the people at the Personnel Board. I .<

Ie ~ was just reading that in the current Constitution and they talk z
p r~L about the fact that there should be a merit system for the

t8 employment of state officials and that concept is being

IY protected by the Constitution as well as the Commission.

MR. JACKSON: There is always another legal point, 21 ,:but it's an important legal point. Under law in Georgia and

most states and I think under United States law, an agency or

board cannot adopt rules and regulations unless there is a

specific statute authorizing them to. For instances, Human

Resources couldn't just start adopting regulations about all boy

~.

;!

34

choirs or this type of thing unless the legislature has

authorized them to promulgate these rules and regulations.

But there is a Supreme Court case in Georgia which holds where

4 the Constitution has given a Board a Constitutional mandate

5 or power to do something, then that Board then has an inherent

6 right, deriving from the Constitution not the statute. So in

7 effect, like in the University System, it allows the University

System to promulgate all the rules and regulations it wants

9 ! without going to the legislature. This is why the legislature

10 has no control of the University System.

"z

Ij

I

e:

So when you do, in the case of the Merit System, give

o

c

~~J~". I~ 'V :\

]2

"r",':
l) them

a

Constitutional

job

or

a

Constitutional

power,

then

they

Bhave inherent power to enact rules and regulations. Otherwise,

l~ t a Board has to have a specific statutory authorization, so --

1

T-

is ,~

MR. THORNE-THOMSEN: My point I guess is unless there

:::.):.
1() r~o is a power that we wish to protect by the Constitution, in

17 '~" other words, the power and the obligation that is concomitant

l~ I with that power of having a merit system and unless there is a

19 i perceived need to protect that power and obligation in the

20 Constitution, then there doesn't seem to be any reason to have

21 i a Board. In other words, if you just have a Board of Industry

and Trade, but you had no function for that Board that you

wished to protect by the Constitution, there doesn't seem to .: + me to be any reason to have the Board in the Constitution.

That can be created and killed by the General Assembly at their

~--~-~ ~-~-~ ~-~-~ ~-~-~~~ ~-~ ~ -~ ~-~

PAGE 35

will because pretty much that's what they can do now anyhow.

I think those three Commissions that Judge Smith

-' -- well particularly the State Personnel Board, I think that's

,j one that -- where we are protecting a concept as well as a

Commission and it in that respect may deserve the Constitutional

protection.

MR. HILL: And Pardons and Paroles as well. You

I'; are protecting the principle that there should be an independent

') oversight of this issue of pardons and paroles.

10

MR. THORNE-THOMSEN: Yes, I think so.

D

?

]i

MR. HENRY: I want to ask Ed this. On the other

.;,

' l..

\>..1

1':: o~ side of the question of when a Board is given a mandate to

z
~ develop policy for a department and you say that they don't

~ have to go to the legislature to get the power to issue those,
"f
'~ and on the other side of that I believe I was referred to this
:'")
]() ~ in your book, is that if the legislature does give a Board
7 1
I, 1 powers and it later decides -- and it is pursuant to Constitu-
l8 tional provision that says ~wers, duties, jurisdiction as
)9 provided by law, once they give them those powers, they cannot

'::0 i withdraw them in order to make them a straw board. They cannot
,,
" 1 do indirectly what they couldn't do directly. In effect, they

can't abolish the Board by taking away all their powers, so I

-- I believe that's correct.

CHAIRMAN STERNE: Anything else on this? Yes, Mel.

MR. HILL: I'd like to point out one last thing. I

36

I was somewhat surprised that this is the version that passed the

2 House of Representatives in 1970, and the fact is these three

3 Boards were preserved in the Constitution and the others were

,t not preserved and it did make it through the House. So that

is not to say that would happen again, but I was interested to

(, see that they were able to make such a substantial change and

7 still get it through the House.

CHAIRMAN STERNE: Having had the experience which I

9 did with Industry and Trade and Public Service Commission, I

III had thought this Committee might consider the method of

11 ; appointment or election, the size, number of members of Boards r.~
(~ ~\,."'~ t12 ~" or Commissions and the term of office. It seems to me that's better done once we come to a jUdgement that we would recommend
14 ;:-the eight remain in life or the three remain in life and then
<: r
IS :~~ deal with those, if that is the feeling of the rest of the
,~v.
::J
1<) ~;Il.\ Committee, to defer that. Because I think we would engage in Cl z
17 ~a lot of useless dialogue or might engage in a lot of useless

10 dialogue.

Ie)

We asked, and your minutes reflect, that we

20 requested the staff to find out something about procedures
,
21 'and practices affecting Boards and Commissions in other south-

eastern states. We had this from Mike Henry. Mike did a good

job, but I have to say that he labored and brought forth a

mouse I think, the facts just don't seem to help us much. Do

you have any comment on the information that you have provided?

PAGE 37

MR. HENRY: Since I prepared also in addition to

2 this -- Mrs. Holmes asked me to look up the Constitution of

Louisiana and Illinois, I'd just like to pass this around for

your information.

5

The way it appeared to me was that the more modern

Constitutions had less Constitutional Boards. The ones that

have been recently revised, except for Louisiana -- and in

.'
il

Louisiana in this one I'm passing out, the first part was

entitled -- under the Executive Article, it was entitled

10 :, Department of Treasury, and it said "and there shall be a

Z

Ii -~ Secretary of Treasury." But it was created by the Constitution

()

c.,

w

~also ,\~':'\fIt 'I

l~:

s o u. !

I

didn't

know

if

--

I

wasn't

quite

clear whether

it was

((("'u..::.:JDr""!b

the same creature that we're dealing with here in this

"" //;

I

lei ~ subcommittee, but I assume since it was mandated by the

0: :t:

1" ~Constitution that there shall be a department, whereas in

;h ~fi) Georgia, I don't think there is any mandates that there shall
.~.
17 ~be a department, so I included that.

I :~

Illinois is a recently revised Constitution. They've

got a minimum amount of Boards. North Carolina and Florida

were the three others that have recently revised their .'J Constitutions and they also had five or six Boards. I think

I pointed out that most of them had a Board of Education,

Constitutional Board of Education, so I guess that's dear to

.)4 'everyone's heart to make sure that you always have a Board of

Education. The rest of them, a lot of states had a lot of

38

different Boards which could only be peculiar to their own

) state, like Mississippi had a Board of Levies to build levies

3 on the Mississippi River. So it is the geographical area as

4 much as it is the area -- you know, what you're trying to

S protect I think is dictated by your geographical area and I

6 did the southeastern states thinking that they would have

7 similar problems as Georgia did.

8

MRS. HOLMES: I assume that the persons in the

9 I, departments in Louisiana are appointed people, I mean they're

!O not elected officials like the Department of State, Department

"z

II ~ of Justice, Department of Treasury. Are they --

o

"-

~

J:' ~

MR. HENRY: When I was looking at all these

(~ (~~~ ~~ ~con.titutions, I think, you know, y'all had asked me what

--

14~. Boards and Commissions are in there. I didn't really read

l5 cO I would assume that the heads of those departments are, like ,I,'i
.r. ~
16 ttake for instance, in Georgia we have Other Elected Officials, G ",!
17 "~Secretary of State, Secretary of Agriculture, State Superinten-

Ix dent of Schools. I would assume that they are the same type

19 of Constitutional officers in those states. I didn't go in and

20 see specifically what the powers were, whether they had been

21 granted in their Constitutions the powers, but in the majority

22 I of constitutions I always ran across a provision that said

23 '. "the health, welfare and safety of the citizens and their

24 ,property in this state shall be protected by the legislature

appropriate legislation." So kind of a broad grant of power

PAGE 39

to the legislature to protect the interests and whether the

,
--

Boards had specific powers spelled out in the Constitution, I

3 couldn't tell you. I know some of them did, some of them

4 didn't.

C;

MR. JACKSON: Mr. Chairman, I'd like to raise one

b other point.

7

CHAIRMAN STERNE: Yes.

8

MR. JACKSON: This is the subcommittee studying

9

Ii
'i

Constitutional

Boards

and

Commissions.

Now there are Consti-

J(} tutional Boards and Commissions, Executive Boards and "7-
11 ~ Commissions found in other portions of the Constitution, to o "w
'Vi' 12 ~ be specific, four active ones. The State Medical Education
(~,~~:?;)l)'~-,.!.!,~ ~~ Board, the State Scholarship Commission and the Board of

-/

14:~ RelJents and Board of Education. Realizing that Regents and

,! <'r
15 ~ Education will be studied by an Education Committee, do you
n,:

i() ~'" want to make a recommendation that in the final document, that a

J7 :;; a citizen could go to a chapter or to an Article that says

J ~, Constitutional Boards and Commissions and could in fact find the 19 Constitutional Boards and Commissions as opposed to at least 2U four different locations now, four different Articles in the

,~
':"'.l

Constitution? You see, what I'm saying is do you want to

make a recommendation, do you want to take under consideration

.~..

,
)

that in the eventual document that comes out, that these

24 Constitutional Boards and Commissions found in other portions

of the Constitution be allocated to this Article?

40

CHAIRMAN STERNE: Are those being looked at -- well,

I --

3

MR. HILL: Those particular Boards are with the

4 i Article VII on -- Article VIII on Education. They'll be

S looked at in 1981.

(J

MR. JACKSON: That other article on Scholarships --

'.,

MR. HILL: I think that we just may not be in the

8 i position to be able to pull them together as part of this

9 process. You could make a recommendation to that committee

10 that if they would so choose, they could move their
lJ
z
II ~Constitutional Boards as part of their amending process back o "-
@ r IJ:: ,'": into this Article that hopefully would have been approved this next election and it' 11 be there. That could be something

14 >-for them to consider as a committee. ~

<l

r

J 5 .:>

CHAIRMAN STERNE: Get them all in one place.

::>

16 ~

MR. JACKSON: I think a rational Constitution a

Cl

Z

~

17 ~citizen could -- one chapter for the Executive Department or

IS !ione chapter for the Legislative -- one Article for the

III " Legislative

2U

CHAIRMAN STERNE: I think it's an excellent idea.

21

MR. HILL: And it could be -- I think it could be

" handled very easily by these committees to say that this Board
_,.,' is moved to Article IV, Section IX or whatever.

21 '

CHAIRMAN STERNE: You wonder who is to complain about

2~ that.

l' AC~E 41

MRS. HOLMES: Cindy, could you vote on that as one

Article?

MS. NONIDEZ: Yeah. Cyndy Nonidez. One of those

4 Boards that you just mentioned again, this picks up on Mells

5 point -- the Article entitled Retirement and Scholarships has

been revised by an Article Revision Committee and was on the

7 ballot in November of 178. It was not ratified, but neverthe-

less they dealt with the Medical Education Scholarship and

9 Dental Education Scholarship Commission by simply making them

]0 I mean, they just took it out and made it statutory in terms

Jl ': of
",. , ".;
I ... V
'"

MR. JACKSON: Oh, they Ire out? MS. NONIDEZ: So I think you have to, as you point

Mel, maybe give these other Article Revision Committees

15 ~~ some time to think about what they might want to do with the
:_~
1(> iii Judicial Qualifications Commission, the Finance Tax Article Q
[7 ~ Committee what they want to do with the Investments Commission,
1:-; : you know.

CHAIRMAN STERNE: Now are you talking about

.,"1 Constitutional Commissions?

21

MS. NONIDEZ: Yes.

22

MR. HILL: You see, we can carry forward to these

other committees the recommendation of your subcommittee, if

that would be your recommendation, that if they decide to

retain it as a Constitutional Board, that they consider having

I' \ (;! 42

it moved into this Article. Now you are dealing with the

2 only Co~stitutional Boards and Commissions that will be the

3 concern of this next election, in 1980. So that all of them

4 will then be hopefully we will handle them all the same

for purposes of 1982 election, and hopefully move them all into

this one section.

7

CHAIRMAN STERNE: Would it require an amendment to

8 , the Constitution to move from one section to another?

9

MR. HILL: Sure, yes it would, but you see, they

10 are going to be voting anyway.

lJ

Z

11 1-
"'"w"-

CHAIRMAN STERNE: Yes.

(~~\r~ ~ I"S~
~/

1."' ~
~.

MR. HILL: On that new amendment for Article VIII,

so they would also be moving to amend Article III or no,

!

14 ~ excuse me, Article IV to create a new paragraph IX. You see,

<t r

15 ~ they would be re-amending Article III in 1982 to put that into

"O"J
16 this ~;'::; place.

,"?

<t

]7 ;

MRS. HOLMES: Then you would really need two

18 ! amendments?

J') ,

MS. NONIDEZ: No. The Constitution has been

20 amended,in preparing for article-by-article revision, they
.)
<.1 realized that in revising a particular article you might well

need to tamper with the language in another article. They

have already experienced this in the revision of the Retirement

Article. And so the language is in the section of the ,I ~~ ~
Constitution, I believe that's Article XII, dealing with

PAGE 43

---._.~------'-

,'--1 ,,

amending the Constitution to allow you to simply put on the

!

ballot your new Article X, as it was in this case, it affected

some language over in Article IX and also some language over

in Article III, but the voters only had to vote on accepting

5 or rejecting this revision, so you don't have to have a whole

() :! string of amendments. You can accomplish it without that

7 much --

MRS. HOLMES: But then you don't have to take the

second step of saying we are amending IV and adding another

10 Board?

'I "7.. ~,t:: '.)
co,

MS. NONIDEZ: No.

;<,>,'9")(-1

12 '~J.

CHAIRMAN STERNE: The suggestion makes sense to me,

(((,t_S0r co ","'!."

but I am interested in how the rest of you feel about it.

:// ,',\-.~~"--~~"~

"

'!
/

1+

MR. SHEPHERD: I certainly think we should let the

Ii ~other committee know that we have discussed this and that if
;:r ::;.
I:;':
it, ~ they haven't abolished them or taken them out, and want to
<!
17 '~consider

CHAIRMAN STERNE: Getting them all under the same

Article.

MR. SHEPHERD: But I do feel like you that it should , 1 come from them to us rather than us taking it from them.

CHAIRMAN STERNE: Yeah, and I think that's all we ,n can do. I mean our charge just didn't go quite that far.

MR. HILL: Well, would you like to have a motion to " that effect?

44

CHAIRMAN STERNE: Well, I would. Ed, I assume you --

MR. JACKSON: Well I'm not a member of this

3 subcommittee.

4

MR. HILL: Yes, you are.

CHAIRMAN STERNE: All of a sudden you are.

6

MR. JACKSON: I'll so move.

CHAIRMAN STERNE: Is there a second?

MRS. HOLMES: I second it.

9

CHAIRMAN STERNE: All in favor, aye.

(Ayes.)

;'J
z II ,
::.:
"

CHAIRMAN STERNE: Without objection, we will do that

\'(3 ~~~ r'~E i~ (~~<1\

]2 ~and that will be a recommendation we can make next Wednesday.
,.

Is that when we're meeting, next Wednesday?

14

MR. HILL: Yes.

CHAIRMAN STERNE: That's a good suggestion, Ed.

Ih ~'" ""'

MRS. HOLMES: I had something else about the

<

17 Mmechanics -- I forgot what I was going to say while we were

III making this motion I thought, do we dare move to just have

19 three Boards? Could that corne out of this meeting or is that

going too fast?

71

CHAIRMAN STERNE: No.

22

MR. HILL: There were a number of questions that

carne up in the subcommittee on the Governor and Lieutenant 2-\ 'Governor, which the subcommittee, that subcommittee, felt was
I
very sensitive, I think similar to your feelings about these

PAGE 45

Constitutional Boards, and they decided that they would like to

. have a feeling from the full committee about their feelings.
I
3 ! And so, I would say you have two ways to proceed, you could

recommend, as a recommendation of this subcommittee, that

~ , these Boards be retained and these be eliminated and see how

b it flies before the full committee, and you haven't written

7 anything down, you're not presenting a final proposal, you're 'j just wanting to get a sense of the group, you know --

'}

MRS. HOLMES: They're not eliminated, removed from

iU the Constitution.

<?

Z
I1

MR. HILL: Removed from the Constitution, excuse me,

;(

0,,-

J2 ~" that's right, carried forward as statutory Boards.

r-- -- 1\\ /~j-\~,
I\\(''-.,.Ir'::-J) )

''''''''0

"~~-

MRS. HOLMES: Let's not get anybody any more excited

~'-- ~_~/:"/~"

i

-

].1; than we have.

!.~

1< "

MR. HILL: Carried forward as statutory Boards. So

,."<

Ii, .:.r:!:. you could have a recommendation from this committee, or you

..()

1 ;' could say that you're moving in that direction and would like

a sense of the full committee, or you could just ask them

;) , without a recommendation from you, how do you feel and just

.'.0 ii throw it open to the full committee.

MR. THORNE-THOMSEN: I think the full committee
,., would like a recommendation. Judge Smith met with the sub-
,) committee this morning of Judge Hill and that's the way they

21 ,moved and I felt like it was something that he -- the committee

chairman is very interested in hearing what the subcommittees

I'

46

feel because it's this subcommittee's recommendation that will 2 I think undoubtedly carry the ball when you get back to the

full committee next Wednesday. So I think that recommendation 4 in the form of a motion or whatever --

CHAIRMAN STERNE: Is it timely for that recommendation?

I'm assuming that whenever that recommendation is made, all those
., , people, this word will get back to those Boards and Commissions

and stir up some activity. Are we ready -- do you think the

9 full committee is ready for that?

jU

MR. THORNE-THOMSEN: I think it is. The reason I

"z
Jj ,~. say that is because of our time schedule. I don't know whether

c..

~

J 2. ~~

~~.~ ~definitelY ~~.'

. . ::. we can af ford to wait much longer anyhow, but I think it would be timely for this subcommittee to make

14_
~a recommendation.

4

I

! c, .~

"":::>

CHAIRMAN STERNE: I personally don't have any

, (, 0~1 problem with it. What's your pleasure?

MR. SHEPHERD: I think something in the form of a
18
recommendation that this subcommittee was leaning towards or

inclined to accept the proposal outlined in 1970, which says
2n
,what we're saying, that that is what we're looking at very
21 seriously right now, the elimination of certain Boards
) ')
CHAIRMAN STERNE: As Constitutional Boards.

MR. SHEPHERD: As Constitutional Boards and the
24 I
maintaining of those that were proposed in the 1970 Constitution,

:will give them our feeling, wouldn't it? Because that's what

we are talking about.

PAGE 47

CHAIRMAN STERNE: Mrs. Holmes?

MRS. HOLMES: I'd go along with that.

CHAIRMAN STERNE: Ed?

MR. JACKSON: I think we might preface, just for the

iJ other members of the full committee that as was said, we're

not questioning the value of any of these Boards, not at all,

~ it's just we want to move them from Constitutional to statutory

') status.

l\l

CHAIRMAN STERNE: Well maybe t~is ought to be

~,

z

I! ~reflected in the minutes that we'll have and we'll see if we

rr

o

"-

'u

.2 ~can phrase a motion, that we have reviewed the 1970 proposal

/y9YliJ \

~

(~bj))(_'''-'' ~and are inclined to agree with the parts of it that retained

,,~~-.--'./" .'

I
14 :0;-; three as Constitutional Boards and not the other five. -r

MR. HILL: Mr. Chairman, I would just point out that

:J
:() ~ the House added on the floor the Veterans Service Board back, ::) -'
17 :, so that's the fourth Board that was added back, so that the

four that were retained by the House in 1970 were the Board

J'J of Pardons and Paroles, Public Service Commission, Personnel

:'() -Board and Veterans Service Board. So that was not one of

Judge Smith's recommendations, and I'm not sure if you also

want to

CHAIRMAN STERNE: Unless you have something to say

about it, we're at a disadvantage in that we have no report on

the visit to that particular Board, but I'd be interested in how

48

any of you feel about Veterans Service Board.

2

MRS. HOLMES: I think the Veterans Service Board was

3 put back in because it had a lot of political activity. It is

4 one of the most organized groups or it was back in 1970. I

) think it's 1979 now and I don't think we should do without the

6 Board, but I don't see that.

7

CHAIRMAN STERNE: Don't see it as a Constitutional

Board?

L)

MRS. HOLMES: As a Constitutional Board. I like

10 Mr. Thorne-Thomsen's idea that, you know, the Boards that we

lz'
11 ~are keeping, we are keeping because they sort of are protecting n

j :2

'r".
~~ a

thrust

that we

want

to

keep

in

State

Government

and

that,

to

@/==,...

, me z.
:~~

you know,

I

think you can do

that

statutorily and still do

14 ;~what they want but we don't have to keep them in the Constitution.

<

1:

15 ,:,

CHAIRMAN STERNE: Are we agreeable with staying with

"ex:

:::>

]f> 3'" 0ur feeling here that those three are the three that probably

Q

z

<::

17 ~need to be Constitutional Boards?

18

MRS. HOLMES: I am.

J9

MR. THORNE-THOMSEN: I have one question for just

20 clarification, back to the Public Service Commission and

Transportation. What is the subcommittee's feeling about that?

As it is written now, I don't know what the attitude was,
') ,
_."..

eliminating the Department of Transportation and throwing it

PA(~E
49

into the Public Service Commission. I don't think that's the

consensus here and I'm not sure what the intent of the '69

proposal was, but I think that may be something you want to

4 clarify before the proposal is made or this motion is

communicated.

MS. NONIDEZ: It might be that you might not really

want to tie yourself to what was done in '69 at all, but just

be very up front about what you are proposing, because the

q '69 is really not what you're proposing.

JO

CHAIRMAN STERNE: There are some other things in there,

"7:
"i i i~':

r1.ght

"

,.,

r!~

j,~

U

MRS. HOLMES: No, but I think it's very interesting

u,-.

I.

~that Judge Smith's proposal and the '69 one came up, you know,

i
14 .~ the same without him being aware of it. I think that's kind

je, ;; of interesting.

MR. JACKSON: Could I make this point. The motion was:
t
l~' -; made awhile ago to accept --

CHAIRMAN STERNE: Accept '69.

l'i

MR. JACKSON: I would just change it that we support

:0 these and if it happens to fall along --

CHAIRMAN STERNE: Support the recommendations in the

'69 report that three Boards remain Constitutional Boards.

MR. JACKSON: I think that's a more positive statement. 24 'IWe're not accepting what somebody else has done, we're studying

it and this is our recommendation.

50

CHAIRMAN STERNE: And our recommendation just names

the three Boards that we would retain and remain silent on the

rest.

4

MR. HILL: As Constitutional Boards and all of the

others as statutory Boards.

MR. SHEPHERD: And leave the substantive part, that

7 is, the language as to transportation, to clarify at a later

date. The thrust of our intent is to support these same

Boards.

10

MR. HILL: And my thinking is that the State

11 ::. Transportation Board would then continue as a statutory board.

c

"w-

V'"

MR. JACKSON: I think what is happening in Public

'"

I-

Z

~ Service Commissions around the country is they are going into

i
~ energy. You see them more and more taking a positive role

:r
I ~ ~~o towards insulation standards and f~. nancing energy conservation
'"
16 r~:c measures, so I think transportation is down the line except
Z
~
i"!f~. for what PSC does in motor carriers. I would recommend that

l~ we not recommend transportation being linked with Public

19 Service.

20

CHAIRMAN STERNE: I haven't heard any argument for it.

21

MR. JACKSON: Well he asked for clarification.

')'1
MR. THORNE-THOMSEN: Strange merits to me too, I
,,
. \ can't see it. I just wanted a clarification. With the way

2-1 ! the motion was originally phrased, your supporting of the 1969

25 proposal, I just wanted to get it clear what it was.

PAGE 51

CHAIRMAN STERNE: We amended the motion that we

agreed on that just said simply we supported that part of the

3 ! recommendation in '69 that would retain three Boards as

Constitutional Boards and have the others be statutory.

MR. HILL: Mr. Chairman, we'd be happy to prepare a

memo. Have you voted on this motion?

CHAIRMAN STERNE: Well maybe we should. You made the

~' 1 motion and you seconded it, right? All in favor.

<)

(Ayes. )

10

CHAIRMAN STERNE: Without objection it carries.

zt:'J

[I ;-

MR. HILL: Okay, Mr. Chairman, the staff would be

/tC:Y4<1\

:~ glad to prepare for you a letter under your signature to the

!\ I''.\'"",.L.:'..~J\I \Ir(;-f.T-l~-II-('
\"\ , / h ...... ~.,.. ,./'/,/ /

;~committee as

a

committee

report

with

this

information

in

it.

CHAIRMAN STERNE: If you will, and I'll get~ from

I" ,'~you on Wednesday morning. That's fine
.'
Now, are there -- the other recommendation we're

17 going to make to the committee is that we bring all Constitutional

Boards -- that they consider bri~ng all Constitutional Boards

under, what is it, Article IV?

Is there any information we want to ask the staff to
,1
,_1 get or prepare for us?

MR. LITTLETON: One thing you're going to have to

be thinking about is this other language under the State

. Transportation Board will have to be put somewhere else in the

Constitution, paragraphs II, III and IV.

!:

1I

CHAIRMAN STERNE:

II

Transportation?

Transportation?

What section is

MR. LITTLETON: Article IV, Section VIII.

CHAIRMAN STERNE: The last one. Now what

5

MR. JACKSON: To comply with Federal law?

II

CHAIRMAN STERNE: What language is that?

MR. LITTLETON: I would say starting with paragraph

8 lIon page 29.

qI

MR. JACKSON: Section--

10

CHAIRMAN STERNE: The General Assembly may zone

Gz
11 tproperty, is that what you're talking about? o

MR. LITTLETON: Yeah.

MR. JACKSON: That could go in the legislative

Ii:;

CHAIRMAN STERNE: My only reaction to that when I

,-.0'
i6 ~ read it was -- because I wrote my reaction in the margin -- I
,!)
r
I' ~asked myself does all of this need to be in the Constitution,

1'\ tl) and (2).

1,)

MR. JACKSON: There's some court decision that says

20

MR. THORNE-THOMSEN: I wonder if that's not already

21 statutorily taken care of with a sort of parallel statute.

)1
CHAIRMAN STERNE: But it was your feeling that that

would have to remain in the Constitution?

2-\

MR. LITTLETON: I'm not sure, I haven't researched

.. '1
iit, I think there's a good chance some of it might have to stay

PACE 53

in there, maybe on the General Assembly may zone property

adjacent to the public roads of such Federal Aid Highway System.

-- I'm just not sure. By it being in here now, I think there ,; must be a reason for it.

MRS. HOLMES: It may have something to do with funds.

CHAIRMAN STERNE: You mean some provision that has

been voted on by the electorate is necessary for that?

MRS. HOLMES: No, I think that in order to get the

9 Federal funds for the Federal Highway System, they had to, you

10 \, know, assure that this would be done.

'J r' c' "

CHAIRMAN STERNE: Couldn't the legislature do it?

MRS. HOLMES: Seems to me it could.

MR. JACKSON: Mr. Chairman, why don't we ask the

11
staff to research Why these are in here and report to us.
t :r
MR. HENRY: Is that Paragraph II?

I (. 1.. .-..1 () 1:
1 " 0 c.:J.
1,

MRS. HOLMES: (1) and (2) CHAIRMAN STERNE: I'd say (1) and (2). MR. HILL: Paragraph II, SUbparagraphs (1) and (2)

I 'j
and then Paragraph III and IV as well. Were you thinking of

20
those, Jack?

2J
MR. LITTLETON: Not necessarily.

MR. JACKSON: Paragraph IV is not necessary.

CHAIRMAN STERNE: IV shouldn't be necessary at all,
24
I wouldn't think.

MR. JACKSON: No.
l-

" 54

MR. HILL: I do know this, Mr. Chairman, at the

, moment cities and counties have absolute authority over

3 planning and zoning within their own jurisdictions and this

4 particular provision allowing zoning on the right-of-way of

~ state highways may be the only way the General Assembly at

6 this time can zone property in that area. So it may be a

"7 provision that we're going to have to leave in.

CHAIRMAN STERNE: May have to stay in there.

Y

MR. HILL: It doesn't really relate to the Board, it's

10 a shame it's in here. As Ed said, it really belongs in the

11

"z
~Legislative

Article,

it's a power of the General Assembly

,~

~

J2 ~that should be dealt with in that Article.

(\~~~~~,)~~!r~~'~" ~~~,!

That Article Committee is meeting, you know, at this

"--::-':"/.

i4 ;~ time, they're starting to work. And you know, at some point it

,0
<t r
1:\ ;" might be possible to talk to them about putting it in their

,;;;
.~
I() '~" ,powers.

CHAIRMAN STERNE: I think we could let their chairman

18 know of our thoughts on this, and I would ask you to do some

19 : research on that.

MR. JACKSON: Are all these local amendments listed

21 in the annotated Code pertaining to the State Transportation

Board Article, Section or Paragraph? It's four pages.

CHAIRMAN STERNE: Yeah, there's a lot of them.

MS. NONIDEZ: Excuse me, Mr. Chairman. We are in

2~ the process at the moment of compiling a listing of all of these

J'AGE 55 "II
I Iili local amendments to the Constitution, but by their very nature, Ii
even though maybe some of them through the years have been

attached to Article IV and in other instances to Article V,

really by their very nature they don't concern Constitutional

Boards and Commissions and there's thinking right now that

() 'those -- the question what to do with local Constitutional

amendments will be addressed by the four Article committees

which will be working towards '82.

u
MR. HILL: The thinking is we're just going to carry

/~~:-Vl(1\

If} forward all local Constitutional amendments that may have

\')

7,

I'
.1

~,. attached themselves to this Article,

carry them forward until

J.2 CL
~ 1982, at which time all local amendments will be dealt with

,/\(''".~c./J,/: J),:"":'''.

':".:,
.

at

once,

hopefully

in

Article

VII,

VIII

and

IX.

"I ,~

CHAIRMAN STERNE: Well would that say then that our

I 5 ~~: recommendation with respect to the Department of Transportation

It>

Xi
o:z. could not be dealt with until

'81,

because our

recommendation

I

."

17 ''0" would be that the Department of Transportation be a statutory

Board.
J'I

MR. JACKSON: Well what she was saying is these

local amendments don't pertain to the Transportation Board,
}j I
they're just illogically tacked onto this amendment.

CHAIRMAN STERNE: Oh , I see, so it can be dealt with.

MS. NONIDEZ: They're going to be dealt with by the

future Article Committees.

CHAIRMAN STERNE: I just didn't understand.

56

Anything else we want to ask our staff for?

(No response.)

Anything else we might consider or deal with this

afternoon?

MRS. HOLMES: Could I ask a question?

CHAI RMAN STERNE: Sure.

MRS. HOLMES: Mel, please repeat what you just said

about Articles VI, VII and VIII are going to take care --
C)
MR. HILL: And IX.
jll
MRS. HOLMES: And IX.

MR. HILL: VII, VIII and IX primarily.

MRS. HOLMES: Are going to take care of all local --

MR. HILL: All local amendments.

MRS. HOLMES: And you mean, what will you do with them,

( ~; ,"
.1 just walk over to the shredder and drop them in?

; r. .,,.

MS. NONIDEZ: What do you mean?

i 7 ''"""

MRS. HOLMES: Well I mean, they just disappear?

[<S
MS. NONIDEZ: Well eventually what you do is, you
II)
do what the revision committee did in the revision of Article

20
X on Retirement Systems. We had some local amendments that

) '. related to retirement pension systems, and they worked on the

general provisions in the text so as to make unnecessary these

local Constitutional amendments and then specifically repealed

those that were then no longer needed or carriedthem forward

as statutory laws. They were deal with by that Article Committee.

PAGE 57

MR. HILL: The nature of a local amendment is that

it always deals with a city or a county jurisdiction, so it

seems logical that we can deal with all of them, even if they

have, you know, attached themselves at this time to Article IV,

we can, you know, just -- we may need a provision that in fact

states that. Cyndy and I have a disagreement on this, but we

may have to state that, look, any local amendments that are in

,'.I, : Article IV will hereby be continued and moved to Article IX.

9 That's something that we have to work out, but it's not a

10 concern of this committee. They will not be abolished, they

'I I.

,~- will not be touched,

they will just continue.

()

lJ.'

J.? ~:

MRS. HOLMES: I was just asking out of curiosity.

;,-

;jlt sounded like a great way to get rid of them to me. There's

14 i; a thousand of them.
cf T
CHAIRMAN STERNE:

I'm not sure but what the shredder

C)

16

~
;~was

a

good

idea.

z,

i '7 :~

Is there anything, Mel, that you would have us address

10 this afternoon?

1')

MR. HILL: Well we look forward to the meeting next

Wednesday

'1.

CHAIRMAN STERNE: At ten o'clock at the same place

22 as the last one.

"':':.,)

MR. HILL: Yes. I request in the future that all of

"_,I your subcommittee meetings -- and I suppose you will decide

next Wednesday when you will meet again.

, l' 58

CHAIRMAN STERNE: I would think we would caucus after

the meeting.

3

MR. HILL: I would request in the future that you

4 meet in the Capitol. The reason for that being that the

5 notice requirements, we have certain public notice requirements.

We can take care of that better by having them over there.

7

CHAIRMAN STERNE: We'll be glad to do that.

8

And I thank all of you for being here.

(Whereupon, the meeting was adjourned at 4:32 p.m.)

10

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19

20

21

2:!

C E R T I F I CAT E

PA(~E 59

I, Peggy J. Warren, CVR-CM, CCR No. A-171, do hereby certify that the foregoing 58 pages of transcript represent a true and accurate record of the events which transpired at the time and place set out above.

/d - - 1)7'9 PEGG1 J~WARRENz, CtVR-~ CM, CCR A-I?1

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23

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Sept. 20, 1979

SUBCOMMITTEE MEETING, 9-20-79
Proceedings. pp. 3-4
ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS SECTION I: PUBLIC SERVICE COMMISSION Paragraph I: Public Service Commission. pp. 11-13, 28, 30-32, 48
SECTION II: STATE BOARD OF PARDONS AND PAROLES Paragraph I: State Board of Pardons and Paroles. pp. 5, 27-28
SECTION III: STATE PERSONNEL BOARD Paragraph I: State Personnel Board. pp. 6-10, 21-22, 28-29
SECTION IV: STATE TRANSPORTATION BOARD Paragraph I: State Transportation Board Commissioner. p. 5
SECTION VI: BOARD OF NATURAL RESOURCES Paragraph t: Board of Natural Resources. pp. 4-5,10
Former Board of Industry and Trade. pp. 13-18 Terms of office of elected and appointed members. pp. 26-27 Constitutional Boards in other states. pp. 36-39 Constitutional Boards and Commissions in other Articles of
the Constitution to be transferred to Article IV. pp. 39-44 Recommendation for three Constitutional Boards. pp. 22-26, 44-51
ARTICLE III: LEGISLATIVE BRANCH SECTION VI: EXERCISE OF POWERS Paragraph I: General powers. pp. 18-21, 32-36

Subcommittee Meeting 9-20-79 Page 2

Paragraph II

Specific powers. pp. 51-54 (Regulation of outdoor advertising)

ARTICLE XI: MISCELLANEOUS PROVISIONS

SECTION I: MISCELLANEOUS PROVISIONS

Paragraph IV:

Continuation of certain constitutional amendments for a period of four years. pp. 54-57 (Local constitutional amendments)

STATE OF GEORGIA
CO~W1ITTEE TO REVISE ARTICLES IV AND V of the
CONSTITUTION OF GEORGIA
Conference Haom Alston, Miller & Gaines 14th Floor National Bank of Georgia Bldg. Atlanta, Georgia Wednesday, September 26, 1979 10:00 a.m.
BRANDENBlJRG & HASTY
~CIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, GEORGIA 30135
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTION~ - CONFERENCES

'; I PRESENT THERE:
JUDGE SIDNEY O. SMITH, Chairman REPRESENTATIVE THOMAS B. BUCK, III NICKOLAS P. CHILIVIS REPRESENTATIVE LOTTIE WATKINS JUSTIC~ HAROLD N. HILL, JR. BE RTll, G. I\DAHS KENNETH ENGLISH DEAN A.' II. STER..'II\lE DAVID C. GAF.RET'f, ,JR. REPRESENTATIVE JOE WOOD EDWIN JACKSON CHARLES L. GOl~N J. HENRY WISEBr~ PROFESSOR MELVYN WILLIkMS DELORES CROCKETT DORRIS D. HOLMES DR. rp~NK K. GIBSON .M-ELVIN HILL lU CHAEL HENRY VICKIE GREENBERG TOH THO}mE-THOl'1SEN CHARLES TIDWELL TON LITTLETON CYNTHIA NONIDEZ
_.\
,,
Peggy .J. Warren, Court Reporter

I
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

;'.\C1' 3
PRO C E E DIN G S CHAIRf:.:ll-'\N SHITH: A couple of general items. There has been some concern I think on everybody's part that we not be accused of having star chamber meetings so we have decided that after this meeting today we should in fact have all the meetings over in the Capitol. The reason is t:hat~ they publish--Is it a weekly, Mel? HR. HILL: Yes. CHAIRr11\N SMITH: A vleekly calendar of hearings of it) all kinds that has a rather wide distribution. It's posted : .1 in notorious public places and that this would suffice to put the public on notice if they wish to attend either a full cOnJl1i ttee meeting or a subcommittee meeting that that T,'lOuld take care of it. Some of the subcommittees are pretty far ,} along as we'll find out during the course of the ffiorning, but it's our hope during the day that we can get a sense of direction from the committee as a whole on broad, philosophical issues. The point being there's not any purpose in a E:uhconmi ttee charging off in one direction if its going to come back to the full committee and we know it's going to get shot down. That's the whole point so I hope during today we can float up all these philosophical issues, whether we should return to the county - unit system and things like that to get a sense of direction from the committee as a whole. In that connection I suspect that Judge Hill's COlllil1ittee is

"4

really further along than anyone and willy-nilly I'm going to

start with his subcommittee. Good morning. They have at

least grappled with two issues that promise to be of some

interest and I think that the full committee needs to express

5 an opinion on that.

(,

Judge, do you want to bring up the issues of the

State School Superintendent and where the Attorney General

: belongs?

C)

JUDGE HILL: Yes, and I might say, depending on

JO how you want to handle it, that we are in a position to make a

l1

Z

11 tmore formal recommendation to you with respect to our entire

o
c.

~

Article at such time as you see fit to hear from us on that

(I(r";6\S~~V..~.Jrc-""-"-,o.

._
i~.~

subJ' ec t



\~~/

~

14 >.

The two principal issues that we have grappled with

~

J' ,oat our subcommittee meeting on September 20th are the Office
"ii
:-~,
16 ~of Attorney General and the Office of State Superintendent of (.} z. '!
17 ;;Schools. At the present time, the Office of Attorney General

Ii" is provided for in the Article of the Executive Branch which

J9 we are dealing with. He has also been provided for in the

20 Judicial Article. There was a time when the qualifications for

2) that office were different in those Articles. That was

reconciled in the 1976 Constitution, but nevertheless, he presently has a foot in both Articles, so to speak. The State .>1 Superintendent of Schools is somewhat like that, in that there

is a provision for his election in the Executive Article and

then in the Education Article, there is also a provision

relating to that office.

The members of the subcommittee met with the various

'r elected Other Executive Officers and I'll ask Dr. Gibson, who

met with the State Superintendent of Schools, to give us a

I" report on that office if he wi~ please.

CHAIRMAN SMITH: Let me just say the issue is

whether to appoint him or elect him. That's what we're talking

about. Should he be one of the state officers who should no

]() longer be elected by popular vote, but be appointed?

'>:-' .?
! 1 t"

DR. GIBSON: This office around the country is

j' ': selected -- the encumbent is selected by a variety of means.

;; About one-third of the states do elect, but two-thirds do not
'o'
!.+ ;;: e 1 ect. The simple majority of the states do select the School
'\
L; ::. Superintendent by having the School Board itself I which is
",
III '~" itself elected by a variety of means, select the School
<.
;~ Superintendent to serve at their pleasure.

This is the only Constitutional officer that we have

looked at in the Other Elected Executive Officers' section

who has a policy board associated with him, the only
"." l Constitutional officer who is not selected by that board.
))
This is an office also, the responsibilities of which are

growing more complex all the time. It seems that one ought to + take into consideration the question of the credentials and

competencies of the person, and that would then go to the

, ,,'r 6

manner of his selection. But on the basis of these three

criteria that we made our first decision, I did meet with

Dr. McDaniel at some length and then talked to him as

4 recently as yesterday.

s

Dr. McDaniel has served as a county School

() , Superintendent in several different systems of selection. He

7 has, as a matter of fact, been appointed by the Governor to E I his current office and then ran for election successfully.

9 His position -- and I asked him yesterday if I might quote him

10 to this committee -- his position is he would have no

11 ~ oppostion whatsoever to the -- being appointed by the School

o

o.

~r"' ~ ~hil? ~~.

12 ~"~.' Board. That would bring his office in line with the relation-
to the Board of Regents and the Chancellor and in line

_.- 14 with the practice found in most states. As I said within the

IS '~ confines of this room, I think it would be political suicide
:~
c' oo
16 3 for Dr. McDaniel to come out and advocate that he will not D
-t
17 ~ oppose publicly. And I asked him if I could quote him and

18 I he said yes you can quote me to the committee, that I will 19 support that appointment by the State Board of Education if the 20 State Board of Education is itself appointed by the Governor. 21 His position would be totally different if the State School
l"
Board would be elected however.

JUDGE HILL: To complete the report of the sub-

committee as to tmOffice of Attorney General, I suppose the 25 first question which must be resolved -- the subcommittee has

7

not yet resolved it by any formal action -- the question of

whether or not the Office of Attorney General ought to

~ remain as it presently is in both the Executive and Judicial

4 Articles and if not, then into which Article should that

office be isolated.

At Judge Smith's request our staff person, Vickie

Greenberg, has found that there are thirty three State

Attorney Generals who are provided for in the Executive

<) Article and five which are provided for in the Judicial

Hi Article, mostly southeastern states as to those five. And

t.-'

II ~ Georgia being in both the thirty three and the five since we o

. .,

. ,.~\'j,.

I. \J are again unique in that respect.

,>-;'t\

,.

r ... " \/ (~.-,."~,I\ \1 IH""'(, L

And with that, I'll throw it open for discussion.

, I t

...

.
,~

-<

T

CHAIRMAN SMITH: I didn't hear the final closing

l' ~,..~ argument of Dr. Gibson. What did he say as a conclusion? I

::>

',_, r:l
" ~ was on the telephone with Senator Horton.

1'

JUDGE HILL: That the State School Superintendent

I would not oppose being selected by a State Board of Education

appointed by the Governor.

CHAIRMAN SMITH: Why don't we deal with that one to ) I the finish before we get on the Attorney General problem?

To repeat some of the arguments in examining the

'question, this subcommittee found that this is the only

Constitutional officer who has a policy-making board. I think

as a practical matter, because of Mr. McDaniel's newness in

8
office and some of the other things going on in higher
education in Georgia, that this is the best chance that we
3 probably have politically to change him from elected to
4 appointed.
One of the things that came out in the discussion
6 was that when they sought to fill this position after Dr. Nix
resigned, they realized that they had these residency
requirements and so forth which would cut off the prospect of <) i getting some nationally known educator, for example, to fill
10 that role. There is no such prohibition as I understand it
oz
11 ~ down in the county and city school systems, who do appoint. e> i;~, :..d ~"- In other words, they can go and hire an expert from Kansas
~ City or someplace if that's the right person for the job.
i
~ I was asked to check on Dr. Nix's attitude toward it and in
<
:~
j 5 ~talking with Robin Harris about this problem on Friday, he ;t:
16 stated ~.':("\ that he had already talked with Dr. Nix and it was his Z 4
17 ~ feeling that they ought to be appointed instead of being
elected. Of course, the problem is when you have a policyll) !making board and elected official who is responsible, that's 20 the conflict we have in a situation like this. Many of you
have seen it on the county level. There are some counties ,",
in Georgia who elect the School Board and also elect the
School Superintendent. Who's got the ball? That's the
problem there. Do I take it that it is the subcommittee's
recommendation that we seek to convert this to an appointed

I' f\(~E 9

office?

JUDGE HILL: Yes.

CHAIRMAN SMITH: Okay. In that connection, I

.1 called David Gambrell, who is head of the Education Article

Committee, told him we didn't want to offend him or his

h " committee by charging ahead in this manner, and he allowed

as how he's not offended and that he would appreciate our

~~ recommendation in that regard. He said he could not speak,

of course, for his full committee -- I think they are to

10 meet the 24th of October?

,., 11 c!.

MR. HILL: Yes.

(,~,",-VJt:l\

CHAIRMAN SMITH: But he would like to have our

\"~<Jf_.=J./))/rJ'~""" ',~ feeling at that first meeting. I told him if the committee as

14 t; a whole went in this direction, probably what we would do is

0;:(

:I

I .~ :, simply delete any reference to the State School Superintendent

.,

1C,

~
~ as

an

Elected

Executive

Officer,

which

would

leave

him

the

-:t
I, ~problem of how the Board is appointed and how they are to

hire a State School Superintendent. In that connection, he 1" ! would like our input as to suggestions on that particular 21' problem. I think it was the concensus of the subcommittee's 21 feeling that he ought to serve at the pleasure of the State

Board of Education, much as the Chancellor does with the Board

of Regents.

I assume they would have the power, Charlie, to make

a contract.

PROFESSOR WILLIAMS: Question.

MR. GOWEN: You mean the State Board?

3

CHAIRMAN SMITH: Yes. They could give an employment

contract of two years or something.

5

MR. GOWEN: The present Article says he'll have such

powers and duties as provided by law, which would leave it

7 to the General Assembly to provide what to do, and I assume

the General Assembly has done that. It might only be necessary

to have the power to appoint the School Superintendent, the

10 State Superintendent of Schools.

u

z

11 ,.
'"()

CHAIRMAN SMITH: Well, I meant the practical problem

.nu.

(~r~ ~ ,-.;~\

12

::r:
;~: that

if

they wanted

to

get

somebody

in

the

job,

he

would

hate

to take it knowing he could I>e fired the next day, and I

14 ~assume they would have the right to make reasonable employment

<l
r

15 ~contracts. Isn't that what's done now?

,"-

~

16 ~
n

MR. GOWEN: I'm sure the General Assembly is given

z

<l
17 ~the power to contract. They couldn't discharge the duties of

Ii; the office without it, but I'd have to look to see.

J9

CHAIRMAN SMITH: Well, it is conceivable that the

20 iBoard itself, and I think this would be more proper for them

21 than the General Assembly, might want to have certain require-

))
ments for that job They might want to have certain

.2.' ,educational or experience standards before you could be

employed, and that's probably better delegated to the Board

than anyone else.

PAGE 11

PROFESSOR WILLIAMS: The current State School Board

members are appointed. Are there any indications as to what

position the committee will take with members of the Board?

CHAIRMAN SMITH: Well, I think they want them to

give us our ideas. We looked this up, they're appointed,

o subject to ratification.

MRS. HOLMES: By the Senate?

CHAIRMAN SMITH: In other words, the Governor appoints

and it's on a Congressional District basis, as I recollect,

JO subject to confirmation by the Senate.

i."
z

II "

JUDGE HILL: That's correct.

o

"

J.~
(((~U{C;~Y~.)1)t).I1f"''''''''!~'

~.
"~,}.

other

day

CHAIRMAN SMITH: -- I think it is

Now this entirely

committee discussed impractical to have

the folks

\, \,

,/ I

".:':~-~:.:.:~//"

.
I
i\ ~; run for the State Schoo;!. Board. We discussed that and you

0'

l~ ~would only get the very wealthy who would undertake that
C"'~
'J
;-~
16 ;~ obligation or some sort of nuts that might offer for the job, G

17 ~; and personally I would favor the current system or the inter-

mediate step, much as the Highway Board, of having the 1() i' General Assembly elect by Congressional District.

There's a little problem there. Charlie, you could

'j i speak to this I think the election by the General Assembly
,,
on a Congressional District basis does breed some sort of

provencialism into that person. He feels he has to represent .~..i that particular district, whereas a statewide appointment by

the Governor might produce people on the Board who have a

12

broader perspective. They're looking at the State as a whole.

MR. GOWEN: I personally think appointment by the

3 1 Governor would be a better way to select him. That's the

4 way the Board of Regents operates and I guess anyone in the

, education system can be the sUbject of controversy this day

(, and time, but I think the Board of Regents seems to be

, weathering the storm fairly well.

CHAIRMAN SMITH: All right. Melvin, in terms of

9 records, should we take a vote on these things?

10

MR. HILL: I would think so. I think Mr. Gambrell

11 :; would appreciate having a sense of the group.

o

'~

e,'

l1 J i~

..~
\, ~

CHAIRMAN SMITH: Judge, you want to convert that

into some kind of motion so we can take a vote on it?

...,,

JUDGE HILL: On behalf of the subcommittee, I will

T.

IS ;:, move that the Office of State School Superintendent be

J(, ~'C deleted from Article V, Section III, Paragraph I, and I

z

\,.

<l
~

" might say parenthetically that you all have in your packets

p, ! a proposal showing that deletion. It appears on page 1 of the

J<) proposal, lines 10 and 11.

20

CHAIRMAN SMITH: It's right in the top of your

21 packet.

JUDGE HILL: That the words State School Super in-
"
tendent be deleted from the existing Paragraph IV, which is .'4 proposed Paragraph II, appearing on page 2, line 7 of that

proposal and that it be deleted on page 3, line 20 and page 4,

PAGE 13

line 8.

Now if this motion carries, there would be some

housekeeping which would have to be taken care of with

't respect to whether or not the incumbent would continue until

he serves out his elected term. It would be my recommenda-

tion that he do so, and for the interim period I would just ') say that we will ask the staff to give us the recommendation

as to how to handle that and bring that back to you at a later

time. But this is really on the. basic policy decision as to It I whether or not the Office of State School Superintendent

Ii (should be elected or selected in some other manner.
"
CHAIRMAN SMITH: Yes.

VOICE: Second.

C}ffiIRMAN SMITH: Any more discussion on that

1c; ;~ recommendation?

1() I~

All those in favor raise your hands, I guess.

I ....

(Votes were cast with raised hands.)

I,.,

CHAIRMAN SMITH: Are there any opposed? I don't

see any.

All right, that is now writ in stone. I suppose

that a subsidiary question would be what sort of recommenda-
) .. ~
tion to make to the Education Committee on the Board itself.

Yes, sir.

MR. ENGLISH: Thinking about having the legislatur~

appoint Board members based on Congressional District lines and.:

i' \ i

14

so forth, we have to acknowledge the fact that the Districts

2 of the State for Representatives and Senators are not

necessarily contiguous to Congressional Districts, and with

4 that in mind, I think it could cause some problems. Certainly

5 down in south Georgia where I'm a native, there are a number

6 of Districts --

7

CHAIRMAN SMITH: That overlap.

MR. ENGLISH: I would personally be in favor of

9 i continuing to allow the Governor to appoint the State Board

10 of Education.

,-' z
11 ,.

e<
c

ij,
. ) '.:::

L. "

~sv

~

(I('"~:j)\)f~!''''"". ~as

\~-'~;/'

-.--

14 ,.

;~
4.
-[

CHAIRMAN SMITH: Subject to confirmation. MR. ENGLISH: Subject to confirmation by the Senate, it is at present. CHAIRMAN SMITH: Ed?

15 .';
e)

MR. JACKSON: Just to lay a background for the

'";,;n>

16 ~ committee, the Highway Board Transportation Board is the

z
17 "co only Board so selected by the legislature. The reason,

18 iaccording to the biographer of Eugene Talmadge, Wild Man from

1') Sugar Creek, is that at one time Federal highway money came in

and Governor Talmadge and some of his backer would go into a 21 ,room and look at a map and say all right, who wants highways,

you're going to get so many millions of dollars of highways.

So what the legislature did, they took this power away from

the Governor and they did it according to Congressional District

so each District would get theoretically a fair amount. But

PAGE 15
it was because of the Governor's abuse and because you were dealing with money that theoretically should have gone to the State generally. But that's the reason why you have the .j legislature appointing the ten members of the Transportation Board.
DR. GIBSON: I do think, Judge Smith, that if you look at the Regents, there is a provision for appointing some at-large members and that might take some of the sting away <) I from limiting that just to Congressional Di~tricts. The committee might want to at least consider the addition of the ":Z. II ~ at-large members to the current selection of the School Board.
CHAIRMAN SMITH: How many current members do we have,

MS. NONIDEZ: Ten plus five at large

I .:; ,'j

CHAIRMAN SMITH: Five at large now?

,

;~

1I)

DR. GIBSON: On the State School Board?

MS. NONIDEZ: Regents.

MR. GOWEN: There's only ten on the Board, if this
:\1
, is correct, one from each Congressional District.

CHAIRMAN SMITH: IS it fairly certain we're going 2l to have ten Districts?

MR. TIDWELL: Yes, sir.

CHAIRMAN SMITH: Okay. Well, there are two or

three things in the air, to go from the end backwards. Should

we recommend to the Gambrell Committee the addition of some

'.\ I., \,~

16

:r ._'- ...

1 It at-large members as well as the ten now provided for by law?

,I

Ii
2 11

MR. CHILIVIS: with the at-large members being

'i

appointed by the Governor, as he does now?

4'

CHAIRMAN SMITH: Same appointment, right.

MR. CHILIVIS: Okay.

MRS. HOLMES: All being appointed by the Governor.

"7

CHAIRMAN SMITH: Subject to ratification.

MRS. ADAMS: At-large members seem to add some

9 balance to a board I think, although these representatives

10 on the State Board of Education are appointed by the Governor

11 '~" and therefore less political and probably a little less

;J::
o
12 ':"~ provencial. I think having a few people at large would be

~(,'(\:'S(V.-.~"d)\)r~~ ~i- hapful.

~/

,

14 ;-

CHAIRMAN SMITH: Tom, how does that sound to a

.,t-
V'

15 ~:t seasoned legislator?

REPRESENTATIVE BUCK: I think it sounds fine. I was
'a"
~
l' ~just going to say Regents has five at large plus the ten, so I

18 think it's a good idea.

19

If you want to make a recommendation, I'll make the

20 motion if you want it, Judge, and say that the recommendation

21 would be to increase to one from each Congressional District

1~ plus five at-large.

CHAIRMAN SMITH: As a practical matter, does the

. .\ Governor consult with the members of the General Assembly from

2', those Districts when he gets ready for an appointment?

PACE 17

REPRESENTATIVE BUCK: As a practical matter, usually

2 if he finds somebody that wants and they are few and far

3 between, Charlie Tidwell can tell you more about it than I can

4 -- but usually you find two or three in a Congressional District

5 that want it and there's a lot of politicking going on from

6 the standpoint of trying to get members of the legislative

7 delegation in that Congressional District to make recommenda-

8 tions to the Governor and that's healty in a way I think,

9 I because there may be three or four factions that give the

10 Governor an opportunity to look in and see who may be

"z
11 ~ qualified and who may not be qualified. It's the same way with

...o
0..

1::' ~ the DOT Board.

@ ~ \~,\0,--;-;,:,\)\/C),A;T"-"O

~
~

CHAIRMAN SMITH:

Well, I assume that is a motion

~?

I
14 ~ from Tom. Do we have a second somewhere?

VI ~

J:

IS ..')
"":>"

MR. GARRETT: I recond it.

16 ~...

MR. JACKSON: Would you restate the motion? I'm a

az

~
17 ~ little confused.

18 II

CHAIRMAN SMITH: The motion is that we recommend to

19 !the Education Committee that the State Board be ten from the
I I
20 II Congressional Districts and five from the State-at-Iarge, all
21 Ii to be appointed by the Governor and confirmed or ratified by

22 !I the Senate, in accordance with the current procedure.

:1

23 Ii

Why don't we get rid of that first. All those in

Ii
24 III' favor of that recommendation, raise your hand.

25 II

Le--I

.

(Votes were cast with raised hands.)

PAGE: 18

CHAIRMAN SMITH: Opposed? There are no dissents.

Should we recommend anything about terms? We now

3 have the possibility of the same man being Governor for eight

4 years and the question of a particular Governor at some time

5 being able to dominate or "pack" one of these boards is

b something that runs throughout all of our consideration on

7 these appointments. I believe the Regents now have seven

year terms.

9

MR. TIDWELL: Seven, and the State Board too.

10

MR. GOWEN: And the State Board has seven years, too.

"z

11 ...
o'"

CHAIRMAN SMITH: Would that take care of it, or

"-

~

~~\ ~ 12 ~ should we just let them worry about how to space it out?

;J ii'),c-u-m-". u

MR. GOWEN: The present provision in the Constitution

}

\"l

'i/

I

14 i: is for seven years. This would give -- adding the five

"4"

r

15 ~members would give the Governor who appointed those five, we

'::">

16 c~o assume it was ratified during Governor Busbee's term, would

z

4
17 ~give him the authority to appoint the majority of the Board,

18 but it wouldn't exist after that.

19

CHAIRMAN SMITH: All I'm saying is the nitty gritty

20 of staggering and all, I suppose we could just leave to that

21 , Education Committee, but it's a thought that ought to be
n : conveyed to them. It appears to me that they should take care

23 to arrange the terms so that it would take a long time to
I

24 , revamp the whole Board by anyone Governor.

I

25

REPRESENTATIVE BUCK: We discussed the other day, the~

_-_._--- ------_.,- - - - - - - - - - - - - - - - - - _.. - .. ---~--_._

PACE 19

longer you make those terms, the less likely the Governor

would -- could stack those boards and this situation is

something we've got to cross as far as who is going to make

those additional five appointments. But I think we ought to

let it stay like it is, seven years.

CHAIRMAN SMITH: Okay. Have we voted on that?

MR. GOWEN: Probably the Education Committee, because

it is dealt with in such detail in the Article on the State ,, Board of Education, should probably provide for staggering the

111 five members.

\..'}

L.

11 n"

CHAIRMAN SMITH: So as to make some system out of it.

,~J,'

12 ~

\\'y)/--"'" ~"\\\ 3 ;.;..'jiY.!icl
1/./

~
"''''''0. ~~

<:::::::~ /.

MR. GOWEN: Yes. CHAIRMAN SMITH: Well, ,lest we interfere with them

!4 ~too much, why don't we leave that problem to them, but give

.(

I': ~them our thoughts on it, that it ought to be staggered. Is L:. :;",1
1() ro
~there anything left to vote on?

.(

JUDGE HILL: There's a housekeeping matter. I note

that the Office of State School Superintendent appears in

Section -- Article V, Section IV, which has been transferred

to the Chilivis Subcommittee, and so you all may want to take
),
_1
care of that situation in your subcommittee.
',)
CHAIRMAN SMITH: Is this thedsability

JUDGE HILL: That's the disability provision, yes.

CHAIRMAN SMITH: Okay.

JUDGE HILL: And I also would now like to actually

20
:1
ask the staff to make a recommendation to us as to whether or

not any changes by virtue of what we have done, any changes are

necessary in the Education Article, Article VIII, Section III,

which for your information appears on 65 of the -- is that a

brown book or rust?

MR. HILL: Rust.

JUDGE HILL: Thank you. We have not taken any action,

! think, which would affect the fact that the State School

Superintendent is provided for there in Article VIII, Section

III, Paragraph I.

l?

7-

11

MR. GOWEN: Shouldn't that be left to Mr. Gambrell's

~.
:! subcommittee to iron that out?
~
JUDGE HILL: With this qualification, Mr. Gowen, if we

~present a Constitution Article for revision and it were to
.( (
I~ :;be adopted and then they were to undertake to conform their

11\ c~.o, provision and their work were not to be adopted, we've got a
4
17 ; hiatus and it may be better to do it all at one time than to

Ii) do it in staggered terms against the possibility you could

19 end up with some inconsistent vote .

.~(l

CHAIRMAN SMITH: This came out, I think, from you

21 that there is no inhibition in proposing a Constitutional

amendment to do, for example, what we have said, and at the
" .;
same time adapt a piece of another Article to conform. The
2-1 Select Committee would have to coordinate that thing in the
"..... ultimate, but there's no legal reason that we can't adopt a

PAGE 21

new Article IV or V and a piece of some other Article, as long as the Select Committee approves that. Is that a fair

statement?

MR. TIDWELL: That's right, sir.

MR. HILL: Mr. Chairman, you had pointed out earlier that on October 24th the Education Committee will meet

and they may very well be able to resolve this question themselves and they may recommend the same, and then we can (, take care of the whole thing at once.

JUDGE HILL: Very good.

!1 !

MR. HILL: We'll be forwarding this recommendation

to that committee and working with them.

CHAIRMAN SMITH: Melvin, I think this probably
I~ calls for some sort of formal report over to the Gambrell
Committee. If you would undertake to have these minions of
-"
~ yours put something together, we'll get that job done. It
d
. might be helpful while we're discussing that to look at this

draft.

As I say, Judge Hill must be wanting to get his work .:', , over with because he's running right down the road. Why don't

we go through those changes that he has recommended, setting

aside for a moment the question of the Attorney General and

Other Executive Officers. In most of the instances, they

have simply deleted what appears to be excess language in the

current Articles. I do think a matter of substance relates to

22

the qualifications of these State Elected Officers and after

much debate, we reduced the residency requirements to four

years next preceding an election or appointment, 25 years old

4 and four years of residency. The feeling there was that we

now live in a very mobile society, people are moving around

all the time and we should not deny this State an exceptionally

well qualified person because of the fact that he had been out

,< of the State for some period of time and came back. The

U counter argument is that we don't want to become like New York,

[0 where some nationally known figure can simply move in a week

1_"
"Z.
j) l before the election and announce and somehow, through personal
,(

I: ) popularity, obtain or capture one of the state offices with
(\(~ r.~.._,?-~6:~'\\J \\!,~~'l.'.'Ic )f really no background.
\::.~~~//

14 ,-

The four-year figure was sort of unilaterally set,



\5 .') but I think one of the thoughts there was that at least the ,'j ~ _.,

1(1~," person would have been around for the previous elections and c I
<;
l' i;; have a little bit of a grasp on what the State problems were,

18 but that is a matter of at least some substance in terms of

J9 the qualifications. There really wasn't any discussion about

~n the 25 years of age. Unlike drinking, it's sort of a -- it's

'I there because it's there.

1,

JUDGE HILL: I might note that in the Constitution of

, ', 1945, it was 30 years of age and it was reduced to 25 in the

176 Constitution. I hate to say anything about the 176

Constitution without checking with Charlie Tidwell, but I think

!'\(,1': 23

I'm correct in that. There has been a fairly recent reduction

in age as to these Constitutional officers.

CHAIRMAN SMITH: As I recollect, that's about the

median age of all Georgians now, it's down to about 25 in

terms of our population shifts so you could make a good

argument that that gets the average, though I hope we don't

get average candidates.

DR. GIBSON: Mr. Chairman, I assume as a housekeeping

function, the staff will clear up the gender problem we

10 referred to, he and his, all the way through and while it may

II ~ not be very important right now, I think it should be corrected.
'-

/"-;,:'2'/,1;~l>><J',

CHAIRMAN SMITH: There is a general statute of the

i', \i~=_>~Vt\'\-"-"'''O

7
ii State

which

says

wherever

the

law

says

"he",

it

also

means

I,: ;: "she" and so forth.

1"

DR. GIBSON: Does that govern the Constitution?

11,

CHAIRMAN SMITH: It would not govern the Constitution.

l' If the ladies present want to strike a blow for ERA or

lk something, we can go through the convoluted language.

MR. HILL: We're attempting in the other Articles to

try to do that with as little clumsiness as we can find, so we
)I
will attempt to do that.

MRS. HOLMES: It's not too difficult.

CHAIRMAN SMITH: Okay. Judge?

JUDGE HILL: If I may, the subcommittee on Other

Elected Executive Officers, frequently known as the Other

i',\,: 24
I" -
Committee or the Other Subcommittee, would like to transfer

to the Governor-Lieutenant Governor Subcommittee the language

~ which you find in the proposal which has been marked out on

4 the bottom of page 1 and the top of page 2. This I have

referred to as the Talmadge-Thompson provision as to Other

Elected Officers.

The Governor's sections presently have a provision

whereby if one of the Other Elected Constitutional officers

9 dies or resigns after he has taken his oath, then the Governor

10 will appoint a successor for the remainder of the term which

]! f could be up to four years. This provision authorizes an r'

!~\~v~\

12'
~

incoming

Governor

to

appoint

where

the

candidate

elected,

who

\ (~))r="~ ~ has not been sworn in, dies between the November election

~-<//

-~

It dies or resigns between the November election and the first

1~ l~' day of the new term, which is the first week or so in January. ~> "-,

16 ->--

It was the feeling of the Other Subcommittee that

Ci

<
17 'w" the provision for appointment by the Governor should be in

1"0 the same place in the Constitution and perhaps should be

19 ; coordinated because whereas the other provision provides for as 20 much as a four-year appointment, this provided for an appoint-

ment until the next general election, which would be for two 1 , years and for confirmation by the Senate. So with the

permission of the full committee, we would like to transfer

that to the Chilivis Subcommittee for their consideration,

_~5 having simply pointed out that there is some diversity as to

25

whether or not there should be Senate confirmation and whether

or not it shall be for two or four years.

CHAIRMAN SMITH: I think everybody felt that it more

4 properly belonged together rather than in two separate places,

~ Nick.

MR. CHILIVIS: Okay.

MR. THORNE-THOMSEN: Just a question. Judge Hill,

x 'do you see that fitting in in the Paragraph IV regarding

Y . filling the vacancies, that's Section II, Paragraph IV on

10 page 33 of the rust Constitution, or would it fit in in some

i i ~; other form
'i)

other part of those.

;) u

JUDGE HILL: It would fit in with that paragraph.

('I:"''-9V1.(,,/>\

"

(\(,(iI..;;.l))("""" :; You will see in that proposal, reflected in Section II of the

Ii ,proposal on pages 3 and 4. Of course, we're not bound in
-:
]) '~concrete that the Chilivis Committee can only have it if l? .,
!i Z,they'll take it where we put it, but -- if it will be any Q
J' ~" help, maybe I can run through some of these others.

iX

CHAIRMAN SMITH: Is there any objection to that

1'1 transfer?

MR. CHILIVIS: I don't think so.

)j

CHAIRMAN SMITH: Okay. Why don't we go on then and

let's set aside the question of the Attorney General until we

get these language things worked out.

JUDGE HILL: Looking at the proposal of the Other

Subcommittee, which has been adopted by that subcommittee, at

26
:'( -
the bottom of page 1, lines 21 and 22. Those are grammatical

changes primarily, except that we do propose to change the

word "time" to "term". "The Governor presently serves for a

4 term of four years and until his successor is elected and

qualifies." It could be argued I suppose that if we kept the

word "time", then these officers would only serve for four

years, and I think there is a desirability to having a ho1d-

over provision so that if there were some delay in filling

9 that office, the incumbent would hold over such a short time

10 as was necessary for that office to be filled.

tj
;:
11 ,.
I~'
"'w" ~ there.

CHAIRMAN SMITH: You also had the eight year problem Somebody could contend I was elected for the same

-f-,
~ time as Governor X and he was re-e1ected. So you could have

tI a little problem there.

o

15 ..,

JUDGE HILL: On page 2, you refer to the change of

"c'

III ~" from six to four years. We have added on line 12 the words

"or appointment", so that if there is an appointment, the IS appointee must also meet these Constitutional qualifications 19 as well as if he were being elected. The next changes are 20 really grammatical. They're on lines 12 and 13. We have 21 added "such oath" because both the '64 and '69 proposed

Constitutions had separate paragraphs requiring the taking of

an oath and we were able to incorporate it very briefly here.

24

MR. JACKSON: Justice Hill, would you mind on line

15 to strike "under regulation" and just put "as prescribed by

27

law"? Regulation legally is synonymous with rule, which is an

administrative promulgation and you're talking here about

statutory provisions, so just "as provided by law."

JUDGE HILL: Strike the words "under regulation" and

~ insert "as". I think that's not only a good change on its

b merit, it saves a whole bunch of letters.

The next paragraph, it appears that there has been

x , an addition. Really it's not so much an addition as a

movement. We have proposed to delete Paragraph V about Fees

!Ii and Perquisites prohibited, and to insert it in the Duties,

"z
11 ~ Authority, Compensation and Allowances paragraph.

o

'w"

i 2 ~:

The other change there on line 20 would impose upon

,~-
z~ the General Assembly the rather vague obligation to prescribe

;.~ duties, authority, compensation and allowances of the Other
"'~:
.'.
I ~ .: Constitutional Officers. 1":

]1, i w

We propose the deletion of Paragraph III there at

Cl

"1

17 ~" the bottom of page 2, thinking that it was unnecessary for the

IS Constitution to prohibit a Constitutional Officers from making

19 I a profit on the deposit of money; that if anything, the thing

ought to be broader, that perhaps it ought to be so broad as

to cover all State Officials, not only Executive but other ) '. branches, and then we ran into the problem that there are

..' some office holders who are asked to make public speeches to
..
.>' various groups and receive an honorarium in the form of a

memento of that particular group. And it's kind of rude to

! :\1 j

28

refuse to accept a miniature lion when you have talked to the

2 Lions Club. So we got hung up on that and decided to just
3 give it to the staff to have it reappear someplace in the
I
4 I Bill of Rights Article or one of those Articles relating to
5 all Constitutional officers rather than just to the Executive

G Officers, so that's the reason for that proposed deletion.

7

At the top of page 3, you'll notice we have not

8 really deleted Paragraph V. We propose that it be slightly 9 revised and moved~ Paragraph VI about the Great Seal, it was

10 felt that it was unnecessary as a Constitutional provision,

l)

-,!

11 \-- that this could be covered by law, and I think that pretty well

"()

0..

~,

12 ~ covers the proposed changes.

(~ (6jl: ~r~ ~

If there are any questions, if I've overlooked some

~;J; I

14 ;-: of them, I'll be happy to try and explain them.

~

r

15 .~

MR. GOWEN: I'd like to ask one question with

{''''

L::

16

3::>
reference

to

page

2,

lines

23

to

26.

I assume that deals only

oz

17 ~with compensation from the State. For instance, under our

i8 present system many people who have retired at the age of 65

19 have deferred compensation paid to them by the people they

20 worked for; they might be good people te put on some of the

21 offices, might want to run for the offices, and I assume that

was only intended to imply compensation from the State and not , ,, compensation that might come from other sources.

24

JUDGE HILL: I think that's correct. If you'll

2~ notice that particular problem would exist under the present

PAGE 29
IT ---I !i Constitution and there are some State Constitutional Officers,
Ii ) , for example, who hold say a military retirement which they

" continue to receive and it has never been seriously considered
i
II
4 !, that their receiving of that income -- perhaps it ought to be
i" !
cleared up, but certainly I think the present interpretation

h I has been that you would not get anything from the State except

as prescribed by law.

MR. GOWEN: And I think if they wanted, say for

Y instance, the Superintendent of Schools is a full time job and

lU he can't work on the side for somebody else, that could be

lz::l

I J ~ handled by statute and not by the Constitution.

".""

12 e,

DR. GIBSON: You aren't suggesting though that a man

(~'~)I)~} ;~j. . '~YF(

...

__ \ \ --. ,- J , CE'!!"'!" could hold, for example, an elected position and be on a

\~:=~-:-:>'/

I

14 ~ retainer for a private organization, are you?

.,

i:' .~

MR. GOWEN: Not on a retainer, but for instance, under

II ~ the present tax situation many corporations pay their executives o 7. <t
1~ ~ a deferred salary. That is, they've earned a salary while

IK they were there, but they've deferred the payment until they

I') ,come into a more favorable tax bracket. That's permitted under

the tax law and is a tremendous advantage to these people who
~,
- I might well want to serve the state after they have retired,

early retirement. Some of them retire at 60, in their early I 60' s.

DR. GIBSON: I guess I have problems with that. I

can understand your position, but I certainly would hope there

j'Ai;!', 30

would be some provision made to at least require the General

2 Assembly to meet that problem, because I would not want to be

3 a party to an action where you could get a person drawing a

4 salary from a private concern at the same time he worked for

5 the State. I think that's exactly what that provision would

6 place in the Constitution.

'7

MR. GOWEN: What would be the difference between

8 drawing a salary and owning 10,000 shares of stock in the

9 II corporation?

10

MR. STERNE: Or drawing a pension.

@

I.'J Z
11 1-
o"-
,l-
"~prevent

MR. that.

GOWEN:

There's nothing under the law that would

~] ",,~ ~

CHAIRMAN SMITH: Excuse me. Are there State statutes

14 ~ on conflict?

'4
r

I:' ">

MR. GOWEN:

Yes.

a-z

CHAIRMAN SMITH: It seems to me that's the area that

-0:

17 ~would handle that, that the General Assembly would set

Ix :standards for conflicts of interest by a public office holder,

!'J that that that's where that would ordinarily be handled. I

20 can think of an inoffensive one, Dr. Gibson, would be say a

21 retired FBI agent or a retired military man who put in their 20

years and they're not but 45 years old and they might be very

23 I fine public servants.

24

DR. GIBSON: I think we can all think of inoffensive

ones, but I can also think of many offensive ones.

Ll._,.

. - . -~-.---~

PAGE 31
CHAIRMAN SMITH: Oh, I can too.
DR. GIBSON: I don't want to be a devil's advocate
J i on this, but I just feel strongly about it. I don't see how
,I we can look at the past, the Watergate situation and the rest,
without remembering we're going to try to sell this thing to
h the people, and I would hate to think that we're going to
allow this particular matter to go unsaid. I feel it's
~, important. I do think that having stock in a corporation is a
Y conflict of interest and I would hope the General Assembly
l() has covered that. On pension, a deferred pension or deferred
<1 7
II ; salary, that's a little different.
()
MR. GOWEN: All of these people that we're talking
Jabout are elected by the people and now it's very popular to
11 ,make every candidate disclose what he has and where he got it.
"1
CHAIRMAN SMITH: Well, wouldn't the problem that Dr.
i.?
.'">
10 2Gibson refers to -- and I think it's a worthy thing -- ought
., 1~ ~that to be in the Bill of Rights section that we discussed?
JUDGE HILL: I'm not sure how you're going to handle
l'i it. It may have to remain for legislation. For example, we
have had public officers in this State who, because of disability, 11 received insurance proceeds monthly I think throughout their
pUblic career. A prohibition on receiving any fee from any
source other than the State would have prevented the payment ~..\ . from being made. You could have the same type of thing with
a military retirement or a military disabDity where the

l. If' 32

individual was wounded in a time of war and draws a military

2 disability pension of some type.

3

CHAIRMAN SMITH: Don't we now have elected officers

4 who are in business on the side, that have farms and own a

5 piece of some retail establishment?

MR. TIDWELL: Yes we do. That whole sentence, if

7 y'all will recall at the last meeting disturbed me a little

bit, and I've wrestled with it since because it is not only 9 referring to the Constitutional Officers, it says "No 10 executive officer", and we don't think our friends on the Court

II Ewould say well, if you intended it to apply only to the n ',~
~""'''' ~just 12 ~~ Executive -- Constitutional officers, why didn't you use "above" as you have here? So we're talking about every executive

14 ~officer and if we're just talking about them being limited to


r
15 ~compensation from this State, if that's what we say this means,

u::J
16 ~CQ then they can't get anything unless the law says they can

7

17

"'"
n

anyway.

IS

I don't know what this sentence means and it really

Jl) kind of -- I don't mean to be a critic, but I think we have a

20 fruitful ground for mischief here unless we know what we're

2J doing and if it gets in there that we have prohibited anybody

that works for the State receiving any other compensation, that

is a vast departure from what the present state of facts are

and maybe it is a wise one, but it ain't the way it is right

now.

PACE 33

CHAIRMAN SMITH: Well, I think the genesis of it was

insofar as the State Treasury is concerned, isn't that the

genesis of this sentence, that the legislature either directly

or by delegation sets the compensation and he's not to get any

other?

MR. GOWEN: I think it probably arose because at one

time the Executive -- Constitutional Officers and some Executive

Officers were members of boards. We had a great many boards,
:,
authorities, things of that kind and they all got $100 -- got

a certain amount of compensation by being a member of the board.

Ii ~,It got out of hand and the legislature undertook to stop it

'"

W/i

'i and I believe that may be when that provision got in the

! 7!~--'{1'\

(((it,J) )r"~'''''o ,;, Constitution, but it is clearly intended to mean from the State.

\., _~_ -_.__.",/1/

I' ..

CHAIRMAN SMITH: Nick?

x
MR. CHILIVIS: I think Mr. Gowen is right, that that

]1, .~," was the purpose of it. However, if you read it literally, it

looks like it covers all these other things that we're talking

about, and my concern would be the same as Mr. Tidwell's and J'J : that is that this would create a situation that would promote

lawsuits against Executive Officers if we leave it in here as

it stands.

CHAIRMAN SMITH: Well, maybe if you just insert

after "compensation", the first "compensation", "from the State"

it would clarify it.

MR. CHILIVIS: That would clarify it.

34

MR. TIDWELL: Isn't it correct though that that

~ sentence is not in the present Constitution?

MR. CHILIVIS: It's in the present Constitution.

MR. TIDWELL: Where?

JUDGE HILL: It was then only applicable to the

(. Other Elected Executive Officers.

MR. TIDWELL: Is it on -- let's talk about this one,

~ where is it?

MR. GOWEN: It applied only to the Constitutional

10 Officers.

II ,

MR. TIDWELL: Oh, I see. All right, fine. I got you.

12 ',}

MR. CHILIVIS: There are other boards or at least one

: (,~~~~Y'-)~,)!~."!'!'.~


other

board

that

I

can

think

of

offhand

from

which

the

~-"-"-"///

----

!1,,. compensation is not provided by the State, that there are

J5 ~Executive Officers who theoretically could draw money. I

1(, -.: don't know whether we want to cover that or not. The ]' ~ legislature has prohibited these Executive Officers from

!b receiving the money. I'm referring to the MARTA Board. You

19 know, there's a statute that says the Chairman of the Department

of Transportation and the head of the State Properties

Commission and the Revenue Commissioner belong to the MARTA

-; 1 Board MARTA Board members get paid up to $500 a month for

'1.:, attending meetings or they used to, I guess they still do, and

2,1 they are prohibited by statute from receiving that. But I

think that could be handled by a statute and your language

1'\<;1: 35

would clarify that.

MR. GOWEN: I move that the language suggested by

Judge Smith, "from the State", be inserted in the proposal.

CHAIRMAN SMITH: Is there a second to that?

MR. JACKSON: Before you vote on that, I've got a

question. Do you want to make this so elected Executive

Officers, because if you don't you've got Public -- well, I

don't guess Public Service Commissioners would be considered

Executive Officers, although the Court has ruled the Public

Service Commission is an Executive agent, so do you want this , .! , to apply to them also or do you want it to apply to the

!I !

people who are left as "Constitutional Officers"?

.,

CHAIRMAN SMITH: Well, I think the sense of the

. subcommittee is if we are going to clean the thing up, we

ought to clean it up across the Board, not just for these four

if> ,'or five officers. Except this sentence -I:' MR. CHILIVIS: It says "No executive officers . "

CHAIRMAN SMITH: Which would be any executive officer

: ! of the State as well as elected by the people. 1 haven't

answered your question, Ed, because I don't know the answer.

Are you suggesting that this be expanded to include members of

boards?

MR. JACKSON: No, I'm not. I'm not even sure I'm

suggesting it be expanded to the Other Executive Officers --

.well, you're saying strictly "from the State".

36
CHAIRMAN SMITH: "From the State". JUDGE HILL: I'm not sure how I can make this clear, but I think I' nl correct in saying that the words "from ci the State," are really written by implication into the present provision. That's the way it has been interpreted. Now that h being so or even adding "from the State", it seems to me we've added nothing because nobody can get any compensation from ~ the State except as prescribed by the General Assembly, and so 9 the first sentence which we're not even considering changing 10 which says "The General Assembly shall prescribe the duties,
(,~
0 Ii authority, compensation and allowances of the above executive
:officers ... " really takes care of that situation. CHAIRMAN SMITH: For these officers. JUDGE HILL: Now from the standpoint of making a
~ I, ,l X
c~ statement as to ethics and morality in public office, maybe the
'.')
":.~
16 .~ sentence needs to be there, but I would suggest that maybe it
17 oreally needs to be in the so-called Bill of Rights section.
l~ There is a Governmental Section of the Bill of Rights, if you'll J" look in the rust book on page 6 6 and 7, you'll see
provisions which would be applicable not only to the Executive -'-f Department, but to the Judiciary and perhaps even the Legislative ".-) even though the Legislative poses unique problems because
they're not considered full time State officials. But it 24 seems to me that whatever statement that should be made with
respect to ethics and morality, and I think there should be one,

37

really ought to be in the Origin and Structure of Government

I Section of the Constitution.

MR. HILL: Is this a motion to make this

recommendation to the Article I Committee?

JUDGE HILL: Let me see if I can get some feedback. '; If there's enough votes to make it a motion, I will.

DR. GIBSON: That would resolve my problems, Judge.

I have no problem with that. Somewhere in there, there is

some obligation -- legal obligation on the part of the General

1(1 Assembly if nothing else to prescribe conflict of
\.J

prescribe

.' :, conflict of interest rules. I just wouldn I t want it to go

,) totally blank because I think it is a very important point.

MR. TIDWELL: There are provisions now that prohibit

State employees from serving two masters. You can't work for
\:
! the Department of Human Resources and be hired as a

~consultant to the Revenue Department and be paid. Now there

~are certain exceptions to that, and the legislature is always

constantly trying to come in there and add different categories.

I think nurses now can work somewhere else, but their typical

thing that they're trying to prevent is a department hiring
.".'1
a professor at one of the universities where he continues to

getms pay and then he goes over and acts as a consultant

for one of the departments.

DR. GIBSON: You don't have to get personal now.

MR. TIDWELL: There are some instances where it is

38

very advantageous to the State that some of these people be

allowed, on a very limited basis, to serve two masters. I

3 think some architects are an example to that and I think some

4 other professional services, but it has been addressed

statutorily and I don't know what impact this has on it. As

I said, I have worried and troubled myself with that sentence

since we talked last week. I have nothing constructive to

offer with regard to that.

CHAIRMAN SMITH: Justice Hill, is there anything

10 offensive about adding "from the State" and leaving it in

11 ~:, there?

"

.12

'"
'.f.

JUDGE HILL: (Nodding head negatively.)

CHAIRMAN SMITH: I think we had such a motion from

~'. Mr. Gowen.

j:; ':.'
\9 r.:-::
16 r~<,' second.
17 ~:i

MRS. ADAMS: I'll second that motion, if you need a MR. TIDWELL: That will prevent some of these things

18 !that are now statutorily allowed if you leave it "all

19 executive officers". I don't mean to say that to defeat the

20 motion, but I just want to point out what's going on. There

21 are some people now that do that.

22

CHAIRMAN SMITH: But couldn't the legislature continue

to do that?

MR. GOWEN: The legislature provides, I would take it, 2S ,that those are instances where the legislature provided for them
I

PACE 39

to get compensation from two sources.

MR. TIDWELL: They have only authorized them to go
!,r
to work somewhere else. They have not authorized the

compensation that they receive. I think this -- that sentence

\ might prohibit that arrangement altogether. I don't know,

maybe it should be

CHAIRMAN SMITH: I wouldn't think so, because it

simply says they aren't to get anything from the State other

than what the legislature says they're to get.

III

MR. TIDWELL: But the legislature will not pass a

V,)
]! ~ bill saying that Mary Jones who works for Central State Hospital n

12 ~may receive compensation from the Department of Corrections

; for her services down at Reidsville State Prison.
"'."
~ not authorize that compensation.
~',
CHAIRMAN SMITH: Tom?

They will

\:
I I , Z,.,

MR. THORNE-THOMSEN: Could you have a provision that

D

actually mandated the General Assembly to prescribe such rules

and regulations governing the receipt of compensation from

!'! other sources?

::0

CHAIRMAN SMITH: Well, we don't want to invite it.

~' i

MR. CHILIVIS: That authorizes it in effect.

,,

MR. JACKSON: Do we have a motion before us?

CHAIRMAN SMITH: I think there's an un seconded motion.

PROFESSOR WILLIAMS: It has been seconded.

MS. GREENBERG: Is it possible to delete this from

l'\CL 40
Ii
this particular section since it involves all executive

? officers and not just the section subheaded Other Elected

3 Executive Officers, and recommend that another committee look

<1 into the problem?

MR. JACKSON: Bill of Rights.

MS. GREENBERG: Since we're trying to streamline the

7 I Constitution and make it easier for everyone to understand, if

we put this sentence into a section which says Other Elected

9 Executive Officers, it really is over expansive.

J()

CHAIRMAN SMITH: Okay. I gather then our choices

V:
z

11 '." are to adopt this motion or put it allover to the Bill of

"ll.

/~

12 ~C/. Rights.

~)r~~D ~

MR. GOWEN: I've got no objection to doing it that

'---''

i

14 f.;, way and I'll withdraw my motion and let it be put over to the

T
15 1 Bill of Rights.

L;

.~)

]6 ~

CHAIRMAN SMITH: Your problem, Dr. Gibson, might

CJ

t.

."

17 ". better be dealt with all at once by that committee.

18

DR. GIBSON: I would support that because I think as

19 Justice Hill says, it ought also I believe to cover members

20 I of the Judiciary and it's not covered under this, so I think a

2l more generalized statement in the Bill of Rights would be

very appropriate.

CHAIRMAN SMITH: The motion then is to delete this

sentence from the draft entirely with an admonition to the

Bill of Rights Committee to handle the problem of conflicts and

41

double compensation and so forth. Okay.

MS. CROCKETT: Delete that part of the heading also.

JUDGE HILL: Good point. We ought to strike "Fees

and Perquisites" from the heading as well.

~:

CHAIRMAN SMITH: All those in favor of the motion as

" restated, raise your hands.

(Votes were cast with raised hands.)

X

CHAIRMAN SMITH: Unanimous. Okay. There may be some

'J benefit in being first. We can just kick off all these things

IU to some other committee.

7

J I ,..

MRS. HOLMES: I think it would be interesting to

,0
,~~Y~1, ' ~find out what perquisites means, when you really get right
3)') ((:1- . ~ , r"'"'''' down to it. ' -. . . . '-
CHAIRMAN SMITH: I thought it meant a Cadillac.

MRS. HOLMES: Who wants that nowadays?

Ie I:
w",

CHAIRMAN SMITH:

1-; "~j on page 4, what is that?

How about the underlined sentence

j ><
MR. JACKSON: Just a second. Before we get there,

1')
ion page 3 on line 20, should the State School Superintendent be

struck?
'j

CHAIRMAN SMITH: He mentioned that earlier.

JUDGE HILL: Well, maybe I should back up and say

that in these -- in this proposal, proposed deletions have

lines through them and proposed additions are underlined. Judge Smith has asked what about the proposed addition on page 4.

42

That really is just the transfer to the Chilivis Committee of

the disability provision that was formerly in the Other

3 Committee's Article.

"

CHAIRMAN SMITH: Just so I understand it. Does that

5 mean the whole underlined sentence will go over to the

Chilivis Committee? Okay, but the nonunderlined portion will .,
remain?

JUDGE HILL: No, that's what he's already got.

\)

CHAIRMAN SMITH: So the whole paragraph would be out?

10

JUDGE HILL: That's right, it will be his problem.

MR. GOWEN: Might I inquire as to why removing the
~ J2: Secretary of State as the depository of the Great Seal? I
~(=. ,. ~ remember the hectic days of the two Governor fight when each
14 ~ side was trying to find the Seal because they thought they

J:
15 ~could attach that to either Herman Talmadge's or M. E
.:)
t6 ~Thompson's edicts and it would give it great authority, and
"l
17 c~:: as you know, Ben sat on it. But I just wondered why you want
IK to take that away and leave it to the legislature to put it in
19 somebody's hands. Had that occurred at that time, the legis-
20 lature probably would have deposited the Great Seal in the
21 Governor's -- in Herman Talmadge's office.

CHAIRMAN SMITH: That was discussed at the subcommittee

meeting.

JUDGE HILL: I'm not sure that even in those days, '-'c:: Mr. Gowen, had the legislature given it to either one of two

PAGE 43

candidates that that would have resolved the conflict.

MR. GOWEN: But it had great political significance

and that, of course, was a political fight. And if it ever

comes up again, it will be another political fight. It has

ii been from the history of the State the Secretary of State

has had the custody of the Great Seal rather than leave it in

the hands of the Governor. And the legislation that comes in

from the legislature goes to the Governor, gets his approval,

G i then it goes to the Secretary of State and a certified copy

of it can only come from the Secretary of State. It just seems

11 t to me that it -- I just wondered why the idea of changing it. o .n".

/.'

"~?'y~(('\

~

REPRESENTATIVE BUCK: Didn't we decide, Judge Hill,

i, ;(t~-/j}';)t)~!~c.,' ~7~- we felt like it could be handled statutorily rather than in

'/

14

~:the Constitution in an effort to streamline it and eliminate

J ~ ~~ verbage?

r::.

]h 7. w

JUDGE HILL: I think that was the thought behind it,

0

.,

]' ". that it could be handled by legislation.

1'0

MR. JACKSON: In fact, it already has been handled by

legislation
.'I -~
JUDGE HILL: I think that's correct. Mr. Gowen's
,! 1 question is though, should it be subject to being handled by
-,-',
. legislation?

MR. GOWEN: In other words, the legislature could now

take it away from the Secretary of State, that the Constitution

deposits there.

i li:< 44

CHAIRMAN SMITH: There was some sort of housekeeping

problem, Charlie, that you mentioned.

MR. TIDWELL: It was a small one if I remember.

4 The Secretary of State probably is no greater saint than any

.' other Constitutional officer, so let anybody have it. I don't

guess anybody cares who has it. I think Mr. Ben Fortson 7 would have cared who had it, Mr. Gowen, he wouldn't have

wanted that to happen, but --

DR. GIBSON: I guess the question is legally what --

10 is the possession of the Great Seal so important that it should

C1 :;:

JI

b e l-
eo<

in the

fundamental

law of the State?

I think that's the

"~jJ

(~\-5!~'-'!~ ~ ~ 12 ~'" question we wrestled with and our answer was we did not think

~_///

it was since it appeared to be handled by law.

14 ,_ t.,~

CHAIRMAN SMITH: Charlie, the way the present

I

15 ~ provision provides, the legislature could order it affixed and

,<

;)

1(.,

~ C"
0

so

can

the

Governor,

so

what difference

does

it make

where

it

.~

-.l

i s ? 1 ~

CL
c::.

In other words, the language struck there says "shall not

i-" be affixed to any instrument in writing except by order of

19 the Governor or the General Assembly."

20

MR. GOWEN: I have not committed I'm not committed

21 to any particular thing about it, but it just seems to me .,
)
after -- I don't know about the present Secretary of State, but
,, Mr. Tidwell says Ben Fortson would have been very much upset
)I
".~-,. about taking it away from him, and I don't know about the

"'(:
present one, but it just struck me it's got to be in somebody's

PACE 45

hands and to change it around from legislature to legislature -~

CHAIRMAN SMITH: What do the current statutes

.3 provide'?

4

MR. TIDWELL: It says part of his duties is that

he is the keeper of the Great Seal and as Mr. Gowen points out,

that could be changed statutorily. You could give it to the

Attorney General, give it to me or anybody else.

CHAIRMAN SMITH: Mel'?

MR. HILL: Mr. Chairman, I'd like to know whether the 10 committee feels removing this provision would generate any

~public opposition'? To what extent do the people feel -- this

1 1 r.t:

/'2f~j(,t\

;~ is one of those things that, you know, you're just taking away

(~~::=?,!);-_'.!!!."~'D ~ one of their, you know, identities with the government. I just

...... -. /
14 1:-: don't know the extent to which this may raise more opposition -T"
I:; :, ~than we think among the public and I just kind of wanted to .::::

.j

1I,

z ~know

what,

you know,

people might

think

about

taking

out

the

"z.

I~

<t u

"Great Seal.

I~
MRS. ADAMS: You think that's a tradition they may
,-,
j'"
want to hold onto'? I know in local communities usually the

Clerk is assigned the duty of holding the Seal and not the

Mayor.

CHAIRMAN SMITH: The real issue is, does it belong

in the Constitution or should it be left to statute. That's

what we're down to. Like the Roman mace, I guess we'll put it

on the table in that open session. Well, what are your wishes?

rr-'

1\

Do I get a motion either way?

2 IIiI

MR. JACKSON: I move we stand with it -- with the

I

3 ii deletion. My feeling is, in explanation to Mel, at this level ii

,t we can't be insensitive to what people are going to think,

5 but, you know, there's two more levels above us that can take

that into consideration. I think our role is what should go

7 in a Constitution. Provisions about who is going to be the

~< Seal keeper don't go into the Constitution, so I move that we

Q i stand with the deletion.

10

CHAIRMAN SMITH: Is there a second?

<)
z
I] ;~

MR. CHILIVIS: I second it.

"()

u"'.-.

12 :

CHAIRMAN SMITH: Any further discussion on the

@ r'-"o SV;:;:

(~~/~.i

~ motion, which is to delete?
'i

14_
,-

All those in favor, raise your hand.

~

T

15 ,".~.,

(Votes were cast with raised hands.)

'";;J
I() ~
"n~
z
<f
17 ~

CHAIRMAN SMITH: Opposed? (Mr. Gowen voted with raised hand.)

18

CHAIRMAN SMITH: Mr. Gowen is opposed. All right,

IY other than the selection of the other Constitutional officers,

20 doesn't that pretty much take care of your Article, Justice

21 Hill?

22 i

JUDGE HILL: Yes it does, and if it's appropriate,

,~3 subject to the situation with the Attorney General and perhaps

24 the District Attorney, I'd like the full committee to accept

,2:' from the subcommittee this proposal as it has been modified at

PACE 47

this meeting.

CHAIRMAN SMITH: All right. The motion, setting

3 aside the question of the Attorney Gene~al, is whether to

,i accept it as is. We've changed it here today, now it's before

you.

I might say that we have not discussed Comptroller

General, Commissioner of Agriculture, Commissioner of Labor or
I~
~, Secretary of State. The subcommittee, I think, felt that

9 none of those were going to get changed, but that doesn't ~ean

10 we shouldn't consider it. None of tho~e officials have policy-

t.:;

z.

11 ~ making boards to direct them.

~

?

In other words, they have

~ plainary powers by virtue of their office. Judge, we did

>, l
~ have a discussion about changing the name of the Comptroller

I
t; General, since nobody knows what that means anyway.
<t
:..:
JUDGE HILL: That's true. Let me broaden the
t.J
"~)
I ( !. reservation in the motion. It's subject to the Secretary of D z '1
1: ~ State, Attorney General, Comptroller General, Commissioner of

10 Agriculture and Commissioner of Labor discussion~ that the

J<) full committee accept the proposal of the subcommittee as it

::'0 has been modified at this meeting.

::' j

CHAIRMAN SMITH: ~ll ~ight. You've heard the motion,

seconded by Mr. Buck. Any further discussion on the motion?

MRS. HOLMES: I'm sorry, I came in late, which I do
,.
-I apologize for. It was beyond my control, but what you're

saying is that this part has not been discussed. I thought

1 Ir~~:~:~~-~ had missed that.

I 2

JUDGE HILL: That's correct.

,p i 48

3

MRS. HOLMES: And we could possibly amend it.

4

CHAIRMAN SMITH: I'm not sure when you came in, but

5 the committee voted to recommend that the State School
,
6 " Superintendent

MRS. HOLMES: Yes. I was not that late.

JUDGE HILL: I think truly the committee can back l) I up and make any changes that it wants to. What I'm trying to

10 find out is do you want us to take it back and rework it

lZ' II ~ some more or are you willing to have it before you in this
o
"-
Ii.,;
(@) ,,_.. ~12 ~ form at the present time? MRS. HOLl-1ES: We're accepting it in this form under-
\'S;:;/J) I

14 .f~~ standing that these other officers will still be discussed

:r

15 ,~

CHAIRMAN SMITH: That's correct.

l.:>

3:'">
16

MRS. HOLMES: Okay.

"

17 ~

CHAIRMAN SMITH: Any further discussion?

18

(No response.)

19

CHAIRMAN SMITH: All thosem favor of the motion,

20 raise your hand.

21

(Votes were cast with raised hands.)

))

CHAIRMAN SMITH: Opposed? Unanimous. No opposition.

_) .,' Again, setting aside the Attorney General, why don't we now

24 take up the question of these other elected State officials.

}) : As I stated, an examination seems to reveal that none of them
j L .__. _

PAC:l,: 49

rr----

II
,

have

policy-making

boards,

that

they

have

independent

duties

) IIII prescribed by the legislature. As a personal aside, it

Ii

, :1 sometimes seems to me that the Secretary of State, except I' I!
4 i perhaps in the election areas, is pretty much an administrative,

officer, but the others do have policy-making well, the

Secretary of State has some policy-making powers in the

7 securities field, for example, Charlie. There are several

~ I areas that he does have considerable discretion and policy-
'I :i making duties. Anybody have any ideas as to whether this

iU committee should recommend some other selection that popular

11 i.:election for the remaining officers?
[,,,.)-,

/,;,,,?JYl:t;1

12 ~ ~

MR. GOWEN: Leaving out th~ Attorney General?

(\r~(;td/)))\rf-''''''oo ht~

CHAIRMAN SMITH: I think the subcommittee believes

/ '~":=,-~~//

1

14 >~- he should be elected. The question is which Article he belongs

<1

j~

.I
".~ J.n,

which we're

going

to

get

to

in

a

minute.

'";:-)

,;:j
16 z "0"

-- JUDGE HILL: I might point out and let me ask

7~

1'7

1
'''Vickie,

did

the

packet

contain

the

computer

printout?

IN

MS. GREENBERG: No.

IU

JUDGE HILL: Let me just show :(ou this, the 1976

Constitution as amended in 1978, when there were 36 amendments 21 proposed and I believe about half of those passed. The

computer searched and found where the Office of Secretary of

,State is referred to, also all of the other officers. The

Secretary of State's Office is referred to in more other

places in the Constitution outside of the Article that we're

50

now talking about than any of the other offices.

2

Just to give you a visual picture of it, the Office

3 of Attorney General appears in what appears about a dozen

4 different places. State School Superintendent shows up in

5 about eight places, but it's concentrated in two Articles.

() The Comptroller General appears in about ten or twelve places

7 in the Constitution; Commissioner of Agriculture in four,

8 three of which are in the Article we're dealing with, only one

9 outside reference; and Commissioner of Labor appears only in

10 the Article that we're presently dealing with.

11 ''o""

DR. GIBSON: Judge Smith, Vickie has an item of

n.

12 ~'" information.

(@r~~~

~

!

MS. GREENBERG: This was provided to our subcommittee

14 ~ by Dr. Gibson and it deals with these other officers. For

'4
I
15 ~ example, Secretary of State, 38 states including Georgia provide l? ":>"
16 ~ for this officer in their State Constitutions. The Commissioner a z

4:
17 ~ of Agriculture, only nine statees including Georgia provide for

l~ this officer in the State Constitution. As far as the

19 I Commissioner of Labor is concerned, only three states including

20 Georgia provide for this officer in their State Constitution.

21 , As far as Comptroller General, Georgia is the only state with

22 such an officer and most states have banking and insurance agencies.

23

MR. JACKSON: Do you have figures on how many states

24 elect these officers?

MS. GREENBERG: Thirty-eight states elect the Secretary

PACE 51
ri of State and those are the same ones that provide for it in

2 the State Constitution. Nine states elect Commissioner of

Agriculture and these are the sarne nine that provide for it in

the Constitution, and only three states including Georgia

provide for the Commissioner of Labor and p~ovide that he be

6 elected in the State Constitution.

7

DR. GIBSON: I think you'd have a very difficult time

making any strong case for the retention of certain of those o elected officers on the basis of use, because we seem to be

IU "much more democratic" in our selection process than almost

~.,
z

11 ~ any other state.

"'v

'.()
12 .'"~

9HAIRMAN SMITij: I would be interested to know though

~i.dr=c," ~ ,~,

,=,
whether in those other states there is some authority above

'--, ,

14 ~ those people which there is not in our set-up, and that would

I" 15 ;~make a difference to me about whether they ought to be elected

Ii,'"~ or not. n

MR. GOWEN: How many states have the Insurance

IS Commissioner elected, for instance? You see, there are so

many duties that have been placed in the Office of Comptroller :I-l General which was a ver~ small office originally, but which

under Zack Cravey became quite a large office and became In-

surance Commissioner and took over the small loan business and

CHAIRMAN SMITH: Fire Marshall

.'4

MR. GOWEN: Fire Marshall, which after the Winecoff

:' 'fire became a very important office. They put a great deal in
[,----

i'i",F 52

that office that other states may have called by a different

name.

3

DR. GIBSON: Every state has an insurance agency and

4 every state has a banking agency, but those are essentially

appointed by the Governor with provincial kind of people. I

() think the argument thatZack Cravey was able to expand that

'-r I

office can be used against electing that officer because

8 certainly there is' some question in my mind at least as whether

'I that's the type office that we should be electing people to.

CHAIRMAN SMITH: Ed?

1] ,. e n

MR. JACKSON: I don't know whether there's a direct

@r"~ ~(2N4:l,

12 "
l-

relationship or not, but in the last election where Constitutional officers were elect~d, the '78 election,

----

14

nationally Georgia ranked at the bottom of the nation in

~

-<1

1.

1~ ~)
l~

number of voters out of potential people 18 and over and

'::":>

1(, ~
,..

citizens.

We had 18.7% of the people 18 and over who only

,.

'1

7I

.( CD

turned out so I don't know if there's a relationship to putting

1Ii

all these people on the ballot, but we had one of the longest

ballots in the country and one of the poorest voting records.

People don't turn out.

2]

CHAIRMAN SMITH: I think there's another question

') .~
here and Ed raised it the other day and that is in terms of~

our attitude, should we only set out to do what somehow we

subconsciously sense is possible or should we set out to do a

pure job and let the chips fall and this may be coming into

PAGE 5:3

our thinking here. I think as a practical matter the

subcommittee felt that there was very little chance that the

Select Committee and the General A~senIDly and on up the line

would abolish the election of any of these officials, but

that doesn't mean that we have to just give it up. If as

a pure matter we think one of these offices ought to be

abolished as an elected office we ought to do it and let it

be corrected by our superiors.

') I I,
If)
1"1 T.
II ... .)':. o

MR. CHILIVIS: What happens if we delete that and this portion of the Constitution doesn't pass in the general election?

CHAIRMAN SMITH: If we delete it and it doesn't pass

then what we have now will still be in effect.
1.!
MR. CHILIVIS: We'll have the old Constitution still

.>

.

(.:1

J r~ 2

~
()

l

in effect? CHAIRMAN SMITH: Uh-huh. Again, I think Dr. Gibson
and the Committee came up with a good approach and this is

Vlhether there are any bosses to these pepple in the form ot a

board or not and there don't appear to be any, whereas in

these other states that they mentioned there may be some

"!

coptrolling authority, gener~lly.I assume the Governor, that

they're going toward a mor~ c;:abinet t:ype of operation on some

of these offices in the other states but that is to my mind

a rational and logical way of approaching the question.
JUSTICE HILL: My recollection is that at the last

54
I Ir~-ene;:~--~lection there was only one of these offices which
2 I was contested. I think I am correct in saying that at the last

general election the Office of Secretary of State, Attorney

General, Comptroller General, Commissioner of Agriculture and

Commissioner of Labor were uncontested, and I really can't see

how those offices being on the ballot uncontested could deter

folks from voting.

MR. JACKSON: I think it's philosophical. The
!:
,
9 illength of the ballot -- why should they vote on all these

10 people who -- even though they are the incumbent and why should

lz'

11 ~ they vote on these Constitutional amendments?

o

"'-

,~

~o ,,~ ~vote ~ ~ 12 ~

JUDGE HILL: They don't even know they're going to on them until they get in the booth if it's uncontested,

14 ;:: because there's been no publicity about the thing in any

':t
:t

15 ,) event.

l ~l
c< :;

16 zi:!,.
wa z

MR. GOWEN: But in the primary elections they all

4
17 ;;; knew about them, they all turned out and voted for them if

IS ,they had any opposition

. 19

JUDGE HILL: If they had opposition, but I think

20 they didn't, and I believe in the primary the name comes off

21 the ballot if they have no opposition.

MR. GOWEN: No, I believe it's on there. I think 23 it's on there in the primary, but it shows that they don't

24 have opposition but the -- in my judgement it would be

25 impossible to ratify a Constitution that had any of these

PAGE 55
n - - ----- ----------1

)i
Ii

taken

away

from

the

abilitr

of

the

people

to

vote

for

them,

where the surge in the country is toward being more democratic

-) and having more elections rather than fewer elections. We

4 now are faced with recall elections and elections get turned

) around and I can see the people thinking you'~e taking

(, something away from them.

CHAIRMAN SMITH: Ed?

MR. JACKSON: Two comments. The Council of State

l) i Governments finds the last ten-year trend of Constitutional

]0 history is to reduce the number of elected executive officers,

;.:;."?Vli.,/'\

"z
I] ~ and second, I would assume that this Commission or those who o
12 ~""' support it would do what happened in '76 with Amendment II,

r:d /
[

,I

'-~\)).r-~~

\ \ --

/I

~
~LlJ

that

is

create

an

educational

effort

to

let

the

people

of

the

''''-'_// i
,,/

14

>-
I-

State

know what

the

issues

are.

~

I can see the League playing a

]5 '" role in really getting these issues before the people and

"cc.

[b

~"
aw

that

we're

not,

for

instance,

taking

away

the

Great

Seal.

You

.J:.

know, the Great Seal should not be in the Constitution, that

we're not taking away a power -- a single power of the Commi-

19 ssioner of Labor. This is going to be statutorily prpvided for

20 or something of that nature. What I'm saying is, I think that 1: there's going to be an educational campaign pursuant to these ) -, Articles and we're not going to leave it just to the voters

to decide on their own.

2\

MRS. HOLMES: Of course, I think if you want a real

education campaign what you should do is remove, 'it. :cofClI?letely

56

from this Article. Let the General Assembly really get

2 terribly upset and the press cover it, and suddenly people will

know that they have to vote on an amendment to the Consti-

4 tution, a revision, if you want people to really know.

5

JUDGE HILL: I would say if you want an educational

campaign any officer you delete without his tacit consent will

7 give you an educational campaign too.

8

CHAIRMAN SMITH: Yes.

9

MR. CHILIVIS: Let me ask a question.

10

MR. GOWEN: I can see the farmers now if you took

"z
11 ~ the Commissioner of Agriculture away and the State is getting
e '"'" ~o "w 12 ~ready -- has got some evil purpose that's been hatched up in
Atlanta.

j..l

CHAIRMAN SMITH: It's hard enough for the Market

!;,

~
r

15 ., Bulletin.

":'">

16 .~..

MR. CHILIVIS: Have the Constitutional officers been

o

Z

4:
17 ~ contacted and expressed any opinion on this?

18

CHAIRMAN SMITH: Most of them have and I think they

19 are unanimous in wanting to --

20

MR. CHILIVIS: Stay on the ballot.

CHAIRMAN SMITH: Stay on the ballot.

--')') ,

MR. ENGLISH: Judge, I don't think presently I have

23 lenough information to allow me to proceed to some position as

24 to whether or not some of these other officers should be

appointed rather than elected. I would personally like to

PAGE 57

know in other states that don't have these as elected

Constitutional officers, exactly how those responsibilities

are handled. Do these people report to boards? Are they

: under the direct supervision or under the appointive powers

of the Governor or, you know, exactly how they're handled. I

I. think in some states an Insurance Commissioner or something

similar to that or bank and banking persons work out of the

secretary of State's Office, and I'm certain there's some

9 1! other derivatives as you go from state to state. So I'd 10 personally like to know what they are.

MS. GREENBERG: I don't have all that information,
()
n..
~,
,<2':'j].YJi.-1, 12 "~ but for the Commissioner of Agriculture, in 27 states the Gover..,
~~~J'".'" ~ nor appoints the officer and in seven states a board or cOIl1DIission

;1 i~ appoints that officer. As far as the Commissioner of Labor,

1S ;;the only information I have is that 36 states have the

,;:
:)

!(:. ~r.::l Governor appointing that officer.

z

<l

17 ~

CHAIRMAN SMITH: I think we have to assume that in

Ix all the othe~ states that do not elect, it is either the

l\! : Governor or some board. Now we don't have that in our present

2(1 ;1
: Constitution as to any of these people. I think that's a

fair assumption from what we have. I would assume in many
-, ~
states that -- I use this advised~y -- on a patronage basis
..:. ~~
I that when the Governor goes in he appoints his Insurance Comm-
2.
i issioner and his this and his that and it's like a cabinet. It '.s

like the Federal system in that regard and when the Governor goes

- -- rr~-

------~--

II out, they go out with him.

58
Hopefully there are merit system

2 i people underneath them who continue to make the office
3 I!Ii function, but I would assume that that's probably the pattern
I
11
4 II in those states where the Governor appoints.

5

d
i'

What I hear from you is that we might refer this one

I'

ii

()

I
!i

back

to you,

Judge

Hill,

to

come

back to

the next

full

Ii

7

., I]

committee

meeting

hopefully

with

a

recommendation from the

8 subcommittee. Is that a fair way to approach it? And the

9 subcommittee can get more of these facts, and based on that

10 make some concrete recommendation back to us.

c?

Z

11 >-.

We might discuss -- Judge Hill and I did discuss,

e ,_.~s~~

o

0-

w

12 ~there were two name things; the Commissioner of Agriculture

~ hi~ ~ wanted to have

office changed to COIlllllissioner of AgriCUlture

14 ~and Consumer Affa~rs and this has its origin in the fact that he
v'>
<l r
15 ,)inspects meat, eggs, feed, one thing and another. I think it's
"IX
:;)
16 ~fair to say the subcommittee thought that would be a misnomer, a z. <l
17 ~that it would confuse the public rather than help them. The

18 I. sug. gestion, which I think was personal wasn't it, Judge, that
I
19 ! we might change the name of the Comptroller General to Insurance I I
20 : Commissioner, because that's his basic job, even though he has II
21 ]i others. Again, this was for public identity, that if somebody

had some insurance problem, the average citizen would say well
,, surely this man must have something to do with it, if his

title is Insurance Commissioner. Again, I think we might refer

25 ,that back with this whole question to the subcommittee.

PAGE 59

Okay, let's go to the last item on that sUbcommitteel~
i
agenda, which is the problem of the Attorney General. As

; indicated briefly at the beginning, I think Georgia is one

4 of the three states where the Attorney General has one foot in

5 the Judicial Department and one in the Executive Department.

6 I think there are good and sound arguments to put him

7 completely in one or the other. Basically he is, of course,

the lawyer for the State and his clients are the State and

9 i the various agencies that go into it. On the other hand, he

10 has, by long precedent both united States Supreme Court and

\.,
JJ 5z State, a quasi-judicial function. In other words, he is not

<>
t\.

I 2 ~; a pure advocate. He must operate in a quasi-judicial fashion

-)YR(/

~:

UI (~)\\\)r~~!!!~~ ~._ to protect all of the people, not just the government versus

,~~/,'J

I

14 ;~ the people. He has a dual function there.

r

15 .~

The typical example is in the rendition of opinions

Ie 3of the Attorney General. This is more a sort of judicial o I "
l' :;; function. There isn It any question but that the current

Attorney General wants very much to be placed in the Judicial J9 Department. The current draft of the Judicial Article, which

is about two years ahead of all the rest of them, has him in

2i i the Judicial Article. That has not been finally approved by the

Select Committee. In other words, at some point down the line

that decision is going to have to be approved by the Select _:i . Committee before it is submitted to the General Assembly. I

think as a practical matter, as I understand it, the Attorney
i~ ,.

General is put in something of a tight place when it comes to

2 funding.

3

Under the current situation, he is placed in the

4 Executive budget, therefore, he is subject to the Governor

cutting him or adding to him or whatever he does. Then he

6 goes over to the General Assembly and in effect he's fighting
I
'7 i with his clients for the dollars. In other words, all ofns

clients as the Attorney General are these various state 9 agencies who are also in the budget and, as was forcefully 10 explained, there's just so much there and if he gets something

IJ ~o in his budget, somebody else has to give up something, as the
"w
~J":~' ~ g :e::::::::et:::a::e:u::: ::eb::::::"th:OG::::n:: :::e:::n of

11 ~ Attorney General, and the Attorney General and the various

q

I

15 ~ state agencies that he represents, so it's kind of a sticky

:'")

r<:

16

3 wicket.
c

7:

q

17 ~

I think we have three choices here. One is to make

\8 i him purely an executive officer on the theory that he is an

19 officer of the courts. In other words, I'm not sure he should

20

i
!be in bed with the court as he is one of the advocates with

2\ the Judiciary. The other is to put him in the Judiciary Article.

I think without doubt, psychologically he feels more comfortable

-,

'
'

in that position and in kicking this matter about the last few

days, there is yet a third possibility, and that is to make him 25 an executive officer and make it plain that he is the State's

I'\(;F 61
attorney and that the Governor and the other agencies shouldn't
run off and get their own lawyers willy-nilly, but that it
ought to be coordinated and approved by the Attorney General.
i But have his funding come from the Judiciary budget. In
talking with Robin Harris, he doesn't see any inhibition about
providing that in the Constitution. This would give him, or
conceivably could give him, financial independence and remove
the conflicts that he has with the Governor and the other
9d
government agencies.
Jumping ahead a little bit, we have the problem of
"z
I] j::
~. the district attorneys who are independently elected. And the
0-
~
''I;;.
~question is where should they be, which Article. I think
.tz- .
"
~~Judge Hill and I have a strong personal feeling, and I would be
I
~ interested to hear from the other lawyers in this regard, that
.,;
1" at <~c' some point down the line, there's going to have to be more
'.:)
16 ~~
oz of a connection between the Attorney General and the various
.-:;:
1'-' ,'.: l.! cn
prosecuting attorneys around the State, and I think personally
iii
we feel whichever way they flop, they ought to be on the
! same Article, because we perceive that down the line, they
will have to work closer and closer together, more like the
'I
federal system where it all is under the Department of Justice.
So Ifuink as we discuss the Attorney General, if I
might suggest, we ought to be thinking in terms of the district
attorneys following along, who are local independent legal
I officers for the State albeit with limited j~ris9-~<:;:_1:.i~!1.L

primarily criminal, putting them in the same slot that

2 the Attorney General's Office is. So that's sort of a broad

3 overview of the problem.

4

As I say, as I hear it from the Attorney General

5 I haven't talked to him, but as I hear the arguments, the

6 money is his primary objection to being in the Executive

7 Department. Again, I think on a philosophical basis, you can

8 make logical arguments that he ought to be clearly an

9 executive officer and you can make arguments that he ought to

10 be under the Judicial Article, so that's the problem that we

i..'J

7.

11 ~ have.

o

c..

12 "~"

MR. CHILIVIS: Could I ask a question? What

~~~~, ~ difference would it make insofar as the General Assembly is

14 ~ concerned whether or not he's asking for mnney as part of the

:4c:

JS '~Judiciary or as part of the Executive?

"'::">

J6 ~
.,,"}"
~

CHAIRMAN SMITH: Well, I defer to Tom and other

17 ~ experienced people dealing with the budget, but generally

18 i there is less competition in the Judiciary budget. It sort J9 of floats up there and it's sort of granted as long as it's 20 reasonable. It's not a competitive situation with all the 21 ! various however many, eighty something, executive agencies who

n I are competing inside the executive budget.

,'
_.'

I
!

statement?

Is that a practical

24

REPRESENTATIVE BUCK: As a practical matter though,

2S i,Nick, I don't think it makes a whole lot of difference except

. l~'_~~._.

~_. __ .

PAGE 63

as a matter of convenience for the Attorney General to be over , in the Judicial Branch because when it gets down to what the

.l I Governor is going to recommend and then that's dissected by

4 the House Appropriations Committee and they come up with their

5 own bill and it goes over to the Senate and maybe they do the

(, same and it winds up in a conference anyway.

Of course, the Attorney General being part of the

8 Executive Branch of government it's kind of hard for him to

$ ~ come over there and say well, the Governor recommended this

]0 but I don't like it and I want this, thi~ and this. I think

c?
Ii S7. it leaves maybe a bad taste in somebody's mouth, particularly

(> 0.

(~~l'"'' ;;.'jJVJ1.(/

I': .~.. the Attorney General, and he's supposedly bucking his boss,
r'
~ but as a practical matter he's going to come over and lobby the
u
.A

'--

] oj. ~. members of the Appropriations Committee for what he wants that

V> <l;
To
l' 0he didn't get that was recommended by the Governor. But as

L'c'
.J
i6 ~Judge Smith said, and Judge Hill knows this, usually with
az
<t
!7 ~some exceptions the Judicial Branch of government normally

lK comes over with what they want and they usually get it even

1~ though they get a very small percentage of the total revenue

20 estimate for that particular fiscal year

.' j

MR. CHILIVIS: I see a distinction.

),

MR. GOWEN: For whatever it's worth, the State

::; Commission on Compensation treated the Attorney General as a

:4 'part of the Judiciary and gave him a higher -- or recommended

:::' for him a higher salary than they recommended for the

64

Constitutional officers and he -- his compensation was fixed at

2 the same as a member of the Appellate Court and we considered

3 that he was a part of the Judiciary. And I had the task of

4 explaining that to the other Constitutional officers.

5

CHAIRMAN SMITH: Ed?

6

MR. JACKSON: Judge Smith, there's precedent for an

7 Executive officer to be included in the budget of another

8 branch. In the case of the Department of Audits and Accounts

9 in 1976, the Supreme Court ruled that the auditor is an

10 Executive officer, but the legislature budgets the Audit

"z 11 ,gDepartment in the legislative appropriation and what that

"w-

~)_c._."'._.. ~for ~

12 ~" means is that appropriation doesn't go to OPB and the Governor their recommendation and review in the Governor's budget.

14 I
tThis is done without Constitutional provision, but I think as

<l
r

15 ~things are if the legislature wanted to treat it that way a:

:~
\(, ~ they could budget the Attorney General through the Judicial

7.

<l

17

'"
00

Branch,

even

though

the

Attorney

General

is

an

Executive

18 iofficer.

19

CHAIRMAN SMITH: Well, if that concept eventually

20 prevails, it would be put in the Constitution that he is funded

21 : out of the other budget in order to try to give him at least

the appearance of financial independence from the Governor "-~, ~) i and the other agencies.

MR. CHILIVIS: Let me ask you something else. How

that affect him insofar as the separation of powers doctrine

PAC1: 65
q
Iii. is concerned, sitting on the various boards that he sits on?
!
CHAIRMAN SMITH: He no longer sits on them, does he? MR. TIDWELL: He's on some. MR. CHILIVIS: He's on some -- several I think. MR. TIDWELL: I haven't gone back and made an exhaustive search, but he does sit on some executive boards and the State Building Authority. MR. CHILIVIS: He si~s on the Board of Equalization, on the Board of Compromise and Settlement as well as the State 1') Properties Board -- Commission. JUDGE HILL: Not State Properties, I don't believe. J . :, I might say this, in that connection, that he has -- I'm not :~; referring to any particular one, but he has for years been [" ,_ trying to get himself off of those because he, I think I can
~"1
I' fairly state, he feels uncomfortable having to make a legal recommendation as to whether or not we can do this and then
I)
. to vote on whether or not they should do it. CHAIRMAN SMITH: There may be some legal objection
i j to that under the current cases.
MR. TIDWELL: There's another case of an Executive being in another, and that's the Lieutenant Governor. ~e's funded out of the legislative budget, not only his salary but all of his people. I don't know that anybody has ever termed it, but I guess he's probably an Executive officer although he spends all his time in the Legislative Branch.

i'\1 E 66

CHAIRMAN SMITH: Well, Nick is going to straighten

2 all that out.

3

JUDGE HILL: The separation of powers provision, I

,1 think, says "except as provided in this Constitution II, so when

5 the Constitution provides that the Lieutenant Governor shall

(, be in the Executive Branch and yet shall be the presiding

7 I officer of the Senate, it's okay because it's prescribed that

H way in the Constitution.

9

MR. TIDWELL: I didn't mean to raise that as the

10 separation, but just an example of someone who is perhaps

;5
Z
11 ~ clearly an Executive officer being funded somewhere else. r;

w
~we've got some criminal statutes that make that a crime. I

,.

o1.
don't

guess

anybody

is

ever

going

to

lock

the

Lieutenant

ri Governor up for getting paid out of the legislative funds, but --

MR. JACKSON: Justice Hill, the Fiar Business Practice
1...')
:'":)
16 '~" Act of 1975 gives the Attorney General the powers to carry that '"
17 ~Act out along with Tim Ryles' office. He's a backup to Tim
18 : Ryles in implementing this law. You might have separation of 1') powers if you make him a jUdicial officer to help carry it out. 20 Also Code 40, 40.16 gives him investigatory powers in affairs 21 of any agency. He is empowered to investigate all agencies
and what they're doing, so you may have then some statutory ,',., you know, those statutory provisions might bring in separation
of powers issue of the judicial officer carrying them out.

CHAIRMAN SMITH: Well, whichever way he goes, I think

PAGE 67

it ought to be clear that he is the state's attorney. I

don't care what Article it's in, there ought to be language

that clearly spells that out. We've had trouble with t~is

'1 historically in the State, about everybody wanting to get their

own lawyer. In fact, one of the thoughts, Nick, was that if

I' he were in the Judicial Article, that the Executive could say

'I , well, I don't have anything to do with him, I want to get my

own lawyer which runs counter to what everybody is trying to

get done for the last 15 or 20 years, and the other is that

!I) somehow it should be expressed that he has some financial

11 ~. independence from the Executive. You know, wherever we put '"

"v')

I.:, it,

/}'...,?-. '.1<1,\

,f1W) W " ~ / / ,."

\\

C.... TIH.O

/~/) \,'- ......

'
(~.~, way
'I'l

',,-

,,/

14 ; t;

'1.

the language ought I feel.
JUDGE HILL:

to espouse those two I might point out in

principles is the that connection,

~:,Judge Smith, that on page 44 of the rust Co~stitution, right

)(.: there in the middle of the page under Attorney General,
".,,
:', Paragraph II - Duties, which is presently a part of the

Judicial Article, it says "It shall be the duty of the Attorney ,'; General to act as the lec:fal advisor of the Executive Department."

CHAIRMAN SMITH: Well, I mean this is the kind of 11 statement that ought not to get lost in the shuffle, is all I'm

saying. Does anybody have a clear thought on thi~ problem?

MR. GOWEN: Why doesn't Judge Hill's committee
. .;
consider it further and make recommendations as to where he

ought to go?

68

CHAIRMAN SMITH: Well, we can do that. I would

think the practical answer to that is if this compromise

position is satisfactory to the current Attorney General, that

may resolve the problem, you know, if it can be designed -- and 5 I would think the subcommittee would like his input on wording

of any proposed amendments. As I say, it's perfectly clear

that Mr. Bolton wants very much to be in the Judicial

Article and I don't think he ought to be in both like he is now.

I think we ought to put him in one place or the other, but

10 this may solve that question. I think there are some benefits

lz:J
11 ~ to him being considered in the Executive Department. n

~j""'.~ ~ ~

J2

'"
cc

u

Turning to the district attorneys, well, I stated I

think a private opinion that I think they ought to go with the

14 ~Attorney General, wherever he is. Does anybody have any other

IS :?' ideas on that? They want to be in the Judicial Article 16 ~co currently, because we ran into that in a discussion of the
z
~'
17 ;::; Judicial Article, but all I'm saying is they ought to be 1u~ wherever the Attorney General is, because sooner or later they're 19 : going to have to work more together -- they do now. The ~'(l 'Attorney General handles certain appeals of cases tried by 21 district attorneys, capital cases, this kind of thing, but

there may cornea time in our history when the Attorney General -,-'' really is, if not a boss, at least a supervisor of all the

24 'district attorneys, and there are several that need supervising

currently. Any dissent to that? In the reference back to

69

Judge Hill's committee, that whatever recommendation they

come up with with the Attorney General, that the DNs follow it,

is that a fair reference back?

While we're on that subject, shall we look at another

date for the full committee to meet again? I see that the

way we're going, we're having sort of monthly full committee

meetings with the subcommittees meeting in between. This

~ . means, if we stick to that schedule, we would only have two

more, which makes me very ne+vous. We might go one more month

H with a meeting the latter part of October and if we have to

. j - meet twice in November or the first week in December, we

!2 ~ could rev it up at that point. The last day of October

How does that sound to

I, ; everybody? All right. They'll get you word. It will be

," I'. somewhere in the Capitol, I hope a bigger room than those

_~(1 ~ others.
(),

REPRESENTATIVE BUCK: You cou1~ get -- Charlie, you

could get the Appropriations Committee Room or something like

that.

CHAIRMAN SMITH: Is that the old court?

"'1

REPRESENTATIVE BUCK: Right. Or either we can go

2,.' down in Ways and Means, which is a nice size meeting room.

MR. TIDWELL: There are several that could

accomodate this committee.

CHAIRMAN SMITH: Well, I think we ought to commend

1'\<.1 70

Judge Hill. The technique he used, and I certainly think it's

2 a good one, is to go on and put something down on paper. That's

3 the only way you'll ever get anything done, is to have

4 something specific by way of a draft made by some staff member.

S It might even be just the ideas of the Chairman, but I think

h it's the way to get cranked off.

7

I want to turn next to Billy Sterne and his

8 II committee. Does everybody want to stand up and stretch a

') minute, or do you want to -- I hate to stand up, folks might

If) not get back. Let's just stand up and stretch and if you
u ;z
11 ~ want some coffee -o

12 ~
@r~

(A short recess was taken.) CHAIRMAN SMITH: Why don't we come back to order and

14 ~ move to the Sterne subcommittee. This committee has the
'-'I. :0:
1~ 0t' Constitutional Boards and I think it's fair to say that in

16 g their subcommittee meeting, they are considering first Q
I.
.~
17 ~ whether we ought to keep all these Constitutional Boards.

lK Billy, if you want to give us a report on your progress on that.

19

MR. STERNE: I'll try to be brief. I think there

20 is in everybody's packet a memorandum from Melvin Hill, which

21 is in effect a minute of our meeting. To generalize on a

couple of things, I think it's pretty clear -- well, we took as

our first step a communication or contact with the Executive

of each of the Commissions or Boards. I think it's pretty

clear all of them want to remain Constitutional. Another thing

PAGE 71

that came up a couple of times was the question as to why this !

Commission wasn't holding public hearings. And finally, in

terms of a generalization, we, in our deliberation, did not

~ consider the durability of what we're about to recommend. You

touched on this earlier. Maybe we recommended some things or

(, we may recommend some things that are politically impractical

7 or impossible.

CHAIRMAN SMITH: I really think that's somebody

9 else's job.

JI)

MR. STERNE: We did too. So here are our recommenda-

, tions.

First of all, that all Constitutional Boards should

?: be consolidated under one Article of the Constitution, and Ii ;" obviously that touches on some other things, other committees

. We felt that we should make this recommendation to this

ii'

'~'.
:S

committee

and

to

the

Select

Committee.

We thought that

(1

l ~ simplified things if all Constitutional Boards and Commissions

were dealt with in the same Article of the Constitution. They

jl are not now, as you know

.olj

The second thing we dealt with was the matter of

which Boards and Commissions should be Constitutional and which

might Qe statutory, and we recommend to this committee that

three Boards be retained as Constitutional Boards, and they
,, a~e the Public Service Commission, Personnel, and Pardons and

',.::
Paroles. There are reasons we thought

J.

.

logical reasons for

---------- IT-------~------------- --- - - - - - - - - - - - - - - - -

PAGE 72

each of them -- for them remaining as Constitutional Boards.

2 Why not let all of them remain as Constitutional Boards? Our

3 thoughts were the difficulty of making changes and implementing

4 changes with respect to those bodies that are set in motion

5 and deemed by the Constitution, are great, and if they can be

6 legislatively spawned and operated we, the citizenry, would

7 probably be better off for it. I don't know if you want to

8 discuss each one of these as we go along.

')

CHAIRMAN SMITH: I think they might like to know why

10 you picked those three.

~

"z
11 l-
o."e.<-. 12 ~

MR. STERNE: All right. In the case of the Public Service Commission, their

~".~. ~ great effect on the consuming public said to us that the

14 ~ consuming public wanted it to be a creature of theirs, which

<l

:r

15

.:> "

~' t

is

by

virtue

of

the

fact

that

they put

that

in

the

c:

::>

16 ~'" Constitution, and further that in effect it is in part at

z.
<l
17 ~ least a legislative body. It fixes rates, and we felt that

18 that one might well be a Constitutional Board.

19

In the case of Pardons and Paroles, and I confess I

20 know little, at one time that power was vested in the Chief

21 Executive's Office, the Governor's Office, and that didn't

22 fly very well, and it did need this independence of being a

23 Constitutional Board.

24

And finally, the State Personnel Board. It seemed

25 I: 0 bv~' ous to me t hat t he Mer-~, t System ough t o t e b Const'~ t ut'~ona11y

L _..

.

- .-.~----.-~.~---

. -~---.- ---

PAGE 73

provided for and not legislatively provided, considering what

that Merit System means to all of the employees of the State.

Let me say that there are other members of my

J committee here and several staff people and your associate,

Tom, over here, who could add to that or maybe answer questions

(, that anybody might raise about it.

7

CHAIRMAN SMITH: Well I take it that currently the

8:': subcommittee feels that onl;y these three should be preserved

" in the Constitution, and that all other Boards -- and we have

]U numerous ones now -- would be statutory boards and creatures
.)
z
11 t of the General Assembly.

MR. STERNE: All other of the eight boards we looked

There are other boards not within our section of Article

~ IV and, of course, we didn't look at those.

].

C
_'


l.J

CHAIRMAN SMITH: Well, I think it's perfectly obyiou~ ,

j(, 2that this philosophical decision has to be addressed early on t':. 1.
by this committee, and I think now is the time to take it up.

IK

I would really like to ask Tom and others here, do

]':! you think that the Highway Board is functioning all right like

~'f 1 it is? Most of these things got into the constitution because

of some prior abuse. Billy mentioned one or two of them, and

as I understand it, the Highway Board is in its current
,,
.,,\ position because of perceived abuses in the past. Is it

working all right?

REPRESENTATIVE BUCK: Joe Wood may have some ideas on

74

it, but I think at the present time we've got the best DOT

2 that we've had in State Government in a long time, and a lot

of that is because of the gentleman who is the Commissioner

4 over there. He's one of the best people we've got in State

5 Government. And when we went through this recession several

years ago, he trimmed his number of employees -- Charlie, you

probably know more about numbers but I think before it was

over with, whether you like it or not -- it was not going out
q I and firing people, it was attrition that took care of it
10 but they got the same job done and probably a better job done
'.? Z
j I f with less employees. I think he had a reduction of around " Ie 2,000 people that went off the payroll. Tom Moreland has done

a super job.

r
1) ~ Board?

CHAIRMAN SMITH: Does he serve at the pleasure of the

I () ,!i:.;
e~

REPRESENTATIVE BUCK: I think so.

l.

~

17 ,;

CHAIRMAN SMITH: So it would sort of fit the other

IS models that we've discussed here today, like the School

19 Superintendent. Other than Joe Wood with the Veterans Service

20 i Board, we all know where he stands on that

21

PROFESSOR WILLIAMS: I'd like to make a comment

22 about the Veterans Service Board. Unfortunately, I could not

....,

.
.)

attend the meeting because we in Bibb County are trying to

2\ push a bond issue and I got called out on that, but I did have

the pleasure of visiting with Pete Wheeler, the Chairman and

PAGE 75
------------1
the Vice Chairman, and the only thing that quieted the group

~ for awhile when I first met with them was my presentation of

my Purple and Disabled Veteran's card. That legitimated me as

4 a member of the group then.

5

B~t two issues were raised in that meeting that I'd

6 like to share with you because the Board is meeting on Friday

7 in Savannah and I don't know how much noise will come out of

8 that as a result. One was that the group was unanimous in

9 expressing views that hearings should be open, should be public

10 hearings, and that these 630,000 veterans should be able to

Cl

Z
II ~ express their views to this group.

o

,\~

12 ~"

The Veterans preference question did come up and I

(,~~~~. ~~guess tne teel p~etty much expressed h~re abo~t the Commis~ione~

...... -._, ..~

14 ~j and h~ s ab~l~ty to work w~ th the current Board and the
.~
r
15 ~Constitutional status of that Board should remain, because I t:'""1
16 ~guess some of the abuses that have been referred to already
oz.
<t.
17 ~were discussed. It was even sugge~t~d by two people that ~llis i

IS Ii Arnall be called in so he could share with the group why

IY those Constitutional Boards received that status.

20

I suspect, given the undertones that I picked up,

-", that there will be some attempt on Friday to ta~~ an qfficial

"

on those matters and to mobilize whatever resources

out there to insure that the Board remain with that

24 Istatus, as a Constitutiqnal Boa~d. ~ow whether we ne~d to

25 consider that from a practical standpoint, again, I don't know.

r----

--------------

76

-----------~-------------

I

CHAIRMAN SMITH: Well, is that really any different

2 iI from these other Boards that you contacted, Billy? I mean,
I

3 I don't they all want to stay Constitutional, and propose to make

4 ii a fight?

5

MR. STERNE: Yes.

6

PROFESSOR WILLIAMS: Here is one observation though,

7 and I'm not sure how they made the distinction, I don't know

8 ! enough about the Board to decide that, but the Chairman and

9 the Commissioner indicated that the Veterans Service Board is

Q

10 the only Board that dispenses their services and awards benefits.
"z 11 ~ Now how that distinction is made, I don't know, but that is
() Q.
-,. . ~12 "~' the only Constitutional Board that is doing that, that benefits and services are interlocked in terms of that particular Board

14 ~ and that's part of the ability of that Board to attract Federal ~ 1:
15 ~monies and dispense funds. Whether that is a legitimate concern

:'"J
16 '~" and whether in fact you can distinguish them on that basis, I

;r.

<0:

17

'"
00

don't

know,

but we might

need

to

look

that over.

18 ii _,

CHAIRMAN SMITH: I think a SUbsidiary question here

II

19 II is if the committee chooses not to have certain of these Boards

20 II rema~n as Constitutional Boards, is the "packing" problem that Ii
21 !i we talked about before. If they become purely creatures of the I i
22 !i legislature, do you want, by some Constitutional provision,
'I 23 I, to guard against the ability of a Board to be set up and

24 I collapsed overnight? I'm thinking in terms of some general

provision that, while it's not necessary as I understand it

PAGE 77
.. _----------- ---,
under the Constitution, if it's not prohibited it is allowed

to put an enabling provision in here allowing the creation

.' of other boards, but maybe with some limitations about

4 staggered terms, packing or something like that. Then, in

. essence, if the recommendation stands, you would have three

6 Constitutional Boards and then a general Article that governs

the creation of other boards by the General Asse~ly and that

8 might be a way to approach that problem.

9

You know, I can think of a thousand things. I can't

JO think of any good language, but it might take two sessions

' "z.
11 g of the legislature to abolish a board, on the theory that

.".-.

~r=" ~ (~~,\

1'"
-'-

t h e 0::
v

people

speak each

time you

elect

a

new General

Assembly,

2

or that appointment shall be arranged so that it takes X

-----

14 ,I



. ; sess~ons of a General Assembly to r~vamp the membership. This

~

:I:

15 ~ sort of limitation on the composition of the boards and that

0::
::>

16 c~o might be a way to address that problem.

z

1'"I ~

MR. GOWEN: I'd like to ask Tom a question. Doeq

IIj the State Board of Transportation, for instance, receive the

J9 gasoline tax to do with as it sees fit?

::'0

REPRESENTATIVE BUCK: Yes.

21

MR. GOWEN: I think that was where many qf these

boards were originally created, because they had funds that .':"..~) !,they wanted to earmark for a particular purpose and remove it

from the power of the General ~ssembly to take it and put it ::'~ I somewhere else, and I think that's w~at you would COme into if
!;

78
1 Ir~U-:~li-s~--t~:::~~:~ds,-~~r instance, the State Transporta-

2

I,II
I,

tion

Board,

that

then

they would

be

up

before

the

General

II

3 11 Assembly for appropriations rather than having the gasoline

I
4 "Ii tax earmarked for them, to go to them.
ii

5 !"I

MR. STERNE: Charlie, I don't believe the gasoline

6 !III tax is earmarked for them in the Constitution.

Ii

7i

MR. TIDWELL: It is.

I

8- Ii!i

MR. CHILIVIS: It is in the Constitution.

9

JUDGE HILL: Some of it can go to the counties.

10

MR. STERNE: Is it in another section?

<z:i

11 t-
'o"

MR. GOWEN: The section on finance.

"w-
1J IX
,~ ~ ~
~r-i

MR. JACKSON: It's on page 23. MS. NONIDEZ: Under Appropriations.

14 ~ t-

MR. STERNE: Yes, specifically, right there under

O;;
x

15 .:> another section -- Article.

l~
a:

::>

16 ~

MR. GOWEN: I think that is something -- now at one

Czl

17 ~ time, I think the hunting license fees -- the Board of Natural

18 II Resources started off as the Board of Game and Fish, it was
19 II:i a Constitutional Board. The purpose of that was to give them
Ii
20 ilthe hunting license money so they could use that without having
Ii
21 Ii to go to the legislature or the Governor for appropriations
I
22 because at the time. some of these boards were created -- the

23 Board of Game and Fish was a predecessor of the Board of

24 II Natural Resources
"

the legislature didn't appropriate the

25 \imoney. The Governor did it at that time, and it was to remove

it from that.

PAGE 79
- - - - - - - ------ - - ~----- ---- - j
I

,)

REPRESENTATIVE BUCK: I might add, when you talk

3 about the DOT, of course, the motor fuel tax money does go to

4 the DOT. However, in the last three -- I'd say three or four 5 years, it has been necessary for the General Assemblr to

supplement the motor fuel tax money to allow the department -- I

in other words, they're geUing an additional appropriation from

the General Assembly to carryon their function. They are

not receiving enough funds from motor fuel tax to continue

JU without some extra money that comes out of the general funds.

11 ,cz.o, c.::: 0 '-

MR. CHILIVIS: The motor fuel tax has not kept up

inflation. In fact, if anything, it has gone th~ otheF

MRS. ADAMS: What is the disadvantage of having those, I

15 ~~ two boards as statutory boards? 0: OJ
16 ~to objection to it? ,!

Why is there such strong

MR. JACKSON: I think because there's confusion.

18 Everybody is confused about what it means to take a board out

19 of the Constitution. It doesn't mean to abolish it. Every

::0 board in the Constitution -- if you'll go to the Georgia Code,

21 you'll find a chapter on that board, that department,

, respelling out everything here. It will repeat it and then

prqvide exten~ive duties. All you do when you take it out of

24

the Constitution, is you literally take the reference out of

i

the Constitution, but it's __s___t_,ill in~ Geor"gia law. ' ~,

i

,

,__.JI

1- - - - - - - - - - - - - - - - _ . _ - - - - - - - - - - - - - - - - - - -

PAGE 80

[1

MRS. ADAMS: That's what I was thinking. There are

2 IIII other boards and commissions that operate and receive

II
3 II allocations from this State and also are revenue producing,

4 \ like the State Scholarship Commission and Higher Education

5 Ii Assistance Corporation, and yet they're not Constitutional,

6

Ii
I'II

it's

not

a

Constitutional

board.

'I

7 !,II

CHAIRMAN SMITH: One of the arguments is that the

8 I!iil! traditional power of the purse of the Legislative Branch to

9 I sunset somebody is removed really is you create a Constitutional

10 Board. They can't cut out a government service if it's

"z

11 ~written into the Constitution.

o

0-

@-_. ~'" 12 :

MRS. ADAMS: Unless there's a revision to the

Constitution.

14 ~

MR. CHILIVIS: If the Constitution doesn't have a

':<"r
15 ~Highway Board or Department of Transportation, then the funds

:':">
16 O~J that were earmarked for them would be handled by the General
oz <
17 i:i Assembly.

18

CHAIRMAN SMITH: Not unless they change the current

19 provision.

20

MR. CHILIVIS: No, even under the current Constitutio-

21 nal provision, they would be earmarked, but they could be

22 administered by the General Assembly, which is the same thing

23 as appropriating them.

24

MR. GOWEN: In other words, the General Assembly

25 could pass a law saying that the Department of Transportation

PAGE 81

shall spend this allocation in a certain fashion.

MR. CHILIVIS: That's not exactly what I'm saying. 3 What I'm saying is that unde~ the Constitution, the monies 4 received from th~ motor ~uel tax have to be useq for

5 . maintenance of roads. Under the Constitution that function is
6 I discharged by the Department of Transportation. If we

7 I eliminate that as a Constitutional Board, then it becomes a

8

I
I

question

as

to

who

handles

the

funds

and

determines

what

<)
roads it goes to, what highways it goes to and so forth. That

10 function would then be handled exclusively by the General
"z
11 8Assembly.

MRS. HOLMES: Couldn't they delegate it?

CHAIRMAN SMITH: Not unless they created some other

15 ."
"Lt':
:".)

MRS. HOLMES: They can delegate it to the Board.

16 ~ I'"I

JUDGE HILL: My understanding is that historically

,Z<

l7 ~(~ some of the motor fuel tax money has been directed to the

18 !!counties for roa~ and bridge purposes. All the Constitutional

19
provision says is that this tax money must be for roads and

20 bridges, it doesn't say it has to go to DOT. In recent years

21
I think all of it has gone to DOT, but there was a time I

..:..:.
believe when some of it went to ~he counties fpr road~ and

bridges and that still w9ul~ be permissible under the

:',+
:' Constitutional provision I believe.

).:::

1

MR. CHILIVIS: The point I'm maki~c;~~ .~ha~.E~~~t:. ..J

1 [ now under the Constitution you've got a two-pronged situation.
I,
2 II:I One is the money is appropriated automatically without going

3 through the General Assembly. Number two, it's administered

4 by the Department of Transportation as I understand it. Now

5 if you eliminate the second one, then you transfer the power

6 to the General Assembly which may be what we want to do, but

7 I think it's a pOlicy decision that needs to be addressed.

CHAIRMAN SMITH: Excuse me. They wouldn't be

9 i eliminated unless later the General Assembly by statute
I

10 eliminated them. They'd still be there, they'd just be

/.~~~'

l:l

Z

11 ~ statutory boards.

o

c..

w

12 ~

MR. CHILIVIS:

But if the General Assembly can create

\~(~/)Jtu)m".:~ or eliminate a board by a statute, then it has the power, and

14 ~that's the point I'm making.

_I':

~.
:r:

15 ~

CHAIRMAN SMITH: No question about that.

l?

:'"0

16 ~

MR. CHILIVIS: It's not a Constitutional matter, it's

c,

7-

<:

17 ~a question of who has the power.

18

REPRESENTATIVE BUCK: What you're saying, Nick, is

19 then that money would come to the General Assembly and they

20 would put it in the budget for the DOT, but they would put --

21

MR. CHILIVIS: I'm saying they would have the power

22 to create the agency that administers the money, which if ,, ..:..) they exercise that power is tantamount to administering the

24 money and they mayor may not exercise the power, but I think

25 !we should recognize that they would have that power, and we're

L~_.

~_~

--~.__.__._-

_ __ PAGE 83 _-_._._- -_ -- - .. _------- ..- . ~-_. .---_.- ._._- ...

"--,

taking it away from the Constit~tion and placing it in the

.., General Assembly if we abolish the Board that handles the

money.

CHAIRMAN SMITH: Let me ask you something. Suppose

~ you have a Constitutional DOT and next year the General

6 Assembly decides to create a Board of Highways, a statutory

7 board, and gives them money. Is there anything to stop that

R now?

I)

M~. CHILIVIS: I don't know. That's a good point.

JO
..,

CHAIRMAN SMITH: And just leave it die over there

z

j i i~ on the Constitutional vine. There's no prohibition against

o

<>.

~,

12 ''"! that now, is there?

((~~)r'""" ;

MRS. HOLMES: And isn't there some money allocated

,,"--,.../ / /

'----~..~~/ '

I

14 ~to the department -- the Comptroller General's office from

'<"r
::r:

15 ~insurance policies that a board isn't administering. Doesn't

.::t:

~.,

III o~n it go directly to them?

zCo

..-r

17 ~

MR. CHILIVIS:

There are fees that go directly to

!th~ Comptroller General's Office, but I don't know whether

1f) !that's set by Constitution or law. I

2\1

MRS. HOLMES: But that's my point.

It's working and

2lit isn't in the Constitution.

MR. CHILIVIS: I'm not suggesting this is the wrong

thing to do. I'm just suggesting it is a shift of power.

24

MR. JACKSON: I don't think so. If you read the

language of the Transportation Board, all it does it give it

-,, _-- ... .. _-~-------_

-

_. . ,__. .._. __ ._~ ._.__.

J

PA!;V; 84
Ir~~~-;::-.---Rem~:-~--~n'72, to eve~--~~~nge the nam:-~ighWay

2 I:1I Board, they had to go to the voters of the State, just to call

il

3

Ii
Ii

it

Transportation

Board.

It says how many members and what's

Ii

i

4 their qualifications. It then says over on the next page the

5 General Assembly shall define by law the powers, duties,

lJ qualifications and compensation of the Board. So there's not

7 a Constitutional grant. It doesn't say the Transportation

8 Board has power over highways or anything.

9

MR. CHILIVIS: Look at Paragraph III and I'm not sure

10 .., about this, but look at Paragraph III and see if that doesn't

2:

11 ~ give them the power to handle motor fuel funds.

o

0..

~

~'"
12

MR. JACKSON: This is Federal funds.

~F~

MR. HILL: Paragraph III is really a power given the

14 ~ General Assembly with respect to the Federal money, but it


:T.
15 ~ doens't relate necessarily to this Board, this particular

'::">

16 ~'" Board. We were asked by the subcommittee to look into this Q z
17 ~ and our recommendation is that this, both Paragraphs II and III,

18 should this State Transportation Board be created statutorily,

19 these two provisions be moved into the Powers of the Legislature.

20 In other words, these Paragraphs II and III really deal with

21 an authority given to the General Assembly that comply with 22 Federal law and get Federal grant money and they don't

necessarily belong in this paragraph and could be moved.

24

MR. CHILIVIS: It says "The General Assembly is

25 authorized, notwithstanding any other provisions of this

PAGE 85

__ _---,. __ ._--- ._-_. -

~--_.

._--_... _---_ ...

__ ._--~

2r::::~:::::: :~:::v:::~:;~:::~~~~:~ :::~:i::C~O :a:::.:nthe

II
3 Ii question I'm raising is doesn't that give this particular Ii
4 I: Board the authority to administer those funds, or does it?

5 II

MR. JACKSON: On page 23, there's no mention of the

6 II Board of Transportation, so I don't think it does.
"

7 II I,

MR. HILL: It doesn't mention the Board, so I wouldn'~
,

8 II assume that it necessarily has that authority just by virt~e

9 !IIi of its placement in the Constitution. I'

10

CHAIRMAN SMITH: Well, to kind of put us back in

"z

11 ~ order, the recommendation of the subcommittee is that there

o

0..

w

12 ~ be the three Constitutional boards described. I assume this

('\,:~--~~--~,-!/,// )~r~ ~~doesn't get into the wording of those things because, for

'-

!

-

14 ~example, the Board of Pardons and Paroles goes on forever.

<t

:t:

15 ,~
I.?

MR. STERNE: Yes it does and , no, we did not well,1

'::">

16 '~" we did consider this matter that Melvin just alluded to and

"z

4:

17 ~ asked him to check on it because it looked li){e that language

18 would belong somewhere else.

19

CHAIRMAN SMITH: But we need to get a sense of

20 direction from the committee as a whole as to whetner they

21 iI should go on, on the course they're on or back up and add other
I
boards and if so, which ones. I think that's what we need to

23 get done today, so as to layout their wo~k for the next month.

Well, assuming these three are going to remain in,

1
:1

25 IIi lis there a motion to add others to those remaining in?

I
I guess:

.L__ . .

".__ ' _

.. __ . _

, ._.. _,

.J

86
_..._.. _--,.,_.~-~
1 [-t~~~-~:-~~:~~~~~~ ~~-~~~--~~:-matter to a head.

2 Ii

REPRESENTATIVE WOOD: Judge, I would move that the

3

I
II

Board of

Veterans

Service

be

added

to

that

to make

it

four

I,

4 i in the Constitution.

ji

I'I

5 I'II
II

CHAIRMAN SMITH:

Is there a second to that?

II

6

MR. WISEBRAM: I second it.

Ii

II 7 II:i

CHAIRMAN SMITH: Any discussion on that motion? The

r

8

I I

motion

is

to

add

the

Veterans

Service

Board

to

the

list

of

9 ! boards that will remain as Constitutional Boards.

10

MRS. ADAMS: I'd like to know why that was being

~

"z

11 ~ proposed.

o

"-

12 '~"

REPRESENTATIVE WOOD:

So that they may properly

~ ~ -, handle the funds from the VA which brings in billions of

14 ~ dollars into the State, because they are recognized and by r
15 ~them being a Constitutional Board, it gives them more authority, :'">
16 '~" more respect in Washington, and I think they should remain in
z
17 ~the Constitution because of the job they have. They also

18 I operate approximately 76 offices throughout the various cities
I 19 I in Georgia. It removes them from legislative politics. If you
i
20 iput it in the statute, then you're putting every legislator
I
21 I and every Senator trying to open up offices in his or her
!
22 respective city or to close one at the whim, if they don't

23 1 like the manager. It being in the Constitution sets it aside.

24 They can do a much superb job in which they're doing.

25 II
lL

MRS. HOLMES: But isn't that true of the DHR, and

~

,. -

---.------.--------' ----.---.-~-----.-

- -----.--.----------

PA.GE 87

_._-_._ --_._---------, ._._--_._-_....._....._---_.--_.... _--.._ ... - - ._--~-_._._.------ ...

...

I r~~~;-~~-~~~ in the Constitution, and they work with Washington

2 1\ all the time, and they're allover the State. Heavens, if
.) IIii anybody is allover the State they are and they're working
!: 4 ! apparently -- I shouldn't say very well, I don't know -- but

5 you know, seemingly well without being a Constitutional Soard

(1 and the veterans preference ~s spoken to under the Personnel

'] Board, so if that's a concern of anyone, I think we can

6 still address that when we get to the Personnel Board.

9

CHAIRMAN SMITH: Billy, I would think in the next

10 month that your staff ought to check out whether there are

11 \~' any money problems on a board becoming statutory as opposed

()

nu_.

J' ~ to Constitutional.

/'Pv~\

:

\\~~ )r~~'!~ ~

MR. STERNE: I'd like to ask if you would elaborate

'--'::::..----~'

!

14 ~ a little bit on the ability to administer properly these funds

'::l
:I:
15 ~ that come through, would you do that better as a Constitutional

'-'
:'">
16 3 bqard?

<.l

'

Z

-<l

17 ~

REPRESENTATIVE WOOD: Well, I was told by the

1~ Director that Georgia is a unique situation because of the

19 respect they get with the VA in Washington. By being a

20 Constitutional Board, they have mqre authority and receive more 21 funds and he didn't elaborate in detail.

MRS. ADAMS: Maybe we ought to investigate that

23 . rather than take it at face value and see if that is in faqt 2-l : true.

MR. STERNE: Well, you would think the same situation

88

_ _-----_._- ..

.,~_._.

- .._-----_... _---_._-

~. WO~~d exis~-::th respect to the Department of Human Resources

2 I through which an awful lot of money flows and it comes from

3 ,Washington. II
II

II

4 1'[

MRS. ADAMS:

II

Yes, and there are other boards that are

5 II statutory boards that receive Federal funds.
il

6 \1

CHAIRMAN SMITH: Ed?

Ii

7 II

MR. JACKSON: I don't want to be argumentative, but

8 IiI I think some of this authority may be the fact that we have
ii

9 II a former State Senator with the VA. It says clearly in lines

10 3 and 4 the legislature shall provide -- have control over it,

"z

11 ~provide its duties, provide its power and provide its

e -., ~oc:..

SV

12 "~' jurisdiction. All we're talking about is the name, is it going

to be called Veterans Service Board? How many members and who

14 ~appoints them. There's not a word here, there's not a

'"
:c
15 ~ Constitutional power given to that Veterans Service Board.

:':">

16 'i
"a'

MR. GOWEN:

L



17 ~ Director.

Only one and that's to appoint the

18 I

MRS. ADAMS: Perhaps the subcommittee ought to

I
19 I investigate further the financial considerations and see
I

20 iwhether or not there would be any adverse impact.

21

CHAIRMAN SMITH: I think this ought to be done with

22 all of these before we sign off. Let's go back to the motion. -,-'' Any further discussion about the motion to add Veterans Service

24 iBoard to the list of Constitutional boards?

25

IL

._.

(No response.)
. -- -.-

PAGE 89

CHAIRMAN SMITH: All right, I call the question.

i : All those in favor of adding it, raise your hands.

(Votes were cast with raised hands.)

4

CHAIRMAN SMITH: Opposed?

(Votes were cast with raised hands.)

6

CHAIRMAN SMITH: Did you get those recorded? Okay, I

II
7 II take it then that insofar as that board is concerned, it's
~; Ii 'I with the caveat that you check out the funding to report back ,I
9 II to the next full committee. I

10

MR. HILL: Mr. Chairman, I think we may need to have

"z

11 ~ the people raise their hands again for purposes of the record

o

"~"

('~Ei0) /\.~~-.v =/=~-.:10\r'~1~2

~.. on
~~~
I

who

voted yes. CHAIRMAN

SMITH:

All those in favor of Mr. Woo~s

14 ~motion to add the Veterans Service Board raise your hand again

'.<"1;

I

15 ~ so they can record it.

:'">

1h ~ w

MRS. ADAMS: May I ask a question? That doesn't

C

z.

f

17 ~prevent us from reconsidering this if we were to find out t~at

jd there were some

CHAIRMAN SMITH: That's correct.

20 I

MR. STERNE: Mr. Chairman, I know you have ~ motion,

21

!:but
I

I

wonder,

since

youive

got

such a

division on

things,

22 I wouldn't it be better for us to go back and do our work on

this that you've suggested and then bring the matter to the ::-! committee for a vote?

.25

MR. ENGLISH: I agree with that. Can we get Mr.

i' c\

90

Wood to withdraw his motion?

2

REPRESENTATIVE WOOD: Sure.

3

MR. STERNE: And leave that one for later.

4

CHAIRMAN SMITH: Well, do you want to put all these

5 others in the same category?

6

MR. STERNE: Yeah.

7

CHAIRMAN SMITH: But I think you have the sense that

8 they are sort of willing to go with the current recommendation

9 absent some financial problem from all these other boards.

10
..,

MR. STERNE: I think there are other committee

z

~

11 ~o members here who can express themselves, but it seems to me Q.
w
12 ~ there was a concensus on the committee, let's put it on the

~ ~ _ !>asis of ",hy should this !>e a Constitutional board and unless

14 ~we came up with an impelling reason why it should be, we said

'"
:r

15 ~ let's not have it a Constitutional board.

e.t :::>

16 ~

CHAIRMAN SMITH: Well, I think you have a sense of

z
17 ~ the direction of the board now. Do you want that to apply to

18 all the boards, that same direction, for the next full

19 committee meeting?

20

MR. STERNE: Yeah, because the same argument might

21 come up with respect to anyone of them. We ought to have a

22 further look at each one of them. Melvin, that does suggest

23 some staff work before our next --

24

MR. HILL: But the motion was withdrawn so there is

25

official statement then from the committee about that.

PAGE 91

CHAIRMAN SMITH: Will some parliamentary ex~ert tell

2 me, have we agreed to keep the three tne subcommittee

.1 recommended?

4

MR. STERNE: We might vote on that.

5

CHAIRMAN SMITH: That's a motion. Do I have a second?

6

MRS. HOLMES: I second it.

'1

CHAIRMAN SMITH: Any discussion?

(No response.)

9

CHAIRMAN SNITH: All those in favor of retaining the

LO three boards mentioned; Public Service Commission, Pardons

and Personnel, as Constitutional Boards, raise

(Vot~s were cast with rais~d hands.)

14 ~

CHAIRMAN SMITH: Opposed? Unanimous. So at least

:<r

15 ~you're that far. Now before we leave your board, sooner or

.t.?
..-:

16 ~later we have to grapple with the question of whether the Cl I 7 1
17 ~Public Service Commission is going to be appointed or elected

1K and I know you need the sense of the whole committee.

19

MR. STERNE: Yes, we do. I had a couple of other

20 things.

21

CHAIRMAN SM~TH: Well, let's ~o tq9se f~rst.

Y)

MR. STERNE: This maybe becomes moot if the Department

of Transportation is no longer a Constitutional Board, but
,.
of there's a lot of language in here that relates to gener~l

25 authority from the General Assembly to zone property adjacent

92

to highways and all. I think it all relates to the Federal

2 funding and we raised a question with our staff as to whether

3 this really needed to be in the Constitution. I could raise

4 that question about most of the language with respect to the

5 boards.

6

Actually the Veterans Service Board -- the language

7 regarding the Veterans Service Board and the Public Service

8 Commission I looked on rather as model, but it's simple. They

9 put the board in existence and say how many members there

10 shall be and what their term shall be and basically leave the

"z

11 ~ rest of it to the legislature.

o

n.

w

12 ~

The Pardons and Paroles, on the other hand, almost

(@) "-~. ; ~

tells them how to pardon and parole. And so I do think you
I

14 ~ need to look at all of thatlanguage and I would assume you I d


:t:
15 ~want us to look at it as though they would remain Constitutional

tt:

::>

16

~'" boards,
o

even

though

in

some

cases

we're

recommending

that

they

z.

17 ~not remain Constitutional boards.

18

CHAIRMAN SMITH: I guess that's the only way to

19 handle it. In a sense it's a whell spinning thing if it goes

20 lone way, but in the interest of time, I think that ought to be
I
21 in your assignment. I would assume, for example, Melvin, that

if you're going to check on funds for highways, for example,

23 'you would see whether this billboard thing has to be a

!i

Ii

24

i
i!

C

onstit

utional

amendment

or

not.

That's the kind of question you

PAGE 93

I 1I1I

MR. GOWEN: Mr. Justice Hill might conunent on it.

,II'

JUDGE HILL: My recollection is, and I haven't been

II

\ !i' able to find it yet very quickly, but the General Assembly

II

4

!.
Ii:i

delegated

the

zoning power

to

the counties and

cities and

then

11

5 I: they had to recapture zoning with respect to highways in ii

6 II order to have that power back in themselves where they
7 III!' previously had delegated it to the cities and counties, and
iII
K that ~ay well be the reason for the provision ~hat they can

:1
q :i zone property adjacent to public roads.

10

MR. HENRY: That was a 1966 Constitutional amendment,

II ~ gi ving them the power to zone.

o

c.

l.'

J2 ~

JUDGE HILL: It may be necessary to get Federal

(~~})),c..". ~ highway beautification funds or something of that type that

\,,:::=--::J) 'j

Jt r:: they have these highway beautification programs.

:.;:

I
I. S '~
t? r< 00

MR. HENRY: There was a prior Act which attem~ted to

16 3do what that paragraph did and the Court ruled it unconstituo 7: .~
17 ~ tiona! without the expressed ratification from the people

that they -- that the zoning power did exisu back in the

19 General Assembly. Then that amendment came out in '66 and

20 they ruled that all --so far as I could tell, all legislation

21 that has been enacted pursuant to that provision, has held up.

CHAIRMAN SMITH: Wel~, it might be that some Ar~icle

23 'on zoning fits somewhere else in the whole $cheme of things,

but you need to run that rabbit.

,.:;:

MR. HILL: It belongs in Article IX probably, but

94

unfortunately that won't be for two years and we can't take

2 it out now hoping they'll put it in because we could lose

3 money. We will check into that.

4

CHAIRMAN SMITH: It might float along and if they

5 clean up their act it could abolish this one simultaneously.

6

MR. GOWEN: The first part of that Paragraph II I

7 think is rather necessary. It gives the Department of

8 Transportation the right to condemn property in connection 9 with it such as getting rid of outdoor advertising signs that

10 were already there, or junk yards. Without that, I don't
"z 11 ~think they could have condemned. I think the Supreme Court
c
0w
~ ~_. ~ ~ ~ 12 ~decision holding they had no authority to take down outdoor .. advertising signs --

14 t

CHAIRMAN SMITH: Taking property down, taking public

<l J:
15 ~ property.

t<
:::>
16 a~
z
<:
17 ~

MR. HILL: Th at ' s germane. MR. GOWEN: I think the Constitution has to give them

18 ! that right.

19

CHAIRMAN SMITH: Eminent domain, but it might better

20 be handled in Article IX with a stop gap provision from this

21 committee in the hiatus between 1980 and 1982, that would be

self-deleting or something like that. Do you want to discuss 2~ :the Pardons and Paroles thing, Billy? I think we all know the

history on that.

25

MR. STERNE: You mean discuss

CHAIRMAN SMITH:

PAGE 95
----------- --- --_ .. -1
How much to cut it down.

MR. STERNE: We really aren't prepared in the

committee to do that because that was one assigned to Senator

4 Kennedy and he wasn't able to be at our meeting, nor this one.

5

CHAIRMAN SMITH: Let me say this, I perceive that

(1 the reason these things are in there has been some dis-

'7 satisfaction with the operation of the question of parole in

8 the past.

9

In my lifetime, for example, the minimum sentence on

10 a life sentence has varied. It used to be fif~een year rule
"z
11 ~ by the Board, then the Board cut it to seven and then people .o..
w
~'" got irritated because seven years less good behav~or, you ~aQ
>z
~convicted murderers back on the street in four years and eight
I
~months and twenty-six days, or whatever it is. So somebody at
-0:
r.
15 ".0 some point came in here and said you can't do that any more in ,L .::>
16 ~:xl capital cases, or words to that effect. Now the philosophical z -0:
17 "'" 'question that we have to deal with is whether you want to limit
It: , the powers of the Pardons and Paroles Board or turn it over to

19 i them, and I'm just thinking you need some direction.

I'

:~() I
i

MR. STERNE: We do and we'd like to have it. We'd

'love to have any suggestions that might be made.

JUDGE HILL: This is one of the most timely topics

that we may come up with really, and I haven't had a chance to "-"+ look through all of this, but let me pose one pro~lem to you

that I am familiar with. There is a sentence in here that says

J'.\(

96

n-----------

I "The State Board of Pardons and Paroles shall have the power to I

2 II grant reprieves, pardons and paroles, to commute penalties,

3 III remove disabilities imposed by law and may remit any part of

ii
4 Ii a sentence for any offense against the State, after conviction II
5 Ii except in cases of treason or impeachment, and except in cases III'
6 III in which the Governor refuses to suspend a sentence of death."

7 ! Now there's another sentence in there about armed robberies

8 and some others, but if that sentence alone is there, the
,
9 Ii seven-year provision which is being criticized so much even now,

10 which is statutory, really is invalid. The Pardons and Paroles

"z

11 tBoard can grant a pardon under this Constitution as I read it

o

"w

V

12 ~as to any sentence at any time, except in case of treason or

~"." ~impeaChment

and except in cases in which the Governor refuses

14 ~to suspend the sentence of death. Now there may be some other

':(

:t:
15 ~sentences in there and I think there are that limit that power.

0::

:>

16 ~

MR. GOWEN: There is one, if they commute a death

z
17 ~sentence to life imprisonment, they have to serve 25 years,

18 but that's --

19

JUDGE HILL: With that addition, the General Assembly

20 I think would find themselves hard pressed really to raise

21 and enforce legally, except through their financial powers and

22 powers of persuasion, a ten-year requirement on consideration

23 for parole whereas presently the policy of the Board is they

24 will consider a life sentence after seven years of imprisonment

25 and so something needs to be done in this provision to accomodate

i)AJ~E 97

these problems that we're presently seeing in the press.

.:

CHAIRMAN SMITH: Well, isn't the choice either to

3 give them full power or say you have full powers except as is

4 done here? I mean that's the two courses we can follow.

<:

JUDGE HILL: There would be another choice and that

6 is that you have full power except as prescribed by law, and

7 then that would leave it that the General Assembly can do it

b they tried to do it one time in drug cases and th~t was found

,
9 ii to be in violation of this authority. That would give them II

10 the power to handle, say, third offender situations if it was

cz?
It t that the Pardons and Paroles Board has unlimited power except

()

'M

12 ~ as otherwise prescribed by law.

(1~~~7;jY~/,""o ~~

CHAIRMAN SMITH: Well, of course, the easier course

- -' 14 E! is to have it as provided by law, and that's the general

'l
~[
15 '~scheme on which we approach all of these things that they have "1_:::
"
16 ~ the duties and powers and responsibilities as provided br law,

.~
;7 ~ so as not to clutter up the Constitution. This means that you

HI I could have some sort of unevenness depending on the whim of

19 the legislature. There might be a particularly heinous crime

20 and they would come into ses$ion and say you can't be paroled

21 for 99 years or something. Of course, I guess they could do

)-

in prescribing the punishment for that crime(

23

no, they couldn't in the

JUDGE HILL: Not under the ~resent Consti~utj.on, I

believe.

i',\' I, 98

CHAIRMAN SMITH: So this is not an easy question.

2 All I'm saying is if I were the prisoner and I was considered

3 under parole during one two years and a fellow in exactly the

4 same position as I might be under a harsher or more lenient

5 standard the next two years, which is pretty tough on the

6 corrections people to have to deal with that psychological

7 emotional problem.

8

MR. GOWEN: While there's public criticism, of course,

9 toward Pardons and Paroles, I think they're doing a pretty

10 good job. We looked into it two years ago in the State

"z

11 ~ Commission on Compensation and I was impressed with the caliber

o...

u,

~-,.~ ~ &V

12 ~ of the people that were there and the dedication with which

they work. No public official is ever going to be able to

14 ~ please everybody and they're going to make mistakes and do
<l: I
15 ~ things -- the Federal system of pardon and parole does the :':1
16 "~" same thing, but to do away with it and have obligatory sentences G l ~
17 ~ is a pretty harsh thing.

18 I

MR. TIDWELL: Judge, I might offer one comment as

19 that subcommittee wrestles with the idea of whether it is

20 ] wise to try and tie the Pardons and Parole Board's hands as
!
21 ,:i they did in the death sentence, the General Assembly thought I!
'~1~1 'that was a good thing to do, but they didn't want a death

.1..,

, .\

an inmate whose death sentence had been commuted to life

24 : imprisonment-to be eligible for parole in seven years, so they

25 passed that. Well, as the legislature and the people closed

P"\GE 99
r-
i the doors, Pardons and Paroles Board will find a way to get
2 \ around it, as they have done. The only cases that they have
t
i
3 I commuted the death sentence in fifteen years, they did not
1 commute it to life imprisonment, they commuted it to imprison-
5 I ment for 99 years, so that that inmate can be eligible for
I
6 I parole consideration in seven years. And it was because of
I I
7 I that fact that they didn't want that. The ~~d~vidual case
I
~ : dictated that they do that. There was a codefendant that
i
~ I received life in prison for the very same crime. He would be I
JO eligible for parole in seven years, why should not the other
And that's what made them do that, but they'll find ways
the legislature will find ways.
CHAIRMAN SMITH: Well, there's a lot of concern with
]+ ~disparate sentencing now, wh~ch is directed more toward judges
-0:
I
i5 ;~ than to this problem, but philosophically I think they ought
l ....
:>
II) ~ to have broad powers. I mean why have the board if you're
.C.,l
.<
17 ~goin~ to -- because I have to say I think automatic sentences
16 breed injustice and automatic paroles breed injust~ce. They're
19 I just different people involved in different cases, different
2U levels of rehabilitation and philosophically you would hope
21 .1 the professionals could deal with it better tha~ the rest of
I us.
Well, the issue is should you proceed on the Board
Pardons and Paroles on a broad basis or on a specific basis.
MR. STERNE: I'd appreciate any further expression

100

from this group. I tend to agree with you that we really

2 ought to give them more authority than they presently have

3 and not try to inhibit them. There may be another argument

4 to that.

5

CHAIRMAN SMITH: Well, you know, if there's general

6 dissatisfaction sooner or later -- and I think this is one of

7 the lessons I have learned in life -- it's going to get

8 corrected. In this instance, it would be through the appointive

9 powers that there would be enough public pressure on the

10 appointing agent to change the policies of the Board. As a
;,.';1
Z
11 t; very discouraged young lawyer, I remember Judge Sloan calling o r.
~ 12 ~'" me down one time saying it may take the people 20 or 25 years
~._,~ 1but eventually the pendulum will swing to where the people

14 r: want it and in the ultimate we get exactly what we want

':2
:r:

15 ~and unfortunately sometimes what we deserve.

'::">

16 ~

JUDGE HILL: In that 25 year period there is this

..



17 'r"oproblem, which unhappily I face almost daily, and that is

18 !death penalties and I am concerned that there may be some death
!
19 'penalties imposed today where jurors would not impose it if
20 1 there was something other than this so-called seven-year parole.
21 And I would hate to think that people's lives are being taken

22 because we had to wait 25 years for the pendulum to swing. If 23 there was something that we could do here -- and I'd like to think 24 that we are as smart as the Pardons and Paroles Board and if 25 we wanted to put in language that we could, that would alleviate

PAGE 101

some of the situations.

:'

CHAIRMAN SMITH: You're talking about mandatory

3 life sentences, this kind of thing?

,j

JUDGE HILL: That is a possibility. I'm not sure

,-
j

that's a good possibility, but it would provide a mechanism

() to reconcile some discrepancy between seven years, which ~s

!

-;

I I

untrue actually,

but the popular misconception is that a

life

8 sentence gets out in seven years. That doesn't happen.

9

CHAIRMAN SMITH: It's way up there, isn't it, eleven

j() or twelve is the average?

zt~ 11 f-
cc

JUDGE HILL: And you don't have in those averages

0 '-
~,

12 ~ I think people who spend their lives there because there's no

(/(~(J~~10Y'~)\}-~~~~ ~~way to compute that, but there is I think some feeling in

'\\.,>--// ,I

~I

----

14 >- the jury room that if we don't impose the death penalty this

15 ,') man may be out in seven years and if that sways them to impose

":">"

j(, ~ the death penalty, I think it's unfortunate.

a

,

1 .,' ~;

CHAIRMAN SMITH: Well, that raises an interesting

l~ i,question. I suppose to have an alternative, I don't know

lY what it's going to be, you would have to put it in the

2i1 Constitution. Otherwise, it could be changed by the legislature;

21 or by the Board.

JUDGE HILL: Yes.

CHAIRMAN SMITH: I've about decided Devil's Island

24 was right myself, with the only suitable alternative on the

question of capital punishment, Qut I don't kn9w what ~he answer

! ,-\(;

102

is, is the problem.

MRS. HOLMES: The Devil'sIsland.

3

MR. ENGLISH: I would assume the Judge is talking

4 about writing in some language into this provision that the

5 Pardons and Paroles Board would not have the Constitutional

6 right to lessen a sentence beyond a certain duration. Say if

7 a person were sentenced to 75 years for a crime, language

8 could be put in that any person sentenced to in excess of 50

9 years would have to serve mandatorily at least one-half of that

10 sentence before the Board could consider them for parole.

~

Cz?

1] ~

CHAIRMAN SMITH: Well, that's another thing they do.

n

c~

12 '~" If you stack sentences, that is, give consecutive sentences

~'-". ~ for different offenses and they add up to 75 years -- which is

14 ~ the only way you can get that kind of sentence in Georgia -- I

':<r.

15 ~ think they still say it can't possibly be as long as life,

:':">

16 ~OJ even though the defendant is 65 years old. Therefore, he's

z

<l:

17

'"
OJ

eligible

for

parole

in

seven

years.

Everybody is eligible

18 for parole in seven years regardless of how much you stack it,

19 or at least that used to be. In other words, if you gave a

20 fellow a life sentence plus ten years, it's still seven years.

21 It's not seven years plus a third of the ten. I assume that's

22 still the current policy.

23

Well, what are your wishes?

24 I

MR. GOWEN: I move the language be left as it is.

25

MR. STERNE: In its entirety?

CHAIRMAN SMITH:

- --- --- - - ~----~ --~-~ ~-~~--~-

~--~--~-

-~--

~

PAGE;

103

Is there a second to that motion?

MR. STERNE: Let me say, Mr. Chairman, maybe thatl~

3 where it ought to be, but this subcommittee really doesn't

4 bring a recommendation to you on this. I think you'd probably

like to have one and I wonder if we want to try to resolve

h that problem today without our having looked at it.

7

CHAIRMAN SMITH: I thought we were just trying to

get you a sense of direction.

MR. STERNE: I do want that, but I thought we had

]f) a motion to leave this language as it is and our committee

l? 7-
11 ~might come up with something different.

o
0I;!

J=: ~

MR. GOWEN: Well, I didn't intend to restrict the

~

~committee in any fashion. I was just tryin~ to give you

I
j -t ~ something.

~:

15 .:>

MR. STERNE: Well, we'd like to have that expression.

{-'J

'"~J

16 ~

CHAIRMAN SMITH: Well, the motion is for a sense of

o..,

t: ~ci direction in remaining specific as opposed to general, but no

l~ I final determination is being made until the next meeting.

19

JUDGE HILL: There presently is a provision in here

which relates to time of parole consideration, where a sentence

of death is commuted to life in prison. lId like for the

1': subcommittee to consider a similar provision where a sentence

of life is imposed. That is, to put some minimum gua~anteed

service on a life sentence.

MRS. HOLMES: And you feel that should be in the

104

Constitution?

2

CHAIRMAN SMITH: As a practical matter.

3

JUDGE HILL: If it's not in the Constitution then as

4 the Constitution is presently written the Pardons and Paroles

5 Board could grant a pardon to a person serving a life sentence

h i the day after that sentence is imposed.

7

MRS. HOLMES: Even if there were statutes that

8 guaranteed that they couldn't?

9

CHAIRMAN SMITH: That's right. Well, I never did

10 get a second back to Mr. Gowen.

"z

11 ...
Q;
o

MR. STERNE: I'll second it.

n-

(~)!' ~~ I ~J ..

'"
CHAIRMAN SMITH: In terms of going specific, could
you consider Judge Hill's as part of this sense of direction?
'"

-

14 ,.I

MR. STERNE: Just suggest a minimum term in terms of

L"

15

.~
<',.::

life

sentences?

::;>
16 zco u,
(';,

CHAIRMAN SMITH: You're really talking about capital

<l
17 0:
,n offenses, aren't you?

18 Ii
I'

JUDGE HILL: That's correct.

19
CHAIRMAN SMITH: Is anything besides capital offenses

20
:' dealt with in the Article now?

21
MR. HILL: Armed robbery is dealt with.

CHAIRMAN SMITH: That's capital.

JUDGE HILL: Well, it is and it isn't, as rape is

24
,i also and isn't; armed robbery and kidnapping with bodily injury.

25 i

.i,l

.

~_

CHAIRMAN SMITH: Well, it ought to be a capital

1 0 5 i" I,'~I"' L r~'

sentence which is defined as life or death, life sentence or

- i death. !

JUDGE HILL: But really my concern has been those

f cases which would have had a death penalty on them and that

, i: really is murder only today. i: !

h :I

MR. GOWEN: I think the united States Sup~eme Court

I

has removed it from everything but murder.

JUDGE HILL: That's correct.

9j I

CHAIRMAN SMITH: Okay. AnX further discussion on

I

]U the motion, and that is.to be specific or a sense of direction

:: ;: of being specific with attention to capital sentence, is that

fair adjective we're using here now?

JUDGE HILL: Well, it covers perhaps some things that

~ are ambiguous as to whether they are Or ar~n't. What abo~t

T
l~ ;~ with respect to life sentences or murder convictions?

'""

16 .~
Ci

CHAIRMAN SMITH: Okay. Life sentences or murder

,~

J,'

<I

0"
"j

convictions,

any

further

discussion

on

that motion?

(No response.)

CHAIRMAN SMITH: All those in favor raise your hands.

(Votes were cast with raised hands.)

,,

,,;,,1 I

CHAIRMAN SMITH: Opposed? Okay.

MR. STERNE: Shall I carryon? Are we off that Pardons

and Paroles?

CHAIRMAN SMITH: I think you've got your direction. ~

would say you probably come back with two proposals, one generall

._---------_. --

j

106
[ra~d-on~dea;:i~~-~~-~-~--~~~~-question, would be a way for us
I
:-1 .ii;i to resolve it at this meeting. Next?

3

MR. STERNE: Melvin, are you or Mike keeping the

4 minutes of this meeting?

5

MR. HILL: Yes, uh-huh. All of these meetings are

6 i! transcribed word for word.

7

MR. STERNE: We'll need that before our next meeting.

8 To give you some idea of what might be done with respect to

9 anyone of these, I'll cite Industry and Trade for cleaning

10 up the language. That was one that was assigned to me and I
I:J
11 ~,y did talk to the Executive and to his Chairman. We think
~
@ r ' ~12 ~; there's superfluous language in there which related to a change of name . I think that was accomplished and almost half of the

14 ~passage ~n there deals with a matter of wherever else you
t;;
'l 1:
15 ,~see Department of Community Development, that now means ":'">
16 t,Department of -- Board of Industry and Trade, this sort of
.',
-l,' J7 :'. thing. So we would hope that might be cleaned up. There is a

18 . provision in the Constitution that relates to the Board of I
19 i Industry and Trade that says, "In making appointments . , the
I
'I
20 . Governor shall insure that there is representation from local

2i governments and area planning and development commissions as

n provided by law." We question whether that still needs to be

23 in there. The composition of the board that he appoints is

24 two from each Congressional District.

CHAIRMAN SMITH: Let me ask something here. If the

PAGE 107
IT -,._--
I III Board of Industry and Trade is going to be deleted as a

, IIi' Constitutional Board, then we don't have to
II!'

3 I'

MR. STERNE: That is all moot. I said that earlier

with respect to the Department of Transportation, b~t again I

have made the assumption that we needed to come to this

11 committee prepared. Either way we'll make our recommendation,

but if you don't accept our recommendation with respect to

making it a legislative board -- a statutory board instead of

a Constitutional Board, then I think our charge saY$ we try to

10 clean up the language of the thing. Isn't that right?

"7.
11 ,,~ n

CHAIRMAN SMITH: Well, I'm just wondering if we

Judge?

JUDGE HILL: I'd like to make a motion that we
j ~ ~ ask that subcommittee to propose Constitutional language as to

r
15 ~Public Service Commission, State Pardons and Paroles and State
c~
:>
16 0~> Personnel Board, the Veterans Service Board and State
. z
"~ roTransportat~on Board, and that they not be required to propose
is ! language to us respecting the Board of Offender Rehabilitation,

the Board of Natural Resources, Board of Industry and Trade -- ~
I
.gue~, s those would be the three.

MR. STERNE: That's fine. Those are the ones that

22 are in controversy.

:3

CHAIRMAN SMITH: ~s I read the group( unles~ there's

compelling financial reason for the last cat~gqry that he

named, we wouldn't even bother with it and I think it would just,

108

~ou-= ~:~Of ~n Fave

w:r:

other words, if you go back and

2 II there's not some hu~ Federal grant that has to go to a

3 II Constitutional Board of Industry and Trade, we're probably

4 1i,:1 through with it.

II

5 Ii

MR. STERNE: All right.

I'

6 ;1

II

CHAIRMAN SMITH: And we'll let the legislature

II

7 Ii wrestle with it.
Ii

"

8

MR. STERNE: Well, we'll accept that as a charge

9 from this committee then.

10

CHAIRMAN SMITH: Do we need to vote on that or is it

Czl

11 g sort of a concensus that only the three that you have
@ 0w ~] re,commended, plus consideration of Highway and Veterans Service
~~ ~ need be wrestled with, absent the financial problems?

14 ~.

MR. STERNE: Okay. Let me say that our committee

r'".

15

'"
Cl

has

not

dealt

with

the

question

of whether

Board members

:":>"

16 ~l:tl should be elected or appointed, as in the case of -- well, the

z

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17

'"
l:tl

Highway

Board,

elected

in

a

certain way,

and

of

course,

the

18 Public Service Commission is elected by the entire electorate.

19
We haven't dealt with the matter of size or the term

20 of office, and I would think that would be the subject of

21 on our agenda for the next meeting, and we will come to you with

a recommendation on that. Neither have we considered carefully

23 the housekeeping aspects of such recommendations as we have

24
made. That's a thing that clearly has to be addressed and

25

i we discussed but had no recommendation to make on the matter

L

..

~______

--

._~~_.

~.

_

PAGE 109

of qualifications for Board members or Commissions. It's a

very tough subject. I suppose it's easy if you're dealing

; ,with the Judiciary or something like that, you need to pass

4 the bar presumably.

5

CHAIRMAN SMITH: Hopefully.

MR. STERNE: I'd be interested in an expression from

anyone on this committee if they have any ideas as to

x what sort of qualifications there might be in the Constitution,

\.) I[I for instance, for membership on the Public Service Commission.

10 We didn't corne up with anything.

"z
I j ;:
::1',
n

CHAIRMAN SMITH: The only experience I have had with

is in the Fulton County package of bills, an attempt was

to create certain qualifications as to tax assessors, in

sense of having them pass certain courses that qualified
15 ~you as an appraiser, and there was a fear expressed that you ,"
::>
16 O~J might legislate the job out of takers. This was quite frankly
z
J 7 "~ 'part of it -- directed at Mr. Cates, but as you d~a1 with

'certain qualifications for office, you can run into the

19 !prob1em of setting them so rigidly that you can't get a good
!
20 iman to take it. And they were very concerned about that in

21 !I terms of the members of the Board of Tax Assessors, though at I
22 the sarne time they wanted to make sure it wasn't just some

23 i:po1itica1 hack put in there willy-nilly by the County

24 (Commissioners. They wanted to insure that it had to be from a

'<

:poo1 of people with the minimum of qualifications.

L

~~

-_____ ----------------------------

- --------

. --_ ... _._---- ..._. - -

I;..\( "T'1' 10

I 11------------There has been a good deal of editorial comment

-) IIIi recently about the Public Service Commission and the need to

,!

3

II!:
ji

have

people who are

really skilled in the

rate making process

4 and what you're asking for is whether you ought to go into that.

5 Ii

MR. STERNE: That's right. There are other

I

6 II committee members here, maybe they had a different impression,

I,
I'
7 II but we rather despaired at the prospect of this. Ii

If you

8 II start building on that and maybe you create more problems

9 II than you solve.

10

CHAIRMAN SMITH: Well, it is a sticky wicket is all

"z

II ~I'm saying, other than maybe for example, you may want to have

o

0-

w

~---. ~states V

12 ~a general provision much as the Executive Officers do that

certain minimal qualifications of age, residence, this

14 Gkind of thing, but if you get down to whether a person has a

.~
I
15 ~certain degree or a certain --

<>'

:::>

16 ~

MR. STERNE:

1.:1

Z



17 ~talking about.

Technical qualifications are what we're

IS

CHAIRMAN SMITH: It's real tough, particularly at

19 the Constitutional level. You could kick it to the legislature.

20

MR. STERNE: I thought I'd bring the subject up and

21 I guess what I'm saying to this committee is it's not likely

22 lwe're going to come back with provisions that set the qualifi-
I
23 Ications for these offices.

24

CHAIRMAN SMITH: Is there any caveat to that position?

MR. STERNE: That's what I'd like to have.

CHAIRMAN SMITH: I think you might have a general

thing as provided by law, and then from time to time as a

particular need -- we might have to have some nuclear expert

4 on there at some point, and the General Assembly could so

'; provide.

MR. GOWEN: Of course, the staff provides that.

Anybody that had the qualifications that you're talking about

k would never run for the job.

i'

9 I,I'

MR. ENGLISH: I think in that area, we should deal

10 with qualifications like residency, age and so forth, because

11 ~ you can get to the point of restricting it so that only a

o

0-

w

sv'"' 12 ~~ certain group or grouping of people could serve in that

('(?-~'LV~I )""0"

~~ capacity

and

if

you

allow

the

legislature

to

legislate

in

that

"

/

14 ~ area, they could, I guess, at some point in time do the

<

T

'.1'~ .~ same thing. I would have some reservations there. " :0

16 ~ w

CHAIRMAN SMITH: Well, that's true. I believe we

Cl

'"<::

! 7 ~ discussed this the other day. If you have the qualifications

liS written in here, what was the answer as to whether the

l';i legislature could increase them or not? Can not?

20

MR. TIDWELL: It's a problem that has disturbed me,

,

21 ! sometimes you may and sometimes you may not. It depends on

how specific the Constitution is and what the legislature "; ;:1 wants to do statutor~ ly. I think, Harold, there really isn't 24 an answer to that. However, there are some answers to some ~) : specifics, but it is a problem that has always worried everyone.

ll;\ ~-; 112

When you try to provide other qualifications for office

2 holders other than what is prescribed in the Constitution if

3 the Constitution addresses that issue, is that the complete

4 issue or does the legislature have other latitudes. Sometimes

5 they do and sometimes they don't, and they have to turn on

() individual bases. It's a real problem.

7

CHAIRMAN SMITH: At a minimum though, we would just

8 be talking about these Constitutional boards, that would be

9 the only place the qualifications would come in. Any other

10 board -- let's assume we drop out Industry and Trade -- the

~ z
11 ~ legislature could fix qualifications, couldn't they, because

o

0, w

12 ~ we wouldn't have any restriction in there.

@J~~

MR. STERNE: That's my report, but I'll give you one

14 ~ final thing. Commissioner Pafford and I discussed this ~ <l :r
15 0 matter of election or appointment and I pointed out to him
l,':'l
.:.e:
t::>
16 my information was something like 39 states now appointed and oz <l
17 ~ the rest elected, and he was sort of ambivalent, in a state

18 of shock I guess over one of his Commissioner's actions over

19 there, but his idea was that those states that elect now all

20 ! are clamoring for appointment and those that appoint are now

21 clamoring for election. Everybody is displeased with the

22 Public Service Commission.

-1,''

CHAIRMAN SMITH: It's not a very popular job. Do

24 you want to come back to us with a recommendation on

25 appointment or election?

MR. STERNE: Yes.

PA.GE 113

CHAIRMAN SMITH: Do you want a sense of direction?

MR. STERNE: I'll be glad to have a sense of this

4 group. It's something we did not address at our meeting.

CHAIRMAN SMITH: Does anybody have a sense at this

h point?

7

(No response.)

CHAIRMAN SMITH: I guess that puts the monkey on the

q subcommittee's back to come up with the initial recommendation

10 on whether to appoint or to elect. I, for one, would

11 "~ certainly hope your staff will find out if they are appointed

o'"
c.

12 ~ how they are appointed in the other states.

/)~y~\

~

:s -.~ '.-: '.' .f".

)'

r--- \ ~...;..;-J./j/ 'I .'.\.'~~- '.. .1

ClBUIf.tO.

~

MR. STERNE: That's a good idea.

14 >-.

CHAIRMAN SMITH: In other words --

;..

'~

I
MR. STERNE: We know which states do and which

::>

16 ~ states don't, but we don' tknow how.

o,.

<
I; :5,

CHAIRMAN SMITH: Right. Are they all gubernatorial

;~ ,appointments or do they come from some other direction,

]'1 ,General Assembly or what?

REPRESENTATIVE BUCK: One thing I was going to

21 suggest about the Public Service Commission, Billy, is to

22 consider geographical sections of the state rather than I

.~3 can see where they could all be appointed from one area and

24 that would cause some problems.

CHAIRMAN SMITH: Joe, you and Tom, I have a feeling

114
T------------
II1 myself that if they're appointed, it would be pure chaos to
IiII
2 have them appointed by the General Assembly. Is that a wrong

3 Ii feeling?

4 I'I

REPRESENTATIVE BUCK: My personal preference, I

,

:1

5 11 would rather see the Governor appoint them.

() II

CHAIRMAN SMITH: I mean, you know, if a fellow --

i7 il Public Service Commissioner's job was dependent on him going
i
!i8 over there and lobbying with the legislature, that just

9 doesn't sound right to me.

10

REPRESENTATIVE BUCK: I agree with that.

I.?

Z
11 >-

REPRESENTATIVE WOOD: I agree with Tom, if you're

'o"

0-

w

12 ~ going to go the appointment route, it should be with the

~" ~Executive

Department making that appointment.

14 ~

MR. GOWEN: I would think that except that you're

t~

<l
r

15 going to have terms different from the Governor's term. It

I.?

3.""'
16 seems to me they ought to continue to have staggered terms and

o z:

-I
17 ~ I can visualize a candidate for Governor running on the basis

18 that he's going to appoint somebody in there that wouldn't

19 ,vote for a rate increase, which would be popular, and that

20 means that rate making would be turned over to Justice Hill

21 and his friends over there rather than the Public Service

22 Commission.

23

CHAIRMAN SMITH: Well, I think we all agree that

24 the staggering problem has to be looked at in everyone of

25 these Boards and appointments that we have.

PAGE 115

MR. JACKSON: There's also the question of reducing

2 the term to four years. That's a question that's floa~ing
l3 around in the Public Service Commission, whether it's four
4 'II year terms or six year terms. I don't have a recommendation,
5 r'm just raising that as an issue that should be looked at.

6

MR. STERNE: Weigh that against the fact that a

7 Governor can stay in office for eight years now, you're sort

8 of reluctant to shorten the term.

9I

CHAIRMAN SMITH: It takes a little math to figure it

10 out.

Czl

11 oot-::

MR. GOWEN: Actually the six-year term for the PuH[c

"w-

12 ~Service Commission I think makes sense because most of the

~F ~ ~ ~ people that have been elected to the Public Service COl1llllisaion

14 ~had no previous experience in rate-making or anything like

~

:r
15 ~that, and it takes quite awhile to learn something about it,

I

'::"> 16 '~" probably takes more than one term.. But certainly to shorten

I
I

z

<t
17 ~it to four years wouldn't give much of an opportunity to

I
,

I

18 become proficient in it and proper rate making is an art.

I

I

19 It's not a political situation. It's not only a question of

I

20 Iwhat increases or decreases in rates but it's how the rates

I

21 II will be apportioned among the various users which is a very

i
I

I

22 !

I

'I complex problem.

:

23 !
24 Iione.
'I'
25 lIII"I L -

CHAIRMAN SMITH: Inverted all electric, of which I am I
i
I
I
J Well, I th_ink that subcommittee has a full bag to

116

bring back to us next time. I know it's getting late. I

really perceive, Nick, that there's only one burning policy

3 question that you have or perhaps two, that it might help you

4 in the next month to get some direction from.

5

I allude to the question that in many states the

6 Governor and Lieutenant Governor run as a team and that was

7 kicked around some before. I would assume you would like if

8 there is a sense of direction about that, to hear it. If not,

9 we'll put that monkey back on your back too. The other one

10 might be the status of the Lieutenant Governor as to whether

"z
11 ~ he should be more executive or more legislative.

0w
12 :~
@~~.~

MR. CHILIVIS: Or whether he should be at all. CHAIRMAN SMITH: There was some discussion about

14 ~ succession and as you recall at the earlier meeting, the feeling

-1.

:t:

15

.!)
" was

that

that

ought

to

be

tightened

up.

In these days of

:'>"

16 o'z" a~ rplanes and helicopters and all, if we have deaths it ought

7

<:

17 '"" 'to be very clear how that's done, so we won't end up in the

III I: courtroom arguing over who is going to be the Chief Executive

19
Officer of the State. I think there's a provision there, but

20
I think it needs looking at. On those issues is there any

21 sense of direction to give that subcommittee? Everybody is

22 either worn out or

23 ,I

I

MRS. HOLMES: I personally feel that they ought to

24 I Ii lirun as a team, I guess, because no one wants to go through

25 !I
llwh~~~\\,e~=nt 1:.hrough_~~~ __~~~Cl~~_i'-J~__C?:: five years agc>, but I

PAGE 117

think running as a team makes sense. You know you have two

people who are compatible and who are going to work together.

MR. ENGLISH: What do you mean when you say running

I as a team? Your remarks tend to make me believe that the

Governor would choose his running mate as opposed to them

(, being of the same political party.

--;

MRS. HOLMES: Well, I don't think he would choose

f< his running mate, but they would run on the same ticket. He

" doesn't have to choose. The party usually does that anyway.

I0

MRS. ADAMS: The party platform you mean?

'-'

1, .... c

MR. ENGLISH: Well, in that case it wouldn't prohibit

n

,.6~)V/~,

i2 '~" what happened here a few years ago with Carter and Maddox ;.-

(\(~(ll_dJ))\,)-'!"..'''''? ~~ because both of them were, I guess, on the Democratic ticket.

~-----~

1c~ ,.
:;;

MR. GOWEN: In our primary system, I don't see how

<-,-l

:j ~ you're going to get a team, for instance a Democratic ticket,

10 "'~" four people running for Governor and three running for oz. -ct
]7 ~ Lieutenant Governor. The man that wins as Lieutenant Governor

1~ I' may be the last person the Governor wanted in there, but they're
I
19 Ii: going to be the ones that go on the Democratic ticket and they

20 only run as a team against -- in the general election against

2] the Republican.

MRS. ADAMS: Are you advocating a system more like

the Federal system where the candidate selects his running -~,~ , mate?

MRS. HOLMES: No.

1'\I,j: 118

MR. ENGLISH: Well, she just answered no to that

2 question.

3

MRS. HOLMES: I did answer no, because I think

4 it should be --

5

MR. GOWEN: Well, the Democratic Convention actually

11 selects the Vice President. They traditionally do what the

candidate for President wants to, but they don't have to.

8

CHAIRMAN SMITH: Are there any states in which the

9 office, whether it's called Lieutenant Governor or not, is

10 really selected by the legislature? I would assume in the

"z

11 ~ old days that the President pro tern of the Senate was elected

o

"",~

@r'~12 ~ by the Senate. MR. GOWEN:

Was elected by the Senate and was the

14 ~: one who would succeed the Governor.

v, <t

I

cO

CHAIRMAN SMITH: Does he have to be a member of

:':">

16

a:
::

the

o

Senate

to

be

elected?

.~

.~

17 ~

MR. GOWEN: Yeah. The Speaker pro tern is elected

18 II from the membership of the Senate.

19

CHAIRMAN SMITH: Tom?

20

REPRESENTATIVE BUCK: With all due respect to our

21

colleagues that are on this committe who are not here

22

I would like to suggest that you all seriously consider

23

the Lieutenant Governor out of the Legislative Branch

altogether. If he's going to be in the Executive Branch, let's

25

there and let the Senate function like the House

PAGE 119

r~~~s,

""-----""--"--"------ "-------------------------"-----------"-----------------1

in which we elect our own presiding officer, however

t

Ii

2 II you want to do it, but I w-uld like to see y t all give that

II
3 \1 some serious thought.

4 I,'~I

MR. GOWEN: Leave the Lieutenant Governor with

!I

5 Ii nothing to do. If you got that far, you might do away with ii

Ii

6 II him.
Ii

,i

7 \1

MR. STERNE: That sounds like a first step.

s Ii

REPRESENTATIVE WOOD: Tom, I was wondering how you

Ii
I!
9 ii were going to get that brought out. ,I

10

MRS. HOLMES: He could appoint the boards.

tz?

\] ~

MR. GOWEN: The creation of it -- Wes Culpepper was

o

Cl.

(~/I~~S~<cV-~-o-h~1.\\,\ ,~12~

~"' a member of the Constitutional
~-
Z~he fought it tooth and toenail

Revision Commission in and it was finally put

1945, in

14 ~because Governor Arnall wanted to do soemthing for Frank Gross,

<r

15 .~., who was in the Senate and Frank was supposed to be elected

:':">
16 3and he wasn't, M.E. Thompson was. o

z"

17 ~"

CHAIRMAN SMITH: Any other directions to the

18 Chilivis subcommittee?

]9

MR. ENGLISH: Have you really cleared up the matter

20 of the Governor and Lieutenant Governor running as a team?
,.
.:-1 It's still very unclear to me

22 I

MR. CHILIVIS: Let me mention something. We had

I

23 !several questions that we had intended to address to the

I
24 : full committee. We approached this with a little di~ferent

25 i methodology I ,perceive than did these other committees. We

lL______ _""""

"

--------""------------"---

----

PAGE 120

~~~t, 1

we discussed a number of policy questions and we

2 I, decided that we would disperse in even smaller groups, sub-

3 subcommittees, go over these matters, give them study, work

4 with the staff and come back together and meet again at which

5 time we would have firm recommendations to this committee,

Ii

6

Ii
II

with

backup

data

for

those

recommendations.

Now we did have

7 II a number of questions, three or four, that we wanted to

8 II submit to this committee today. Three of them have been 9 !I answered already. One of them was with respect to public

10 hearings, one of them had to do with our function in connection

"z

11

~ with the Article that Justice
o

Hill

had,

which he

addressed,

.".'.".

~ ~work -;v

12 ~ and one of them had to do with the question of how we would

".

with the Constitutional Boards insofar as the power of

14 ~ the Governor was concerned. Well, I think we I ve answered < J:
15 ~ that to the extent that we don't do anything with those right '::">
16 ~ now. We leave that solely as a function of Mr. Sterne's z
17 <~ committee until we decide what direction that's going to take

18 II and then we may have to coordinate. The other one had to do

19 Ii with the question of whether or not we should have a 20 I Lieutenant Governor. Now we did raise the question of whether

21 \ they should run on the same ticket at our meeting, but we took that

22 ilout for further study before we came back to this board. So

23 II if it's all right with this committee, we had rather give that
i 24 some further study before we get any irreversible direction on

25 II that, so we can come back to you.

lL--

. .----.---- . ----------~.,,---.--.- --"-----'-.-.-----.,.~

-~--

.. __ ._._,._-----~_.,-~-----_._._--~---------'--_.------.----_

.. _.~------

CHAIRMAN SMITH: All right.

PAGE 121
------------- ------------1 Two housekeeping items,

2. I I hope the subcommittees can in the manner of Judge Hill's
IiJ conunittee, whatever you reconunend, bring it back in print. I

i4 II th.ink that will facilitate our moving ahead at the meeting ,I
5 Ii on October 31st. The other is, have the subcommittees set

"j:
6 II their time of the next meeting?

!I

7 'I

MR. STERNE: I want to do that with those members

II

b 1\ of my subcommittee who are present

.,

Ii

9 I:

MR. GOWEN: Nick has set his, the subcommittee is

10 meeting the 15th, we've set that.

Iz.'J

11 leot:

MR. CHILIVIS: The only thing is we'll have to

0..

w

12 :change the place, so you'll be notified. It would be at

(lS~r ~ fY-~

. the Capitol instead of where we had set it.

14 >-

MR. GOWEN: Your edict doesn't prevent the

t;;



r

15 '~sub-subcommittee from meeting in my office, does it, since

I.'J

'"::>

16 ~there will be only three of us?

o

z

<t

17 ;;

MR. HILL: No

18 !I,

MR. GOWEN: Plus some staff.

19

MR. ENGLISH: Well, I assume the sub-subcommittee

I

I

20 ! meeting times and places are going to be noted in this article

21 you mentioned also so that the public can participate?

;)

MR. GOWEN: We'll be glad to have the public. I

13 just think it would be a lot easier to get it reduced to

2.tl,writing and things of that kind in my office than it would be

2) in the Capitol.

PAGE 122
2rthat~~Ub~~:i:::H~oe::::'~:v:h:::::we~, a:: ::::~::~-

3 II not a meeting, you're just working the draft and there's no

i'
4 i'ii requirement that we draft in public.

Ii

5 I!

MR. HILL: The next meeting of the full subcommittee

"
6 II will be October 15th. That will be in the Capitol and that
:1
7 \1 will be announced and at that time they'll hear the reports

8 il from the sub-subcommittees, so I think that's adequate notice.

9 Ii

MR. CHILIVIS: At that time we hope to have our

10 drafting either completed or close enough complete that we'll

Czl

11 ~be able to bring it back to the full committee at the next

o

u.

V

12 "~"' meeting.

~---.~ JUDGE HILL: I'd like to congratulate Mel Hill and

14 ~the staff he's put together for the excellent help we're

Vl x

15 .!> getting.

~,

:':">

16 ~
az 17 ~hour.

CHAIRMAN SMITH: This file is getting bigger by the I don't know when we're going to get it all read. Well,

18 I: I certainly second that comp[ment to the staff. I also want

19 I to thank all of you for coming. I feel like we made some
I
20 II progress this morning. The task is a little less than we

21 II envisioned it when we met the first time, so until October

I:1:

22 II 31st the subs and the subsubs and the subsubsubs will continue

II,i 23 II to meet.

Ii

24 Iili

(Whereupon, the meeting was adjourned at 1:24 p.m.

I'\I
25 1li[o_n_ September 2__6-_, 1979.)

PAGE 12:3 C E R T I FIe ATE I, Peggy J. Warren, CVR-CM, CCR No. A-1?1, do hereby certify that the foregoing 121 pages of transcript represent a true and accurate record of the events which transpired at the time and place set out above.
P O.2Ji~ PEG~RREN, CVR-CM, CCR A-171

. INDEX
Committee to Revise Articles IV and V Full Committee Meeting Held on sept. 26, 1979

FULL COMMITTEE MEETING, 9-26-79

Proceedings. pp. 3-4

ARTICLE IV: CONSTITUTIONAL BOARDS AND COMMISSIONS Subcommittee Report. pp. 71-72 SECTION I: PUBLIC SERVICE COMMISSION Paragraph I: Public Service Commission. pp. 72, 91, 112-115

SECTION II: STATE BOARD OF PARDONS AND PAROLES Paragraph I: State Board of Pardons and Paroles.

pp. 72, 92, 94-105

SECTION III: Paragraph I:

STATE PERSONNEL BOARD State Personnel Board.

pp. 72-73

SECTION IV: STATE TRANSPORTATION BOARD
Paragraph I: State T~ansportation Board Commissioner. pp. 73-74, 77-79, 83-85, 91-94

SECTION V: VETERANS SERVICE BOARD
Paragraph I: Veterans Service Board Commissioner. pp. 74-76 r 86-89, 92

SECTION VI: BOARD OF NATURAL RESOURCES Paragraph I: Board of Natural Resources.

p. 78

General Discussion Treating Boards statutorily. pp. 76-77, 79-85 Recommendation for three Boards. pp. 85-91, 107 Former Board of Industry and Trade. pp. 106-107 Composition, election, qualifications, and appointment of members. pp. 107-115

Full Committee Meeting 9-26-79 Page 2
ARTICLE V: EXECUTIVE BRANCH SECTION I: ELECTION OF GOVERNOR AND LIEUTENANT GOVERNOR Paragraphs II: Election for Governor,
III: Lieutenant Governor, and V: Succession to executive power. pp. 116-120
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph I: Executive powers. pp. 25-27 Paragraph VIII: Filling vacancies. pp. 23-25
SECTION III: OTHER ELECTED EXECUTIVE OFFICERS Paragraph I: Other executive officers; how elected. pp. 4-21, 46-58
(State Superintendent of Schools, and State Board of Education. See also Article VIII, Section II, Paragraph I.)
Para.raph II: Qualifications. pp. 21-23 Paragraph III: Powers, duties, compensation, and allowances of other
executive officers. pp. 27-41 Paragraph IV: Attorney General; duties. pp. 59-69
See also The Constitution EX 1976, Article V, Section III, Paragraph VI:
The Great Seal, What constitutes; custody; when affixed to Instruments. pp. 42-46

STATE OF GEORGIA
COMMITTEE TO REVISE ARTICLES IV AND V of the
CONSTITUTION OF GEORGIA
Subcommittee on the Governor and Lieutenant Governor
Room 402 State Capitol Atlanta, Georgia Monday, October 15, 1979 10:00 a.m.
BRANDENBURG & HASTY
SCIENTIFIC REPORTING 3715 COLONIAL TRAIL, DOUGLASVILLE, CEORCIA lOBS
942-0482 DEPOSITIONS - ARBITRATIONS - CONVENTIONS - CONFERENCES
--------------------

j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j
J

- - - - rr----------------------------------------~-------
d PRESENT WERE:

COMMITTEE MEMBERS:

3

NICKOLAS CHILIVIS, CHAIRMAN

MR. CHARLES GOWEN

-+

REPRESENTATIVE LOTTIE WATKINS

REPRESENTATIVE JOSEPH WOOD

s

MR. HENRY WISEBRAM

MR. EDWIN JACKSON

SELECT COMMITTEE STAFF:
7

MR. MELVIN HILL

,I.;

MR. MICHAEL HENRY

MS. VICKIE GREENBERG
9

OFFICE OF LEGISLATIVE COUNSEL:
to

MS. CYNTHIA NONIDEZ MR. VIRLYN SLATON

OTHERS:

1,+ ,_

T.
]:- ,~

:::J
I (~'

,c

.1,

~ "7

l:.i:

I

I;'

MR. CHARLES TIDWELL MR. HAMILTON MCWHORTER MR. THOMAS THORNE-THOMSEN

PAGE 2

i'

1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1 1 1 1
1 1

PRO C E E DIN G S

PAGE 2 ._-_... _.._-_._-_ .. - - - ,
!

CHAIRMAN CHILIVIS: I guess we can call the meeting

to order. Is there some sort of a roll that we need to sign?

MR. HILL: If you would ask those committee members

who are here to identify themselves.

CHAIRMAN CHILIVIS: I can tell you who is here.

11 Charles Gowen, Edwin Jackson, Representative Lottie Watkins,

x and Henry Wisebrarn. Now those are the only ones I think that

9 . are on the committee. Judge Findley and Representative Joe

10 Wood are the only two absentees. 'z-.' I understand that all the subcommittees have met.

I was hopeful that we might have some rather firm recommenda-

tions to pass on this morning. The next meeting of the full

committee I believe is October 31, which is Thursday week?

]5

MR. THORNE-THOMSEN: Wednesday week.

,CJ.

.;:,

16 ~
'C"\

CHAIRMAN CHILIVIS: And I was hopeful we might get

'1
".
.1 '7 ~~: something in some final order.

11" !

The first subcommittee is Mr. Gowen's committee on

19 Article V, Section I, and I,know they have met and done some

work and I wonder if we might have a report.

MR. GOWEN: We have a written report which has been

distributed and which I think makes six recommendations. The ..,~ , first is that there be a change in the provisions covering 2.+ the Governor's term of office and his eligibility to run. The

change that the subcommittee recommends to the entire sub-

I
j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j j

PAGE 3

committee would permit a Governor to run again after he had

been out of office for four years. That's the only change,

3 and we recommended that.

-I

The second one in Paragraph I was to change "either ll

~ to "any", simply thinking it was a better word. We gave serious consideration to the provisions in

Paragraphs II, III, and IV about the rewording of those to

k economize the language. After much discussion we left it to

'i talk to Mr. Justice Hill, who was the author of the

10 Constitutional amendment that is embraced in that section

z~I

Ii ~: and he -- one of our staff members -- was it you, Charlie?

,:>-

w

i12 ~
(~~)r~

MR. TIDWELL: Yes, sir. MR. GOWEN: You went. And they spent quite awhile

- _-- '

i

14 C and reached the conclusion that it shouldn't be tampered with,

.<r":

j~; .~ that it would -- was in about as good shape as it could be

.I...~..J

.:0

I6

~;
z. 'a-"z:

in,

so we

recommended no

changes

for

that.

<

17 ''""

The next is in Paragraph VII, Qualifications of

) I~ Governor and Lieutenant Governor, in lines 18 and 19, we

i ') thought the word II citizen" was better than "resident".

20 "Resident ll we believe has some legal definitions where a

) I person could be a resident of the State, but to be a citizen
,,
-.'.- of the State I think perhaps has a better definition and we

."23 recommend that change. We also recommend to the 1I0ther ll 24 subcommittee that is dealing with Article V, Section III,

Paragraph IV, that they consider changing the phrase "shall

'1- ----- ---- . -
!f have resided in this State" to "shall be a citizen of this

State"

.3

In discussing Paragraph VIII, Succession, we gave

4 considerable thought as to whether it ought to be carried

5 farther than the Governor, Lieutenant Governor and Speaker

6 and when it was brought out that the Committee on the Legislative

7 Article was probably going to present a provision that would

provide for the immediate succession of the Speaker Pro Tem

to the position of Speaker of the House in the event the

10 Speaker of the House became disabled, resigned or died, that

l?

~:

II

,..
'o"

that probably cleared up

the

succession well

enough

so

that

0-

j::

w 0:
U

it

wasn't

necessary

to

do

anything

about

it.

(,~~~,)r~

~
~

Then we have recommended that Paragraph IX be changed

~I

j4

>. !;;

to

simply

provide

"The

Governor

shall

take

the

oath

or



r

15 .) affirmation provided by law." The Governor doesn't take the

\!J

I,

:;>

16 ! one that's provided in the Constitution now. He takes it, but

;:,

2-

-<

~7 ~ takes a lot more along with it and we thought the Constitution

IS didn't need to set forth the language of the oath.

19

I believe that was all. We were sorry that

20 Representative Watkins was ill and couldn't be with us, we

21 i missed her very much. Fortunately we had Ed there and the

22 staff was extremely helpful and we were able to complete our

23 business and adjourn.

24

CHAIRMAN CHILIVIS: This written document that you

just went over then is your -- the conclusion of your

PAGE 5

recommendation and the work of your committee unless there is

some further changes I suppose, Mr. Gowen.

MR. GOWEN: Yes. You'll see that the language that

is underlined is new and the one that is written through is 5 deleting the present provision in the Constitution.

CHAIRMAN CHILIVIS: Okay. Has everybody had a 7 chance to at least look over this and have some understanding

with the explanation of Mr. Gowen? If so, I'd like to hear

l) any discussion on this.

10

MR. JACKSON: I'd like to make just one point.

"z

11

CHAIRMAN CHILIVIS: All right.

MR. JACKSON: At the time we worked on Section I,

we had not perfected Section II, and I would say if we adopt

Section II, which talks about the duties and powers of the
15 :~: Governor where there is a clear grant of the executive power
:'"J
!h ~ to be vested in the Governor, then this first sentence in Q -z: 7
1 '" Paragraph I will not be necessary, because this is a grant IX of power, "The executive power shall be vested in a

Governor "

20

CHAI~~ CHILIVIS: Let's see now, what you're

21 referring to on Section II.

MR. JACKSON: In Section II, the subcommittee gave

a clear grant of executive power to the Governor in that

section since that's the one on powers and duties. Before

and the way that this still reads, it says in Section I, "The

1.,

\i

'f'
1.',

6

executive power shall be vested in a Governor " And then

2 the rest of it is provisions about the election of a Governor.

3 And what we felt, that first sentence was actually a grant, a

4 major grant of power, and so what I would recommend is that

we could delete -- there's no point in having it in two places.

CHAIRMAN CHILIVIS: I see.

MR. JACKSON: So we could just -- if we adopt both

of these Sections, then we could just delete the first phrase
q !: in Paragraph I of Section I and just say liThe Governor shall
10 hold office during the term of four years " rather than
l? Z
11 "'o" putting in a grant of power under this.
0..-.
MR. GOWEN: Maybe we ought to say "There shall be a

Governor, who shall hold his office "

CHAIRMAN CHILIVIS: Let me ask you one question. I

notice in Article V, Section II that you have the "chief

executive powers shall be vested in the Governor" and Paragraph

I of Article V, Section I it merely says liThe executive power

18 I shall be vested in the Governor .. " Is there any distinction?

IY

MR. JACKSON: I'll be glad to discuss that when we

20 get to this or I can do it now. There is a distinction.

21

CHAIRMAN CHILIVIS: All right. Well, what I was

thinking about is we're talking about eliminating this phrase

because of the other phrase. If there is a difference in the

two, then I guess now is the time to address it.

MR~ JACKSON: Well the term -- there's confusion aboub
L,

----~-- ------------_.

PAGE 7
- _._-------------------------,

the phrase "the executive power" because you do have these

2 separate Constitutional officers and we thought "chief

3 executive powers" means that the Governor is the supreme

~ person in the Executive branch and by using the term "chief ll

5 we wanted to make it clear. This was the recommendation as

I remember of the '70 Constitutional Study Commission. They

also recommended using the term "chief" and several other S I state constitutions use the phrase "chief executive" to

9 I clearly delineate that the Governor is chief executive. I

10 think you're right, if we say chief executive in one place and
'z"
II ,.. executive in the other, we need to decide which one we're

going to go with. But in any event, the feeling was that it

needs to be under the powers of the Governor, that section as

opposed to how the Governor is selected.

IS.:>

CHAIRMAN CHILIVIS: It would appear that your point

:,

,Ij 0~;' is well taken. r.,

Mr. Gowen, forgetting for a moment about the

l.

(

}7 '~ difference between chief executive and just executiv~what is

1.'. your judgment in regard to whether or not we should

lei

MR. JACKSON: Well I -- it seems to me if you take it

2(1 out of here, I think we ought to provide for a Governor and say

21 "There shall be a Governor, who shall hold his office during

the term of four years, and until his successor shall be chosen \

and qualified. II

CHAIRMAN CHILIVIS: So you could just substitute

IIThere" for "The executive power", strike "vested in" and it

PACE 8 would read "There shall be a Governor, who shall hold his

2 office during the term of four years and until his successor

3 I shall be chosen and qualified."

4

MR. GOWEN: Then if the other is adopted, I think

5 that takes care of it as Ed suggested.

/,

CHAIRMAN CHILIVIS: Let me ask a question. Will

7 Article V, Section I and II be up for vote at the same time

by the people?

9

MR. HILL: All of Article V.

10

CHAIRMAN CHILIVIS: All of Article V.

11 -,
'",(..>..

MR. HILL: Mr. Chairman, I'd like to point out that

(&-~))~ :. I~~

12

"0'' -'

there

has

been

a

policy decision on

the

part

of

the

other

",

committees that have been working up to this point to attempt

~~/

'.~l

14

r
:-

to

neuterize

the

Constitution

as

much

as

possible

and

remove

<
I

15

-:>
:9

masculine

pronouns.

So I wonder whether this committee, in

.':">
16 ~~ terms of a draft of this section and as we go through that,

7.
-<
17 ~ subscribes to that same philosophy.

CHAIRMAN CHILIVIS: Let me ask you, how have they

19 been doing that. Have they been saying "his or her" or just

20 ,' going back to the noun?

21

MR. HILL: We have been trying to make it -- I'd

say half of the time we have to use "his or her" but the

other half we can use some other term.

MR. JACKSON: This is going to be awkward though,

"A Governor may succeed himself or herself", you can't say

__ . - - - - - - - - - - - - " - ~ _ . _ - - - - . _ - - - _ . -'--.~-_..

'-~'~-----------~------------~---'-~----"-'------

"itself".

PAGE 9
'1
I think there are some cases where you can drop it,

2 I but I think there are some cases where it just is not Pl~ICt ic;\ 1.

3

CHAIRMAN CHILIVIS: Well, what is the judgment of

4 the committee? Hi, Ham. I suppose that we would want to

5 ' neuterize it as much as possible. Is there any objection to

6 that? I agree that sometimes the language would be awkward. 7 I don't know whether grammatically "himself or herself", there'~

R any problem with it, it doesn't flow too smoothly. If there

(j ! is no objection to using that type of phraseology, then it's

10 all right with me.

Who does the drafting?

MR. HILL: The staff.

CHAIRMAN CHILIVIS: Will the staff neuterize.

MR. HILL: We'll do that and present it to you at

-::

I

IS

,~ c:>

the

next

meeting.

u'

OJ

J {J ~~
'o-Mr.

CHAIRMAN CHILIVIS:

Okay.

<'

17 :i;

MR. HILL: Either the full committee or a subcommittee.

Ib

CHAIRMAN CHILIVIS: I know everybody here is familiar

with the fact that there is a statute that says that in the

construction of statutes, that he includes she, but we may

have to amend the statute somewhat to develop a word which ,)
includes both which is neither he nor she.

MR. TIDWELL: What's accomplished by it?

2-1

MR. GOWEN: You're supposed to please some of the

women's libbers aren't you. Isn't that the whole idea?

---_._-

- - - - - ----_._ .. "-------- - - - - - - ~---- -- - -

- - - - - - - - - ~- - -- - - - - - - - - - - -

----------

CHAIRMAN CHILIVIS:

- - - _ . _ - .. -'--~-'--~'--------_
That's it, yes.

PAGE 10

-,

MR. GOWEN: I know of no other reason. We've been

'i
3 getting along with it for quite awhile. It's all right with

4 me.

5

CHAIRMAN CHILIVIS: It's considered a chauvinistic

b phrase when he embraces she but she does not embrace he.

7

MR. TIDWELL: I believe they changed the statute.

8

CHAIRMAN CHILIVIS: Did they? She does include he

'I now?

10

MR. TIDWELL: I think. I seem to remember them doing

"<

11

,..
"co

that.

"-

@r-~;12 :"~'

CHAIRMAN CHILIVIS: One of the problems we might get

into, Charlie, they might want to amend the Constitution and

14

>t;;

say

"The

Governor

may

succeed

herself . "

~
r.

15 ~

MR TIDWELL: It just seems that you don't really

"ir.

16

~ 'ou

accomplish

a

whole

lot

and

where

it

can

be

done

without

going

2

<

! 7 ~; through this tortuous himself-herself or he or she, then you

18 can do it, but to try and say he or she every time it's used

Jl) in the Constitution just seems to me to be an exercise that

20 really doesn't accomplish a whole lot.

CHAIRMAN CHILIVIS: Well, I agree with you and I 22 think that in the drafting of it, you could avoid the use of

his and hers unless it's necessary. For example, when you get

to the point that liThe Governor shall hold office during the

term of four years and until " instead of "his or her

succes~~r",- ;~: coul~ say-.a su~~~~~~r'.--

-----l PAGE 11
-- - - ---

3 E/1,o0..

MR. HILL: That's what we have been attempting to
I,

CHAIRMAN CHILIVIS: And just do it that way. The

~ I only -- I don't know, I'm not up on all of this sort of
,
thing, Charlie, but I do know that there are a great deal of

people who feel very strongly about these terms and, you know,

I guess the question would arise as to whether or not those

people might vote against the Constitution because of the

10 phraseology. I don't know the answer to that.
'..) 2:
MR. HILL: Maybe we could ask the lady members of

our committee how they feel about this or the ladies in the

room.

REPRESENTATIVE WATKINS: You never know when a lady

15 ",~, is going to get elected, so you really don't know what gender

16 ~::'; to use.
'z
<:'
17 ~:

MR. HILL: This came up in the Bill of Rights more

than elsewhere.

1'1

MR. TIDWELL: It comes up every time there is a

revision of anything and generally it is started as not a

)'
_I worthwhile project because it doesn't

it creates more

awkwardness than it does clarity. But when you can do as you

just said, Nick, then "a successor", that's fine, but the

"he or she", I imagine -- I don't know how many hundreds of

times it appears in the Constitution and certainly just

.l..

,. ~ .

. _. ,~ __

~ __ .. ,'__ .., __. .

~-----~.--_.------

PAGE 12

thousands and thousands of times in the statutes.

MR. JACKSON: There was an interesting situation in

3 the latest handbook for legislators, it was talking about the

4 Speaker and our editor, who is a woman, insisted that when I

5 used the term Speaker, I say he or she. I recognize the

6 possibility but there's also the fact that in political life
he. 7 in the next five years the Speaker probably will be a

But sometimes it reads kind of awkward, the Speaker, he or she.

CHAIRMAN CHILIVIS: Well, any further discussion on

10 that point? We'll take a vote and see what the wishes of the

Ci

2:

11 ~ committee are.

o

~

~

~r"~;: IP~

12 :

MS. NONIDEZ: The other day, Mr. Chairman, one of

the Legislative subcommittees ran into the same problem and

14

,. >.'-,

they

I

think,

Hamilton

correct me

if

I'm wrong,

they

just

really

:r;

15 ~ thought that you were adding a lot of garbage, as Charlie just

oX

::>

16

~
"o'

said.

What are you really accomplishing by doing that?

To

2:

<

17 ~ the extent that you can neuterize by using other appropriate

18 ! descriptive adjectives, then fine, but there are obviously 19 going to be situations in which you've got to use the personal 20 pronoun. I think if all of the committees were in the posture 21 ultimately to say we attempted to neuterize it to the extent 22 to which we could and make these kinds of changes, then I

think you're out of it. And that's speaking as a woman, I

think you're really out of it. I don't see any additional

CHAIRMAN CHILIVIS: Attempted to neuterize it to the

------~------

-------------------- -

PAGE 13

r~xtent _._------------._-we could without making the Constitution flow in a

l

I

2 11 clumsy manner.

I

I

3 Ii

MR. TIDWELL: I believe that that would be the

i
4 I!I: position that the Select Committee would take on this subject, !

"I

5 il and I can~ speak for them, although it came up in the other

i

:i

6

:1
:l

revisions that we have had and I

think that

knowing how

"

most of them feel on that subject, all of them having been

8 I involved in some major revision, and I project that that will

be their policy. And it will be the Select Committee that

10 tries to have a consistency between the Articles.

Now the Bill of Rights, you know, they have made

apparently made that policy decision where the Legislative

Article has made one differently. It will be the Select

Committee to reconcile it and I think what the Legislative

15

~ \:l

Article's

policy ~will probably

be what

the

Select Committee

':",

16

In
:z.
w

policy will

be.

I anticipate that.

C

7.

<:

17 f::; ~l

CHAIRMAN CHILIVIS: Let me ask a question. Does the

1H provision in Section 102 of the Code, defining statutes, apply

19 !I also to the Constitution?

I'

20

MR. TIDWELL: Nick, I don't recall, but I think that

2J is the construction that the Supreme Court probably is going to!

22 put on it, you know.

23

CHAIRMAN CHILIVIS: I guess the legal question that

24 would arise would be if you state in the Constitution in some

25 places his or her, he or she, and you don't state it in other

L~

- - - __ ~_~

.~~

--~-~------------- - - - - - - - - - - - - - - -

PAGE 14

places and if Section 102 does not apply to the Constitution

2 but applies only to the construction of legislative enactments,

3 I then you would have a construction that the he did not include

4 the feminine.

5

MR. JACKSON: The committee could go on record

6 though with a resolution to the effect that they tried to

7 neuterize the personal pronouns to the extent possible and

R practical, but in any case where they had to use one, the

9 term he shall include she. That could be a resolution and

10 that would be the intent of the committee.

z'C' 11
0,.
w
!~\ ~ 12
~r~~

CHAIRMAN CHILIVIS: That woule cover it. MR. JACKSON: The court would look -CHAIRMAN CHILIVIS: I just mentioned that as some-

14

>-
~

thing to consider if we do neuterize it because that would

'<"~

r

15 ...0, definitely be a construction problem

:'"J

16 ,~..
o

Okay, all in favor of -- I don't think there's a

z

..:

17 ~ formal motion before the floor, maybe there is --

Iii

MR. GOWEN: I'll make one, that we neuterize it to

19 the extent possible without making the Constitution clumsy and

20 redundant.

21

CHAIRMAN CHILIVIS: Is there a second to the motion?

22

REPRESENTATIVE WATKINS: I second it.

23

CHAIRMAN CHILIVIS: There has been a motion made and

24 seconded that in the drafting we neuterize it as much as

25 possible without making it clumsy and redundant. Is there

..L--

_

rr---------

1 I"i any discussion?

Ii -., il II

(No response.)

jj

.3 !!

CHAIRMAN CHILIVIS:

"

PAGE 15 All in favor of the motion,

4 will you raise your right hand please?

5

(Votes were cast with raised hands.)

6

CHAIRMAN CHILIVIS: All opposed?

7

(No response.)

c)

CHAIRMAN CHILIVIS: I think the motion passed

9 unanimously.

10

MR. GOWEN: There's one other thing that the sub-

c?

Z

11

>-
'o"

committee

of

the

subcommittee

did

look

into

at

the

request

of

"w-

~=,.~ 1~(2'v_!i..j,

12

~ ~

the

subcommittee

at

its

previous

meeting.

I talked with both



the present Lieutenant Governor and George T. 'Smith who had

14 ,_ held the office of Speaker and Lieutenant Governor to solicit

,n



r

1<; .:> their ideas as to whether the office of Lieutenant Governor

,'-"'

OJ

I ()

r.:, I. w

should

be

retained.

Cl

Z

17 'i:

George T. Smith said he thought very strongly it

J:- should be, that he had held the office of Speaker and Lieutenant

Governor and that as Speaker of the House, he only considered

himself responsible to the people of Grady County and the

175 members of the House of Representatives who elected him,

1 ' but when he became Lieutenant Governor, he felt that he was

responsible to the people of the entire state and not to the

members of the Senate, where had he been elected President of

the Senate by the members, he felt that he would have probably

'-~--' ..._.

_ - - - - _ ------_...

.._._-----_.....- - - - - - - - - - - - - - _ . - - - - - - _..

--

---------------------------

felt as he did when he was Speaker.

2

I talked to Zell Miller, and Zell said that he thought

3 it ought to be continued because the Lieutenant Governor was

4 able to do a great deal to take some of the Governor's load

5 away from him. That he had made trips to Europe when the

Governor wasn't able to go with the Trade Commission, and that

7 it helped him to have the title Lieutenant Governor, if he

had gone as President of the Georgia Senate, he wouldn't have I) had the prestige in the eyes of the foreign people that the

10 Office of Lieutenant Governor had and he thought that was a good

"z
reason to do it. And he said that if

whether you wanted to

continue him as the presiding officer of the Senate was

something that he didn't particularly express an opinion about,

,- but he did feel that he was there as an aide to the Governor

~

I:

15 ~ and that he didn't think they should run as a team as long as

,::.;

:>

16

~
w

the

Lieutenant

Governor

presided

over

the

Senate,

because

he

Cl

z

-<:

17 'z felt that the Governor if he was so minded could probably

lk greatly influence the election of the Speaker of the House

\9 and if he also had his running mate presiding over the other

20 I branch of the legislature, it would increase greatly the

2] power of the Governor. But that if he was removed as

'Y' i presiding officer of the Senate, that he thought it might be

23 a good idea for the Lieutenant Governor to run as a team with

24 the Governor if he was, in effect, going to be his assistant.

After we considered it in our subcommittee, we decided

i that we would recommend leaving it as it is now.

2

CHAIRMAN CHILIVIS: Come in, Joe.

PAGE

17
------ --~----,
I
I
I

I

Joe, we have been discussing Mr. Gowenls sub-

4 committee report on Article V, Section I and we have almost

5 concluded that portion of it. I believe you are getting

handouts now which show the changes that we have discussed so

far except for one. Tom, can you show him the change that

I we have discussed in addition to the ones that are shown on 9 there, where we said "There shall be a Governor . "?

10

Two of the issues which we were supposed to address

and which Mr. Gowen just mentioned, had to do with whether

there should be a Lieutenant Governor and if so, whether he

should preside over the Senate, and two, whether he should

I,J _

1- run on the same ticket as the Governor.

,/0

~~.

1:

15 '~I
,,,9.

Mr. Gowen has just submitted the report of the

=,

,~

1()

z.
~

subcommittee

that

there

should

be

a

Lieutenant

Governor,

that

:z.

<::

1" "'". he should not run on the same ticket with the Governor, leaving

I

open whether he should preside over the Senate, but unless

I'} there is some major change in that, of course, he will.

20

Is there any discussion on any of those points?

MR. WISEBRAM: lid like to ask a question. What

does a model constitution consider with respect to a

Lieutenant Governor? Is there one?

MR. GOWEN: The Lieutenant Governor told me that

whether they presided over the Senate or not was almost equal

among the various states. All the states except, I believe

2 he said, two had Lieutenant Governors and whether they

3 presided over the Senate was 50-50.

4

MR. WISEBRAM: The next question would be, maybe

5 the staff would know, what is the budget for maintaining the

office of Lieutenant Governor in the State?

7

MR. GOWEN: Zell says his, that he has spent less

8 than any of his predecessors, the ones who held the office

earlier from Garland Byrd down to the present time. Now he

10 didn't say how much it was costing.

",
2.

II .... oeY. cu-,

CHAIRMAN CHILIVIS: Of course, the salary has gone

/~;i!Ji~,

12

0:
up _'"oJ. considerably.

What is the salary of the Lieutenant Governor

(~~J;J ~ now? CIOn"'D.

14 >
r'

REPRESENTATIVE WOOD: About twenty-eight thousand.

"

15 ,~
L:!

MR. GOWEN: It's the same as the Speaker of the

,"'

::J

16 C~..l House when the Speaker's per diems and things come in. The

z
l' ~intent I think of the legislature was to make them equal.

If<

CHAIRMAN CHILIVIS: Any other questions or discussion

19 i on this?

20

MR. JACKSON: I've got one question. For every

21 Constitutional officer there is a provision that that officer

22 shall have such powers and duties as may be prescribed by law,

the same thing for every Constitutional board and commission. 24 Do we need something like that for the Lieutenant Governor?

All it says here is his compensation and allowances shall be

-------~----- --------------P-A--G---E------1--9------1
provided by law, do we need to add duties? Because the only I duty spelled out is the duty to preside over the Senate and
3 " to succeed to the executive power if necessary. MR. GOWEN: The reason that was put in I think when
5 the Constitution was created was because it was never conceived that the Lieutenant Governor would do anything except preside over the Senate and that he'd go back home and practice law or farm or whatever it was, when the legislature wasn't in
') session. And the buildup of the Lieutenant Governor's office 10 has been something that has been purely handled through the 1: ~ Executive Department I think rather than the legislature.
MR. JACKSON: But if the legislature decided for ':; a role for the Lieutenant Governor to head up, for instance, our 1:1 international trade efforts, and they passed a statute to that
~; effect, under the current Constitution could he decline and
.;'
:J
1,'" ~l' say you have no power to set my duties? The only Constitutiona~
1 <-
.~ duties I have is to preside over the Senate and to serve in case the Governor resigns. MR. GOWEN: I should think he would have the power to refuse, but the legislature would also have the power to cut:
'1 his salary down to size. CHAIRMAN CHILIVIS: That's a good question, Ed, and
I haven't really given that much thought, but it would seem to me, just thinking out loud without having given it much thought, that with the fact that the Senate and the House of Representatives

20

compete so much I started to say that you might not want

the legislature setting the duties of the Lieutenant Governor,

3 I on the other hand, as long as he presides over the Senate, I

suppose they'd have to be in pretty much agreement for the

5 Lieutenant Governor to get any duties.

MR. JACKSON: They place him on Boards and COlnmissions

and Authorities as it is, I think Authorities.

MR. GOWEN: He's a member of the Jekyll Island

Authority.

10

MR. JACKSON: I have no feeling, I was just raising

we need to put in there that the legislature can prescribe

duties.

CHAIRMAN CHILIVIS: Is there any further discussion

that?

15 -t.
',.::'

MR. WISEBRAM: Have we decided that we're just going

16 ,~", to leave it like it is, I mean the office like it is?

z

<:

17 ~:

CHAIRMAN CHILIVIS: I think the recommendation of the

18 subcommittee is that we in effect leave it

\'1

MR. GOWEN: Leave it as it is.

20

CHAIRMAN CHILIVIS: And I think that the committee

21 needs to make some recommendation as a committee to the -- what

do we call the committee that we're under, the Select Committee,

and that's what we're doing now, is deciding whether to adopt

this or whether to make any further changes.

MR. TIDWELL: Mr. Chairman, for those of us that have
u_

been also sitting in on the Legislative Article revision task, it may be helpful to gather a sense of what they are doing with the office. And while their progress is about as this committee's progress is and subject to being changed, I believe it would be accurate to report that they are not contemplating any great change in the role of the Lieutenant Governor's office. In other words, there will be a Lieutenant Governor and he will be President of the Senate. Is that accurate, Cindy?
MS. NONIDEZ: Yes. MR. TIDWELL: So that Mr. Gowen's subcommittee report is consistent with what that Article committee is doing, but you know that1s not to say that you are precluded from doing something different and the Select Committee would have to reconcile that. CHAIRMAN CHILIVIS: Let me ask a question. At one time the point was raised as to whether or not the Lieutenant Governor had the power to break a tie, that is vote in the Senate, and I don't believe we ever came up with any definite conclusion in that regard. MR. TIDWELL: That Article, the Legislative Article committee is now struggling with that question. CHAIRMAN CHILIVIS: But that comes under the Legislative -MR. TIDWELL: That's right.

\'.,' 22
CHAIRMAN CHILIVIS: -- Article. MR. TIDWELL: I believe it's more appropriate there. MR. GOWEN: That'd be the place that's proper. I think it's covered now by the rules of the Senate, isn't it? MR. TIDWELL: But the present rules of the Senate prohibit him from voting. MR. GOWEN: Yes. MR. TIDWELL: And they are addressing a concept to allow him to vote. MR. WISEBRAM: Mr. Chairman, not having the experience and advantage of most of the memeers here of seeing this office of Lieutenant Governor actually in operation, it seems to me that I can recall that at each election, the Lieutenant Governor has run on the idea that we don't need the office and then we come along here and we start talking about the Constitution and the way it ought to be set up. I recall we were talking about Constitutional boards and so forth, perhaps we don't need those, but I'd like to know just what does the -what is the purpose of having a Lieutenant Governor other than, as Mr. Gowen just said, to preside and I always thought maybe after that he'd kind of pack up and go home,maintain a staff here and so forth, but it seems like in talking to some of the people I know, they wonder why we should fund the office of Lieutenant Governor and in effect having him doing nothing substantially for the four years other than during the

PAGE 23 term of the legislature.
I just wondered if that was fUlly considered by the subcommittee.
CHAIRMAN CHILIVIS: Well the subcommittee will have to address that. I might say this, that I think historically one of the adverse comments about the Lieutenant Governor's office has been the fact that it has been used as a political stepping stone, theoretically, although there have been a number of Lieutenant Governors that have been completely unsuccessful in using it for that, but it was still used that way and that has been a criticism. And there have been a number of Lieutenant Governors who have talked about abolish~ng the office. I suppose that some of the excuses for having the office may include, for example, the fact that you've got to have somebody to succeed the Governor and you've got to have some method of succession. You know, it's a question of how you want to set that up philosophically.
Another thing, I think, is the fact that it does bridge somewhat the Executive and the Legislative and the meshing of the system that we have in Georgia. Under this Governor, the Lieutenant Governor has had considerable additional duties. Some of the others here, particularly Mr. Gowen, can address this much better than I can, Mr. McWhorter, but it seems to me from what little I know about it that Georgia has been emerging on the international scene more in the last five

24
or six years than it ever has before. The role that the Governor has given the Lieutenant Governor in that area has been, I think, a very worthwhile role. Those of you who have dealt with foreign countries know that titles mean a lot and the point that was made by Mr. Gowen, as having been made to him by our present Lieutenant Governor, I think is a valid point.
Those are some reasons I suppose, and Mr. Gowen, maybe you could elaborate on that a little bit.
MR. GOWEN: Well as Mr. Wisebram has said, the criticism of the office has been that it permits the Lieutenant Governor to run for Governor at St~te expense, the State finances his campaign up until the time he announces. And some number of people object to that. Of course, one way to stop that would be to put a provision in the Constitution that the Lieutenant Governor couldn't run for Governor till four years after his term of office was over. That would put him down where he'd really be an assistant to the Governor and that would do away with that.
I told the members of the committee that met in my office that the first person to hold the office of Lieutenant Governor was our friend, M. E. Thompson, and that one of his friends one night said, you know, M.E., can pronounce the Lieutenant the softest and the Governor the loudest -- but I think the -- well, we've had two examples, they talked about Zell

P"-A,,(,'~i,' 25
Miller working with the present Governor and relieving him of some of the things that the Governor couldn't otherwise do and just before that, we had an example of a Governor that couldn't get along with the Lieutenant Governor. The Lieutenant Governor was using the office as a thing to attack the Governor and it was a very difficult situation.
MR. MCWHORTER: Mr. Chairman, may I say something? CHAIRMAN CHILIVIS: Yeah, I wish you would, Ham. MR. MCWHORTER: I personally think whether you ,should have a Lieutenant Governor is debatable but I think if you have a Lieutenant Governor in case of the permanent disability that he should become Governor. You're talking about name, he could be Lieutenant Governor and acting Governor for two years the way we've got it set up now. How much stature would that get for our state. I realize it would be a difference in permanent disability and temporary disability. As far as presiding over the Senate, I feel very strongly about that, although in about half the states, a little over half they do preside, out of those that have made changes all of them have taken him out of the Senate. You're talking about selecting a Chief of Staff of a hospital as a layman, so to speak. You should select a person to preside over the Senate that knows -- has previous experience in parliamentary procedure. I feel like if he wants on-the-job training to become an executive it ought to be in the executive department. Like it

26
is now we've got him both as fish and fowl. Article III is debating how you can give him a
right to vote. It's very clumsy. He certainly doesn't have one now. It has been decided by cases in other states in which it takes a majority of those elected, if you give him a right you'd have to go back to change it in several places. It would be very clumsy and hard to do.
I can see the merits certainly of having a Lieutenant Governor but maybe the people would like to have somebody to succeed to the Governorship that they have elected, but by the same token, putting somebody presiding over the Senate it certainly doesn't apply to the present Lieutenant Governor. I'll say this and I wouldn't have made these remarks except for one thing, I think maybe if the Article were not to be amended too much would have a better chance to be adopted, and I'm sure when it comes to the Senate it's going to be amended to take him out of the Senate. Whether it's successful or not, I'm not going to say. The reason I'm saying this is because in 1975, with the acquiescence of the present Lieutenant Governor, the Senate did that very emphatically and sent it to the House.
CHAIRMAN CHILIVIS: They did what? MR. MCWHORTER: In 1975, they passed a Constitutional amendment taking the Lieutenant Governor from presiding officer of the Senate.

?AGE 27

CHAIRMAN CHILIVIS: In other words, the Senate

passed a resolution to adopt a Constitutional amendment in

1975 to take the Lieutenant Governor out of presiding over the

Senate.

MR. MCWHORTER: Yes, sir.

CHAIRMAN CHILIVIS: I didn't know that.

MS. NONIDEZ: And it failed in the House by only a

handful of the two-thirds requirement.

MR. JACKSON: Mr. Chairman, I'd like to make one

comment, not on the Lieutenant Governor's legislative role,

but we're a nation where symbolism is important. We like to

have a big name on our program if we have a conference or, you know, a gathering, it's important to have somebody important.

Ideally, it would be nice to have the Governor to speak to

all 300 to 400 conferences and associations that we have in

the State, like the Association of County Commissioners,

Georgia Association of Educators. That is physically impossible.

I think it is roles like this or situations like this that the Lieutenant Governor plays an important symbolic role in

representing the State to these associations. That's still

pretty important if you get the Lieutenant Governor speaking

to your big conference or getting him to come to your Fourth

of July Parade or something like that. I think the symbolic

role is pretty important and I don't think we just ought to

have a Governor and that's it. Now having said that, I'll again

'.\

28

defer to the wisdom of this committee as to what his

legislative role should be, but I think it is important to

have a person entitled Lieutenant Governor.

CHAIRMAN CHILIVIS: Well, let me see if I can

clarify something. What you're suggesting, Ham, is that

perhaps we should consider not having the Lieutenant Governor

preside over the Senate and also perhaps we should consider

having the Lieutenant Governor actually become Governor in

the event of permanent disability.

MR. MCWHORTER: That's correct and I think you will

find that Maryland is the only state in this century to abolish

the office but numerous ones have taken him out of the Senate.

CHAIRMAN CHILIVIS: Well, why don't -- in order to

clarify the issues, why don't we discuss first whether or not

to have him preside over the Senate. The subcommittee

recommends that he preside over the Senate.

MR. GOWEN: I don't believe the subcommittee gave

a great deal of thought to that provision. Ed and I were the

ones that were there. Personally, I didn't recall about the

Senate having voted, I knew that there was feeling among the

Senators when I was in the legislature that they ought to have

a right to elect their own presiding officer that other people

had. They ought to have a right to select him. That rather

appeals to me that the Senators ought to have a right to do

it rather than have the people in the state generally elect

j'ACE 29
someone, as Ham has said, that hasn't had any legislative experience. We did have an example of one Lieutenant Governor that had to have a former member of the Senate sit off to the side of him and tell him how to rule.
CHAIRMAN CHILIVIS: I understand that Mr. McWhorter has assumed that role on numerous occasions.
MR. HILL: Mr. Chairman, it came out in the discussion of this in the other committee working on the Legislative Article that if the Lieutenant Governor was to be taken out of the Senate, then the question is what responsibilities will he be given because at the present time that's his major function. And if you're going to try to define certain executive functions then you're going to run afoul of the you could run afoul of the Governor's executive power and create more tension between those two offices. So it's really a problem of deciding what duties and responsibilities you're going to give the Lieutenant Governor if you should take him out of the Senate. And that's kind of why I think that committee comes back with him in the Senate at the present time. We haven't been able to think of, you know, legitimate executive functions that could be given to him without creating conflicts.
MR. GOWEN: Nick's suggestion that we might -- I believe it was or Ed's -- give him such duties as prescribed by law, or you could say he shall have such -- perform such

30
duties as may be assigned to him by the Governor, if he's going to be the Governor's assistant.
CHAIRMAN CHILIVIS: I would have some concern, you know as long as he's presiding over the Senate, I would have less concern with a provision that said such duties as provided by the legislature because he would have some -- a great deal of input into the legislature but if we tock\ him out as presiding and that were put in there I could see some real problems for a Lieutenant Governor because, you know, he would be no longer really a part of the Executive as a practical matter, he'd be completely subservient to the legislature and that would be a matter of concern.
On the other hand, if you put such duties as assigned by the Governor, I guess I'd be concerned about that too. As long as we had our present Governor I wouldn't but, I don't know
MR. JACKSON: I have a motion to make. CHAIRMAN CHILIVIS: All right, good. MR. JACKSON: This phraseology, "He shall be President of the Senate " is redundant because it is repeated in Article III. We could -CHAIRMAN CHILIVIS: In Article -MR. JACKSON: The Legislative Article says that he shall be President of the Senate. There is no point in saying it twice. We could delete this with a clear idea of

PACE 31 deferring to the Legislative committee to find out their perception of his role, and at a later point we could corne back -- if they want to take him out as President of the Senate we could try to define arnore executive function. But I think we're just going to end up here talking around and around about what to do.
CHAIRMAN CHILIVIS: Well I had another suggestion too that we might consider, and that is, based on the assumption, which I know is correct, that all this is being taken down, that maybe the staff could outline the pros and the cons and that we could address this issue to the Select Committee and say these are the various discussions that we had on the subject and make it a clear cut matter for the Select Committee to decide.
I can tell we're a little bit divided and my judgment is that he ought to preside over the Senate but I can recognize both sides of it.
MR. HILL: I would say this, the other committee is in the very awkward position that if they're going to attempt to make any radical changes, the Lieutenant Governor is on the committee, so that, you know, as a practical matter this committee, you know, if there1s any change going to be made, it's kind of going to be your committee that's going to have to suggest it because the other committee doesn't want to hurt anybody's feelings.

-,.'i
\ \.(j}-,,,, J

J. 32
MR. GOWEN: My conversation with the Lieutenant Governor, he certainly didn't express himself to me as having any great desire to have that retained in the Lieutenant Governor's office, to preside over the Senate, because he said if you take that out I think it would be well for them to run as a team, but if you leave that in they shouldn't necessarily run as a team. You might have enough for the Lieutenant Governor to do if you established it by law, and we've got a pretty big history of having changed the duties of Constitutional officers in Georgia. They once got mad with the Comptroller General and took all his duties away and put them somewhere else. Another man got elected and got them back, and a lot more.
There has been a lot of change in taking duties from one Constitutional officer and giving it to another.
MR. TIDWELL: Mr. Chairman, let me correct one thing. I think I misled Ed because I think I told him that the present Article III provision says that the Lieutenant Governor is the President of the Senate and I believe that's incorrect. This is the only place that it provides that the Lieutenant Governor is the President of the Senate. I got confused because they now have a proposal that also repeats this language in Article III. So it's not a redundancy here, this is the only place that makes the Lieutenant Governor the presiding officer of the Senate under the present Constitution.

PAGE 33 Is that right, Ham?
MR. MCWHORTER: I think that's exactly correct, Charlie.
MR. TIDWELL: So if you would take it out here and the other Article III committee didn't do anything about it, you would have, in effect, removed the Lieutenant Governor as the President of the Senate. He would no longer be a legislative animal, he would be strictly an executive. I'm sorry I misled you.
MR GOWEN: It would be interesting to see whether the people would ratify that provision. I'm inclined to think they WQuld.
MR. WISEBRAM: I think they would. REPRESENTATIVE WATKINS: Mr. Chairman, do you think he likes the prestige of being the Speaker in the Senate or would he rather be an Executive. You have to look at it two ways. That might give him some prestige, just having the position. MR. WISEBRAM: Just to carry this thought, why not make him another Executive Officer and let the Governor appoint a Lieutenant Governor if he wants to have prestige and assist him, put him down there as his alter ego. If he can't make an appointment, send him out to do it, give him a job under the supervision of the Governor. You would eliminate another elective office and you would get more people interested in

,

! \(~';'~") I

<, '.

'

34
voting for the other officers that they are voting for. MR. JACKSON: Mr. Chairman, I'll withdraw my motion
in deference to your motion about -- what we're finding is this is the major policy issue we're going to face. This is it.
CHAIRMAN CHILIVIS: Okay, well, -.MR. GOWEN: We can report to the full committee on the 31st the differences in opinion in the subcommittee and what we are doing is having the matter researched and will present what we think of the pros and cons of each side. MR. HILL: I was just going to say though I think the Select Committee would like a recommendation one way or the other. I think it's not really fair to just -- they'll make the final decision but -CHAIRMAN CHILIVIS: I think we could tell them this MR. GOWEN: Doesn't Sid Smith's committee pass on all we do anyway? Don't we report tohim? MR. HILL: Yes. I was going to say that committee MR. GOWEN: Yeah, well, I think that committee, I anticipate that's who we report to and that Sid Smith's committee would make the recommendation one way or the other. CHAIRMAN CHILIVIS: Judge Smith's committee is the one I have been calling the Select Committee. MR. HILL: Oh, that's wrong, that's the parent committee. CHAIRMAN CHILIVIS: What is Judge Smith's committee

1',\' ,:.; 35
called? MR. TIDWELL: Article IV and V Committee. CHAIRMAN CHILIVIS: Okay, well, the Article IV and V
Committee is the one that I was talking about, and I was suggesting that we tell them that the subcommittee has come up with this draft, which includes the statement that the Lieutenant Governor shall be President of the Senate but that there is some division among the committee on this. That we have looked into the matter, the discussion listed the following reasons why it should be and the following reasons why it shouldn't be, that the staff has done some further research and has come up with these pros and cons. Try to get it, I suppose, as concisely as we can and then bring it up to the committee and we'll have a discussion and vote on it. I think that this is an issue that we need to bring to the Article IV and V committee. I'm sorry when I said Select Committee, that was the one I was referring to.
Now is that all right with everybody? I don't know whether I made myself clear earlier, Melvin, but one of the reasons why I like the fact that he presides over the Senate is the fact that it does make him, insofar as that presiding is concerned, neither fish nor fowl and I think it's a good situation where you have an Executive presiding over the smaller of the two houses of the legislature. I think that flows very well in our Constitutional scheme of things. That's one of the

36
points. Now of course the question of the vote will be haneled
by the Legislative Committee. What other issue was there in connection with the Lieutenant Governor that we were going to talk about?
MR. HILL: lVhether he should run with the Governor. CHAIRMAN CHILIVIS: Yeah, that, but I don't think there was any major discussion on that. Does anybody want to talk about whether he should run with the Governor on the ticket with the Governor? MR. GOWEN: I just don't think it's practical. CHAIRMAN CHILIVIS: I don't either. MR. GOWEN: Under our system of elections. If we had a strong two-party system, it might be very feasible to have it that way, but the way it is now, I don't think we could have any assurance if they ran as a team that both of them would get elected. CHAIRMAN CHILIVIS: Torn? MR. THORNE-THOMSEN: I just wanted to know, before we left this, what you're kicking back other than to have him presiding over the Senate. Is there also the question of whether to have a Lieutenant Governor or not? MR. GOWEN: I don't believe so. CHAIRMAN CHILIVIS: I don't believe 50. I think we have a fairly clear recommendation on that. I think the only

problem we have is whether or not to have him preside over the Senate, and I suppose a related problem would be that if the Committee on Articles IV and V should decide that he should not preside over the Senate, then the question of what his duties and responsibilities will be will have to be addressed and in that connection we discussed whether or not the duties and responsibilities should be set out in the Constitution or whether or not they should be such as are assigned by the legislature or whether or not they should be such as are assigned by the Governor. But I don't think that would be an issue unless the committee were to decide that he would not preside over the Senate.
Was there anything else that we needed to mention about that aspect of it?
Going on down on these changes, I noticed the one on disability and Ham mentioned this, the fact that he felt the Lieutenant Governor should be the Governor and maybe we want to address that. Also though, Henry and I were on this committee where were given Article V, Section IV, Paragraph I concerning disability and one of the questions I'd like to raise is this. Paragraph VIII of Article V, Section I states that uln the case of the death, resignation, or disability of the Governor or the Governor-elect, the Lieutenant Governor or the Lieutenant Governor-elect upon becoming Lieutenant Governor shall exercise the executive power and receive the

38
compensation of the Governor until the next general election ...... and then it goes on with other things, but it says "... at which a successor to the Governor shall be elected for the unexpired term.. ", then it says, " . but if '(the) death, resignation, or disability shall occur within 30 days of the next general election or . within 90 days after the next general election, the Lieutenant Governor shall exercise the executive power and receive the compensation of the Governor for the unexpired term. II
Now the question that I have is this. What happens if there is temporary disability of the Governor? Tying this in with Section IV, Paragraph I of Article V, which I hope ultimately will provide for temporary disability, what happens if the Governor is disabled and he is so declared to be disabled by the Supreme Court on a temporary basis, does that conflict with this language saying that he will serve until the next general election at which a successor to the Governor shall be elected, etc.?
,,
We have a handout on that Article, don't we, somewhere?
MR. HILL: Yes we do on Article VIII -- I mean CHAIRMAN CHILIVIS: On Paragraph IV -- I mean Section IV. MR. HILL: We have two different CHAIRMAN CHILIVIS: Drafts?

PACE 39
MR. HILL: Yes. CHAIRMAN CHILIVIS: But this does provide, doesn't it, that if the disability is not permanent, the Supreme Court shall determine when the disability is ended and the officer shall resume the exercise of his power. MR. HILL: Right. CHAIRMAN CHILIVIS: And that's the question I raise, whether the two are in conflict. In other words, what happens if a Governor becomes disabled, is declared to be disabled but it's a temporary matter? If I may make a suggestion, having raised that point, if we could leave it for a minute until we get to the disability provisions, then we decide on the disability provisions and perhaps we could go back and make sure that that meshes with the disability provision. Is that agreeable with everybody?
(No response.) Apparently that is agreeable; therefore, is there anything else regarding Article V, Section I that we should discuss? MR. THORNE-THOMSEN: Mr. Chairman, I had two questions or comments. On Paragraph I we talked about succeeding himself for one four-year term of office and I noted that the subsUbcommittee elL'ninated the language "In the event the Governor succeeds himself he shall not again be eligible to

40
hold the office of Governor." I think it is provided for in the underlined words, but I wasn't entirely sure why that was eliminated and whether we all feel comfortable that it is adequate in the underlined words.
CHAIRMAN CHILIVIS: Let me see if I understand what you are saying, Tom. Under the Constitution as it now stands, any Governor who has succeeded himself once can never run again, is that correct?
MR. THORNE-THOMSEN: Yes. CHAIRMAN CHILIVIS: All. right, now under this provision he can run again, but after he is out of office for one four-year term. MR. THORNE-THOMSEN: I wasn't sure, I was throwing the question out. CHAIRMAN CHILIVIS: Is that the question you're asking? MR. THORNE-THOMSEN: Yes. CHAIRMAN CHILIVIS: You're not asking about the philosophy, you're asking about whether it in fact does what it purports to. MR. THORNE-THOMSEN: That's right. CHAIRMAN CHILIVIS: Okay. Let me reread it, let's all reread it and see. It says "A Governor may succeed himself for one four-year term of office. Except for a Governor who shall succeed himself as hereinbefore provided, no person who

41
'1 I
has held the office of Governor shall be eligible to hold that office until after the expiration of four years from the conclusion of his term as Governor." I see that that --
MR. GOWEN: Is that "hereinbefore" the wrong word? It seems to me like hereinbefore is not hereinafter "Except for a Governor who shall succeed himself as hereinbefore . "
CHAIRMAN-CHILIVIS: I didn't read that language carefully, but it doesn't say that.
MR. GOWEN: It does. "A Governor may succeed himself for one four-year term of office. Except for a Governor who shall succeed himself as hereinbefore provided, no person who has held the office . shall be eligible to hold that office until after the expiration of four years from the conclusion of his term as Governor." Seems to me it's plain.
MR. JACKSON: This was a conscious decision of the sub-subcommittee. Apparently this was a compromise at the time back in '76, so the Governor wouldn't --
CHAIRMAN CHILIVIS: I understand, Ed, and we're not debating that issue. What we're debating is whether or not the language,itself does what it is supposed to do, and reading it -- when I read it, after it having been brought to my attention by Torn, it seems to me that it says that no person who has held the office of Governor shall be eligible to hold

42
that office until after four years, except that a Governor who has succeeded himself one time can do it. I mean you can read it that way. So I think the language is a little bit ambiguous. I know what you meant to say.
MR. GOWEN: I see the point I think that Torn's got that a man who has run for Governor and ran for re-election and failed to get elected could never run again.
CHAIRMAN CHILIVIS: That would be one -MR. THORNE-THOMSEN: Under that language. MR. GOWEN: Under that language, I think that's possible. CHAIRMAN CHILIVIS: Well it says, "No person who has held the office . " The trouble I have with i.t is you can read it to say that the person who has held the office for eight years can run for another four years, one four-year term of office. MR. THORNE-THOMSEN: It also does not provide for a number of non-consecutive terms that a Governor can hold. In other words, this means -CHAIRMAN CHILIVIS: You can layoff four years and run again. MR. JAC~SON: You could do that before '76. CHAIRMAN CHILIVIS: Yeah. MR. TIDWELL: What's causing the -- I don't see where this language is not clear.

43 MR. THORNE-THOMSEN: I've got some suggested language. CHAIRMAN CHILIVIS: Let's see what your suggested language is. MR. THORNE-THOMSEN: "Except for a Governor who shall succeed himself as hereinbefore provided, a person shall be eligible to hold the office of Governor after the expiration of four years from the conclusion of his term as Governor. II It's a positive -MR. TIDWELL: That would seem to preclude it then. CHAIR~N CHILIVIS: Yes, that would seem to preclude it. In other words, if a Governor has succeeded himself -what we're trying to say is that he can be Governor for eight years, layoff four years, and run and be Governor for another four or eight years. MR. THORNE-THOMSEN: Oh, I didn't know what the -CHAIRMAN CHILIVIS: There's some confusion as to whether that says that. HR. JACKSON: How about the language, "No Governor who has suceeded himself for two consecutive terms ", now that gets the back-to-back terms, that's the consecutive terms, " then shall be eligible to hold that office until the expiration of four years from the conclusion of his last term as Governor." CHAIRMAN CHILIVIS: I think that clears it up perfectly.

44
MR. TIDWELL: There'd be one provision that that would change the present setup. If the Lieutenant Governor ran --:- if he succeeded to the executive power and then ran for the office and were elected, he could only -- under the language that you have before you, he could only serve one more term.
CHAIRMAN CHILIVIS: Uh-huh. MR. TIDWELL: ~~d under Ed's suggested language, he could serve -- it would be six years under that situation, under Ed's language it would be ten years. MR. GOWEN: Well the only one that has done it was Herman Talmadge and at that time they only had the four-year term and wasn't eligible to succeed himself, and he got six years, but he ran for the unexpired term and they held that wasn't a term. The provision in the Constitution was then that a Governor couldn't succeed himself and he ran for the unexpired term, and I'm not sure, I'm kind of under the impression that there was some case raised, litigation, as to whether Herman could be eligible for another term and the I, courts held anyway, the precedent was that he was elected and had the balance of one term plus the four-year term. MR. TIDWELL: There is some concern, I think, on the part of those who --to this amendment that allows succession, to allow a Governor to build up a dynasty and I think that language that's in here now makes it clear that a Governor can only serve eight years, then he's gone. Any other language

PAGE 45
might create the possibility of then years and then he's gone. CHAIRMAN CHILIVIS: But it still doesn't -- it
says a Governor may succeed himself for one four-year term of office. All right, then it says "Except for a Governor who shall succeed himself as hereinbefore provided, no person who has held the office of Governor shall be eligible to hold that office until after the expiration of four years from the conclusion of his term as Governor." That can be read to mean that the prohibition applies only to a person who has not succeeded himself. I think it is clearly the intent of this committee that it applies to a person who has succeeded himself, but it is a little bit ambiguous.
MR. JACKSON: Mr. Chairman, you could cover a Lieutenant Governor who fills in for two more years by language "No person who shall serve as Governor for more than six years, shall succeed himself: without waiting for four years. Is that what you're worried about, the two years?
CHAIRMAN CHILIVIS: It might confuse it. REPRESENTATIVE WOOD: You're going to confuse everything if you put six years in there.
. MR. GOlVEN: Why don't we have -- I think the intent
is clear, with the possible difference of whether the Lieutenant Governor who ran for an unexpired term should count, but with that exception I think we understand what we want, and I suggest that the staff work on it between now and our next

46
meeting so we can get the language like we want it. CHAIRMAN CHILIVIS: We know what we want, we want a
Governor to succeed himself, we want him to, after he succeeds himself, to be able to run after laying off for four years. If a Lieutenant Governor or someone else fills the office of Governor, then his term is going to be limited to the expiration of that term plus four years. Then he's got to layoff for four years. That's what we want. Let me just suggest to the staff that they might consider this, this may cover it. IINo Governor . 11 You might even say it this : ' way, you might say IINo person who has held the office of Governor and who has succeeded himself as hereinbefore provided, shall be eligible to hold the office until the expiration of four years from the conclusion of his term as Governor."
MS. GREENBERG: May I suggest the language "No Governor may hold office for more than eight consecutive years."
REPRESENTATIVE WOOD: That's the present. MS. GREENBERG: That sounds good to me. CHAIRMAN CHILIVIS; Yeah, okay. Figure out sometllhg to put in there. We know what the committee wants to do, it's a question of wording. Yes, Tom? MR. THORNE-THOMSEN: Just for my own clarification, what was the rationale between changing I think the '76

47

Constitution prohibited --

MR. GOWEN: -- him from ever running again.

MR. THORNE-THOMSEN:

more than eight consecutive

years.

MR. GOWEN: He could never run again after he had

held it. That was to change that so he could run again after

laying off four years.

MR. THORNE-THOMSEN: What was tha rationale behind

that?

MR. GOWEN: We thought that the Governor shouldn't

be barred from ever being elected again.

MR. JACKSON: The decision of the people also,

Constitutional officers can and do run forever, four years,

eight years, twelve years, sixteen years. This would allow

the people to make the decision, but make it reasonable where

a person couldn't stay in -- a Governor couldn't stay in --

it would have to be eight years and then off four.

CHAIRMAN CHILIVIS: The purpose of keeping him out

four years is to prevent a Governor from building a dynasty.

I think the committee balanced that against the issue of

forever barring him from running for Governor again. You may

have a Governor that's an excellent Governor and we ought not

to deny that resource to the State, so the committee decided

to let him run, let him stay off four years and then let him

run again. And frankly I think the people would tend to favor

48
that, I certainly would. And that language that IINo pel-son shall serve more than eight consecutive years." You can work that in with this language and that would certainly clear up the Lieutenant Governor problem too, but it would have to be worked in with the fact that he can, you know, he can after laying off for four years, run again.
MR. JACKSON: One last question, and this will affect what Hamilton's point was. Do we want the Lieutenant Governor, if the Governor dies, to become Governor or to fulfill the executive power? If we leave it where it is now, the Lieutenant Governor just fulfills the executive function of Governor. You may want to put in here "No person exercising the powers of Governor . 11 as opposed to "No person being Governor " Do you see what I'm saying?
CHAIRMAN CHILIVIS: Yes. MR. J~CKSON: So we may want to hold that point until we resolve that. MR. GOWEN: That might be a good idea. Again though you are considering that for more than the Lieutenant Governor, there's also the Speaker of the House question, whether you want to make him Governor. Personally I see nothing wrong with having him acting Governor, with all due respect to my friend, Ham. MR. MCWHORTER: Charlie, you know the Speaker only gets it for sixty days rather than for two years.

MR. TIDWELL: Then you have a special election. MR. MCWHORTER: I don't feel that strongly about it. CHAIRMAN CHILIVIS: On the disability question, we're going to get back to that and I think when we talk about that, we can get into the question of whether he actually becomes Governor or he doesn't become Governor. MR. JACKSON: That decision will affect this language. CHAIRMAN CHILIVIS: I know it will., I understood the point. Tom? MR. THORNE-THOMSEN: Before you left this particular section, I just had one comment that we might want to look into. I have had occasion to research the question whether "citizen" has any extra legal effect, and I don't think it does. In fact, I don't think there is such a thing as being a citizen of a State as opposed to being a resident. What I'm sort of concerned with is you may be using a word that we don't know what the legal implications are. Resident has a fairly well established, as much as anything can be, sort of a meaning within the law, whereas citizen of a state does not. Of course, citizenship in the United States -CHAIRMAN CHILIVIS: I'm glad you brought that up. When that was mentioned earlier, I made a mental note and then forgot about it, and as I understood that was changed from

50 "resident" to "citizen"?
MR. THORNE-THOMSEN: I can understand the rationale behind it. I just don't know whether this accomplishes it and whether we might instead be using a word that could be construed by the Supreme Court in any number of ways, since it doesn't really have an established legal framework.
MR. HILL: The present language uses "citizen", I think we discussed whether to use "resident" and decided not to.
CHAIRMAN CHILIVIS: Well that's one of the quandries I had. I thought it was said that they had decided to use "citizen" in lieu of "resident". I noticed that it hadn't been marked through, but "citizen" was the way it was before. ~as that been construed as to what it means?
MR. HENRY: Mr. Chairman, I think the recommendation of the sub-subcommittee was that this committee suggest to the full committee that the other subcommittee might possibly change that language in the provision at Article V, Section III, Paragraph IV on qualification.
CHAIRMAN CHILIVIS: On qualifications of what? MR. HENRY: Other elected executive officers. CHAIRMAN CHILIVIS: Elected Constitutional officers? MR. HENRY: Yes. That would be on page 35 in the brown book. It says " unless he shall have been a citizen of the United States for ten years, shall have resided in this

PArE 51 State for six years " I think the recommendation was that perhaps they might consider changing that to " and shall have been a citizen of this State for six years ... " so as to
MR. HILL: To our knowledge, there has never been litigation about that, but you know, it strikes me that citizenship in the United States means something, you certainly know whether you are a citizen here and people that come to this country have to go through citizenship proceedings in order to get it. You can be a citizen of the United States, it doesn't necessarily mean anything to be a citizen of Georgia, it's more residency in the State, so maybe we should have citizenship of the United States and residency of the State and have that consistent in both places. Right now we say citizen of the United States and citizen of this State in this section and we say citizen of the United States and resident of this state in the other one. And I think maybe we would want to pattern this after the other one and say citizen of the U.S. and resident here.
MR. THORNE-THOMSEN: I think that would be better. MR. JACKSON: If we could defer this, this issue is being researched plus it seems like I have seen some court decisions and Attorney General opinions that distinguish permanent or legal residence from the general generic term residence. They also throw in domicile and a few others. CHAIRMAN CHILIVIS: The problem is-that in Georgia,

, "'.'

52

resident is supposed to have a different meaning from domicile.

Domicile has one meaning and resident has another meaning.

Unfortunately, in the many cases construing the -- one word

or the other, they have used them interchangeably. For

instance, when you talk about domicile, when the very issue

before the court is domicile, very often they will be talkincJ

about domicile and then they'll use the word "resident" and

it has gotten confused. Domicile technically is where a

person intends to permanently remain and they'll even say in

the definition of it, they'll say domicile is where a person

intends to be a permanent resident.

Residence means where a person is actually physically

...
'('t

staying. Well not necessarily even that, because I can be

resident in Georgia and not domiciled in Georgia. I can be

domiciled in Georgia and not resident in Georgia. So you see,

it's a right complicated situation and it normally has to do

with itent.

MR. HILL: The other committee has used the term

"legal resident" in order to qualify it.

CHAIRMAN CHILIVIS: Legal residence means domicile.

MR. HILL: That's the term they used to disqualify

a member of the General Assembly, he loses his seat if he

should remove himself -- remove his legal residence from the

district. They used the term "legal residence" over in

Article III, so maybe we could use the same term here temporarily

53 until we have it, you know, more clearly resolved.
MR. JACKSON: The Georgia Constitution Bill of Rights addresses this. It says "All citizens of the United States, resident in this State, are hereby declared citizens of this State .. "
MR. THORNE-THOMSEN: That doesn't help much. MS. GREENBERG: Looking at other Constitutions and realizing that some of them have the same problem, but some say qualified voter, being a qualified voter of the state. Would that alleviate the problem? MR. TIDWELL: A qualified voter is a citizen of the State. CHAIRMAN CHILIVIS: That gets circuitous. MR. TIDWELL: You know, they are registered but if he's over eighteen and a citizen of the United States and of this State, then he can become an elector. CHAIRMAN CHILIVIS: Well, what about until the matter gets researched, what about the committee's wishes, shall we say " .. a citizen of the United States 15 years and a legal resident of the state . " Does that satisfy the legal requirements, Mr. Gowen, Tom, Virlyn the rest of you lawyers, Ham? MR. TIDWELL: Since we don't know what we're doing, I would opt to leave it alone. MR. GOWEN: Leave it like it is.

54

MR. TIDWELL: Since we don't understand the

implications of the change.

CHAIRMAN CHILIVIS: Well, you may be right. Is

this being researched, Ed, the question of what it means?

MR. JACKSON: I've got a law student on it right

now.

CHAIRMAN CHILIVIS: Why don't we, if we can, when

we report to the committee on Articles IV and V, why don't

we raise the issue that there is some doubt as to what

citizen means and that this should be considered in the light

of whatever conclusions are reached after the research is

completed. Is that all right with everybody?

rr /'

(No response.) Tom, did you have anything else? You said you had

!' a couple of matters.

MR. THORNE-THOMSEN: That's all I had.

CHAIRMAN CHILIVIS: Is there any other discussion

on Section I?

MS. NONIDEZ: Mr. Chairman?

CHAIRMAN CHILIVIS: Yes?

MS. NONIDEZ: On page 1, line 28, I think we need to

change the date, the first election for Governor under this

Constitution, if this Article is -- you may need to change

that, I don't know.

MR. TIDWELL: I thought we did change that to

55 November, 1982. That '78 was supposed to have been changed.
MR. GOWEN: That was supposed to be changed. CHAIRMAN CHILIVIS: Okay. Anything else on Article V, Section I?
(No response.) All right MR. JACKSON: What are we going to do onfue Lieutenant Governor, does he become Governor? CHAIRMAN CHILIVIS: I think we're going to come back to that after we talk about the disability provision because they've got to mesh. Let's be sure and remember when we come back to that, to consider that as part of the issue. All right. Thank you, Mr. Gowen. The next one is Article V, Section II, and Judge Findley was chairman of that subcommittee and is, of course, not able to be here today, and I believe who was on there with him? MR. HILL: Representative Wood and Ed Jackson and myself. CHAIRMAN CHILIVIS: I understand a meeting has been held and there is a report. Who is going to make the report? MR. HILL: I can make the report with some help from my friends. This sub-subcommittee had the distinction of being the first sub-subco~~ittee to meet outside of the Capitol. We met over in August last Wednesday evening at the airport.

56
MR. JACKSON: That was the only way we could get away from the Governor's attorney.
(Laughter. ) MR. HILL: Yes, Charlie, we're sorry you missed that meeting. But in any case, we used pretty extensively the recommendations in the 1970 proposal and that's why you don't have a strike and add version to this. It doesn't follow the format that the present Section II follows, it follows more the format that was used in 1970. It says essentially the same thing, there are not that many changes in it. We can just go through it paragraph-by-paragraph if you have this Section II and then we'll try to indicate the reason for the changes. Paragraph I we have a clear statement about the executive power being vested in the Governor and then a reference to the other executive officers and their relationship to the Governor, which we don't have in this Constitution. MR. JACKSON: Just in the way of comment, we felt it important to get a clear role for the Governor as the chief executive of the State. Also, we had the situation where we have separate Constitutional officers and from time to time it has been rumored that these officers have told the Governor that they, in effect, are elected by the same people that he is and they are not subject in any way to the Governor's power. And we thought this would clarify the role of the Governor as

PAGE 57 chief executive in relationship to those Constitutional officers, except as it says here, where.those duties are prescribed by law.
MR. HILL: Paragraph II, Ed had suggested that we pUll this sentence which appears at the present time at the end of one of the paragraphs, pull it out, because this was such a major function the Governor has.
CHAIRMAN CHILIVIS: What page are you on? MR. HILL: Page 32 in the brown book. The last sentence in Paragraph II of the present Constitution says what this sentence says, but as Ed pointed out, this is one of the most important functions of the Governor and it really shouldn't be hidden away at the end of a paragraph, it should be stated right at the beginning. And so we put this as a second paragraph, Law enforcement, his responsibility for seeing that the laws are faithfully executed. Then the third paragraph, we spoke about -- the present Paragraph I, the Governor shall be commander-in-chief, but instead of using the term "army and navy or militia" we just used the term "military forces" to encompass all the military forces that we would have, more descriptive of the present situation. MR. JACKSON: The problem there, the present language does not include the Air Force which is now a separate

58

military unit and it includes the navy, which Georgia doesn't

have a navy and I doubt that we could have a navy after looking

at the law, so just strike "army and navy" and put "militar.y forces"

MR. HILL: Now if there are any questions, please,

you know, just stop me as we go.

MR. GOWEN: If you do away with the navy, you play

the devil with the Governor's naval attache, who has a very

splendid uniform.

CHAIRMAN CHILIVIS: I saw the Governor present an

honorary admiral certificate of the Navy of Georgia one time.

MR. JACKSON: This is not doing away with the navy.

;j ,

He could have a calvary if he wants to with this language.

MR. HILL: In Paragraph IV, just as information for

this committee, in the Legislative Article there was some

thought that when we got to -- well the 1970 proposal, the

provisions relating to the veto power and all the specifics

about the veto power appeared in the Legislative Article, and

when we were going through the Legislative Article with this

other committee, they felt as well that the veto provisions

really belong over in the Legislative Article, not in the

Executive Article where they are now. So what we did was

and I spoke with the subcommittee members about this and they

agreed to it, but itts subject to your, you know, making a

contrary decision if you want to. But we decided that we would

P \CE 59
let that other committee, the Article III committee work on the veto provisions and we just lifted the present Paragraphs VI and VII and sent them over to that other committee to work on. We did put into here a reference to the veto power of the Governor because it's important enough to be mentioned here and it does specify what his veto authority is, but all of the particulars are sent over to the other Article committee.
MR. JACKSON: And those particulars deal with how the Legislature is going to override the veto.
CHAIRMAN CHILIVIS: Let me ask you this. It says 'IThe Governor may veto, approve or take no action on any such bill or resolution." What happens if the Governor takes no action? will that be addressed in the veto provision that the Legislative Committee will have?
MR. HILL: Maybe we could even add a statement to that effect.
CHAIRMAN CHILIVIS: I would assume -- when you read this it would appear to me that if he takes no action, then the bill is approved, it's not a pocket veto. I think that would be the construction here and I just raise the question. I don't think that it's necessary to change anything because it says that in the event the Governor vetoes any bill or resolution that it can be overriden by two-thirds vote. So if he takes no action, I think it would go without saying that it would be an approval.

60

MR. GOWEN: There's no provision to take no action

in the present Constitution.

MR. TIDWELL: Yes, I think there is.

MR. GOWEN: Well I'm just glancing at it here.

MR. TIDWELL: It does.

MR. HILL: Well when we work on this other, we have

not yet drafted the veto provision and worked on it and come

to a final decision and when we do that, we'll come back to

this.

CHAIRMAN CHILIVIS: But you're suggesting that the

veto provisions other than specified in Paragraph IV be

addressed by the Legislative --

-- I

MR. HILL: If that's acceptable. Members of the sub--

subcommittee were willing to let that other co~nittee do

that.

Suspension of the death sentence is really the

present provisions in Paragraph lIon Reprieves and pardons.

We felt that this title was more descriptive and there's a

proposed addition in here that Judge Findley wanted to put in.

Maybe the other members of the subcommittee can help me with

the rationale, but Judge Findley felt that these appeals are

so prolonged that he would like to see some termination point

to the appeals, and he would like to add within three years or

within some period of time, the Governor may suspend, but,

you know, limit his suspension to that time period. This was

I'\(;E 61
Judge Findley's suggestion. He said that he hadn't spoken to the Governor's office about it, he had no idea what their reaction would be, but as a Judge he felt this would be
CHAIRMAN CHILIVIS: My offhand reaction would be that that ought not to be in the Constitution.
MR. GOWEN: I think so too because conditions change and come about, the present one that he can do it until the Board of Pardons and Paroles has acted, which after they have acted I take it his power of suspension ends, after they have had a right to do it. It's through then, only the courts can stop it.
MR. TIDWELL: Well the present provision says that he has the power to suspend the death penalty until the Board acts on an application of commutation and then I believe it says 1I 0r such other reasons as he deems fit". And having dealt with the death penalty, this is the only executive clemency powers that are now left with the Governor and I don't think that and Governor wants to disturb that.
CHAIRMAN CHILIVIS: You don't think what? MR. TIDWELL: That any Governor would want to ever get those executive clemency powers back, it ought to be performed by the Pardons and Paroles Board, but I do see a need for somebody to be able to suspend the death sentence, whether it be the Governor or someone else outside of the court. And the limitatLon on the number of years, that's a question of

62 your wisdom. We have about seventy odd files in the office now where we have inmates under the death sentence, some of them going back six years. We have not acted on them, we have only acted on two of them to suspend the death sentence sice the re-institution of the death penalty some six, almost seven years ago. I know what Judge Findley is talking about, but I don't know that tha t 's the way to approach i t by saying tha t you couldn't suspend it -- perhaps you need some substantive changes in how appeal processes are handled through the ;,1 judiciary.
CHAIRMAN CHILIVIS: The problem that he is concerned with, in my opinion, and I haven't discussed it with him, and I wouldn't want to speak for him, but in my opinion he is concerned with the fact that they have disjointed appeals, they have multiple appeals through the device of habeas corpus and they drag these things on forever and ever. The courts are now, I believe, addressing that question with what. they call a unitary appeal system?
MR. TIDWELL: That's my understanding. CHAIRMAN CHILIVIS: And if they address it properly then theoretically the problem will get solved through the courts and through ultimate legislation to enable them to carry it out or maybe just through the judiciary. To tie it in to the Constitution I believe would make it too inflexible. The problem ought to be addressed with habeas corpus procedures

63 and appeal procedures as opposed to the Governor's power to suspend the death sentence. That'd be my judgment.
MR. HILL: You suggest then that we strike that last "within __ years after conviction." and just stop the sentence after "state"?
CHAIRMAN CHILIVIS: Let me read that. "The Governor may suspend the execution of a sentence of death for offenses against the State." Now he did not have the unqualified right to suspend before, did he, or did he? I guess he did.
MR. TIDWELL: I think that he does, there are some other folks that don't think that he does.
CHAIRMAN CHILIVIS: Well it says -- the other provision said "The Governor shall have power to suspend the execution of a sentence of death, after conviction, for offenses against the State, until the State Board of Pardons and Paroles, hereinbefore provided, shall have an opportunity of hearing the application of the convicted person for any relief within the power of such Board, or for any other purpose which may be deemed necessary by the Governor."
MR. GOWEN: That's in the new one too. CHAIRMAN CHILIVIS: That's in the what? MR. GOWEN: It's in the new one too. It's in the~ they just made two sentences out of one sentence, is what the difference would be. CHAIRMAN CHILIVIS: Okay. Well, I don't want to push

64 my judgment off on the Board, but -- so maybe -- I mean the committee, maybe we ought to ask the committee what they think about that. I just hate to put that in the Constitution.
REPRESENTATIVE WOOD: Mr. Chairman, the Judge was very strong -- had a very strong feeling about this and, of course, none of us had been sitting in his position and that was the reason we went along with his views because of his strong feeling toward it. I personally regret he's not here to explain to this subcommittee his entire feelings on it. It just could be that at the next meeting he would be in a position maybe to explain it.
CHAIRMAN CHILIVIS: All right. Why don't we do , this --
MR. GOWEN: The Judge is down there where Reidsville is.
MR. TIDWELL: He and Judge Harvey hear more habeas cases than all the rest of the Judges put together.
CHAIRMAN CHILIVIS: And he knows more about the problem than anybody I guess because of that. Why don't we leave it this way, that when we go before the committee, Judge Smith's committee, by then we'll try to have sole resolution of this, we'll see what Judge Findley has to say about it.
MR. JACKSON: Mr. Chairman, one other comment on this Paragraph II, if you'll look on page 32 of the rust book, we drop the provision about the commuting or pardoning with regard

PAGE 65 to treason, for this reason. The way our federal system is now organized, I don't think it's possible to have treason against one state without having treason against the United States. In other words, an enemy of Georgia, some foreign country, is going to be an enemy of the United States, and this would fit the posture of the Governor or the General Assembly pardoning somebody for a federal crime, treason is already covered under federal law in the Federal Constitution, and we'couldn't think of a case in the last twenty years or so where there has been treason except South Carolina-Georgia fishing rights controversy, if you want to call that an enemy. But I don't think anybody cou~d think of any instances of treason against the State of Georgia.
CHAIRMAN CHILIVIS: Where is that provision in the old Constitution?
MR. JACKSON: Paragraph II, I guess the second sentence.
CHAIRMAN CHILIVIS: Let me see. MR. JACKSON: And in any event, if you're going to give the General Assembly that authority, it might be transferred back to the Legislative Article. We just dropped the whole thing. CHAIRMAN CHILIVIS: Has anybody looked at the criminal statute on treason in Georgia? I never have run into it, but is there a treason statute?

, \:

66

MR. TIDWELL: I think there is.

MR. GOWEN: I'm sure that treason is declared to be

a crime.

MR. TIDWELL: And I think it's punishable by death.

CHAIRMAN CHILIVIS: I wonder what they had in mind

in the State, an insurrection against the state?

MR. HILL: As a matter of fact, that's another reason

we dropped it because there was uncertainty on the part of

the Judge that death would be a valid punishment for treason.

The Supreme Court has never gotten that question, but they

have cut it back to where you would normally only have capital

punishment if there was a death involved, so that there was

some feeling that this might not have much relevance under

present legal decisions.

CHAIRMAN CHILIVIS: Well what you say certainly

sounds logical. I would feel more comfortable if we checked

the treason statute just to see if there is any possibility

that somebody could be convicted for treason in Georgia and

whether or not under the current law they could be sentenced

to death. You know, I really -- offhand, it would surprise me

if we could have a treason against the state although I'm sure

there's a statute. I imagine it's probably archaic, but on

the other hand, I'd have to look at the statute to be certain.

So if you would check that and make sure.

MR. HENRY: Mr. Chairman, it's provided for in the Bill

of Rights, treason against the State of Georgia. CHAIRMAN CHILIVIS: What does it say? MR. HENRY: "Treason against the State of Georgia,
shall consist in levying war against her; adhering to her enemies; giving them aid and comfort. No person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or confession in open court."
MR. JACKSON: I think federal law preempts us in the area, but I think also in 1789 Georgia through out the '77 Constitution and you can just go along how language, word for word and sentence for sentence they just pulled from the new federal Constitution in the Georgia Constitution of 1789. I think this was language pulled, just directly.
CHAIRMAN CHILIVIS: I think you're right. I still would feel more comfortable if we looked at the staute also. And it may be under the Bill of Rights, whoever has got that committee would want to consider something on that.
MR. HILL: The final note on that Paragraph II, is that we did consolidate. I think at the present time the language, the last sentence of Paragraph II -- well, next to last sentence, states that the Governor shall report to the General Assembly the sentence and reprieve, date of reprieve or suspension and reasons. We just consolidated that into one statement that the Governor shall at the next regular session of the General Assembly communicate to that body each

68 case of suspension of the death sentence, providing such information as may be required by law. We just tried to shorten that paragraph somewhat with no substantive change.
CHAIRMAN CHILIVIS: Okay. MR. HILL: And the next three paragraphs are really all in Paragraph III of the present Constitution. We just felt that th~dealt with three distinct and separate subjects and it was better to be put in separate paragraphs. Paragraphs VI is Writs of election, the same as we have now; Paragraph :1 VII is information and recommendations to the General Assembly, this language we took from the 1970 proposal but it is the same basic information -- same basic substance that we have in the present provision; and then Paragraph VIII, Special sessions of the General Assembly, we thought to call them special rather than extraordinary because there was some feeling on the committee that that special session was easier to understand by the average layman, so we used that consistently throughout and there were no substantive changes there, but Cindy did propose that we divide this into two subparagraphs and you should have one of the pages, Paragraph VIII Special sessions of the General Assembly, this is the recommendation from the Office of Legislative Counsel to replace this and break the paragraph into two subparagraphs; one is the Governor's power to call a special session and the other speaking to the General Assembly's power.

FACE 69
MR. JACKSON: We also took out the limit Qn the days.
MR. HILL: Oh, that's an important thing. CHAIRMAN CHILIVIS: Explain that to me, what was the limitation? MR. HILL: It was seventy days for a -MS. NONIDEZ: When called by the Governor. MR. HILL: Seventy days when called by the Governor and thirty days when called by the General Assembly but we removed all limitation on number of days in this draft. REPRESENTATIVE WOOD: Mr. Chairman the reason for that, I believe the old seventy days was back when we used to meet every two years and it was for a period of seventy days and then we went to meeting every year but for a period of 45 days one year and 40 days the next year. Well of course, there is a provision now when the Governor calls you, we can adjourn ourselves or we can call ourselves in by the proper procedure even if the Governor don't want it. So there's no use to have a limitation of days because they both can corne and go at the wishes of the Governor and/or the respective bodies. MR. TIDWELL: I'll have to think about that one for awhile. MR. JACKSON: What were our thoughts about the issue of whether during the special session an emergency carne up,

70

would they have to call -- have another proclamation, send

them horne for five days? We were trying to avoid that.

REPRESENTATIVE WOOD: You were going to insert

phraseology that for emergency purposes only, we could -- that

they could handle ever what that problem may be while they

were in session. I don't know whether you've got it in there

or not. As we all know now the call is for X, ever what is

put down in the call, and nothing else can be attended to.

CHAIRMAN CHILIVIS: Let me ask you this, Joe.

Under the present law or present Constitution, the regular

session lasts 45 days, is that

I ,'t.>} \ ~/.-, ,'" i\.\,-'i\s ...-!. ,\ ,I

REPRESENTATIVE WOOD: Forty days. CHAIRMAN CHILIVIS: All right, and then any special

or called session is limited to seventy days?

REPRESENTATIVE WOOD: Under the present Constitution l

yes.

CHAIRMAN CHILIVIS: Okay. Now, how can you call

REPRESENTATIVE WOOD: Called by the Governor,

, j seventy; called by the House and Senate, thirty days.

CHAIRMAN CHILIVIS: All right, well, what does it

require for the House and Senate to call, does it require a

certain

MR. GOWEN: Three-fifths.

CHAIRMAN CHILIVIS: Three-fifths. All right, so your

special sessions can be called by the Governor for a limit of

PACE 71 seventy days, your special sessions can be called by threefifths of the General Assembly -- three-fifths of the House and three-fifths of the Senate for thirty days. All right, now I understand that part of it. Now would you give your explanation again about why the limitation of days should be eliminated?
REPRESENTATIVE WOOD: Each body -- I mean, if the Governor calls, the body can adjourn theirselves and go home. In five days he can call us back. Harmoniously, you know, we have no problem, but you've got to look down the road when the Governor and the legislative body are not getting along. So I could not see the need, or it was thought that the need of the seventy days or thirty days should be left completely out.
CHAIRMAN CHILIVIS: I see what you're talking about now. I didn't fully understand it before. Let me ask you this, if the Governor calls under the present Constitution, can the Governor adjourn the legislature, or is it just the legislature that can adjourn the legislature?
MR. TIDWELL: Only if there is a disagreement between the two houses on adjournment.
CHAIRMAN CHILIVIS: The reason why I was raising that question is because, thinking out loud again, it would seem to me that you could have an unlimited period of time under the present situation but that the Governor would have

no control.

',1 ;
72
In other words under the present situation, you

could have an unlimited -- no, you couldn't have an unlimited

period of time. Under the present situation, the legislature

could adjourn and the Governor could keep calling you back,

but the Governor would have some control and the Constitution

would have some control. If we change it to the way it is

here with no limitation, then it would be a situation where

the Governor would have no control.

MR. GOWEN: Yeah, he calls it in the first place.

MR. JACKSON: Well the legislature could keep

reconvening itself too, because the language is if in the

legislature's opinion if an emergency exists.

CHAIRMAN CHILIVIS: Under the present setup, the

legislature could convene itself? But under the present setup,

they ceuld only remain in session for thirty days.

~m. JACKSON: But then they can re-convene themselves

again.

CHAIRMAN CHILIVIS: Okay. It certainly would appear

that there is no reason for a limitation.

MR. TIDWELL: Well except the perception on the part

of the people that -- I have no problems with it, my under-

standing is that the General Assembly is not going to stay here

any longer than it needs to stay here and they're going to go

home when they don't, but the people could look at this and it

could be very volatile with them.

,"

,\

73

CHAIRMAN CHILIVIS: There's another psychological

problem too, and that is and I don't know, ~ToE' r you wou 1cl

know more about this and some of the others, but it seems'

to me that we are always more successful in getting a budget

with a legislature's time is about to run out, although they

could have, I suppose, extended it.

MR. GOWEN: Well this doesn't have anything to do

with the regular session.

CHAIRMAN CHILIVIS: I know, this is just extra

sessions.

MR. TIDWELL: Well there you say, for all the

business that the state has to get done, it's going to get it

> }

done in forty days, but when there is an emergency you're

going to let them meet forever and it doesn't make sense to me.

REPRESENTATIVE WOOD: You're going to let them meet

for seventy days under the present Constitution.

MR. TIDWELL: Pardon?

REPRESENTATIVE WOOD: You're going to let them meet

for seventy days under the present Constitution.

MR. TIDWELL: I" know it.

MR. JACKSON: We may want to put in some limits, but

the point was, this provision doesn't make it any easier to

call a special session than under current law. Still the

Governor calls it or three-fifths of the legislature calls it.

The only substantive change, and one that we thought was very

71 important, currently if the Governor calls them in special session say for a budget. In the middle of that if there is
a major court decision attacking our apportionment system, there
is no way the legislature can deal with that because it's not in the Governor's call, so what we said was to allow an amendment to the proclamation. The Governor can amend it when approved by three-fifths of the legislature. That's the same figure it takes the legislature to call themselves. That keeps them from having to go home five days and turn around and come back to take care of the state's business. That was the only substantive change.
MR. GOWEN: If the Governor calls it, they don't have to go back, he can -- they can adjourn the session and call them back immediately. The five days deals with when the legislature convenes itself in the present Constitution. But the Governor in previous times has issued a call and then he reconvened it. The only thing about it was, they used to get mileage back and forth home between the calls. I had the distinction of getting the highest mileage except one from Camden County, he beat me slightly.
MR. TIDWELL: The issue of allowing the members of the General Assembly to amend the purpose for which the Governor calls them is another very serious matter.
MR. JACKSON: Well our idea was that he would initiate the amendment and they would approve it.

75
CHAIRMAN CHILIVIS: Where is that in here? MR. HILL: It's in the second part of the first MR. TIDWELL: One of the reasons that the '64 special session lasted so long is that it was convened to do three things, pass an election code, a new Constitution and to reapportion. And the Governor allowed the members of the General Assembly to talk him into letting special local bills be considered. And that is, in my judgment, why that session continud on so long, one of the reasons. Of course, Governor Sanders agreed to that but he didn't want to. When you have an emergency, you want to address that problem and that problem it seems to me only, and take out all these extraneous things. And one of the reason that they wanted local bills, a lot of folks had not gotten some things done that they wanted on the local level. That's just not an emergency I don't think, we've always dealt with that, you just have to wait until next year to see whether that sheriff is going to get that sort of a thing. Here, if you have a very important local bill, I'm sure that somebody like Joe, well thought of by all the members, he could go around and get them to amend the proclamation. REPRESENTATIVE WOOD: That's the reason I wanted that in, no other reason at all. No, I concur with you about local matters but the whole thing, as Ed brought out, was strictly for emergenc~es, if we need a change of language, while you've got them here if something else comes up, the Governor has got

76
we can have the Governor shall initiate it. CHAIRMAN CHILIVIS: Well, why don't you do it this
way. I think MR. TIDWELL: He has amended his proclamation to
include other matters once you get here, he's got that authority. He has done that.
REPRESENTATIVE WOOD: Are you sure? MR. TIDWELL: I know he has. MR. JACKSON: Are you sure there's no legal problem? MR. GONEN: No, there's no legal problem. He can certainly do it by dissolving the legislature and immediately recalling them. MR. TIDWELL: I think Governor Maddox -- no, Governor did we have a special session when Governor Carter was here? REPRESENTATIVE WOOD: Yeah, you have one every time. MR. TIDWELL: I think Busbee amended his proclamation. I wasn't there. He amended it before they got here. CHAIRMAN CHILIVIS: Maybe so. I recall this about that, and I may be wrong, but the special session was called for the purpose of amending the budget. One of the -- seems to me that I recall that the Department of Transportation at that time wanted the call amended for the purpose of passing a percentage taxation on gasoline because the thought was that gasoline would be, by some time in 1975, at a dollar a gallon,

PAGE 77 which would shrink the revenue because it would deter travel, and they wanted it to float on a percentage and they had a certain deadline by which to get that in the proclamation or the call and the deadline passed without it getting in there and so they couldn't bring that up. Now they may have been wrong on their legal conclusion, but that was what was decided I believe at the time. Of course, Charlie, you can't take any responsibility for that because you weren't Executive Counsel then, but I believe that's what they decided.
MR. HILL: The Constitution clearly provides that no law shall be enacted at called sessions except such as shall relate to the object stated. So I think there may be some discretion, such as relates to the object stated in the proclamation.
MR. TIDWELL: He did amend it. CHAIRMAN CHILIVIS: There was something else taken 1.lp at that time. What else was taken up besides the bUdget? MR. TIDWELL: Well I think, if I remember correctly, he just didn't frame the subject matter broad enough to do some things and he amended that proclamation to take care of that. When did we have that, we had it in '75: CHAIRMAN CHILIVIS: It was '75, yes. MR. TIDWELL: If we get the Georgia Laws MR. JACKSON: The intent of the subcommittee was not to change the balance of power to make it any easier, it was

78 just to allow the Governor to clear up any changes --
CHAIRMAN CHILIVIS: I was going to suggest that we might do what we're talking about and eliminate any objection that the Governor's Office might, or anybody that supports the present balance of powers might have, by just saying that, where you say " . but no laws shall be enacted at any such special session except those which relate to the objects stated in the proclamation calling such session or in any amendment to such procla~ation... ", stop right there and insert " ... initiated by the Governor and approved by threefifths of the members of each house." Now what that does I think, if the Governor has the present power to amend the proclamation, then that requires that it has to be approved by three-fifths of the members of each house. If he doesn't have the power to amend it, then this makes it clear that he has got to initiate the amendment and it has got to be approved by three-fifths of the members.
I guess we need to see if we're changing his power to amend it.
MR. GOWEN: I don't think you're changing the power because if he doesn't want to do it that way he can
CHAIRMAN CHILIVIS: Do it another way. MR. GOWEN: Have them adjourn and call them again with a new proclamation. REPRESENTATIVE WOOD: What we were trying to get

79 across was to keep from that happening, for emergency purposes he could broaden his call without sending us home.
MR. GOWEN: Well, of course, the difference between it is that rve seen the time when a Governor might be able to get a majority but not three-fifths to pass his legislation, so he might not be able to amend it when he could get the bill passed by having a new proclamation. Sometimes it has been pretty close.
CHAIRMAN CHILIVIS: What Mr. Gowen is saying I believe is the fact that this doesn't limit the powers of the Governor by leaving it this way because if he could not get threefifths to amend it, he could adjourn and recall with a new proclamation, but what he's saying does not detract from what your position is.
MR GOWEN: Your provision is excellent because it would let it be accomplished where it isn't so controversial.
REPRESENTATIVE WOOD: What does the present Constitution provide if the Governor calls you in and both houses decide they want to go home, what. percentage is it, a majority or two-thirds or what?
MR. TIDWELL: Majority. MR. GOWEN: A majority can adjourn. MR. HILL: vlould you want to add another SUbparagraph to this paragraph to state that special sessions shall not exceed so many days? You know, just as a --

80
CHAIRMAN CHILIVIS: Well I agree with Joe -MR. GOWEN: I just don't believe the people Il ra kind of inclined to think there isn't much use to put the restriction on extraordinary sessions. The public wouldn't stand for them staying up here doing nothing and the pe.r diem is not sufficiently great over their expenses. MR. TIDWELL: Charlie, you will remember how much adverse publicity was generated by the 1964 special session. They couldn't get the job done, they weren't dilly-dallying, they were at loggerheads with the reapportionment and the Constitution also was giving them some trouble, but every day the Atlanta news -- the two daily newspapers ran editorials about how much it was costing, it's costing $18,000 a day. I think this is a perfectly innocent proposal, I just would hate to see the whole Article be jeopardized by the public seizing on this as some evil, sinister way that the General Assembly has figured out a way they could stay in session all year if they wanted to. I don't think that's going to happen, but to answer that charge, it is yes, there is that possibility. MR. GO\iEN: You'll probably have an extra -- may have a reapportionment -- well, you will have to have a reapportionment session after the 1980 census. MR. TIDWELL: In fact they're thinking now about having a special session. MR. GOWEN: Well I think they would because it would

81 so disrupt the regular session you wouldn't accomplish anything.
MS. NONIDEZ: They're also considering having a special session to adopt a new Code. Now the two Inight be occurring near enough at the same time that -- as another example, Florida got themselves into a situation given an absence of any sort of limitation on its special sessions, where it has its regular sessions and then annually it has special sessions. I think there is merit to considering some type of limitation in the same vein that Charlie Tidwell suggested.
MR. TIDWELL: Some people would just quit offering for the legislature if they started calling special sessions and they had to leave their businesses and stay up here.
CHAIRMAN CHILIVIS: What practical effect, Joe, does a limitation have on getting the business accomplished? Suppose you had, for example, reapportionment and you knew that your session had to adjourn in seventy days, would that help, because of the psychology of the pressure of the people that you have to adjourn and start back again, would it help you?
REPRESENTATIVE WOOD: I would say yes, by having a limitation you rush yourself and make you finish up. Whether you came up with a good --
CHAIR~N CHILIVIS: You know you've got a deadline.

82

REPRESENTATIVE WOOD: Whether you came up with a

good article I don't know, but my thought was the old days were

antiquated. I'm not wedded to it, if the Governor's office

wants to stay in the 18th Century, that's all right.

(Laughter. )

CHAIR~~ CHILIVIS: Put in parentheses, laughter,

after that remark.

MR. JACKSON: And then disavowal of statement.

CHAIRMAN CHILIVIS: Well I think there's a certain

amount of public pressure I guess that would come to bear if

the legislature couldn't decide within seventy days and they

had a limitation there .

.~'

REPRESENTATIVE WOOD: Well you know, the other side

of the street is if it says seventy days, they think you're

going to go stay seventy days.

CHAIRMAN CHILIVIS: I know it.

REPRESENTATIVE WOOD: I was down the street the

other day when Congress was fighting over the pay raise and

a lady said well I see y'all gave yourselves a pay raise today.

I said no, ma'am, I'm in Atlanta. You know, they just don't

think. This was a Superior Court Judge's wife.

MR. TIDWELL: I've looked up treason. Maybe we

can get one question answered. I looked it up because I'll

worry about it. Murder, skyjacking, treason are crimes having

the death penalty.

83 CHAIRMAN CHILIVIS: I can't imagine that anybody would ever be convicted of treason in this state. "A person owing allegiance to the state commits treason when he knowingly levies war against the state, adheres to her enemies or gives ~hem aid and comfort. No person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court. When the overt act of treason is committed outside this state, the person charged therewith may be tried in any county in this state. A person convicted of treason shall be punished by death or by imprisonment for life or for not less than 15 years." That's Section 26.2201. Am I correct that the death penalty wouldn't fit this now? MR. HILL: Well we're not sure. It has never gone up to the Supreme Court to decide. Punishment of treason was made death or life in prison or these other things. This really relates to only if the death penalty were given. CHAI~~N CHILIVIS: Right. Now here's your 1973 stat.ute on capital offenses and it says lIWhereupon a trial by jury a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and the recon~endation that such sentence be imposed. Where a statutory aggravating circumstance

84
is found and the recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court. shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking." So what they are saying is that you can impose the death sentence for treason without finding any aggravating circumstance. So that throws a little different light on it. I certainly didn't know that, but that's what the law is saying there. Now whether or not that would stand up, I don't know, but I sure would hate to see somebody convicted in some court somewhere in Georgia of giving aid and comfort to the enemy and automatically getting the death sentence and there be no way that the Governor could save hi~.
MR. TIDWELL: Under this language though we could because you just said crimes against the state.
CHAIfu~N CHILIVIS: That's certainly treason. Okay, I think we're all right. In other words, it is the intent of the committee that it would include all crimes against the state including any state involvement in treason. Okay, I don't think we need to discuss that any further.

MR. JACKSON: Back on the special sessions, I have no objection if you're going to put the figure back in. Again, our thoughts were though that the legislature could keep coming back or the Governor could keep calling them in for an indefinite length of time.
CHAIRMAN CHILIVIS: That's t.rue. I think the only thing you've got is a psychological question of a deadline.
MR. GOWEN: I believe the seventy days is too long. If we're going to put one, I think it ought to be the same as the regular session.
MR. TIDWELL: No longer than forty. MR. GOWEN: This seventy days got in when that was the length of the legislature. CHAIRMAN CHILIVIS: Well is it the consensus of the committee that we put a limitation of forty days in the session, knowing of course -- this is special session -- but knowing of course that there are ways to get around that.
(No response.) Okay, any objection to that?
(No response.) Did we settle the issue on the -- first, before I leave that -- apparently there was no objection to that so if the staff will put the limitation of forty days on the special sessions, then we'll present that to Judge Smith~ committee. MR. HILL: And I think we should probably then also

86
put back in that if an impeachment trial is pending MR. GOWEN: Yes, I think that ought to go back in. MR. HILL: Okay. Then we have Paragraph IX on Filling vacancies. 'l'his
provision is the same in subparagraph (a), Paragraph IX, sUbparagraph (a), except now subparagraph (b) we added a provision that was recommended by one of the other committees working on the Executive Boards and Commissions, Justice Hill's committee had a provision relating to death or withdrawal of executive officers and they suggested that we deal with that in this section, so we added that as 3ubparagraph (b).
CHAIRMAN CHILIVIS: Is there anything changed in this?
MR. HILL: Yes. There are a couple of changes. We put -- the present language says "When any office .. (becomes) vacant ... " We debated about what that was meant to apply to and we decided to add the term "public office" just for clarification, "When any public office shall become vacant ... " and we also decided to say It unless otherwise provided for in this Constitution or by law 1t because there is a provision for filling vacancies --
MR. JACKSON: In the legislature. MR. HILL: In the legislature, right. So that's why we felt we just had to make that reference to other parts

87
of the Constitution. Then instead of using this language of commissioning, which is what the present provision says, it talks about persons so appointed shall continue in office until a successor is commissioned, instead of that we just said the person so appointed shall continue in office fer the unexpired term of office.
MR. TIDWELL: I think that creates a problem when you do that if you don't qualify it and say unless otherwise provided by this Constitution or law because there are provisions of the Constitution which now conflict with that. For instance, DA's and Judges. They are appointed only until the first day of January following the next general election, not for the unexpired term, so you create an ambiguity. I think that provision is really good because it -- the Constitution is silent on it now, but make it clear that if the law or the Constitution provides otherwise, then it's for the unexpired term unless the Constitution and the law provides otherwise.
MR. HILL: Okay, we'll just add the same -CHAIRMAN CHILIVIS: Just add "unless otherwise provided by this Constitution . " MR. TIDWELL: Or law. The same language you used before. CHAIRMAN CHILIVIS: I have another question on that too, and that is, what is the significance of "public". You

mentioned why you put it in there, but

MR. JACKSON: Actually state

we were talking In

terms of maybe a local office, county conunissioner.

MR. TIDWELL: Well he does that. The present l~w

provides to all officers. If the law is silent, he'll

appoint.

CHAIRHAN CHILIVIS: Well the reason why I guess :::

raise the question is because -- and I may have had a wronq

conception about this -- but I thought that this provisio:l. ,,"ciS

being included to cover any situat.ion that the law didn't

otherwise cover. Maybe I was wrong about that. If our in':.:'211'1.-

is just to cover state offices,.I donlt know that we have

I,:"""

accomplished that. I thought if we just said "lihen any nffice

shall become vacant .. ", that he il15 the vacancy unless

there is something else that says it is done some other way.

MR. TIDWELL: The way I read it, Nick, there's no

change by putting the word "public" in there. You know, if

it were a private office, the preacher of the First Baptist

Church, well he wouldn't be doing it, but if it was a -- i~

is only where we are talking about a public office -- does

everybody else read it the same ~Nay or am I putting more in

there? It's read now I think as public offi~e.

CHAIm1AN CHILIVIS: Our intent really is not to

change this provision but just emphasize that it is a public

office. Okay, if that's the intent, then I thiak I have no

<.
89 objection.
MR. JACKSON: Mr. Chairman, I'm just reading this, and the language in Paragraph IX, section (a), under this the legislature could pass an act allowing the Speaker of the House to fill any vacancy and it would not conflict against this provision. The 1980 legislature could do that because it says the Governor shall do it unless otherwise provided by the Constitution or by law, so this would give any future statute -- do we want that?
CHAIRMAN CHILIVIS: I don't know. Maybe Charlie, you can answer this, but I again thought that the purpose of this particular one was to provide for a catch-all and I would assume that insofar as particular offices are provided for, that it couldn't be amended by the legislature. If in the Constitution, for example, it says that upon the death, resignation, etc. of a certain office, the Governor appoints the person, like Judges; district attorneys fall within that group I believe, then they couldn't change that by law. This is just to cover any voids. Am I incorrect on that?
MR. TIDWELL: The way I read the present Constitution that power to appoint is triggered only if there is an absence of aprovision of law covering it.
CHAIRMAN CHILIVIS: So you're right, the legislat.ure could provide for those matters and I think it is intended that they would, if the Constitution doesn't limit them. So your

.~>~;~.~ .!j,~:\ '\
: i :t):.~:\ ~i ;.

90
point is well taken, but I think it would recognize that. MR. GOWEN: That's present law. The only thing that
was added was the Constitution. CHAIRMAN CHILIVIS: To cover any that's not covered
by law presently. MR. HILL: Okay, and to be specific about where this
subparagraph (b) came from, it came from Section III, Paragraph I of the present Constitution. The last sentence of that provision which refers to the election of executive officers, it talks about "In the case of death or withdrawal of a person having received a majority of the whole number of votes cast in an election . the Governor . " can appoint someone to fill the position, and that's -- it just seemed to be a more natural placement for it under filling vacancies than it did over in that other paragraph. They had omitted it from their -- Justice Hill's subcommittee omitted it from theirs and sent it over to us and we included it here. Now you will notice that we have omitted the reference to the Superintendent of Schools.
CHAIRMAN CHILIVIS: Because that was eliminated from the Constitutional officers.
MR. HILL: Yes. But other than that, there is no change. Now I do have one thing that hit me when I was looking at this again. We might want to say in this subparagraph (b) "In case of the death, withdrawal or permanent disability of a

1':\\

91

person .. ", you know, that the Governor could have the

power to fill such office. I'm not sure that you want to go

that far, but that's something --

CHAIRMAN CHILIVIS: Well now that

MR. HILL: ~qe don't do that now.

CHAIRMAN CHILIVIS: t'lhen we get to Section IV of

Article V, let's discuss that because we cover the

disability of these people in that section. Let's discuss

that with disability and the Lieutenant Governor filling the

Governor's office, as we mentioned before.

MS. NONIDEZ: Excuse me. Isn't the same problem

here, Charlie, that you just raised about "until the next

general election"? The current language reads " an individual

will serve until the next general election at which time a

successor shall be elected to serve out the unexpired term."

MR. HILL: Oh, that's right, that's true. Thank you,

Cindy.

MS. NONIDEZ: On page 34 of the Constitution. I

think we have the same problem under this language, you're

saying the Governor shall appoint the individual subject to

Senate confirmation who will serve the unexpired term of

office and in the current language it doesn't read that way,

it says until the next general election at which an individual

is elected.

CHAIRMAN CHILIVIS: So this would be a rather major

;I (r.~.

92 change if we left it as unexpired term.
REPRESENTATIVE WOOD: The reason for that, I believe we brought that up, we were looking at the Secretary of State, you know, you had just a little gray area, is it for the unexpired term or until the next general election. And tnis clarified it.
MR. HILL: And it was my understanding in our discussion that this is the way that we have been doing it, that we have been interpreting this provision to mean the next general election for this office, and you know, it has in fact been construed as the unexpired term. That was my feeling in our discussion that that's how it has been interpreted. We just put in language to specify that's how it will be interpreted.
CHAIRMAN CHILIVIS: Is that how, in fact, it has been interpreted? I remember the Secretary of State problem.
MS. NONIDEZ: You're talking about a very special instance, you're talking about what happens when a candidate for one of these named offices, who received the majority of the votes, dies and a vacancy is created. You're going to then allow -- and you do under this language -- allow the Governor to fill that vacancy for a full four years, or on the Public Service Commission for the full six.
REPRESENTATIVE WOOD: The reason that we -- let's say that this candidate was sworn in one day and died the next

;',\GE 93 day, the Governor has a right to a full four year appointment.
MR. TIDWELL: Well, if the Constitution or the law says he does.
REPRESENTATIVE WOOD: Under present law. MR. TIDWELL: Some of them are simply silent, Joe. REPRESENTATIVE WOOD: Well, we were still resolving back to the Secretary of State. MR. TIDWELL: Then the Attorney General -REPRESENTATIVE WOOD: You know, assuming that -- we were using that as Exhibit A. MR. TIDWELL: The Attorney General says that when the law is silent as to what the appointment will be for, it is presumed that he has the full power to fill that vacancy for the unexpired term and you can't read any limitations into that. But that's on another point, that's on all vacancies that the Governor fills. If it says it's for the unexpired term, then that's it. If it is silent, then the Attorney General says the Governor has the power to fill for the full unexpired term and Cindy is saying this is a departure from what the present law, present provision has. MR. GONEN: You're only applying it to five offices. CHAIRMAN CHILIVIS: Well, let me ask this question. Maybe it has already been answered. On these five offices, what does the present provision say, it says until the next general election and that has been construed to mean until the

94
next general election for that office? MR. TIDWELL: I think they would all be different --
well, you mean if there were a vacancy to occur right now in any of these offices?
CHAIRMAN CHILIVIS: Yes. MR. TIDWELL: I don't know what it is, you'd have to look up each one of them. The Secretary of State, if that's what it says, it's for the unexpired term, the statute says that. The Attorney General may say something different and the Comptroller General, or they simply may say nothing. And if they say nothing, it is for the unexpired term. MR. GOWEN: Well this one would make all of them uniform, to fill it for the unexpired term. MR. HILL: But should we broaden this -- do you think we would run havoc if we try to broaden this to say that in the event there is a vacancy in any of these Constitutional offices during the term of that office, the Governor shall fill it for the unexpired term. MR. GO~v.EN: Well that's what you say here. MR. HILL: Well Cindy said that applied in the limited circumstances -MR. TIDWELL: Yeah, somebody dying before they take office. The other -- I think you would want to leave it just exactly like it is right now and if the Secretary of State says for the unexpired term, then so be it. If the Attorney

95 General says until the next general election, then so be it. The General Assembly has made some policy decision on how it is to be done and I would think you would continue that.
MR. JACKSON: Well, the decisions aren't always consistent though. My thought is that when it's two years from the next general election, he has to mount a statewide campaign for, in effect, a two-year remaining term to get it back on the four years with everybody else. That's asking a lot.
CHAI&~N CHILIVIS: You know, this other provision said that he will appoint an individual subject to confirmation by the Senate, to serve until the next general election, at which time a successor shall be elected to serve out the unexpired term of office. It seems to me that was clear that under the old section it was the next general election and not the next general election for that person, but I really my personal opinion would be I would favor the appointment for the unexpired terln. It just seems to me that's the best thing to do, but I'm not wedded to that.
MR. JACKSON: I think the Governor would like that option.
CHAIR}ffiN CHILIVIS: You think he would not? MR. JACKSON: No, would. MR. GOWEN: It'd be easier to get good people to take the office if we had that.

96 D1R. TIDWELL: The chances of it happening are just so rare. CHAIRMAN CHILIVIS: They are rare and I just -unless there is any strong objection -- well, maybe there is strong objection. REPRESENTATIVE WOOD: These are the s~ne reasons' we discussed the other night, just these things being brought up, to get qualified people for the remainder of that term instead of letting him have to run again and to have it consistent. They would all be consistent. CHAI~.N CHILIVIS: If there is any -REPRESENTATIVE WOOD: And streamline the Constitution. CHAIRMAN CHILIVIS: Is there any opposition to that? I've got another question to ask. I think it has been asked but I'm not sure about the answer. Is it correct that the intent cf this is that it applies only in the instance when the person elected dies or withdraws before he is sworn in? MR. GOWEN: Well that's Cb). CHAIRMAN CHILIVIS: That's Cb). MR. GOWEN: The Ca) leaves it like it is at the present time. Ca) covers a man who dies after he has taken office. CHAIRMAN CHILIVIS: That's right, and there are other provisions of the Constitution that may cover that too, but (b) -- well the reason why I ask is I want to make sure that

97
that is the intent and apparently it is. It doesn't cover a
man after he has taken office. Okay.
i
MR. HILL: (a) would cover that and allows the General Assembly to specify how it will be filled and if they don't the Governor appoints.
CHAIR~N CHILIVrS: Okay. Now the other question I had and this may be a bad question to ask. What happens, generally speaking, if somebody dies before taking office if the Governor appoints somebody and the Senate doesn't confirm him. Then technically I guess you would have a vacancy until they got together.
MR. TIDWELL: Yes. CHAIRMAN CHILIVIS: Okay. MR. TIDWELL: Then you would go back -- if there is no other provision, you would go back to (a) and he would have to get somebody else. REPRESENTATIVE WOOD: Paragraph X. CHAIRMAN CHILIVIS: Paragraph X says if he's rejected he can't be renominated for a year and I read that as a double negative but we haven't gotten to that yet. Is that next on the agenda, Mel? MR. HILL: Yes. Shall we move on to Paragraph X? We titled this -- the first sentence is an affirmative statement about his appointment power and then the second is his limitation on that, appointing people to the same office after

98 they have been rejected. At the present time that appears in Section II; Paragraph V, and it is merely the second sentence of that. We have restated it, attempting to make it more clear but you feel it's a double negative?
CHAIRMAN CHILIVIS: Well you say IlA person once rejected by the Senate shall not be renominated by the Governor for appointment to the same office for a period of not less than one year." To me that doesn't --
MR. JACKSON: " ... until a period of one year."? CHAIRMAN CHILIVIS: " shall not be renominated by the Governor for appointment to the same office. " That doesn't -- maybe I'm reading it wrong. MR. GOWEN: You're appointing him for more than a year. MS. NONIDEZ: That's the way it reads. CHAIRMAN CHILIVIS: That's right. "A person once rejected by the Senate shall not " I don't know, this language MR. JACKSON: " . until expiration of a period of one year ...... CHAIRMAN CHILIVIS: " shall not be renominated by the Governor for appointment to the same office until the expiration of a period of one year." Now that would clear it up I think. MR. JACKSON: Mr. Chairman, that first sentence in

99 Paragraph X is a grant of power to make appointments as authorized by the Constitution or by law. There is a whole area of appointments the Governor makes that people, as I understand it, get to commissions, to advisory boards created by executive orders.
CHAIRMAN CHILIVIS: Right. MR. JACKSON: Also, federal law directly confers in many instances the Governor to appoint members to boards and commissions to expend federal monies. Do we need to make it clearly the intent of this subcommittee to recognize that this does not prohibit the Governor's authority to appoint in these other areas, and that such appointments do not require Senate confirmation? Maybe we ought to defer to Charlie. MR. TIDWELL: I'm not sure I understand your point. What language are you talking about? MR. JACKSON: What it says is liThe Governor shall make such appointments as are authorized by this Constitution or by law." What I'm suggesting, and I'll take the State Crime Commission for many years never had any statutory or Constitutional basis and the Governor by executive order -and everybody assumes he has this inherent right to appoint boards and commissions and advisors through executive order he makes these appointments and these are appointments not provided for by this Constitution or by law but -- and also the issue of appointments as authorized by federal law. I'm

100 raising, do we need to recognize or go on record recognizing that this provision does not affect the Governor's rights in those cases.
MR. TIDWELL: That last sentence? MR. GOWEN: I don't think it does. I think the Governor has got authority to do anything in an executive capacity that isn't prohibited by law or the Constitution. CHAIRMAN CHILIVIS: It is the intent of this committee, is it not, that the Governor is not limited. That is to say, that he has the power to make the appointments as Ed has mentioned. Is that correct?
(No response.) CHAIRMAN CHILIVIS: Okay, well then we -- I think that the minutes will reflect that that is what our intent is. MR. TIDWELL: I think it would be cmnbersome to try and take care of what you're talking about. MR. JACKSON: I'm not saying put it in, I'm just saying CHAIRMAN CHILIVIS: He was suggesting that we do what we just did, I think, and that is, express our intent. We're on the record. MR. TIDWELL: Get the record straight. CHAIRMAN CHILIVIS: You know, I've got one little thing, and I don't want to nitpick, but all appointments are not -- all appointments by the Governor are not required to be

101 confirmed by the Senate. Is that a correct statement?
MR. TIDWELL: That's right. CHAI~~ CHILIVIS: Okay. Now MR. JACKSON: There's a provision that all appointments to statutory boards and commissions must be approved by the Senate. MR. TIDWELL: But Nick made the statement that all appointments are not subject to Senate confirmation. For instance, my appointment was not subject to Senate confirmation although he does submit them. CHAIRMAN CHILIVIS: The reason why I raised this question -- Virlyn is suggesting that perhaps it might have been a different situation if they had. MR. TIDWELL: They confirmed me, Virlyn. VOICE: The vote was 29 to 28. CHAIRMAN CHILIVIS: The question I'm raising is, it says "The Governor shall make such appointments as are authorized by this Constitution or by law." The next sentence says "l'>. person once rejected by the Senate shall not be renominated by the Governor for appointment to the same office until the expiration of a period of one year." Now does that imply that all appointments either have to be confirmed by the Senate or if not that the Senate has the right independently to reject any appointments of the Governor? MR. TIDWELL: Make another paragraph?

'~)\-\1

\,,> . \ \()~ ; i

102 CHAlffi1AN CHILIVIS: I was thinking that it might be make it Paragraph X and then make Paragraph XI Appointments
by Governor and make XII that so that it is clear that we are only intending to include those offices upon which Senate confirmation is required.
REPRESENTATIVE WOOD: Read again lines 9 and 10 and stop midway of number 11.
CHAIRMAN CHILIVIS: All right. '''rhe Governor shall make such appointments as are authorized by this Constitution or by law." I think that's very clear, but when you say "A person once rejected by the Senate shall not be renominated by the Governor ... ", then somewhere that would imply to me that the Senate can reject appointments. Otherwise, it would that's at least arguable. \1hereas, if we made that Paragraph X, and made Paragraph X the Appointments Paragraph XI and then made XI, XII.
MR. HILL: How about if we had subparagraphs (a) and (b) in Paragraph X?
MR. TIDWELL: Why not just separate paragraphs. I think that what Nick is
MR. THORNE-THOMSEN: By separating them, do you take care of the situation you're talking about?
CHAIRMAN CHILIVIS: Well you really don't, I think -MR. THORNE-THOMSEN: Could you just add language -CHAIRMAN CHILIVIS: I think you could say "A person

PA<;1: 103 whose confirmation is required by the Senate . " and you don't even have to separate them if you do that.
REPRESENTATIVE WOOD: I think it is only fair to enlighten all the committee that this study was made after eleven o'clock one evening. I think you should know that.
MR. JACKSON: But in fairness, it was election day. REPRESENTATIVE WOOD: It was, but you know, the hour was getting late. MR. JACKSON: There was a statute that for a long time provided that the Governor's appointment does not require Senate confirmation unless the law specifically provides, and it was changed during the '40's and '50's to provide that
r ,I
all appointments for statutory positions require confirmation unless specifically exempted by statute. But again, that's statute, that can change.
CHAIRMAN CHILIVIS: What about this language. "If a person whose confirmation is required by the Senate is once rejected by the Senate, that person shall not be renominated by the Governor for appointment to the s~~e office until the expiration of a period of one year." Then we don't have to change paragraphs, we don't have to do anything and that clears it up.
MR. THORNE-THOMSEN: Mr. Chairman? CHAIRMAN CHILIVIS: Yes. MR. THORNE-THOMSEN: Would you want to add "expiration

104
of one year after the rejection or said rejection." To clarify

that you're talking about one year after the rejection.

CHAIRMAN CHILIVIS: f0 1I one year .... "

MR. HILL: " .. after such rejection .. "

CHAI~~N CHILIVIS: Well, I see a problem with that.

I'd just as soon leave it the way it is. You know, if we say

rejection, then you've got a problem as to when they rejected

and it builds in other language problems. I don't know --

you know, we've got -- well, we've got one more thing here,

haven't we, maybe we can finish this one and take a little

I'

break.

MR. HILL: And come back to disability?

CHAIRMAN CHILIVIS: And come back to disability

which shouldn't take too long I hope. Go ahead.

MR. HILL: Okay, Paragraph XI --

CHAIRMAN CHILIVIS: Let's give that some thought

about what that would require.

MR. THORNE-THOMSEN: Is it the intention of the

committee that it would be one year after the nomination or

one year after rejection?

CHAIRMAN CHILIVIS: I would think after the

nomination. I think that would be the intent. Maybe we could

put in there, expiration of one year from the date of

nomination, and that would clear it up. That was the problem

I had as to whether it would be nomination or rejection.

l'ACE 105
MR. JACKSON: The only thing about that, if he nominated someone in May after the legislature is out of session and they reject it the following January, he could renominate that person the following May and keep it going, could he not?
CHAIRMAN CHILIVIS: Yeah, but held still have to be confirmed. Well, no, they could take office before confirmation, couldnWt they?
MR. TIDWELL: Well they could do the same thing, he could wait until the Senate adjourned and nominate him again and he would serve until -- so --
CHAIRMAN CHILIVIS: It's the same thing I guess. All right, go ahead.
MR. HILL: From the date of nomination? CHAIRMAN CHILIVIS: Yeah, from the date of nomination. MR. HILL: Okay, now there is a significant change in Paragraph XI. Not in this sentence, but the present provision is in Paragraph VIII, the last provision of Section I -- Section II. This first sentence is a restatement of what this is that we presently have. It says now that "The Governor lnay require information in writing from constitutional officers, department heads, and all state employees " and we just said " . require information in writing from constitutional officers and all other officers and employees of the executive branch on any sUbject relating to the duties

106
of their respective offices or employment. II It's really just a restatement of the provision but the second sentence is deleted, and this may be subject to some debate. The second sentence now provides that llrrhe General Assembly shall have authority to provide by law for the suspension of any Constitutional officer or department head from the discharge of the duties of his office, and alse for the appointment of a $uitable person to discharge the duties of the same."
CHAIRMAN CHILIVIS: While werre thinking about that, can we take about a five minute break? That again ties into the disability provision. I know the court reporter needs to take a break and so do I.
(A short recess was taken.) CHAIRMAN CHILIVIS: After the short recess, the meeting will come back morder. The paragra~h that we were just talking about that was eliminated was Section II, Paragraph VIII, the last sentence, which reads as follows: nThe General Assembly shall have authority to provide by law for the suspension of any Constitutional officer or department head from the discharge of the duties of his office, and also for the appointment of a suitable person to discharge the duties of the same. n We ran into that when we were discussing Article IV I mean Article V, Section IV, Paragraph I, having to do with

i).:\C::': 107 disability, and so I thought it might be a good time now for us to make our report. Henry Wisebrarn and I met on September 26, and we went over the Article V, Section IV, Paragraph I at some length. We made some decisions. After we met, I was dictating a report to Melvin Hill regarding the decisions we made and I ran into two or three questions that we really didn't discuss, and pointed those out. And I'll just read into the record my report.
"Mr. Henry Wisebram and I met on September 26, 1979, in regard to Section IV of Article V of the Constitution of Georgia, 1976, entitled 'Disability of Executive Officers'.
We discussed the matter at some length and we tentatively decided to make only two changes. We decided to change the number of elected Constitutional executive officers required to petition the Supreme Court from four to three. Therefore, the word "four" should be changed to "three". In view of the fact that the State School Superintendent will no longer be a Constitutional executive officer and in view of the fact that the person alleged to be unable to perform the duties will not be a petitioner, there will be only six possible petitioners instead of seven under the previous Constitution. This coupled with the fact that the Lieutenant Governor may be eliminated now or later caused us to feel that the petition by three elected Constitutional executive officers would be sufficient."

.. I
108

I'll digress just a minute to say that there were

four required and those are the reasons we changed it to

three. Now continuing with the report.

liThe other change would be the elimination of the

State School Superintendent from the definition of elected

Constitutional executive officers. In making these decisions:

we first considered whether or not we should have a disability

provision and we answered this affirmatively. We also

considered the question of whether the Governor should be able

to declare himself disabled and we decided against this.

j,

In other states there are committees which are

designated and which are comprised of a variety of state

officers. We felt that our system under the present Constitution

was adequate and we felt that it was not necessary to change.

We also considered leaving the decision solely to the
'I,
Supreme Court, which was the procedure in some states I

believe, perhaps in the model Constitution. However, we
j;
felt that it would be more in keeping with due process if a

petition were required by the Constitutional executive officers,

which petition would be passed upon by the Supreme Court. II

Again digressing, we didn't feel that the accusors

or, that is, the prosecutors, should be the ones that passed

judgment and therefore we felt that our system of having the

Constitutional executive officers be the ones that bring the

petition and the Supreme Court decide upon it was better than

[';\c;1: 109
the other systems that we looked at. Now getting back to the report.
"We considered whether or not we should define disability, but we decided we would leave it as stated in the current section; that is, 'permanent physical or mental disabi~y'. However, this does give rise to a question of the present language in the section involved. The section provides that the office will be declared vacant upon petition and. determination that the officer is unable to perform the duties of his office because of a 'permanent physical or mental disability'. It goes on to provide that if it is determined that the disability is not permanent, the Supreme court shall determine when the disability 'has ended', and the officer shall resume the exercise of his powers.
"I would appreciate your staff addressing the question of whether this section, as written, authorizes a petition by the appropriate number of elected Constitutional executive officers for the purpose of determining temporary disability, and whether the Supreme Court is authorized upon such petition or upon a petition for permanent disability to determine temporary disability without determining that it has ended, and to later determine that it has ended. If the Supreme Court is authorized to do so, then the question arises as to whether or not another petition is required to determine when the disability has ended or whether the Supreme Court keeps

110
the matter within the breast of the court until such time as disability has ended and such a determination is made. It is assumed that if an initial determination of permanent
I
disability is made, the office is I declared vacant and the office cannot be resumed by the executive officer. This assumes that it is only when an initial determination of temporary disability has been made that the officer can resume the exercise of his powers at a later date."
Digressing again, this goes back to that other provision because under the present situation there is a serious question as to whether or not if he's even temporarily disabled the office is vacant for the rest of the term. Getting back to the report.
"In view of the foregoing, it may be necessary to redraft the section and clear up these points. However, we would like to have the staff look at this and give us some advise. In connection with the foregoing, I would appreciate your examining prior Constitutions or drafts of Constitutions for the purpose of determining whether or not these issues have been addressed. You need not look at the proposed 1970 Constitution. After looking at your chart, I see that this matter was not included in that Constitution. Also, I would like to know if any decisions have been made by any courts in a same or a smiliar provision, if any existed, in any prior Constitutions. I doubt if any such provision was in any prior

111
Constitutions and if so I doubt if there have been any decisions.
"Also, I would call your attention to Article V, Section II, Paragraph VIII."
Digressing, that's the one we just talked about where the General Assembly has the power to provide for the suspension of the Constitutional officer from the discharge of his duties.
"By a copy of this letter, I am calling this to the attention of Judge Findley and Representative Wood, under whose subcommittee this is included. ParticUlar attention is called to the last sentence, which provides 'The General Assembly shall have authority to provide by law for the suspension of any Constitutional officer or department head from the discharge of the duties of his office, and also for the appointment of a suitable person to discharge the duties of the same.' In view of the disability provisions in Section IV, we are wondering if we should exclude physical or mental disability from Paragraph VIII. Also, please determine whether or not the General Assembly has in fact provided byhw for the suspension of any Constitutional officer or department head and for the appointment of a suitable person to discharge the duties. Also, consideration should be given as to '",hether or not the General Assembly shall have the authority to provide by law for the suspension of any department

112

head and for the appointment of a suitable person to discharge

the duties of the same. Because of the fact that department

heads are appointed and can be removed by the Governor, it

would seem that this provision would not be appropriate insofar

as it applies to department heads."

That concludes the report except for a paragraph

concerning a computer search which was made by Justice Hill

and we raised the question of whether or not that was necessary

in our instance. So that's the situation, and with that, I

think that we can defer to Melvin Hill, who has drafted two

possible disability sections and which mayor may not cover

these points. I haven't seen them yet. I haven't read them.

MR. HILL: Well essentially what we found out in our

research was that the disability section that we have in

Section IV is a new provision passed in 1976. It has not been

litigated at this point. There have been no statutes passed

under this. There are two statutes on the books that relate

to replacing the Comptroller General or the Attorney General

if there is a disability in either of those offices. Itts

a separate procedure that was specified by the statute, but

they are prior to the 1976 Constitutional provision eo I think

that they would probably fall in the face of this new provision.

1-.. , !

In terms of the suspension provision that we're

thinking of dropping over in Paragraph VIII, there has only

been one statute enacted pursuant to this authority, given that

PACE 113 the General Assembly could provide for the suspension and that. was for the Comptroller General back in 1937, or that statute was passed in 1937.
The reason that the committee working on Paragraph VIII -- let's look at Paragraph VIII for a minute. The reason the committee felt that that should probably be dropped is that the suspension of executive officers should be an executive function and in the Governor's office, as opposed to the General Assembly. This was also agreed to by Judge Smith in a letter to me, that he also felt that provision probably didn't belong there. So we wanted to know what havoc we would be wreaking, if any, by dropping it and it looks like only one statute would fall, the 1937 statute would fall if we would go ahead and just omit that.
CfffiIRMAN CHILIVIS: You know, I was surprised when I saw that provision in the Constitution. I have no idea whether the General Assembly even knew that it existed. With some of the problems that I am sure have arisen in the past, if the General Assembly did know it existed, I would be also surprised that they didn't fire some department heads. But it seems to me to be contrary to the scheme of things that the Governor has the right to appoint and remove executives and yet under this Constitution there is an apparent right on the part of the General Assembly to remove department heads and Constitutional officers that are elected by the people. And it

114 seems to me to be an anamoly and I think we ought to address that, and I personally believe we ought to eliminate it. And I assume that's the recommendation of the subcommittee that presented this draft here. Joe, what about that?
REPRESENTATIVE WOOD: I didn't know it was in there, to be honest with you.
CHAIRMAN CHILIVIS: I really of course, now there is this safeguard, I am satisfied that if the General Assembly
well if the General Assembly passed any law providing for the suspension or discharge of a department head, I am satisfied that if it was a law that transferred the power from the Governor, he would veto it. It doesn't say that they can do it, it just says they can have the authority to provide by law. So I guess the question is whether or not to eliminate it or whether or not to leave it in there and tie it in with the disability section.
MS. GREENBERG: Isntt this a misplaced power? Shouldn't it be under the legislative power?
CHAIRMAN CHILIVIS: That's a good point. MS. GREENBERG: There is no parallel provision under Article III, so there's no problem in eliminating it. And the other thing is, if it is eliminated, does that mean that suspension is included in Paragraph IX of the redraft under Filling vacancies, under the new provision? CHAIRMAN CHILIVIS: Let me answer that question this

115

way. My understanding of the law is that the Governor can

fire or suspend or whatever he wants to with any executive

officer except Constitutional officers. Is that correct?

MR. JACKSON: You've got more -- you've got a lot

of state departments, State Forestry Commission

CHAIRMAN CHILIVIS: That's right.

MR. JACKSON: Where the board is the one that does

the hiring and firing. Some have provisos, with the concurrence

of the Governor, but most of them don't.

CHAIRMAN CHILIVIS: Let me retract that and I guess

this would be a truism. Any department head that the Governor

has the power to appoint, he has the power to remove. All

'.'

'j

right, so your Constitutional officers are embraced in this

but they aren't embraced any where else inthe Constitution as

to suspension or removal except for disability.

MR. TIDWELL: I don't think so.

CHAIRMAN CHILIVIS: Well I'm not sure whether that

answers your question, Vickie, I forgot what the question was.

MS. GREENBERG: The second part was whether

suspension is included under Paragraph IX, Filling vacancies,

in the redraft proposal, and should it be included by adding

"death, resignation, suspension or otherwise."

MR. HILL: No, I think this other provision,

Paragraph IX refers to an actual vacancy in the office by

virtue of the things listed.

116 MR. TIDWELL: Suspension wouldn't be a vacancy. Presumably he's just being suspended. He still has the office. MR. HILL: Part of the problem I saw too in Paragraph VIII was there were no guidelines, it just says "The General Assembly shall have the authority to provide by law for the suspension of any officer .. " with no particular reason or rationale but in the committee's judgment it is an executive function and really didn't belong there. MR. GOWEN: Didn't belong there. MR. HILL: You can recommend that the committee send this over to the Legislative Article committee if you want to play it safe, but you could also just omit it as not being a proper function. CHAIRMAN CHILIVIS: Well now, are there provisions anywherethat.provide in the Constitution for the suspension? Does impeachment cover any officer? MR. HILL: Yes, any officer. CHAI~1AN CHILIVIS: So you've got impeachment, then you've got disability and you really don't need this provision do you? MR. TIDWELL: There's a specific Constitutional provision for Public Service Commission where the Lieutenant Governor, Governor and Attorney General prescribe the proced'.lres for the suspension or removal of a Public Service Comnlissioner. CHAIRMAN CHILIVIS: But in other words, without this

PAGE 117 provision there would still be a way to get rid of a bad officer without -- well, if there is, I'd just as soon omit it myself. What about it, Tom, you got any strong ideas about it? I know Judge Smith had said that he agreed with that.
MR. GOWEN: Let's omit it. CHAIRMAN CHILIVIS: Let's eliminate it. All right, now that brings up the question that we had in regard to the first committee, on disability, which I guess -- what do we need to do next? MR. HILL: Section I, whether the Lieutenant Governor becomes CHAIRMAN CHILIVIS: Whether he becolues Governor. All right, now we'll look at that in light of this section on disability.
.
MR. HILL: This Paragraph VIII in Section I. CHAIRMAN CHILIVIS: All right, well the question is whether, I guess, whether under the disability provision the office is declared vacant. If it is, then I see no reason why the Lieutenant Governor shouldn't become Governor, but if it's temporarily -- a temporary disability then you've got to mesh it in with this other paragraph. Have we -- did we ultimately address the question of temporary disability in this section as drafted, Melvin? MR. HILL: No, we did not address that question because

118 there's a policy issue involved whether you want to give that authority through the Constitution or not. Judge Findley, we spoke to him about this, and he felt that we should only have permanent disability as a provision and not try to determine, try to allow for a petition for temporary disability.
CHAIRMAN CHILIVIS: What happens if -- well, I guess the thing that sort of colored my thinking was the book I read several years ago entitled The Year We Had No President, and some of you may have read that, but it took the collective days in the history of this country during which we had no President running the country and they totaled up to more than one year and in one instance, and you will recall what it was, I have forgotten but when Henry and I were talking about it, he recalled the name of the President, the President was kept in a room temporarily disabled for literally weeks and weeks and there was no provision to cover that and his wife Woodrow Wilson -- his wife literally ran the cabinet.
MR. GOWEN: Ran the country. CHAIRMAN CHILIVIS: And the country. And I guess that's what bothered me, but what happens if a Governor is in a coma for a month? MR. HILL: Well in that case, I think there probably would be a petition by the officers to determine if there is a permanent disability.

1 1 9 ,1>{'\b~1, '',
MR. GOWEN: The court could find a temporary one, as I read this there is a petition for permanent disability. You don't do it just because one of the officers was on a tear for a week, but you go in for a permanent disability and then the court, Supreme Court can say we find he is only temporarily disabled.
CHAIRMAN CHILIVIS: And what happens if they do that? MR. GOWEN: Then there is a succession for that period. Isn't that the way we did it? MR. HILL: This language, there are two different provisions, they say the same thing. One is just a reorganization of it, it's just the present language which leaves it rather fuzzy about exactly what would happen. If the Supreme Court decides it is a temporary disability then they, the Supreme Court, will decide when the disability is ended. I don't see that we can read into it that there is a need for a further petition. I think the mere assumption that they would keep it in the breast of the court would be my reading of it, it has never been litigated, so -MR. GOWEN: During the period of temporary disability the powers of such office shall be exercised as provided for by this Constitution and the laws enacted in pursuance thereof. That. leaves it up to the General Assembly to provide for it. The Constitution does provide for the Governor I guess. MR. JACKSON: What if in Paragraph VIII, you added a

120
new sentence "In the event of the temporary disability of the Governor, --
CHAIRMAN CHILIVIS: What are you looking at? MR. HILL: Section 17 MR. JACKSON: Section I, Paragraph VIII. CHAIPMAN CHILIVIS: Okay. MR. JACKSON: Add a new sentence, "In the event of the temporary disability of the Governor, the Lieutenant Governor shall exercise the executive power ...... etc. "In the case of death, resignation or permanent disability of the Governor . then the Lieutenant Governor shall become Governor." CHAIRMAN CHILIVIS: I think that would clear up the whole thing. In other words, in the~ent of temporary disability, he only exercises the powers. In the event of permanent disability he becomes Governor and you follow the rules of succession. Does that present any problems that you can think of, Charlie? Death, resignation or permanent disability, permanent disability having to be determined by the Supreme Court who can determine either that it is permanent or temporary. The procedure starts with a petition by at least three of the six eligible Constitutional officers. There are really seven including the Governor, but of course he wouldn't petition for himself so there would be six and you would have three involved.

121 Half of them would have to petition, it would have to be passed on by the Supreme Court, there would have to be testimony from certain qualified psychiatrists and medical doctors and then they would have to determine it was a permanent disability before the Lieutenant Governor would succeed to the office.
MR. GOWEN: I think that's fine. CHAIRMAN CHILIVIS: Now this is going to require some rewording. You've got that language. Now on the disability provision, I want to read this over, and I would urge the other members to read it over, and I want to see if it answers the question that I raised in the letter about whether or not on a permanent petition they can find temporary. MR. HILL: I think we have bad language, but we will clear it up. It's too uncertain now. CHAIRMAN CHILIVIS: What we are saying, for the benefit of the rest of the committee is that we have drafts that in essence were approved by Henry or I, but a question or two have been raised and they are going to clean the language up a little bit, but I think the ultimate end result will be the same as what we reported to you. Is there any other business to come before the comini ttee? REPRESENTATIVE WATKINS: Mr. Chairman, in essence in disability when you have the Lieutenant Governor step in,

122

how much compensation does the Governor get, his full sala:cy7

CHAIRMAN CHILIVIS: I don't know.

MR. GOWEN: I would think if he was acting Governor

and just discharging the duties of Governor, he would get his

regular salary as Lieutenant Governor, but if he became

Governor he would get the salary of the Governor.

MR. TIDWELL: If he succeeds to the executive power

under the present Constitution, he receives the compensation

of the Governor.

REPRESENTATIVE WATKINS: So while the Governor is

ill, he would still receive his salary?

,.

CHAIRMAN CHILIVIS: Yes, I guess that would be

while the Governor is temporarily disabled, the Governor would

get his salary and the Lieutenant Governor would get the

Lieutenant Governor's salary. But when the office is declared

vacant because of a permanent disability, then the Governor.

would get whatever retirement he would be entitled to I

guess and the Lieutenant Governor would get the Governor's

salary.

REPRESENTATIVE WATKINS: Well should it be spelled

out that the Lieutenant Governor would still get his same

salary?

MR. GOWEN: Those salaries are all fixed by law.

CHAIRMAN CHILIVIS: I think that would --

REPRESENTATIVE WATKINS: Take care of it?

123 CHAIRMAN CHILIVIS: Yeah, I think it would. Any other discussion? The next meeting is I guess October 31. I suppose we will be in a form to submit this and make a report. Melvin, will you have drafts of all this? I didn't take any notes and there's a lot that we said we were going to report to the full committee. Will y'all have all that in a form that we can make a report? I tentatively have a court appearance on that date. I hope to avoid it, but if I am not here maybe Mr. Gowen and the rest of you can do it. MR. GOWEN: I hope you'll be there. ca~Ifu~~N CHILIVIS: I certainly appreciate y'all coming. MR. TIDWELL: Can we go back? On two issues I don't know where we stood on Judge Findley's action. One under the suspension of the death sentence. As it is now the Governor can suspend it until the Pardons and Paroles Board hears the application for a commutation or for any other reason that he deems proper. This present draft leaves that last provision out. Is that a -- I think you're trying to say that but it doesn't say it. MR. GOWEN: It ought to say it. I think it's our consensus that he ought to be able to suspend. MR. TIDWELL: There you're talking about the suspension if

124
ClffiIRMAN CHILIVIS: Let me see if I can tell you what we decided. We decided that tentatively we wanted tile Governor to be able to suspend it for any reason.
MR. TIDWELL: Okay. CHAIRMAN CHILIVIS: However, before we made a final decision on the year limitati~,that is, whether tolimit his power to a certain number of years, we wanted to hear further from Judge Findley, but our current thinking is no limitation, but there may be a time limitation but we want to hear from Judge Findley and we decided we would maybe do that at the meeting . .MR. HILL: Can we present it with the time limitation? HR. JACKSON: Put it in brackets. CHAIRMAN CHILIVIS: Yeah, I'd put it in brackets or eliminate it completely. I think Judge Findley when we tal.k about it is going to say well let the unitary system that is currently being proposed by, I think Supreme Court of the United States, isn't it? MR. GOWEN: By Georgia Supreme Court, I don't know whether CHAIRMAN CHILIVIS: Let that be the vehicle by which this matter is addressed. MR. TIDWELL: And the other one dealt with special sessions and -MR. HILL: Forty days.

1'/\(;1'; 125
CHAIRMAN CHILIVIS: We decided on forty days. MR. TIDtiELL: Then, do you -- I have been unable to find where the Governor has amended his proclamation dealing with the subject matter called, but I am sure I have seen one and I will try and find that, but do you want -- it is the judgment of this committee that now if he wants to amend his proclamation he has to get three-fifths of the members elected to approve of that? tihereas perhaps now he can just amend it. That's a change, and I want -CHAIRMAN CHILIVIS: I think what I thought we were thinking about is this, if the Governor currently has to -cannot amend his call after the legislature is in session, then put it the way we've got it in the language of the draft, that is that an amendment has to be initiated by the Governor and approved by three-fifths of the legislature, noting that he can, if he can't get that approval, adjourn the thing and start over with a new call. But if he already has that authority then we want to address the issue of whether or not to limit his authority by requiring three-fifths approval of the legislature because Representative Joe Wood's idea on that was not to make it a limiting provision, his idea was to make it easier to have an amendment. And if it turns out to be a limiting provision we'll want to address that further. MR. TIDWELL: So you really want to know what the present law is.

/~}?"/'t.t,.. ~,

",

,.'~.

!, l,~1!'; .L,". ':

"," .

126
CHAIRMAN CHILIVIS: That's right. MR. JACKSON: Our assumption was that -- there's a legal question whether he can do that and we're trying to clarify it. CHAIRMAN CHILIVIS: We're trying to make it easier really, we don't want to -MR. TIDWELL: Another option to doing i.t this way would be just for the Governor to -- you could specifically say that he could amend his proclamation without -CHAIRMAN CHILIVIS: We could do that, yeah, that would be another option, but if he doesn't have the option now we were sort of inclined to say let's do it with joint action. MR. TIDWELL: Okay. CHAIRMAN CHILIVIS: But if he's got it, then we'll probably want to go back and leave it the way it was. So if you'll let us know on that, that's one of the issues we have open. Meeting is adjourned.
(Whereupon, the meeting was adjourned at 1:45 p.m.)

127 C E R T I F I CAT E I, Peggy J. Warren, CVR-CM, CCR A-171, do hereby certify that the foregoing 126 pages of transcript represent a true and accurate record of the events which transpired at the time and place set out above.
PEGGY J. WARREN, CVR-CM, CCR A-171
I'

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Oct. 15, 1979

SUBCOMMITTEE MEETING, 10-15-79
ARTICLE V: EXECUTIVE BRANCH Proceedings. p. 2
SECTION I: ELECTION OF GOVERNOR AND LT. GOVERNOR Paragraph I: Governor: term of office; compensation and allowances.
pp. 2-15, 39-50 Paragraph III: Lieutenant Governor. pp. 15-39 Paragraph IV: Qualifications of Governor and Lieutenant Governor.
pp. 50-55 Paragraph V: Succession to executive power. pp. 120-123
SECTION II: DUTIES AND POWERS OF GOVERNOR Paragraph I: Executive powers. pp. 56-57 Paragraph II: Law enforcement. p. 57 Paragraph III: Commander in chief. pp. 57-58 Paragraph IV: Veto power. pp. 58-60 Paragraphs V: Writs of election,
VI: Information and recommendations to the General Assembly, and
VII: Special sessions of the General Assembly. pp. 68-82, 85-86, 124-126
Paragraph VIII: Filling vacancies. pp. 86-97 Paragraph IX: Appointment by Governor. pp. 97-105 Paragraph X: Information from officers and employees. pp. 105-106,
112-117 Reprieves and Pardons. pp. 60-68, 82-84, 123-124 (See Article IV, Section II, Paragraph II(e): State Board of Pardons and
Paroles - Powers and authority.)
SECTION IV: DISABILITY OF EXECUTIVE OFFICERS Paragraph I: "Elected constitutional executive officer", how defined.
p. 108

Subcommittee Meeting 10-15-79 Page 2
Paragraph 11: Procedure for determining disability. pp. 37-39, 107-112
Paragraph III: Effect of determination of disability. pp. 117-123

BEFORE THE SELECT COMMITTEE ON
CONSTITUTIONAL REVIEW
STATE OF GEORGIA
In the Matter of:
Select Committee on Constitutional Revision of Articles IV and V.
Capitol, State of Georgia Room 402 Atlanta, Georgia
Wednesday, October 17, 1979 10:00 o'clock, a.m.
APPEARANCES:
Justice Harold Hill, Chairman Dave Garrett Thomas Harrold Tom Buck Melvin Hill Delores Crockett Kenneth English Vicki Greenburg Frank Gibson Ed ,Jackson Charlie Tid''1el1 Mike Henry Thomas Thorne-Thomsen

BRANDENBURG & HASTY

,>UFf'.:TIFIC REPORTING

'-

_J 3715 COLONIAL JRAIL, J)()UGLASYILLE, GEORGIA 30135

I

[__) E_l_)C_)S_.ITlON~-AR~II_R.1\ ~(9)42~-0S4_8:2ONVIN:()N~C()NIERE~CE'

r'AGL 2

,JUSTICr HAROLf' p:rr~I, (C.hairnan): lre have not as

".!pt. received reportr> on the Offices of Secretary of State

ane Comptroller r.eneral and the Commissioner of Labor. And

just to complete the record on that, do we have reports

from th05~ m":!~tings with those three officers?

\
\\met.
\

MR. FAFPOLD: With the Secretary of State, we CHAIR}1A~: Do you want to give us a s~ary of

:'our meeting?

MR. F,NGLISH: ~'1~ll, basically "7e did meet "lith

the Secretary of State. We discussed his function with

hiT!' nne some of the chanqes he thought quite possibly

coul~ bn rade throuah constitution revision3 and so forth.

Naturally he was of the nnin~~n that thE office shoule

remain a constitutional of~ice~ -- cffice rather. He i9 . l~n

qoinQ to initiate a nroararn throuah the means he presnntly

has available to hif,l ti'" cut out sone of the overlappir.0 .?T: 61

dual responsihilities that his office has with other offic~s,

which I thou(fht was a reasonably good idea. I gues3 lom

"tent a~.,ay from there thinking that, based on our discussions

~lith him ane' the arnl")unt of review we had of his operation,

it should basically remain a con5titutional office with no

~ecessary constitutional reviqions.

r.1R. RJI,F?0J,D: The only thina that David thought

about, at least asked us to consider, would be removing the elections' aspect from his post, since he is an elected official, which I thought had merit. And exactly what he does, he kind of oversees that --
Charlie, he works with the Ordinaries?
rom. BtJCY: Probate.
MR. HARROLD: Probate Judges. f1R. TIDWEI,L: 'Right. And consolidates, tabulates, canvas~es all the returns, maintains election records, trains local registrars, all of the State functions associated with elections, other than those performed by the Constitutional Officers' Elections Board. I don't think he's constitutional! ,given those duties, except perhaps there's one reference in the Elective Franchise Article that mentions something about the returns of elections being submitted. I think when that article was undergoing revision,
r can't remember which way ~rr. Fortson went. I think he
wanted it left in there. I don't remember how that finally was disposed of. We can check on that for you because it's it either says they will be to the Secretary State or as providec by law. And I believe, if I remember correctly, it said to the Secretary of State. At least that is frozen in the Constitution. Everythinq else is statutory.
MR. ,JACKf.ON: But, Charles, it also says, "unless otherwise provided by law." So you've got -- it says,

4

"Shall be to the Secretary of State unless otherwise provided by law."
MR. TIDT~LL: Is that in~e revised or is

that -- that's the present? HR. JACKSON: Present. MR. TIDNELI.: Okav. There's a revised one

that will be resubmitted and -- and, ah, in the next

general election. Ann I think it addressed that, perhaps

left it the same way or it JTI.ay have left out that "or as

otherwise provided by law."

1. j

CHAI~~: That is really not something that

comes within this article.

MR. TIDWELL: No.

CHAIRMAN: On the other hand, I

MR. TID~~LL: Unless you wanted to recommend

to the Select Committee that they address that point when

they resubmit that, Mr. Chairman.

CHAI~Jrn: I suppose we have not had the problem

that could arise with a candidate for the of.fice of

Secretary of State having to qualify with the Office of

Secretary of State, which is really I suppose about the only

place we would have any conflict.

MR. HARROLD: Of course, we haven't had any

opposition for Secretary of State in many years.

MR. TIDWELL: Mr. Fortson has had some.

1':\(;1<: 5
MR. HARROLD: Tokin. MR. TIDWELL: Yeah. But Tokin would substantially be the same -- the same point. MR. HARROLD: Well, David foresees substantial opposition. MR. TID~mLL: Yeah, anybody who is going to jump on him i.s goinq to jUIT1P on hiy, the next -MR. HARROLD: Yeah. MP.. TlmmLL: -- the next go-round. MR. HARROLD: Yeah. And he's thinking ahead and Raying, "Well, you know, I'm the one that's verifying 'C!'y re-election." CHAIR~: Does he got any suggestions, or co yon. Tom, as to where it might be put? MR. HARROLD: No, he didn't have anything in particular. Everybody else is elected too. And who is going to be the one that's goina to inform hiro. And he thought about some judicial supervision, perhaps. But he didn't have any specific idea. MR. FNGLISH: I think he mentioned r 50fH(~ Sf)]'!, C tndenendent commission. MR. H~.RROLD: tTh-huh. ~m. ENGLI~H: Totally separated. CEAIRMA"': l\n independent commission has got to DC' appointed hy somehody.

~m. HJJ~F'OLD: ~ight.
CPAIPM~7: Ana if i t ' s by the r~vernor then whoever's qualif.ying for the Office of C~vernor may have somewhat the same feeling.
MF. TIDWEI,IJ: You know, now, Harold, the returns of his elect of the Secretary of State are sealed up, delivered to the Secretary of State, and they're kept under seal until the Constitutional Officers' Election Board opens them. So he has nothing to do. He does not conduct the election like the ordinary. The Election Code makes the ordinary -- when he has opposition, somebody else has to conduct the election in that county. But the Secretary of State really doesn't conduct elections, the various superintendants throughout the State. And I con't really see a conflict there. I think it's laudable of David to point that out. But
CHAI~R: Somebody has got to do it. MR. TIDWELL: Yes. And he doesn't fiddle with the returns. There's no chance for him to chanae things I there because they're all opened an~ published and tabulated there in public before the constitutional Officers' Election Board. CHAIRMAN: Well, unless there's some strong feeling as to some position the Committee ought to take with respect to the elections' matter or the Office of Secretary

PACE 7
of State, let me suggest that we move on. Do we have a repo~t
i
from the meeting with the Comptroller General? Let me interrupt myself and say, does everybody
have a copy of the agenda? They were mailed out, but we've got extra copies here.
CHAIPMAN: Has either of the Tom's had a chance to --
MR. BUCK: We tried independently of ourselves a half-dozen times and its just been impossible to get with him. Now, I've talked with some of his staff people and told them; you know, they know what's going on. And kind of put the onerous on them that, ah, that we wanted them to have some iliPut. And I don't -- and I assume you have not heard anything.
CHAIRMAN: No, I haven't heard a word. MR. PUCK: I don't know whether Vicki has or not. r.1R. HILI,: Well, we had a meeting with the Comptroller General on another matter and brought this up at the same time to get his reaction about changing his office, either the title of his office or, you know, the possibility of. it being an appointed office as opposed to an elected and, ah, not appearing in the Constitution. Well, he felt that there would be a very strong reaction against this office not being elected by the people because of the

"'.'.1 ... :_ , .

strong tradition in history that that office has in the State. And he felt that the title, ah, Comptroller General, was appropriate in that everyone that dealt with that office understood what it meant and that there was no need to change the title. I mean he he said that he would not fight. If there was a change in the title, he probably wouldn't fight it. But he wouldn't care for it and he thought it would not be that helpful of change. And, you know, basically he would prefer that things stay the way they are.
CHAIP"~N: All right. We can take up that name change as a separate item when we come to it
Ken, did you talk with the Commissioner of Labor?
MR. ENGLISH: No, Delores did. I talked to her about a week ago about that and she wasn't able to get in touch with him, a nd finally when she talked to him they set up an appointment like a half an hour later. And I was out-of-town. She did tell me she was going to be here this morning. I saw her as late as yesterday about noon; she said she was going to be here.
CHAIR~AN: All right. ~fuen she comes in weill get that report at this time.
All right. We presently stand in this tentative posture that the -- we would recommend that the Office of

1':\(;E 9
State Superintenc1~mt of Schools be not an elective office, and that the Offices of Secretary of State, Attorney General, Comptroller General, Commissioner of Agriculture and Commissioner of Labor be elected offices. Should any of these other executive officers be selected by any means other than election?
HR. GIBSON: You said the Comptroller General is rather adament on this, that there's a long-tradition of election, and therefore --
You know, the title of Comptroller General has no meaning to anyone. In the first place it has nothing to do with insurance. It's the same title at the head of the General Accounting Office at the Federal level. And even that has been suggested -- it's meaningless -- that it ot~aht to be cha~'Wef.
name, he would qO along with that decision of our committee. MR. GIBSON: Did you suggest that maybe
description might be a reason? MR. HILL: Well, as a matter of fact I did say,
you know, from the standpoint of the people we felt that they might understand what it meant if it was called insurance commissioner. But then he pointed out that that's not the

) \( [ 10

only function that office has, and he is in fact ex-officio

Fire Commissioner. You know, there are some other functions

that office performs in addition to insurance. And so that

wouldn't be totally descriptive either. His major point was

that the people that deal with that office know what it

:,

means and that

MR. ENGLISH: Yeah, but who are those people?

MR. GIBSON: The people who elect him have no

idea what in the world that is. You ask anyone if they've

got an insurance problem, a citizen, and ask him who they

go to, they wouldn't know who in the world the Comptroller

General was. I think that's an aberration. I just can't

imagine that that thing could be continued as Comptroller

General. That term has a definite meaning in management.
1:
MR. HARROLD: Well, I also believe that it should

be an appointed position. Now, it's somewhat akin to the

Revenue Commissioner's job, when his job is to monitor the

activities -- his major job -- to monitor the activities of

the insurance companies.

MR. GIBSON: The major job.

MR. HARROLD: And I know he got invited to

address a group in London a couple of years ago and got in

a little trouble for that. That if he was appointed, he

could be somewhat more independent. I think Johnny does a

pretty good job. I've heard some people say that our

(,

:':"..1 :'

-'

,,
j\

PAGE 11

Workman's Compo rates are higher than any other southern

state.

Is that right, Charlie?

MR. TID~~LL: I don't know, Tom. We've made a substantial change in our Workman's Compo law in '78, which tremendously affected the rates. I think they went up approximately 20 percent. He doesn't have that much control

over it, really, on the Workman's Compo rates or really

any of them now under the File and Youth Law.

MR. GIBSON: I think the Insurance -- an insurance coromissioner such as the one in Pennsylvania is

a very important office. It can be critically important

as a consumer protection device. I certainly don't see

this office -- even the suggestion that the insurance

co~anies know who he is kind of strikes a responsive chord in my mind.

MR. HILI.: Frank, are you saying that you feel he should be elected because of his protecting of the

consumer, the consumer should be able to vote for him?

MR. r,IBSON: No, I think that's a fallacy to

think that you have to elect everyone who are protecting

consumers. Oftentimes in election processes you find

interest groups sayin~ that much more than say the consumer. That's an office which it seems to me has to

require some skills and knowledges that are quite appropriate

1'._\.\, 12

to the appointment processes.

MR. TIDWELL: Mr. Chairman, I might point out

one thing I found out yesterday or 1 was told yesterday.

,;

I can't speak to the accuracy of this, but I was in the

meeting with the former deputy Comptroller General. And

')

this subject came up, change of name. And I was getting

his reaction. And he told me that the -- the, ah, the

number of personnel in the Fire Marshall-s Office far

exceeded the number in the Insurance Division. So, while

I think his most visible activities is the regulation of

insurance, he does have others. And it might bear looking
1 -,
into, but he said that. He made that statement that they

had their personnel in other activities. That was just the

Fire Marshall, not incluaing the Small Loan. And he has

other functions. But -- which surprised me. I would have

assumed his major funding was in the insurance regula~ion area, but apparently not. You may want to look into that

and see if that's so. That's not to say you ought to do

one or the other. But most of us think of him as dealing

with insurance.

MR. GIBSON: Is there another title which might

be descriptive of both of those functions?

:'

MR. TIDWELL: Comptroller General is not. You

know, his functions as the Comptroller General now are perfunctory. He signs off on something or another just

PAGE 13

.--- .--------.---. ----.---- -....- rr--------~-~---

----~------,-,----

----------------

Ii

MR. HAR--qOLD: But. h.> (~(lfC""J.~ handle any funds

:(

2 Iil anymore.
II

3I

MR. TIDWELL: No, but he -- I think he has to

~

sign some warrants or something, appropriation, something

5

or another. But it's perfunctory; it's just some obscure

I"I
C 1 law that requires he do it. But he doesn't perform what a

-I

7
:1

comptroller -- and that's where the name came from and that's!

-I

ii

'I
I) 'I
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what he used to do. He doesn't do that anymore.

l) Ii II ,I

MR. GARRETT: Does he have a audit function?

10

MR. TIDWELL: No, only insurance.

\:J Z
MR. GIBSON: ~7hat does he do in the Small

Loan Business?

MR. BUCK: He regulates all your small loan,

:'-"t ,r-

financing companies.

2.

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J5 ~

MR. HARROLD: Some people think that finance

':1

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companies have a different threshold of echics in dealing

~

4_

11 IX !Xl

with consumers. If you ever represented somebody that got

lS

hit with one of these revolving things that end up paying

i9

90 percent interest on a hundred dollar loan, he -- he has

2f1

that authority.

Ii

21 "

MR. BUCK: He has the authority to grant

"
~- ~.

licenses, to revoke licenses and impose certain sanctions

23

for violations of regulations that relate to the small loan I

I

24

operation under the Industrial Loan Act. I agree with what'~

:s

I
been said that the name is certainly a misnomer. And I don'~

_--.J

know what we can come up with. But the average fella on the

street has no idea what the Comptroller General does. And

they don't relate it to the insurance commissioner because

I have constituents who call me wanting to know who do you

get in touch with when you've got a problem with the

insurance.

MR. JACKSON: Because his functions involve

regulation in the area of fire safety, insurance and small

loans it could be -- well, some states have adopted a

"J \ )

Commissioner of Regulatory Services. Although we do --

';l

1,

as other regulatory agencies. That would put his title in

." )

I...:..

line with the other commissioners. I think there is a

push to go to the title of Commissioner as the head of

departments.

~~. TIDWELL: The Comptroller General's Office

is somewhat like the Secretary of State's office. Whenever

something needs to be regulated the two areas that they go

to with the Constitutional Officers is either the Secretary

of State or the Comptroller General. So he's got a lot of

little other areas. He licenses LP gas dealers. He -- he

enforces the blasting -- Blasting Standards Act. And he --

mobile home specifications. Just -- just a bunch of little

things out there. And I imagine that he'll continue to do.

That will be the way because the two places they go is either

the 'Secretary of State or the Comptroller General, unless

_----_ _ __ __ _ - .._- ...

..

.. ... ._~. ...

---- -_.--~_.

--._-----'-----', PAGE 15
-------_._._-----_._---

it logically, functionally falls under one or the other

State departments. That's why he's so prostituted in his

3

responsibilities.

CHAIRMAN: I suppose "Miscellaneous" would be

kind of an usual --

MR. TIDWELL: Commissioner of Miscellaneous.

7

MR. JACKSON: Or none of the above.

CHAIRMAN: Everything else.

9

MR. HILL: Well, you know, frankly, in all --

.-

10

in all honest1 if we could come up with a title for this

11 ;-,::r;

office that has some stature and status that's comparable

J

~L

J ~ '"J: to the stature associated with the title Comptroller that's

more deRcriptive, he will probably not object to it. I

think insurance commissioner sounds very bureaucratic as a

(~l designation. You know, you're kind of down in, you know, th~
.r.
::J
16 ~ low echelons of government as opposed to.a person who is C1 Z
not. You know, someone who has more status. So I think it

Ib

is important for us to come up with a good, new title if

]y

we can that's more descriptive.

MR. GIBSON: Commissioner of Insurance is an
21 I, honorific title. I think there's anything wrong with that.
,..,,..,
MS. GREENBURG: Secretary of Insurance. Does

that sound better? Secretary of State, Secretary of Insuran4e.

-'.1

CHAIRMAN: Well, maybe it's passing the buck, but I

Vicki does such a good job. And some other states must have

~

...

.__._._._ _ -JI

.. r r - - - - ~ - - -~.---.----

_-.~----,._~~-

P_-\GE 16

!!I: had this problem. Why don't we find out what some other

2

states have named their miscellaneous commissioner, and

3

ask her to give us a report on that. Some of them might

4, be appointed as well as elected. What we're really looking

5

for is a designation.

7

8

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2.1 24 I

But Tom Harrold has raised the question as to whether or not the Comptroller General should be elective or not. My recollection is that Tom Buck indicated -- this is not necessarily controlling, although what Tom Buck says is very important -- but he felt like it would be a fight to make that an appointive office.
MR. BUCK: I don't think there's any question about that. I think you'll aaree 'toli th tha":, \','(lll' t you?
)\1R. RA RROLn : Oh, yeah. MP.. RUCK: lI.nd, Charlie, you'll aqree with that. MR. TIDWELL: Yes. MR. BUCK: But I think the point is well-taken. If you're going to streamline some things, it would be a good -- a good place to put it in a cabinet-type, status position. And it gets down to what you're going to do: Do you want to be idealistic or do you want to be practical. And I'm not wedded to either one, but Johnny's a good friend of mine. He's -- he's one of us. He came out of the General Assembly, you know. He's got some good contacts.

MR. GIBSON: Well, what's the basis of his support,

cL

~

, ~._.~~

.

..

.

, _~

.. __ __ __ ~_~

._~._. ~. .~------ .~

Tom?

Is it that?

PAGE 17

----; - -- ------"--. ._~-_.~_.-

_..

,

I know Sam Caldwell's constituency. What \

- ! constituency -- what's his constituency that he can call

I,

j

upon for a lot of support?

,-~

MR. BUCR: The insurance companies.

MR. GIBSON: The insurance companies themselves.

MR. BUCK: And I tell you something, you know,

there's a wealth of small loan operators in Georgia.

MR. GIBSON: Yeah.

MR. HARROLD: And they're allover.

\0

MR. GIBSON: Every county, I guess.

,?

Z

j I ... ~:

MR. HARROLD: And they, in turn, would lean on

their local representative. But if you look at the -- all

of the offices, that would be the most likely, I think, to

succeed realizing the chances of success even with that

would be maybe ten percent. And you'd have to have a

well-organized campaign and good solid explanations and have

to have a little help from the second floor. And I'm not

so sure that that's going to be forthcomingI having been

I 'j

out on that limb before when the second floor starts sawing. I

But I think our job is to look at the ideal, even;
!
if it's not possible. I think we ought to make a suggestion!
., ....
of what we think is the right thing to do. And Johnny's a

good friend of mine too. And I'm going to tell him you

,1

,'1'

brought it up.

MR. BUCK: The minutes are going to show that you're

PAC!: 18

the one that brought it up.

2

I think it's really something of importance

-,

enough where even if we make a recommendation at the full

4

committee certainly we want to express an opinion on it.

)

I mean it's well --

MR. HARROLD: Well, I also think that in

fairness to him that you and I ought to go talk to him.

And I apologize, I've just been out of town.

UI

MR. BUCK: Well, he has been unavailable.

10

MR. HARROLD: He's been hard to get. We could

'z"
l ! 1--
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qo down there and sit on him this morning. If we can find

the time we can meet with him.

MR. GARRETT: You know, we've got a pretty good

r"
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16 z1:"1
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1 " ').: 1:1:1

reason why we want to take the Secretary the State school Superintendant ie, he has a board and that sort of thing. We don't have the same reason on this one. It would be difficult to do as you say, Tom, to come up with

IX

something that's well-validated, documented as you could

I c)

justify taking it out of there.

2U

MR. HARROLD: Plus you've got a school

21

superintendant who wants to be taken out of it, too.

22

MR. GARRETT: Yeah.

,)

MR. HARROLD: But I just think in the situation

24

when you're regulating very carefully private companies and

a lot of money involved, and if you have to be elected, where

PAGE 19

the source of your campaign funds are derived. If you look back on it you'll see that he's very well liked by the

3

people that he regulates, which, you know, may be a good

4

thing.

MR. GIBSON: Georgia is the only State that has

(

this office. And so you have that kind, of support. You

know, of all the offices we're in line with most states in

terms of electing Secretaries of State and Agriculture. But

9

they don't even -- as I mentioned in that report of mine,

()

the Book of States doesn't even recognize the office of

Comptroller General.
" ,".
MR. GARRETT: Well, some states have it. South

Carolina has it. I don't know about the others.

MR. GIBSON: Well, they have -- all the states

-.:-.

T

J'i .,~')

have some type of office in the insurance business. None

16; of them have something -- this kind of collection of odd

.,
17 :i functions that we have. I have proble)<1l-> with this. I have '

problems with all of them, not just this one.

MR. TIDWELL: Frank, you know, the same people

20

that perhaps have complained to you that they didn't know

.,.
who they were voting for will be the same people that think

that it's evil incarnate that the right of the people to

."c". .. )

elect this individual has been withdrawn by constitutional

"1 __ ' t
Revision Commission. You know?

MR. GIBSON: Oh, I hold no grief for the logic of

PAC L' 20

voters. But it is -- it is I suspect you wouldn't have

2

to go to men on the street. You go to almost any

.3

professional group in this state and ask them, "Who regulates

4

the insurance business in this State?" And find how many of

them can come up with Comptroller General. And I bet you're

6

not going to find many of them. Over at the University,

for example -- and that's an educated population -- I bet

10
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the number you come up with is almost infinitesimal. And yet you're asking these people to vote on a man to do this job and they don't even know what he's doing, for God sakes. So I'm just -- I don't see any sense in it.
MS. GREENBURG: If I may correct you. The insurance the Comptroller General does not regulate insurance in this State: it's the General Assembly. And a.ccording to Article III, Sec. 9 under Insurance Regulations all the laws are promulgated by the General Assembly. And, in fa.ct, in that Committee's revision they're going to take most of the power away from the Comptroller General anyway

and give him strictly the issuance of licenses.

20

MR. HILL: I wouldn't say that. I wouldn't say

21

that. I think that he is the one that will continue to

.,.,

regulate the insurance industry even after this change over

in Article III. They're just reducing a lot of ~he language

24

in the section to consolidate. There's now about a page and

25

a half on insurance regulation. That -- it really could be

'j-----------

---------- --"-------,,---,-,,,--

statutory. And so they're

just

PAGE 21

--------,-, -"-------------------i

reducing him on that.

I

I

But --

-'

MR. GIBSON: Mr. Chairman, we can't get the

staff to agree. I don't know where we are.

MR. HILL: We haven't discussed this matter.

MR. GIBSON: I see.

MR. JACKSON: I do want to take exception to

'just one comment. You said that he is the best one we have

'I I a chance of eliminating or the best case can be made against

;11

eliminating the Comptroller General as a constitutional

elective officer? Did I

1_

,"
~:

MR. HARROLD: That's just my opinion, outside

of the School Superintendant.

MR. JACKSON: I think the Commissioner of Labor

1,

is going to be the one that you make the strongest case,

,:..;
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"1 l , ';:1 2
j7

across the board, every way you could look at it. MS. CROCKETT: I think that's the hardest fight.

I don't really think we could win the case to have that

office appointed.

.'u

MR. JACKSON: I know there's opposition

MS. CROCKETT: It's very strong.

MR. BUCK: Well, you're getting back in idealistic

::".

situations and practical accomplishments. And I agree with

2,

what's been said. Now, if you're going to take a certain

individual who is holding that particular office, now

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23
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politically throughout the State of Georgia he is strong as anybody I know.
MR. JACKSON: My answer to that is going to be to grandfather. I'm going to recommend effective 1989 or 1990 that this office will become appointive -- an appointive office.
MR. BUCK: Good for you. MR. GIBSON: The Secretary of Labor? MR. JACKSON: Commissioner of Labor. MR. GIBSON: Oh, my God. MR. JACKSON: To grandfather so that it won't effect the incumhant. MR. GIBSON: Jesus, he beat Carter hands down on the whole damn re-organization thing. I think that's a tough guy to beat. I tell you. MS. CROCKETT: His feeling is that that particular position should remain directly responsibl\ to the people because it is one of the departments that ~fect more people directly. And he thinks that it -- by being appoint -- by being elected he has the leeway to introduce bills that are in the best interest of the people and that he's not governed by the political whims of the C'70vernor. Now for himself personally he thinks that he has a good deal of support. He knows in the past that when this issue came up before it was defeated. And he knows that it will be again.

PAGE 23

For himself personally I think he would even fight having that position to ever become appointed, even when he's no longer considered.

,-~

MR. JACKSON: Well, who is his clients? He

primarily administers the unemployment insurance. So you

b

look at people who are unemployed. You know, he doesn't

'I

have a universal client. I "lOU I,' make a case th~t the

Commissioner of Transportation effects more Georgians by

far. MS. CROCKETT: This -- the Commissioner of

1J

1.-.

Labor -- this particular commissioner has the greatest

support from the labor unions ana the black people in this

State, unquote, from him. He has a great base of support. MR. GIBSON: $167,000,000 a year passes through
15.:. that office.

MR. BUCK: Most of it is Federal funds.

MR. GIBSON: 98 percent of it. MR. JACKSON: 98 percent of his job is administering Federal programs. I'm not making any

accusations towara his integrity or the importance of his

work. I'm just saying that essentially he is a Federal

agent. His clientele -- you know, the reason for having an elective office is that the people can throw out somebody who is doing a bad job. And yet he has to account to the Federal authorities, not to the people, because he's

..'- ._._._-" , ---'--_.- ------ - '---- ---- ._---- - administering a Federal program.

PACE 24
He only has a small

2

staff that does any type of inspection of safety standards.

" )

But the tremendous part of his job is administering Federal

"I

programs. He does not have the weight of tradition -- of

5

history. Its only been an elective office since the 40's.

6

And I'm not sure he has that big a policy role, again,

"

because he's carrying out policies that's been set by the

I

:1

II

Federal C~vernment. But, again, my thoughts would be, I

9

recognize his power. And at this level I was hoping that

10

was not a consideration; you know, our hope would be what

is right, what should be in a constitution regardless of

personalities.

MS. CROCKETT: Well, we also need to think about

I- what realistically -- I mean, what realistically will pass.
.n

l:

15 ~~)

MR. JACKSON: We've got the full committee

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17 .,",
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MS. CROCKETT: Outside of the subcommittee outside of the full committee --

18

MR. JACKSON: We've got the full committee and

jq

then the Legislature, the House and Senate, that will be

20

taking that into account.

2i

MS. CROCKFTT: I know. That's what I'm talking

"~
about. And when you get to the Legislature, we can pretty

23

much realize that our opinion will be defeated, if that's

24

what we recommend.

2~

MR. HARROLD: Sure would make for an interesting

PAGE 25 ---------- ---------- ------ --- ------- -------------------------------1

January and February though, wouldn't it?

-

"" .1

MR. BUCK: Get somebody's attention, wouldn't

it?

MR. HARROLD: I know.

MS. CROCKETT: My opinion was that we might

u

want to limit the amount of time that the Commissioner could

serve. In discussing it with him he did agree that perhaps

after a Whil~ a person can become rather jaded and not --

and unresponsive. So I thought we might want to look at

that perhaps. Unofficially I think he might support it,

but officially he would, again, not support that either.

CHAIRMAN: Let's take a minute and back up

kind of and get you to comment on your meeting with the

l --f
l-

Commissioner, if you have anything else that you can think

v,

j .,-

of that ought to come to us on that meeting, just in general.:

--

,il

(

4

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MS. CROCKETT: No, I guess the informal

,"r

exchange we had just now summarized the opinions that he

;:

expressed in the meeting. These are my notes (indicating).

He's a colorful character. And he was very, very honest,

very straightforward with his opinions. He said, "I have a

21

great deal of support." He said"Robin Harris is starting

this again and I don't think you all need to really,

seriously consider recommending otherwise." And then he

supported it by saying that it is a position that is

directly accessible to the people and can have some

PAGE 26

'....... .. _--~._---_._---_

~_.~-_.

-~

:i

:i responsibility to those people that are elected. He

supported himself by reminding me that he was appointed
3 Ii that he was elected by the people over an incumbent. So

that suggested that the people have, ah, the ability to

see when a Commissioner is not doing his job and can get

C

him out of that office. And he suggested that he is doing

7

his job because this is the first time he's been unopposed

f

and, of course, the third time he's won. And that's about

it. He gave me a paper that might help, if I circulate it.

I should have gotten it xeroxed. But this one will give

i,:

11

you a synopsis of what the office or Department of Labor

.,

,:

does. He is the only Commissioner I believe that is also

in charge of the employment -- the Securities Agency?

MR. HARROLD: Employment Security Agency.

'...:.
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Agency.

MS. CROCKETT: Right. Employment Security

MR. HARROLD: Did he mention anything about the

assistance he gave in Savannah to the incumbent Governor?

j'l

He normally brin'ls that up.

20

MS. CROCKETT: Oh. No, no, he didn't. He really

21

didn't feel the need to much to support his -- his opinion.

He made it very clear that he had the support from his

,l
constituents. I must say it was more -- it was a

.'.)-.+

conversation that led me to understano the politics as

opposed to what we should be looking at more on a

PAGE 27
--- --- -- -- - - - - - - - - l

constitutional issue, which we do have to keep in

I
I

I

consideration.

I

MR. HARROLD: Kind of Machiavellian politics.

MR. GIBSON: Was he by himself?

c
)

MS. CROCKETT: Yes, it was just the two of us.

MR. JACKSON: Let me just say -- and this matter

'I

is not personal at all. I mean I can live with anything

that comes out. But this will go into the archives of

history. And I hope that somewhere 20 or 30 years from

now they don't look back and see the thinking of the

j,

Constitutional Committee and to find (a) that it was either

intimidated in its actions by what it thinks i$ right and

wrong by -- by a person or (b) that even recognizing in

his candidness his perception of his power that that should

''! effect our decision. I just think that we have a

I

.1:
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I
responsibility that if he goes in, then I think the commissi1ner

C,

7

of Revenue, because he effects all of our taxes, alcoholic

I. \'

regulations; I think the Commissionerof Transportation; I

think the~mmissioner of Human Resources. If we have a

:;0

rationale for leaving the Commissioner of Labor in, then I'l~

21

i
suggest there are ten other people who are equally deservingi

of Constitutional recognition.

MS. CROCKETT: I agree that the Committee should

definitely go on record for recommending something that is

right. But I also think that we need to keep in mind what

PAGE: 28

can be done at this point in time and what cannot realistically

2 ,. be done. And the record shows that we have considered both ,'. !! things reflective of the times that we live in now.

.:\

MR. ENGLISH: I would have to agree with what

5

Delores has said. I would hope that those historians that

()

look at this record 20 or 30 years hence, ah, would at least

say that we were able to change our Constitution and get

x

a solid document that didn't have to be continually amended

U:I for the next 20 or 25 years as the present me has been over

Jll

the past 20 or 25 years. And realistically that's what we

7.
1i;,; want to do. We want to revise the Constitution. And if we ~:.

end up having to leave out one Commissioner because that

person has a great deal of political weight and might be

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able to scuddle the entire effort, I think we just have to do it. Buck has said you're going to be idealistic, but you've got to be realistic about it. And we want to revise the Constitution. Now, 20 years from now or ten or twelve when that Gentleman is no longer around, maybe somebody else would want to try and change that office to an appointive office. And you're right, looking at all the other states and so forth, sure, those persons are all appointed. Well, in most cases they're all appointed with the exception of three or four, I guess. I don't really remember right now. But you're going to have to look at the fact that that

person is a very powerful political figure in this State.

PAGE 29

] , He has singlehandedly in the past within the last six

years almost scuddled an entire re-organizational effort

of a person that I guess was a reasonably powerful

4

governor. And we don't want that same thing to happen to

this Constitutional Revision.

6

CHAIRMAN: Let me, if I may, add a comment.

7

And that is, unless we propose something that passes won't

S I anybody be reading the minutes 25 years from now. We can

make all sorts of proposals which -- unless it does pass,

those proposals will go to archives and remain there.

iI
,:

Well, does anybody want to make a motion with

8,

respect to either of the offices that we have been

discussing?

MS. CROCKETT: I would like to make a motion

./. that the Office of the Commissioner of Labor remain an

-:1

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elected one.

; 7 .",

CHAI~~: Is there a second?

MR. ENGLISH: I'll second it.
"\
CHAIRMAN: Any further discussion as to the

office of Commissioner of Labor?

2J

(No audible response.)

."
CHAIRMAN: All those in favor of the motion

please indicate by saying aye.

VOICES: Aye.

CHAIRMAN: Any opposed?

PAGE 30

MR. HARROLD: No. Let the minutes read.

CHAIRMAN: All riqht. Do we have a motion

3

with respect to the Comptroller General as to -- not as to

4

name at this point, but as to remaining a constitutional

:;

office?

()

MR. ENGLISH: If I may, Judge, I'm interested

7

in the comments that y7ere Made earlier about t',,!,> I'ror'::'~o'J1

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chanqe in authority th~t's noinq to take nlace in the Legislature.
MS. GREENBURG: It's-MR. ENGLISH: Or is that part of the Constitutional Revision?

MS. GREENBURG: Yeah, it's Article III, revision

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of section 9: "Insurance Regulations." And in essence, it's just -- it's really an editing job. It's cutting out a lot of the language which says the general assembly shall provide or is empowered to provide by law. And it's giving

I ""

the Comptroller General really what he already hasi the

1

issuances of licenses.

20

MR. HILL: It's not going to change his function.

21

There's an editorial change over there, but it's not going

to take away the regulatory function that he now has. And

it will stay in that office.

MR. GIBSON: Because I believe the name is

important, Judge, I guess I'd like to make a motion that a

- _----------,. .. ----,-.__ .. ~

- - - --- .. ---,-~--.,--

---,

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descriptive title be given

-----

PAGE 31

--_ _- .-._-_ _ _-_._ _ ..

-_._-~

.. _., .. ....

..

.. _~-------------,

to this office and made

I

appointive as opposed to elected.

I

I

MR. HARROLD: I'm sorry. What was the second

'I

part?

MR. GIBSON: That the office be made appointive

"

rather than elected.

j

CHAIRMAN: Well, let me suggest to you that if

it is made appointive, it will require legislation, and

that the selection of the name could very well be handled

in the legislation and by the legislature. It seems to

:. me that if it is made appointive then the whole problem of

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nomenclature could be passed on to the Legislature. Now,

maybe it's something that we ought to consider. It seems

- to me that the tail will go with the dog,if that's not an

,

"

inappropriate metaphor.

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MR. GIBSON: Well, I remember when the -- I

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should say the records indicate that when the General

Accounting Office was set up in 1921 the head of that

office was called the Comptroller General. And since it's

an auditing function, ever since that time they have been

21

trying to get the name changed and have been unable to do

so. So, there is something that resides in a name that's

almost immortal. And I would like the Committe~ to have

some expression that it is disturbed by a meaningless title

of what can be an important office. And if we're going to

1',\(;1< 32

l : change the method of selection of that office, we should

it seems to me logical to go all the way and make it a

3

more descriptive title. But if you'd like to separate the

two, I'll make it in the form of two motions, so long as

I have that opportunity.

CHAIRMAN: Surely.

MR. GIBSON: The first motion then would be to

make the office appointive rather than elective.

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CHAIRMAN: This is as to the office of

10

Comptroller General?

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MR. GIBSON: Yes.

CHAIRMAN: Is there a second?

MR. HARROLD: Second.

CHAIRMAN: Is there any further discussion?

(NO audible response.)

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CHAIRMAN: All those in favor of the motion

l
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17 :; please indicate by saying aye.

VOICES: Aye. (three).

J9

CHAIRMAN: And all those opposed?

20

VOICES: Aye (two). (Mr. Garrett, Mr. Buck.)

2j

CHAIRMAN: I count three to two. We will

convey that information to the Committee.

Now you want to make the second motion.

24

MR. GIBSON: The second motion

CHAIRMAN: Or is it moot?

MR. GIBSON:

PAGE 33
--------_._.,-._-------------'---_._---._---~
Well, you'd have to rule on that.

I never have served on a Committee with a Chairman that was

a member of the Supreme Court of Georgia. So, I respect

your rulings.

CHAIRMAN: I don't think it's legally moot. It

may be insignificant at this point.

MR. GIBSON: Then just for the record I would

like as kind of an expression of personal opinion without

in any way encouraging the Committee to take an action that

In

that title be changed to something more descriptive of the

1
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functions of that office.

MR. HARROLD: I think wereed to -- resolutions

as such, knowing practically that our first one which was so

close here may not survive in the full committee.
!
MR. GIBSON: Then I'd like to make it in the form!

., of a formal motion, Judge, that the title of that office be
<
j:' ," changed to something which is more descriptive of the

functions and duties of that office.

CHAIRMAN: All right. Second to that motion?

MR. HARROLD: Second.

CHAIRMAN: Any further discussion on it?

(No audible response.)

CHAIP~N: All those in favor please indicate by

saying aye.

VOICES: Aye.

34

I

CHAIRMAN: Any opposed?

[,

VOICES: Opposed. (Mr. Garrett.)

MR. ENGLISH: I think you did earlier say that

you were going to have one of the staff persons check with

the other States to see how they had handled the name of

that office.

CHAIRMAN: Right. Alon'j the sugges ~" ions that

had been made I think we ought to talk with the Comptroller

General if there is a name which he might prefer almost as

;1}

well as the one that presently is there; get his il 'put

;;
II ~ as well as look into the other States.

You need to change the tape?

(Off the record at request of Court Reporter.)

MR. HILL: -- recommending that the office

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be appointed. He should be told. I think someone -MR. HARROLD: I think Tom and I ought to go talk
with him.

1,~

MR. GIBSON: I think so too.

19

CHAIRMAN: Would you all ask him then if he's

20

got a thought of a name?

21

MR. HILL: We're passing the buck.

MS. GREENBURG: Could I just ask? Did someone

23

not vote when we asked whether it be appointive or elective?

24

I have a three-two vote.

MR. JACKSON: I didn't vote or I voted quietly.

PAGE 35
,,--_.-
MS. GREENBURG: I have three-two. I thought

there were seven committee members present.

MR. GIBSON: There are seven
.l
MS. CROCKETT: Under which one are you asking?

MS. GREENBURG: On the elective or appointive

of the Comptroller General. Did everyone -- could we just

have a recount because I have five people and five votes

in.

iO
.'

MR. GARRETT: I was against it. MR. BUCK: I voted against it MR. ENGLISH: I was for it.

MS. GREENBURG: Okay. Two against. That's

four in favor?
1. 1
MS. CROCKETT: Yes.

MR. HARROLD: And one abstention.

MS. GREENBURG: So that's three in favor and one

abstention.

MR. GIBSON: Jerry did not vote.

MS. GREENBURG: Four in favor, two opposed and --

okay. Okay. Thank you.

MR. THOMSEN: Justice Hill, I just wanted to make:

a comment or make an inquiry. How long has the current
.~.-'
Commissioner of I.abor had this power base? How long has he

been in office?

MS. CROCKETT: Four terms. -------------------- --..._-----_. _.. -------..__. - ---.

PACE 36

MR. THOMSEN: Four terms?

Well, it was interesting for me to note that in

3

1969 the version that was put together by Robin Harris, the

4

Commission, included the Commissioner of Labor. But the

version that was finally passed by the House -- it was not

passed by the Senate, I take it did not include the

Commissioner of Labor. So at some point in time there

must have been a body that believed that it could be

eliminated or at least it was eliminated apparently by the

jO

House of Representatives.

-.:}

7.

II

MS. CROCKETT: I'm sorry. I didn't understand

what you meant about what was eliminated from what.

MR. THOMSEN: Okay. There are actually two

versions that came out in 1969. There was a version put

~~, together by the Revision Commission, which I take it will

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be comparable to what the Select Committee -- the full

Z

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J7 :; Seleet Committee this go-around will put together. And it

Iii

was just in a format similar to this. And it included the

commissioner of Labor as an elected constitutional officer.

20

My understanding of how it worked was that that was

sUbmitted to the General Assembly. And it passed. I mean

another version in 1969 or thereabouts passed the House.

,--''

And that version eliminated the Commissioner of Labor as

an elective officer, which kind of surprises me given the

conversation that we've had in terms of the complete

PAGE 37

infeasibility of eliminating that office as an elective

office. Apparently there has been a move in the past,

a successful move, at least with respect to part of the

General Assembly to eliminate that as an elective office.

MR. ENGLISH: Yes, but he was first elected

(,

I think in 1966. So he had been in office a year or so

when those initial -MR. THOMSEN: Well, that was part of my question
in terms of how long he's had to develop this power base.
Your referencing earlier to Robin Harris' doing this again
;~.
made me check back to see whether it was the previous
committee recommendation that he stay in. And it was that

committee's. But the House of Representatives felt
differently and the House version eliminated that office as
an elective office. What -- for whatever value that is, :Ii ::: I thought it was interesting.
MS. CROCKETT: It is interesting. It suggests that in the absence of a person to deal with, more than likely there is some support for eliminating that position as elected. So if we could remove that one little element,
probably we could/deal with the issue more objectively.

CHAIRMAN: Well, at least we have the position
,;
of the subcommittee which we can report to the full
committee.

Shall we go on to item four on the agenda with

PAGE 38

respect to the offices of Attorney General and District

2

Attorneys as to whether or not they should he in the

Executive or Judicial Artic12s?

;'p. ~IDt\7rL'L: 'i','trold, can J'

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intrude on you ct21 as I fe~l free to do all the time ~nyway?
I don't think what I'm about to say could be attributed to what Johnny Caldwell might do. But if the abolishment of a constitutional officer occurred or the recommendation just as it has here, I think that some good political hay could be made by that abolished officer in the General Assembly to say, "They never asked me to come. They never allowed me an opportunity to appear or an invitation to appear before them to present my side of the story." And he may not want to come, but that falls on effective ears when he calls in his chips. And you had a subcommittee that tried to talk with Johnny. And Doctor McDaniel apparently didn't want to come.
MR. GIBSON: He was invited. MR. TIDWELL: Yes. And so I just -- as a possibility you might want to do that to give the Comptroller General an opportunity to present his case to the full committee since the full committee hasn't heard his story.

PAGE 39 _._-----------,
MR. BUCK: I think that's well taken, Charlie. I
I
MR. HARROLD: I do too.
I
MR. BUCK: And he has been contacted. And I

.1

have personally been down there myself and called him

myself. I think Torn has been by there several times. He

knows what -- you know, they know we meet. But still

what Charlie says is well taken. And I would do this: I

w U

would move that we reconsider our actions on taking a

(~

position on eliminating the Comptroller General as an

10

elected constitutional officer and invite him to the next

i

meeting of the subcommittee, give him an opportunity to be

.'

j , x here. If he doesn't come, fine; if he does come, fine. I

realize we're working in a time frame too, Judge.

CHAIRMAN: Tom, let me ask if I may in connection

with that. Consistent with that motion would it still be

'" proper and appropriate for you and Tom to talk with

Johnny, tell him that there is serious consideration being

given to this subject, and see if he wants to come, rather

j)

than just back off and not meet with him and ask him to

.'il

come. What my thinking is maybe we still need to meet with

him, consistent with what your motion is now.

MR. HARROLD: I think that's a good idea. And if

he did want to meet with us, maybe we could meet ten minutes:

ahead of the full committee.

CHAIRMAN: I expect it may take longer than that.

PACE 40

MR. BUCK: Well, I understand the next meeting

with the full committee will be in the Capitol. And so it

won't be a situation where we're going downtown. And if

.1.

we had to meet earlier as a subcommittee that would be --

MR. HARROLD: And I think, knowing him, he would

want to meet with us too, and particularly if we tell him

what the drift of the committee is. Andhe'll arrange

S

his schedule accordingly. And I really honestly believe

o

that he doesn't think that we're going to do anything and

10

it's just a waste of his time, but this may get his

i

11

attention.

CHAIRMAN: All right. I inappropriately did not

wait for a second before I passed it for making comments.

14
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Is there a second? MR. BUCK: Well, let me just revise my motion to
reflect what your comments were. I think we ought to reconsider our actions on -- let me just make this motion.

18

I move that we reconsider our actions on eliminating the

i9

Comptroller General from the position of an elective

20

constitutional office. And then my -- the followup would be

21

that then he be given an opportunity, and if not, we can come

back with what had been originally done, if you get my

drift.

CHAIRMAN: Is there a second to that motion?

MR. GARRETT: I second it.

- - - " - - - - " - - - - " - - - - " - - - - - - ~

PAGE 41
---------------------- ------"-~--------I

CHAIRMAN: Any further discussion?

I

MR. ENGLISH: I have a point of order.

l\Tould it be proper for a person that did not vote in the

; " majority to, ah, ask for a reconsideration of a motion that
:'
"
passed over his opposition?

MR. BUCK: Under Robert's Rules I think anybody

can move if they're -- of course, I yield to the Chair.

CHAIRMAN: I don't know about Robert's Rules,
I
" I but the common sense of this motion just indicates to me

that most anybody ought to be able to make it.

MR. HARROLD: And if it's necessary to make a

substitute motion then I would be happy to do that because

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I think basic courtesy dictates that we MR. ENGLISH: Well, I'm in favor of the
Comptroller General coming before this committee. I -- what I am concerned about is rescinding our vote until we have a chance to talk to him.

CHAIRMAN: I think we should also be concerned

]Y I about the fact that if we've already voted there's not much I

"HI

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point in hearing from him. And we ought not have a passed

21

motion abolishing his office in concrete at the time we

hear from the gentleman. It seems to me if we're going to

~. 'I

have a hearing, we ought to be able to go either way at that

point.

MR. GIBSON: I guess my enthusiasm is tempered

somewhat by the fact that this is no great surprise to
I
II

2

Mr. Caldwell. We have been meeting for a long time now.

3:: And obviously various sundry people have attempted to get

in touch with him. I have some problem with the understanding

5

that --

6

MR. BUCK: Let me say this, Doctor. He has not

7 (I ignored us. I didn't mean to infer that. There have been
,
'I
situatiDns that when we tried to get with him he was --

well, one whole week his mother was in the hospital and he

10

was out -- he was down -- I guess he lives in Thomaston. I'm

not sure. And another week he was scheduled, you know, on

his regular business out of the Capitol area. So it has not

been the situation. I'm sorry if I gave that impression

that he has ignored us, which he hasn't.

15 ~,

MR. HARROLD: I mean he's gone to the point of

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get out of the Capitol so we'd have two or three hours to

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talk." I mean he's expressed an interest. It's just our

19

schedules haven't worked out.

20

MR. HILL: In all fairness, our meeting with him

21

was not related to this subject. It was something else. We

22

just brought this up about the name change, and he spoke to

us for ten minutes or so about it. And I don't think you

should construe our meeting as being the meeting of this

committee.

PAGE 43

Ii

MP. GIBSON: I didn't construe it anyway, your

meeting.

MR. ENGLISH: Based on the comments that have

+

been expressed here or that have been given here, I don't

have any opposition to the motion.

MR. JACKSON: Mr. Chairman, I was just going to

say there's one motion you might want to use as to

i"

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reconsider as opposed to rescind. It's proper to reconsider

your vote at a later point. But you say you're going to

1('
raise it again but you're not in the position of reversing
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yourself. So you may want to have the motion read to

reconsider

MR. BUCK: Well, my motion was to reconsider.

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MR. JACKSON: Was it to reconsider? MR. HARROLD: Uh-huh. CHAI~T: I think so. MR. HARROLD: I think we're talking semantics.

I think they'd -- we'd all agree about what we're going to

.2:) ,

do

MR. GIBSON: My memory, Mr. Chairman, of the way

we handled the School Superintendant's position was that

he was given the opportunity to appear before the full

committee, not before the subcommittee. Am I wrong?

MR. HARROLD: That's correct.

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PACE 44

MR. GIBSON: Yeah. Okay. Now, I grant you

that his position -- his stated position was different

than that reported by Mel Hill. The School Superintendant

said he had no real opposition to it. But I -- I just

wanted the record to show that the invitation was submitted

to him before the Full Committee rather than the subcommittee.

MR. BUCK: Well, Charlie's remarks to me strike

a nerve. And any way you cut it, if the subcommittee takes

this position and says, "Okay. You can come to the Full

Committee", he's going to still say, "Well, the subcommittee

met and I didn't have the opportunity to meet with them and

they made the initial recommendation."

MR. GIBSON: I have no opposition of meeting with

~1r. Caldwell. I guess I'd like the record to ind icate

that we are reconsidering without prejudice however because

I always worry about reconsideration because it indicates

that you suddenly have found some vast ray of light that

has shown down and said, "Well, you were wrong", therefore,

reconsidering. I guess I'd like -- if you would add

without prejudice to your motion, I could support that. See,

my position hasn't changed. I think procedurally it's a

good idea.

MR. BUCK: Well, I don't think anybody's position

is going to change.

MR. GIBSON: All right.

._.

.

.__. .__

..-_._--_ - PAGE 45 -~--'-""'---'-"--l
CHAIRMAN: l\'ell, for the record, I'm sure that ,

we'll all listen to the Comptroller General with open

'-

3

minds and make our final decision after we hear from him.

MR. HILL: Doctor Gibson said, "That's true."

MR. lTACKSON: And everybody else nodded.

CE~IR~)\N: Judge lVofford may send it back to

ns.

HR. Glr-SON: 'I'hat' s riqht.

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C'Hl\IRM1\"T: 'I'hat I s off the recora.

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If there's no further discussion of: the motion,

a1;. th0se in favor nl~ase indicate by ayp..

VOTers: p.ye.

CHAIPJV!.AJ',j: Any ormosition?

(No audible response.)

CHAIRMAN: Motion carried.

Charlie, thank you. I think it's a point well

taken.

MR. TIDNELL: And by making that statement I didn't mean to imply that it was done in a cavellier fashion~

It's just whatever the decision should be made, it would --

could be defended with vigor and with no taint of it being

done in a star chamber proceeding

CHAIRMAN: Shall we go on with the next item on

the agenda then?

- - -~-------_.._------_._-----._-'

PACE 46

MR. GIBSON: Before we do, Judge, you will,

-

together with Mel and the group, decide on a time and place

}

to -- for holding this meetinq with Mr. Caldwell?

CHAIRMAN: Yes.

MR. GIBSON: And would you also make available

(

to us the research you're going to do on how other states

have handled the problem?

,(

CHAIRMAN: Yes, we will.

Let me ask in that connection. In view of the

1('

time schedule would it be possible for this subcommittee to

l'

meet, say, at 9:30 on the date of our next meeting? Of the

,;

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Full Committee, which would be the

MR. HILL: The 31st.

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CHAIRMAN: Wednesday, October the 31st. MR. GIBSON: All right. MR. HILL: There's no problem with that MR. GIBSON: 9:30.

MR. HILL: If you feel that will be enough time

t9

to hear him and make a decision and express it, that, you

know, that kind of cuts you short a half an hour. CHAIRMAN: That's true. MR. HARROLD: Well, we will have talked to him

ahead of time. And we'll, perhaps, be able to crystallize

the issues at hand. MR. HILL: Nine o'clock? Would you want to make

PAGE 47

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anybody inordinan~,ly? I think probably nine o'clock would be better. Why don't we work toward that.
MR. GIBSON: That statement was made by an Atlanta, not by an Athenian. We'll have to drive 75 miles.
MR. BUCK: Doctor, I have to drive 110. MR. GIBSON: I know it. MR. TIDWELL: Harold, if I can make another point that may bear -- I don't know whether it should. I mentioned this to Judge Smith at the last Full Committee meeting. And I don't know whether he's discussed it with you, Tom. And it goes to the whole question of -- of these very far and broad reaching decisions that are made by any of the Article Committees. When you just fix it in the Constitution and you don't fix it statutorily, you have
i
doomed that change to absolute total rejection in my opinion: by the General Assembly. They're not going to be able to consider all the articles and the fundamental changes and
I
then try to draft legislation to go with it. So, it has been the practice in the past of each of the article committees to have a drafting committee that parrallel with their recommendations 'for changes in the Constitution, to have a package. So that it goes to the General Assembly and then

48

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"Well, the recommendation comes to us incomplete." Now, I don't know whether -- that's strictly up to the Judge on what he's going to do with that. But if that's not done in my opinion, whatever this article does in the way of making changes like that, it lessens the chance of it passing. So, you can't just decide to get rid of the Comptroller General and wash your hands of it. You've got to also make an examination of what does that do to our statutory law or any other -- any other issue that you deal with here.
Has he talked with you about that, Tom? MR. THOMSEN: Yes, and if I can just respond quickly to that. I think I understand what you're saying.
if In other words,/you eliminate the Comptroller General you would want to be able to present to the General Assembly that X-statutes are also effected in such and such a manner. He has talked to all of the staff related people -- Mel, Vicki, Mike and myself -- with respect to this specific problem. And we anticipate starting a Georgia Code Annotated search the minute there is a little more finality in what has been determined. And basically the way we envision that right now is having to rely on the index that comes with the Georgia Code Annotated in order to find out possible related subjects that would be effected:

PAGE 49

computer. So we can't, you know, just punch in the word

I "Comptroller" and find out where i.t's mentioned or might
,.,,

.l

be affected. Rut it had been envisioned. And the exact

mechanics right now have not been established. But it is

something that he feels very strongly about and is one of

the top priorities as far as presenting it.

MR. TIDWELL: And there won't be just merely

:, i changes in names of titles, there will be very -- sometimes

very substantive, statutory drafting problems that will

have to go hand-and-glove with your final package.
-.."
MR. THOMSEN: Bob Size?

MR. BUCK: He's not here. He's down in 341.

CHAIRMAN: Well, I suppose one of the longest

1.

,'I

pending questions before this subcommittee has been where

JS ,', in the Articles of the Constitution should be Office of

Attorney General be. And as background, you know, that

office presently is in both the Executive and Judicial

articles. The District Attorneys presently are in the

Judicial Article and yet there has been some thought that

..2U

perhaps they ought to be in the same place, wherever they

may be. And does anybody -- and we were asked at the last

full committee meeting to make a recommendation back as to
.)
this. Has anybody -- does anybody want to propose a

motion or to discuss this subject so as to give it some

direction?

PACE 50

MR. THOMSEN: This is a topic that I've had a lot

of conversation with Judge Smith regarding, and he has had

in turn conversations with the present Attorney General
"I
and people in his staff. One of the largest concerns is

the budgeting and funding that we discussed at the last

subcommittee. There is a possible approach that we could

consider, this subcommittee could consider, about placing

it in the section that we feel -- sort of intellectually

it's more consistent or logical for that office to be
11 (. .'1
~) placed. And I think there was a concen; or there was an
1j
expressed feeling at the last subcommittee that that

the placement seems to make a little more sense in the

Executive Department as opposed to the Judicial Department

as a purely intellectual, conceptual matter. Therefore, it

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may be one possible approach to have a placement of the officer in -- the Attorney General -- within the Executive Department and at the same time have a provision that the

funding for that office would come under the Judiciary
19

umbrella. The major -- major concern of the Attorney
.20 I I General's office appears to be the funding issue. Now, I'm
'_)1'

not statinq that they -- the Attorney General -- would agree

with that kind of compromise because I don't know. And I
23
don't think Judge Smith knows. But I wanted to th~ow that
24
out. He's not here today and was unable to make it, but to

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just in terms of catching you up to date on some of the

conversations that have taken place. \ MR. GIBSON: When the Attorney General appears

before your Court, do you consider him an Executive official

or officer of the court?

CHAIRMAN: Well, I think at those times certainly!

he appears as an officer of the court.

MR. THOMSEN: But in that matter wouldn't -- I

mean all attorneys appearing before you would be considered

in that capacity as an officer of the court.
I
GHAIR~: Well, I'm not sure that the Legislativ.

lawyers who appear before us necessarily

MR. THOMSEN: One of the concerns that was

discussed -- and, again, I'm sort of speaking for Judge

Smith. One of the concerns that he has discussed with me

is the fact that if it is placed within the Judiciary as

opposed -- I mean a strict placement within the Judiciary

and you eliminate the ties with the Executive, does it

raise a question as to who the proper attorney is to

present the Executive Department. Would that enable the

Governor in that situation to retain independent counselor

to reject the counsel of the Attorney General? That was one!

of the issues that I remember being raised, just as I know

there were some others that were discussed in that respect.

MR. HILL: I spoke with Mr. Stubbs yesterday abou~

_ - - - - - - - - --- -_ -------~ .._----_..------_._--_._--_.. _--_._---_ ..

---'

52

some other matters and this came up as well. And he

2

suggested that another option would be to make the Attorney

3

General a separate article all its own, not put it in either;

4

since we're having trouble deciding, have a separate article

of its own. Now, I'm not sure what the merits of that would
6
be. But, ah -- you know, it's another option.
"I'
MR. GIBSON: Everyone wants his own little warm
8
spot.

MR. JACKSON: JUdge Finley raised some points
1u
about the District Attorneys. Wouldn't they lose some
,)
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immunity if they're --

MR. HILL: Oh, that's right. That's an

important point.

MR. JACKSON: Do you want to explain it?

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r.fR. HILL: The immunity that is now enjoyed hy the judicial officers by virtue of beinq in the Judicial Article is very important. And that's why he's worried about the -- I think there was a decision by the full

19
committee that they should go together -- the Attorney

20
General and D.A. should qo together. And if they would be

21
put together in the Executive Article, then this question of

2.~
immunity would become a problem. So, ah --

MR. JACKSON: But he did think that they should

be executive officers. He was just concerned they'd lose

25 ,

their immunity __ __ ... ---_ _-----_. '.-------- I'

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MR. TIDWELL:

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PACI<: 53
------_._~_._-~-----~~

I've made up my mind I wasn't

iI

2

going to talk on this, but it disturbs me that -- that the

thinking is that there's some magic where an officer is

,

placed in the Constitution that has some bearing. But if

you take the Speaker of the House of Representatives and

mention him in the Judicial Article, I just don't follow

the logic of how anyone can say that he's a Judicial officer t
And the other point is that all of the Executive officers,

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all of them, would love to go into the General Assembly

!O

locked on whatever budget they thought they ought to have.

jj

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Now, those are -- that's not a constitutional revision

:1

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question to me. This Article this subcommittee can

correct that impression. But to me that's not an issue of

how the Attorney General or the Comptroller General handles
,'.
,his budget. All of the Executive Agencies do not like to

~I undergo the scrutiny of a budgetary process, but it has to

be done.

I
Somebody has got to do it, or else every departmen~

would have -- would have all the budget they wanted. And

then it would be up to the General Assembly to perform this

very agonizing, lo~g-consuming process of having to take

2l

triple the amount of available funds and then decide who was

i'

going to get it. The way you get it now, the Governor

performs that function for you. And well, I guess that's

all I have to say on that. And I don't -- it's fine, except

from the Governor's standpoint that he would hate for every !

_____ ~ _ .

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54

constitutional officer to come before this committee and

2

say, "I have a problem with my budget. How about putting

J

me -- providing that I can get my budgeting through the

4

Judicial branch so that when it goes through the General

:'

Assembly I can have locked in whatever I want." And those

(,

that are not in State Government -- remember that that's

what happens in the Judicial budget. Whatever they ask for

8

is submitted. And now, it's not -- it's not out of line.

Cf I It's because -- essentially it's personal services. There

are so many judges that get paid X-number of dollars and

1!

that's the budget that they submit other than their

~l

administrative officer or co-worker. But if you -- the

same logic of one of the proposals that I've heard is -- is

to put the Comptroller -- leave the Comptroller General

where he is, but say in the Constitution that he's funded

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in the Judicial Article.

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CHAIRMAN: Like you, Charlie, I had vowed that

1( ,)

I would not speak to the merits of this subject. Like you,

let me break my vow.

20

Charlie's background is aligned with the

21

legislative and executive departments and the C~vernor's

offic~. Mine, as I'm sure everybody knows, is aligned with

the Attorney General's office. I--

MR. TIDWELl,: And the Judicial Branch.

CHAIRMAN: Yes. I think there's one difference.

PAGf~ 55

And let me give you an illustration which is perhaps

overly simplified. I recall one time when there was a

,

.'

roof on a hospital which burned and all of the patients

from, I think, the fourth floor of the hospital had to

be evacuated to lower floors. And every time it rained,

the water came through the roof and through the fourth

floor and down on to the patients on the third and second

floors. And the hospital people approached the Governor

about getting emergency funds to repair the roof to avoid
10
the problem with the patients in the hospital. And, golly,

who could say that the money should not be spent for this

purpose. So the Governor who was then in office called

> upon the Attorney General and said, "Can I use my emergency

fund money for this purpose?" The fact of the matter is

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that the hospital was insured. And the fire insurance

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Q company had paid the hospital for the roof and that money

was going to be used by the hospital authority to match

federal funds to expand the hospital. And the Attorney
Ii
General said, "No, you can't spend that money from your

emergency fund." Well, it kind of is hard for the Attorney

.".1..

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I

General to tell the C~vernor he can't spend money from time

to time and then qo ask him for money. And it just -- and

I think I'm correct that the Attorney General may be one

of these officers we're talking about who would have the

responsibility for saying no to a Governor from time to time.

JI ,\(; 1': 56

So I'm not as inclined to say that there may not be

some difference between the office of Attorney General as

3

to whether or not his budget is submitted directly to the

f

General Assembly as the others are. I would certainly not

know of any reason now why the Secretary of state and so

on should not go through the filtering process which is

'7

good of having their budgets approved by the Governor's

office.

MR. GIBSON: But, Judge, I take it in a situation

lu

like that that the Attorney General's decision is advisory

Jl

and the Governor can reject it and go ahead. And what he

is is the Governor's chief legal counsel for the most

part. I guess -- I don't see the -- I don't attach as much

importance to the necessity of independence. I'm assuming
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that professional ethics require an attorney to give the

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client of the Attorney General is the Governor. So I guess

~~

I don't see the need for as much independence as your

J9

statement seems to imply.

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CHAIRMAN: I think -- and the lawyers hopefully

-, ;

will help me with this -- that it is not necessarily an

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attorney's duty to give the client the best advice. It is to

,

give the client an affirmative answer if it's reasonably

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possible, which may not necessarily coincide with the best

advice.

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PAGE 57 MR. GIBSON: I understand that. MR. HARROLD: Well, also the Governor has a personal legal counsel who -- Charlie, you have to help me out now. But in my experience, he relies on Charlie much more so than he relies on anybody across the street. And the Attorney General's office today functions as a fairly separate entity with the primary responsibility of representing the bureaucracy when a matter comes up with the various departments and does really work that closely with the Governor's office per see Is that accurate, Charlie? MR. TIDWELL: Well, Tom, I would say that the relationship between the Executive Counsel and the Governor is that he probably advises him more informally and more on a personal basis than than does the Attorney General. But the Attorney General is the counsel for the Governor as he is for all the other Executive agencies. And to the extent that an opinion of the Attorney General binds any -any of those offices, it in fact -- he has to listen to what the Attorney General says on a particular subject even though I might disagree with it. But I have talked philosophically with this Attorney General because we have been long-standing friends. And I -- and we both are in agreement on one thing and that is it's a bad day in Georgia' when the Attorney General feels subservient to the Governor and cannot call the Governor's hand on anything that he feelS

PACi'; 58

,I

I

the C~vernor is doing improper. And I think that -- we

2

never want to have an Attorney General and Governor where

J

that -- in my opinion where that situation is so. The

"

Attorney General -- many, many things would have happened

."'

wrong in this state if in the past we had not had an

Attorney General who said, "No, you cannot do that." Cause

sometimes folks would want to do things that were politically

expedient that were not legally expedient.

)

MR. HARROLD: Well, if he's elected and

continues to be elected, don't you think that gives him

!.i -

his power base to object?

MR. TIDWELL: Oh, yes. There's no question

that any of the officers have a better chance of having

their budgets funded by the General Assembly the way they

j S ., want to if they don't have to get funds from somebody else

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to increase their budget. Do you see the point I'm making?

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If the Attorney General or any officer goes in with his

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budget locked at ten million as it would if it came in

j(l

through the Judicial funding article, then the Governor

~O

mus"l. to find that ten million he must adjust everywhere

21

else in State Government to come up with that figure. But

,~
if the Attorney General goes through the budgetary process

and the Governor says, "You ought to have eight million. And

24

that's the way I'm going to submit it" to convince Tom on the

appropriations committee that he needs to have an additional

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PAGE 59
two m-~~~~on-,--h~--=a-~ -=:~~--th::---~ase,-~~~~-~~:-ver~-~:~~-~~-~-----l
decision has to be made by Torn and his cohorts: "l\"'here does th,~t tWr) million come from?" It has to come from money
t~hatts already committed somewhere else. So it.'s just a
practical matter, not a leqal Matter. It's just a practical matter. ~hat's why -- that's ~hy executive aerencies ~rant to be an independent budget unit because then they get to go before the appropriations committee and plead their case, whereas if they -- if their budget'is submitted somewhere in the Human Resources budget for a separate agency, but it's -- they don't -- they don't get that preference. They just have to flounder or flop around and do the best they can. They -- it's all a matter of stategy that we're talking about on funding -- on funding. The poInt I was trying to make is, ah -- funding has obscured, I believe, the decision of what is the Attorney General: is he an.Executive Officer or Judicial Officer or does he go between both. And funding doesn't have anything to do with that question, to me.
MR. GIBSON: I don't see how you can look at the history of that office all the way back to 1789 and think it's anything other than an Executive office. It was set up in the original Constitution as that. No one has ever contested it. You know, we've had Saturday night massacres and that sort of thing.

1'AC1', 60

MS. CROCKETT: Are you saying if we eliminate

2

the question of funding, then logically it should just be

3

in the Executive part of

MR. TIDWELL: No, I -- I have my own personal views on what he is, which is not of any interest to this

6

subcommittee, I don't think. But, ah, I -- I've had some

7

experience on trying to argue before the Supreme Court that

s

you can't take everything in State C~vernment and nicely

divide it into three compartments and say, "Everything

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here is Executive~ everything here is Legislative~ everything here is Judicial." You can't do that because there are some functions that are, in my opinion, in State Government that are none of those three. And some of them that are perhaps a combination of all three or two. So where an officer is mentioned in the Constitution is just one evidentury factor of what -- what does he do. I think you could decide what the Attorney General whether he's an Executive or JUdicial or -- or between the two on what he does, not where he's mentioned in the Constitution or how he's funded. It's just what he does. That's the way I

analyzed the problem. MR. THOMSEN: The central question though is the

validity or constitutionality of what he does in reality.

Then the placement of him within the Constitution may be

highly relevant. I mean what he does on a day to day basis

PACE 61

may not pigeon-hole either into the Executive or into the

Judiciary, but when someone would raise the question as to the propriety of what he's doing, vis-a-vis his -- his creation from the Constitution, then his placement within that Constitution becomes I think very relevant, whether he is considered to be an Executive officer or Judicial officer+
MR. TIDWELL: I agree with it and disagree somewhat with that statement, Tom, because I think in some instances it would be very persuasive where something was placed when you're trying to decide these tough questions

of what -- what sort of an animal a particular officer is.

~ 1 I can imagine some instances where it would be, might be

..\.J conclusive. And in others I can imagine where it would be

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inconsequential. Suppose you don't put the Attorney General

anywhere insofar as Legislative, Judicial or -- or Executive'

; I; n and you adopt Bob Stubbs, well, that hasn't solved anything

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when you try and decide what he is, because then you just

leave it up. You you know, how you're going to decide

it if you were to do that, you decide it on what he does.

And he -- he sometimes acts in my judgment both as an

Executive officer and as a Judicial Officer.

MR. GIBSON: I think Marshall said a long time

ago though that the United States Supreme Court couldn't

24

offer advice or opinions to the President because that's a

violation of the concept of separation of powers. He must

J'AGE 62

have thought that there's something about -- something

2

appearing in the First Article, Second Article and Third

3:, Article that was important. And it appears to me that the

;

office is colored by worrying peers. If it's in the

), Judiciary it seems to me that's saying to the Attorney

6

General, "We conceive you as a member of the Judiciary, not

as a member of the Executive Branch." I'm being defended,

I hope well, by an assistant attorney qeneral right now

who is assigned to defend me as a member of the Executive

10

Branch of government. I guess I find it very difficult

to consider that position as anything other than Executive

official. But I

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MR. HARROLD: Well, the funding question -DOT's budget is reviewed by OPB, right?
MR. TIDWELL: Yes. MR. HARROLD: And it goes through the Governor's process. MR. TIDWELL: Yes. MR. HARROLD: And it has never stopped Big Tom from getting another $30 million for potholes.

MR. TIDWELL: That's right. If he can make his

2.'

case before the General Assembly.

MR. HARROLD: Yes. So is Mr. Bolton concerned 24 ! about having to make his case like that to go through the

appropriateons c_o_ mmittee? __ _-- -- ,.'--

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PAGE 63

CHAI~~: Well, I think he's concerned. I think

it's easy as Charlie points out. And maybe that ought to

be amplified just a little bit. The Governor sets the

':

budget estimate and thank God for that. Whoever works with

that part of the Constitution, I hope it will be kept. The

b

beginning process is to set that revenue estimate as to

how much money the State of Georgia will take in. All right,

Then I guess as a practical matter what really happens

of course, that can be -- that's an estimate that can be

ILl

subject to some fluefuation, but that's the pie. Then the

'..:'

on Judicial money is kind of set one slice of the pie. And

everything else goes through the -- well, Judicial and

Legislative own two slices of the pie. And then everything

else goes throuqh the office of Planning and Budget. The
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Governor has supervision over it, even though it comes from
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,.1., a constitutional officer. Well, as Charlie has indicated
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when you go before the Legislature if you've come -- if the

Governor has cut you, to get your money back you've got not

only to convince the appropriations committee that you should

:.10

have the money but point out to them where you can take it

from someplace else. So you've got a double fight really.

Whereas if your money was in there to begin with, all you've

got to do is convince the Legislature that they ought to

leave it alone. So it makes a difference in the degree of

struggle which you have.

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MR. HARROLD: Or they raise the budget estimate.
CHAIRMAN: Well-MR. BUCK: Its been done. MR. GA.RRETT: Well, I recognize tha t it would be most difficult to get the Attorney General out of the Judicial Article. But I tend to believe it ought to stay in the Executive. CHAIRMAN: You want to make that in a form of a motion? MR. GARRETT: Yes. CHAIRMAN: Is there a second? MR. HARROLD: I second. CHAIRMAN: Any further discussion? (No audible response.) CHAIRMAN: All those in favor of the motion indicate by saying, aye. VOICES: Aye. CHAIRMAN: All those opposed? (No audible response.) CHAIRMAN: The motion is carried You want to say anything with respect to the District Attorneys? MR. HARROLD: I think they ought to follow suit. CHAIRMAN: All right. Do you make that in the form

65

of a motion?

MR. HARROLD: Yes.

CHAIRMAN: Any second to that?

MR. GIBSON: Yes, I will second. Ah, but may I s
ask a point of information? Would it be possible to handle

the problem of immunity by -- by legislative action? If

that is a matter of grave concern to the D.A.s?

MR. HILL: It would be possible. I think you

could state in the D.A. provision that, you know, they shall

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enjoy the Judicial trnrnunity, .mmunity that's available to

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o0' members of the Judicial branch. You could state that in
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this. I mean you could leave it to legislative action, but

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I -- given -- aiven the fact that their being moved from

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one article to the other, it might be wise to specify right

here that they should enjoy the same immunity.

(Off the record at the request of the court

reporter -- change tape.)

MR. HARROLD: Mel, what are the immunities that

you keep talking about?

MR. HILL: I wish Judge Finley was here.
1:
MR. TIDWELL: There's a recent Court of Appeals

case that talks about -- you know, Judicial officers are

immune absolutely from suit arising out of their performance

of their judicial functions. If a litigant gets mad and

tried to sue a judge bec~use he didn I t do it right~.~!l~X.~c1__,

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66 dismiss it. And Harold can talk better than I can on this. And it may be a long-standing law, but I do remember reading a recent court of appeals case where a D.A. and a judge both were sued by -- arising out of their -- they didn't do right. They didn't handle the prosecution of the case right and the Judge didn't rule right on it. And, of course, the Superior Court judge was dismissed because of his judicial immuni ty. Ann they talke(l al)out the intJnll11itv tllat t11e District Attorney enjoyed because of his quasi-judicial function. And they granted and extended to the D.A. the immunity enjoyed hy -- purely by judges to district attorneys. And I think that's what Judge Finley is worried about. And as I said, that may have been the law all along that the D.A.s enjoyed this immunity.
MR. BUCK: Judge, is the judicial immunity in the Constitution now?
CHAIRMAN: No, I don't think so. I think it -it is something that follows from being judicial.
MR. BUCK: Well, I would hate to see us, you know, -- with all due respect, Mel, I don't see why we need to put something in the Constitution about district attorney's immunity. I mean if it could be recommended that they follow the Attorney General and that maybe there would be a recommendation regarding legislation that would --
MR. HILL: Okay. But you see, by virtue of being

PAGE 67
- - ------------ --- --- -------------------,
in this Judicial Article, then they're assumed to be Judicial officers and enjoy jUdicial immunity. If you're
1
'i
going to move them over into the Executive, they'll be considered Executive Officers. And will they be -- you know, have this immunity with this change? So that's the
,I
reason. CHAIRMAN: It is not limited to what you could
put in either the State Constitution or the State laws because you've got suits in Federal courts as well.
MR. HILL: In other words, you feel that it's unnecessary to state because it's already covered by case law interpretation~ and federal decisions?
CHAIRMAN: Well, insofar as the federal courts i are concerned I think that anything that we put into State law or the State Constitution would be of very little ! significance. Insofar as the state courts are concerned, I think it would be almost unpecessary. So for the two reasons, both of which are different, maybe' it would not be necessary.
MR. HILL: Okay. MR. JACKSON: Would there be any need for a resolution sent to the committee on how it is feeling that if DA's are transferred to the Executive Article, the immunity it's our anticipation or expectation that the immunity would follow?

-
II

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CHAIRMAN: That might be h!lpful, yes.

68
And maybe

2

I should back up and say, to the extent that these problems

.",

may arise in state courts, the statute would be of some

help, because I think now the Executive officers don't

5

claim an immunity.

MR. TIDWELL: The irnnmnity that judges enjoy

comes from a concept that they just -- they could not

8

administer justice fairly and impartially if they

'1

constantly had to be worried about the consequences of

10

beine; sued. Therefore, to get this impartial dispensation

of justice, they just absolutely are immune for it. And

that same concept follows into the DA's, if he -- if he

were worried about how he -- whether he prosecuted or how

.... he prosecuted a particular case. If he had to answer

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in the JUdicial and Justice system. And so I guess what I'm

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saying is, it probably follows without reference.

18

MR. HILL: You know, isn't it true that the

1'j

Executive officers enjoy qualified immunity. So, you know,

20

if they act in good faith and without malice and all these

21

things, they do enjoy certain immunity and -- but it's not

absolute. And naturally the question whether the DA's will

enjoy absolute immunity from prosecution under this if we

24

move them to Article two I mean Article five. And, ah, do

you want to specify that by some statute that would go like

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Tom was saying, that we would prepare to be a companion piece to this or do you want to specify in the Constitution that we intend that or should we leave it unstated with just our -- you know, an understanding in the record of what: we intended in the event this comes up at some point?
CHAIRMAN: I feel it is maybe worthwhile to investigate the adviseability of legislation. Let me suggest that vicki contact Tony Hyatt at the District Attorney's Association and see if they have a memorandum on district attorney's immunity as to its sources and its scope, and then from that we can see whether or not legislation may be necessary.
MR. JACKSON: Mr. Chairman, one other question
on this matter. It seems that there was a Georgia Supreme
Court case three or four years ago. One of the questions it looked at was whether the Supreme Court~s power to enact rules and requlations governing the Judicial system extended to District Attorneys. And the Court held that it did. And I recall specifically that it said that district attorneys are quasi-judicial and quasi-executive officers. If we move the district attorney to the Executive branch do we need another sense of the Committee that the Supreme Court -- this does not effect the Supreme Court's power to enact rules and regulations effecting district attorneys as well?

- - . - - - - ii--~-~-~-----' "'i

I'A(~E 70
CHAIRMAN: I think that's a, I think, a very

2

pertinent concept for.this reason: District Attorneys

obviously are going to be lawyers. The Judiciary feels

that it has some authority to regulate the conduct of

lawyers. I suppose the district attorney might say, "~le11,

I'm in the Executive Branch and I am not subject to

regulation even as an attorney." So it poses a possible

problem I suppose.

MR. HILL: Mr. Chairman, we do have another

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problem in that Article VI is being revised. And it will not be finished until -- you know, for two years yet. And for us to lift this from -- you know, do we want to look at

the language in Article VI and this section if we're going

to lift it out and put it into our proposed recommendation
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or do we want to make a recommendation to the other

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this back over to Article V, you know, two years from now?

MR. GIBSON: How did we get this damn thing

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anyway? It's not mentioned in other executive offices, is

it?
2i

MR. HILL: About the DA's?

MR. GIBSON: About the DA's.

23

MS. CROCKETT: No.

24 ,,

MR . GIBSON: Well, why do we fall victim to this

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2S i tough problem?

- , 1 - - -

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PAGE 71
- ""----------'----------'------------''',

MR. JACKSON: The problem is in making the

Attorney General more of an Executive officer as opposed

like in the Federal System. The thought is that the DA's

ought to have a direct line of responsibility to the

Attorney General -- as agents of the Attorney General. That's

one thought of why you want to put them over.

CHAIRMAN: Mel, my thought would be that both

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our work and the Judicial Article must go through the

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Select Committee. Rather than proposing any language to

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incorporate the district attorney here, that we just kind of request that the select committee go ahead and make its decision. It's going to have to make this discussion ultimately anyway' because its ~ot them both. Go ahead and

make its decision now as to whether the DA's be in the
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'" Executive or the Judicial Articles. It being this subcommittee
"::1 16 ';'
and presumably the whole committee recommendation that the

district attorneys be in the Executive Article, and let them

make the move rather than us trying to come up with
19
language at this ~oint. Now, that's contrary to Charlie's
20
thought a little bit that we ought to have a total package.

But sinse it's going to be a a bigger decision than it is

a language problem, we might as well let them ~ake that
23
decision at the select committee level. If that's agreeable?
11 ,,",
MR. TIDWELL: Well, Harold, if it goes, what the

fl------------------- ._- -------------

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Article IV and V -- of Articles

IV and V,

PAGE 72
and that's what

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they will look at. Now, Judge Snith will be there as well

3

as anyone else that wants to explain what has happened.

II

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But unless -- unless that article is complete it's gonna

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kind of -- the select committee has got to review what --

.1

L

what Judge Smith's committee does and what Albert Thompson's

7

committee does and what Harrold Clark's committee does. And

b ,; they've got to review two other articles that have been

9

redrafted, as soon as you give it to 'em, which is not going

to

to be getting to 'em before December the 7th; remembering

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who is on the select committee: The Governor, the Lieutenant

Governor, the Attorney General, Chief Justice, the Chief

Judge, Speaker and the President Pro-tern. They're going to

consider that proposal on that afternoon that they look at

it, and that's about all the time they're going to have to

do this. And they're going to have to make a quick -- quick

decisions. So if you want to -- if this committee wants

Iii

its proposal that the -- that the, ah, the Attorney General

:1

19

be removed from the Judicial Article and that the DA's be

removed and be placed here, then my thinking is that the

2]

draft that goes to the select committee should have the

language necessary to do that, plus an ~mendrnent in Article

VIII that: deletes that language -- VI. Now, recognizing

24

that Wayne Snow's committee is still out and i e they don't

that were to be ratified, they could try and undv it. But if

PAGE 73

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you -- if you're -- those that are undergoing revision

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"i right now, we can do what we have done. We've shifted this

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and that. The legislative article says, "I'll take that

ci

and I'll work on it." But when there's one out that's not

going to be doing it, then -- then you've got to do it, I

(;

think, if it's going to get done. But that's just what I

think.

MR. GIBSON: Judge, can we look at the motion

which is to place the Attorney General in the Executive

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Article and add to that that the district attorneys should follow along and then have a sense of the committee that the district attorneys not lose any ammunities they now po~sess or may possess in the future by virtue of court decisions or legislative action? If that's the only problem with the district attorneys, I have a hard time
MR. HILL: I haven't looked at the language, Frank. And I'd say this committee would have to look at the specific language of this -- the full committee. If they're

I'!

going to recommend that it be included in Article V, we have

to take a look at this and see. Now, maybe it's so related

to Article VI in general that it would be hard to just lift

it out. So that's why I don't think it's something we can

just decide, you know, without you know, if we, in fact,

want to follow the recommendation to putting it in the

Executive Article, we're going to have to 1.1~7e another

74 If---_

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meeting, perhaps talk to Wayne Snow's committee to see,

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you know, how they feel about it, what's been done.

3

MR. GIBSON: We're limiting this conversation

4

to district attorneys, right?

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MR. HILL: District Attorneys, yes.

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MS. GREENBURG: If I may review a table that I

7

handed out at the full committee meeting on September 26th,

8

it states that only one state has district attorney placed

q

in the Executive Article. And there are 19 states that put

,

10

it in the Judicial article and 20 states don't even mention

it in their constitutions.

MR. TIDWELL: You know, my -- my recollection is

that Judge Smith has very strong feelings about this, that

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the DA ought to follow where the Attorney General is. And I think I have listened to what he said on that and I -- I'm not sure I understand why he has such strong feelings about that. Does this subcommittee -- do they feel that -- and

18

I know Judge Smith thinks it would be a terrible error not

19 ii to do, let them -- whatever you decide to do, they ought to

20

be in the same article. But I don't understand why he feels

21

so strongly about that. Tom, do you?

22

MR. THOMSEN: Well, I think part of his feeling

is that -- that down the road there may be a more unified

24

system between the Attorney General and the district attorneys,

that there may be a movement in that direction. And I'm not

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really sure of how the system is set up at present to be

I

able to comment exactly. But I know that what he has told

me is that -- that in the event that that is a movement that

is perceived by some people, maybe to be a positive movement

that it would facilitate that movement by having them both

in the same article.

MR. TIDliELL: I understand that. I think that's

a correct concept, if that is to occur. It could provide

problems having them in different articles.

CHAIRMAN: Let me back up and find out just

where we are, which I should know but don't. Have we voted

on the district attorneys' motion?

MR. GIBSON: No.

MR. HARROLD: I don't think so.

CHAIRMAN: My recollection is that we had that

motion on the floor but had not voted on it. All right

Is there any further discussion with respect to

whether er not the district attorneys should be included in

the Executive Article?

MR. GIBSON: I think the first motion was on the

Attorney General.

CHAIRMAN: Yeah. And I think it passed.

MR. GIBSON: That passed. The second one was on

district attorneys.

CHAIRMAN~ ! hope it was seconde0.

;1,---- ---------

76
MR. BUCK: I'll second it, in case it wasn't.

:2

CHAIRMAN: Is there any further discussion on

3

that?

4

(No audible response.)

CHAIRMAN: All right. All those people who

favor the motion to remove the office of district attorney

I

to the Executive Article, please indicate by saying aye.

VOICES: Aye.

CHAIRMAN: All those opposed?

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(No audible response.) CHAIRMAN: All right. Then we'll get the paperwork handled and mail it to you as to moving those articles. MR. JACKSON: Judge, would it be proper now for a resolution for the sense of the committee on the liability issue regarding DA's, that it's our understanding the liability as well as the Supreme Court's right -MR. HILL: In immunity?

J"':

MR. JACKSON: -- on rules and regulations goes

19

with it?

20

CHAIRMAN: I think it would be in order, yes.

MR. JACKSON: I'd like to so move it.

CHAIRMAN: Is there a second to that motion?

MR. JACKSON: Just a sense of the committee.

MR. HILL: On immunity?

MR. JACKSON: On immunity and the Supreme Court's

authority to promulgate rules and regulations.

PAGE 77
_._---_._._--~
I
I

CHAIRMAN: Any further discussion along those

lines, on that motion?

(No audible response.)

5

CHAIRMAN: All those in favor please indicate

'.1

by saying aye.

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VOICES: Aye.

CHAIRMAN: Any opposed?

(No audible response.)

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CHAIRMA}T: All right. There's one other

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matter that we need to take up along the line of Charlie

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Tidwell's suggestions on the underlying paperwork. And do

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you have/interim provjsion proposed to modify Article VIII,

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Section 3, paragraph l? If you do not, let me pass one out

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to you. This is to take care of the problem created by our

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proposal that the office of State School Superintendant be

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Constitution. Presently Article VIII, section 3, Paragraph

1 a~pears on page 65 of your rust book and says that, "There

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shall be a State School Superintendant who shall be the

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executive officer of the State Board of Education, elected

at the same time and in the same manner and for the same

term as that of the Governor." We have determined that in
I
the Executive Article that's not the way it should be; unlesS
I
we change this article, we won't have done anything, except

take those words out at one point. So we have proposed that

2

for adoption or for discussion first and then hopefully for

3

adoption this amendment to that paragraph to accompany our

4 i. own amendment; that is that"there should be a State School

5

Superintendant selected by the State Board of Education. The

0' State School Superintendant in office on the date of the

;

ratification of this amendment." I might interrupt at that

8

point and say presumably this would be what, 1980, when this

4

amendment would be ratified. " shall continue in office

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for the remainder of the term to which elected." Which would be an additional two years. "At which time the State Scheo1 Superintendant shall be selected as provided above and this sentence shall be repealed", which would leave then as the only sentence in, ah, Article VIII, Section 3, paragraph 1 that there shall be a State School Superintendant selected by the State Board of Education, that provision to be effective in 1982 or the beginning of 1983, I guess.
MR. GIBSON: What about that change, Judge, that we made in the members of the school board?

20

CHAIRMAN: That really was a proposal by us to the

21

education article.

22

MR. GIBSON: Oh, I see.

23

CHA!RMAN: This really, I think, is housekeeping

24 ! made necessary by what we are doing.

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MR. BUCK: I move that we adopt

this language,

Judge. i
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MR. HIT~L: Could I?

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CHAIRMAN: Sure

MR. HILL: The present language does have a

provision about the "State School Sttperintendant shall have

t,

such qualifications and shall be paid such compensation as

may be fixed by law." Did you feel that that was just
inherent in the -- in the office? Ah, and, ah, and I wonder~d
I
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if you had intended to drop that sentence from the present

10

Section 3, paragraph 1 or if we're going to have that as the

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second sentence of this.

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CHAIRMAN: Really we could save the second and

third sentences of the existing provision, couldn't we?

"That the State School Superintendant shall have

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fixed by law. No member of the State Board of Education

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shall be eligible for election as State School Superintendant;

1K " during the time for which he shall be eligible for

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appointment -- during the time for which he, the Board

20

member, shall have been appointed."

MR. JACKSON: I have one question. It's just a

minor matter. But would you have any objection to the word

appoint per sentence as opposed to select? I think in most

other statutes they use the term appoint -- that the Board
,,
shall appoint a director.

['ACE 80

CHAIRMAN: My concept then is that all the

2

other statutes are gri'l.mmatical1y incorrect. but I 'II aCG(~>')t

the chang-e.

4

MR. HILL: Are we leavina it?

5

CH1URHJ\N: No, we can make it appointed to

conform to

MR. GIBSON: I think grammatically you are

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right. They don't actually appoint~ they select the

9

appointment.

10

CHAIRMAN: Tom, would you accept as an amendment

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to your motion that we leave -- that we add back in here the

second two sentences of the existing proviRion?

Is there a second? MR. JACKSON: I'll second it, yes.

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CHAIRMAN: Any further discussion? (No audible response.) CHAIRMAN: Charlie?

III

MR. TIDWELL: Yes, this is just from a draftman's

!9

standpoint where you say on the date of the ratification

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this amendment -- I think if you -- if people -- people

21

who will look at it 20 years from now will have to find out

2:2

when it was ratified to know what you were talking about.

just

If you/say in all of these, as a -- the date what you're

24

talking about is really when it becomes effective, I think

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January 1, 1981. If you just put that in, I think it improves

PAGE 81

what you have here. What you're doing is keeping the one

that's in office now.

3

CHAIRMAN: Right.

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MR. TIDWELL: And whoever's in office when this

proposal becomes effective in keeping. And there's one

other thing and it unduly complicates things, but, you know,

I
we -- the General Assembly often changes the county school

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superintendant from an elective to an appointed officer and 1

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grandfather's as you're doing here the elected superintendan~

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until he completes his term of office. In the event a

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you think -- and many times they say he will continue to

serve out the unexpired term; unless there shall be a

vacancy, then his successor shall be selected by the Board.

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Now, if Charlie Mack were to die or resign and he did it

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within a certain period of time, I think you -- well, you

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alone. The Governor can just go ahead and do it. But you

may want the Board to do it rather than the Governor since

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the Board is going to do it at the end of that unexpired

term. You just -- when there's a vacancy and the fella

you're trying to save leaves, then you -- you accelerate the i
I
change in the method of his appointment. Now, if that's

worthwhile, consider it -- fine.

If it's not, reject it.
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PA(,L: 82

MR. HILL: Or we just add an amendment to the

2I
sentence, you know, to state that, you know, should he by

3
reason of death, disability or permanent disability or

.:(
MR. TIDWELL: Right. Or just a vacancy.

5

MR. HILL:

vacancy. If a vacancy occurs.

b
MR. TI;DWELL: vacancy.! Then it would be filled

7

by the Board appkinting a successor.

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CHAIRMAN: All right. But I wasn't real clear

10

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where you propose your first suggestion to be incorporated. ~R. TIDWELL: On the date -- the second sentence
would read: "The State School Superintendant January 1, 1981 shall continue in office for the remainder." It would read that way. You would strike the words, " the date of the ratification of this amendment."
MR. GIBSON: There's no chance, Charlie, this proposed amendment might not be carried over to, say, the '82 eleqtion as opposed to the '80 election? It might become effective in '83.
MR. TIDWELL: Well well, if it's -- you know, if what you submit is adopted by the General Assembly, it then would be voted on in '80. And if it's not ratified then it's gone. And if it were -- if the select committees thought that you had fouled it up so bad they weren't going to submit it, then we'd have to'come back in and editorially

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PAGE 83

CHAIRMAN: For editorial simplicity, let me

suggest that we take the first suggestion, but not

complicate it with the latter, which is contingen~ upon a

4

death or resignation which may not -- mayor may not occur

within a relatively short period of time and leave the

6

Governor with the power since -- it won't be a vacuum; it's

7

just a question of who will make the appointment.

8

MR. TIDWELL: The necessity for making that

9

change -- what -- what you're trying to avoid is a special

10

election for a short period of time.

!

i

CHAIRMAN: Because the Governor would have

!

the power of appointment rather than the Board, the necessitJ

for the election is not there.

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MR. TI DWELL: That's right.

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CHAIRMAN: All right.

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I MR. JACKSON: Mr. Chairman, before we vote, do

17

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you thin~ this language is sufficient to tell the compilers

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of the CDnstitution that after this goes into effect to

J9

remove from the Constitution that sentence? And I raise

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20

that because in the u.S. Censtitution, the 18th Amendment, I

21

I
which was repealed, they still have it in there. Now, I thinf

is

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this/excess language. Could we put something, "Shall be

23 I,

repealed and removed from this Constitution" so it's out?

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24 i

CHAIRMAN: Yeah. Uh-huh. I--

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MR. JACKSON: It would just make it --

PAGL 84

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CHAIRMAN: "Shall be repealed and deleted."

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MR. TIDWELL: I didn't understand that point.

il 3 I.1

MR. HILL: He's -- he'd like this sentence to

destruct.

MR. TIDWELL: Oh.

MR. GIBSON: It's not a self-destructing

mechanism.

8

MR. TIDWELL: And the Secretary of State shall

9

not print it any longer in the russet book.

10

(Laughter. )

CHAIRMAN: Tom, will you accept those two?

MR. HARROLD: Sure.

CHAIRMAN: Amendments.

And whoever seconded it, I hope they have no

objections.

Is there any further discussion?

(No audible response.)

18

CHAIRMAN: All those in favor of the motion, please

19

indicate by saying aye.

20

VOICES: Aye.

21

CHAIRMAN: Any opposi tion?

22

(No audible response.)

24
I
25 Ii!
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CHAIRMAN: .Carried. Is there any further business? MR. HILL: Mr. Chairman, there is an important

'f-!-----~~----------------------------

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matter I think. The

PAGE 85 ---------------------
Committee on the Education Article

2

is meeting next Wednesday for its first meeting. Now I

J

forwarded to them copies of your recommendation. And Vicki

4

wrote a summary of the reason for your recommendation. This

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Committee will be meeting next Wednesday. Now, this is

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6

really within the jurisdiction of that committee, this

I'

11 proposed change here. Now, I -- you know, we're going to

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present this to them so they will have the benefit of -- of,

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you know, your recommendation. But if that committee should

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decide not to accept this recommendation or they should

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decide that this should not be decided, this election, ah, I'm not real sure where we stand. So maybe we should just wait until the meeting, see what happens. But I, ah -you know, I'm really not sure what we're going to do.If that committee should object to making this decision now, I -- I think that the Chairman I've spoken to the Chairman about this. And the Chairman would prefer that this decision be

IX

made as part of the entire revision of Article VIII, 1982,

11 ~9 II
"

I
because the appointment of the man or woman in charge of the I

_II' ~)

operation is bound up with the entire article. And so he

2t

would like to see it postponed. Now, if that would happen

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I think we should

we should be consistent in Articles

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V and '7111. I think we should have in Article V the referencr

24

to the School Superintendant until such time as that office

is removed. So we may have a certain collective bargaining,

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!'AGE 86

you know, issue here once they've met and decided what they

would do. But this -- I'm glad you've done this because

this puts it in black and white. They'll be able to vote

on this recommendation. But I think they're going to say,

"We haven't heard enough evidence to support." You know, "We

would be operating without the benefit of all the background

this committee had." Therefore, you know, I tend to think

they may postpone this decision. So this is something we

could -- I'll report on at the next meeting at nine o'clock
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", before our next --
1[
CHAIRMAN: Well, it creates a problem because

we obviously cannot wait on them since they're not planning

to do anything for two years from now. I think we'll just

have to do the best we can.

something

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MR. TIDWELL: They could do/entirely different

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to what this committee wants.

17 :'i<i

CHAIRMAN: That's entirely true.

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MR. TIDWELL: I think though if this were adopted

19
by the General Assembly and the people put it in, they'd

20
think long and hard before they

21
CHAIRMAN: And if the Education Committee at that

22
point wanted to recommend a change, at least we're not having
i. 23
the problem of the Attorney General being in two places. We'd
2:i ,.
all have it in one place here for them, and they can make

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PAGE 87

MR. TIDWELL: You all having done what you've

done in no way binds them. They're at perfect liberty to f

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reject it or accept it or provide other changes in this

office.

CHAIRMAN: Is it some cause for friction do you
i.,
think, Mel?

MR. HILL: It depends what they decide to do.

I think that if decide that this should not be decided, I

you know, they were appointed to a committee responsible
il}
", for education.' And I think they're going to consider this
i.
1i ,r-.
r":. decision is how the person who is in charge of education
in the State is selected, is goinq to be something they feel

they have a riqht to decide on that committee. So -- but

this is a select committee problem. You know, we'll have to

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try to -MR. GIBSON: Sure. You've got the same problem -~
the same problem with Wayne Snow's Judicial Committee as we

i' consider the Attorney General and District Attorneys.

MR. TIDWELL: They're not going to make their

decision for two-and-a-half years. That's that's why

I think we're missing. They may decide now, "We can't decide

that. We want to put it off." And they may -- or they may

decide right away that they embrace it. And they may change
+
their mind a year from now. I think you all have to press

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if they disagree with you

PAGE 88

MR. HILL: Doesn't stop us. That's true. It

does not stop this committee --

MR. TIDWELL: Yeah. They play the last card.

MR. HILL: Right. -- from, ah

MS. CROCKETT: Will we still be right in having

removed the Superintendant from our articles. See, we

removed him.

MR. HILL: We removed reference to him as an

elected officer because we're, you know, proposing this

change over here in Article VIII and then -- yeah, we

consistent in what we're doing as a committee. We're

consistent. And it's kind of a jurisdictional question.

But I think

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CHAIRMAN: If it would be of any help, I'll be

happy to meet with him and talk with

MR. GIBSON: Yeah, I was going to suggest that,

Judge. It seems to me that that might be much in order that

if you could find your way clear to accompany the staff to

that committee and explain our reasons for the action we

took.

MR. HILL: I'd like that. I think they would

appreciate, you know, a report from the Chairman of this
,
subcommittee to them with this recommendation. And then they' I

can -- you know, that would be very helpful. So I'll talk to

.

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you about that.

- - l PAGE 89

The last thing I was going to bring up was whetherl

you had discussed the matter of changing the name of the

Department -- Commissioner of Agriculture. Remember, that

had come up in a letter to you by --

CHAIRMAN: Yes, we discussed that earlier at our

first meeting. The suggestion, which was not made, ah, in

any more than just for consideration by the Commissioner of

Agriculture, was that the title of his office might be

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changed to Commissioner of Agriculture and Consumer Affairs or Consumer Services. I forget which. I don't think we ever put it to a vote. But the feeling I -- I got the concensus I felt that because there is an agency of state government under the Governor's office involved with

consumer services or consumer affairs that, ah, we might be

complicating the situation to make that change. Now, if we
<
17 ex want to consider that in greater detail, we certainly can.

Iii

We can, absent a motion, we can leave it where it rests.

MR. GIBSON: Mr. Chairman, we're rapidly losing

our committee. And I have to go have lunch with one of the

Constitutional officers we have been talking about. So

CHAIRMAN: Maybe we ought to vote on his office . ,' "
and then he would buy your lunch.

(Laughter)

CHAIRMAN: We stand adjourned.

PAGE 90

(Whereupon, the proceedings adjourned at approximately

:1 II

2 "I,I 12:15 o'clock, p.m.)

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3:

-000-

4

C-E-R-T-I-F-I-C-A-T-E

5

STATE OF GEORGIA)

I,

6

I:
i

COUNTY OF DEKALB)

7i

I hereby certify that the foregoing is a

I:

1\

true, complete, and correct transcript of the

9 I,

proceedings taken by me in the above-mentioned

10

style.

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This the 28th day of October, 1979.

''O."J' 16 .~..
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17 ~ HI 19 20 :: 21 22 '

Certifie4 Court Reporter C.C.R. No. B-423
-000-

25 - - ----------------------------------_._-------- -----.__._------

INDEX Committee to Revise Articles IV and V Subcommittee Meeting Held on Oct. 17, 1979

SUBCOMMITTEE MEETING, 10-17-79
ARTICLE V: EXECUTIVE BRANCH SECTION IV: DISABILITY OF EXECUTIVE OFFICERS Paragraph I: "Elected constitutional executive officer", how defined.
pp. 2-89 Secretary of State. pp. 2-7 Commissioner of Insurance. pp. 7-21, 30-35, 38-45, 48-49 Commissioner of Labor. pp. 8, 21-30, 35-37 Attorney General. pp. 37-38, 49-64 State School Superintendent. pp. 43-44, 77-88 Commissioner of Agriculture. p. 89
ARTICLE VI: JUDICIAL BRANCH SECTION VIII: DISTRICT ATTORNEYS Paragraph I: District attorneys; vacancies; qualifications; compensation;
duties, immunity. pp. 64-77