Part II

A Look at the Five Constitutional Amendments

on the 1998 Ballot

 

Amendment No. 1

 

Amendment No. 2

 

Amendment No. 3

 

Amendment No. 4

 

Amendment No. 5

 

 

 

Amendment No. 1

Creation of a Land, Water, Wildlife, and Recreation Heritage Fund

 

Language that will appear on ballot

 

What the amendment will do

 

Effective date if approved

 

Legislative history of amendment

 

Actual text of amendment

 

Specific notes on amendment

 

Impact of amendment on Georgia Constitution

 

Arguments for and against amendment

Amendment No. 1 language that will appear on ballot:

"Shall the Constitution be amended so as to require the General Assembly to provide by law for the creation of a Land, Water, Wildlife, and Recreation Heritage Fund, with moneys derived from an increase in the real estate transfer tax from $1.00 to $2.00 per $1,000.00, from which funds shall be disbursed for the purposes of local government recreation grants and for acquiring, conserving, managing, or preserving Georgia's natural and historic areas, water resources, and wildlife habitats? The tax increase will take effect only if this constitutional amendment is approved by the voters."

(Note that the above language is not the actual text of a proposed constitutional amendment but rather a summary so voters will understand in general terms what the amendment will do. See below for the actual language of Amendment No. 1.)

What Amendment No. 1 will do:

This amendment will add language to the Georgia Constitution requiring the General Assembly to create a Land, Water, Wildlife, and Recreation Heritage Fund and giving it certain powers and duties over the program. Monies from the Heritage Fund would be required to support two purposes: (1) local government recreation grants and (2) acquiring, conserving, managing, or preserving Georgia's natural and historic areas, water resources, and wildlife habitats. To fund the new Heritage Fund, the current real estate transfer tax of $1.00 per $1,000 would increase to $2.00, effective Jan. 1, 1999. The increase would end on Dec. 31, 2002, unless the General Assembly votes to renew the $1.00 tax increase for successive periods of six years and Georgia voters approve the extension. Monies received by the fund will be appropriated by the General Assembly, with not more than 25% of the proceeds going to local governments and not more than 75% to executive agencies in state government. Monies paid into the Heritage Fund will be deposited in a special account -- not the general fund -- of the state treasury. Also, such funds will not be subject to the lapsing at the end of the fiscal year.

Effective date of Amendment No. 1 if approved: Jan. 1, 1999

Legislative history of Amendment No. 1:

S.R. 532 proposing a constitutional amendment to create a Land, Water, and Wildlife Heritage Fund was introduced in the Georgia Senate on Jan. 27, 1998 by senators George Hooks (14th), Charles Clay (37th), and Charles Walker (22nd). The joint resolution was approved on Feb. 2, 1998 and sent to the House, where a substitute resolution was approved in committee and further amended on the floor of the House, passing on Mar. 18. S.R. 532 was returned to the Senate, which on Mar. 19 accepted the House changes. The resolution was sent to Gov. Miller on Apr. 3 (although proposed constitutional amendments do not require the governor's signature -- and cannot be vetoed) and signed on Apr. 20, 1998.

Implementation of S.R. 532 requires amending two different sections of the Official Code of Georgia Annotated. Therefore, on Jan. 27, 1998, the authors of S.R. 532 introduced S.B. 496, a bill that creates the Land, Water, Wildlife and Recreation Heritage Fund and provides for administration of the fund by the Department of Natural Resources. The bill passed the Senate on Feb. 2 and was sent to the House, where a substitute version was adopted in committee and then passed on the floor of the House on Mar. 18. The next day, the S.B. 496 was returned to the Senate, where the House amendments were accepted. The bill was sent to the governor on Apr. 2 and signed into law on Apr. 20. The bill, however, does not become effective unless Amendment No. 1 is approved by the voters on Nov. 3, 1998.

Because Amendment No. 1 involves revenue, it was necessary to introduce a bill to raise the real estate transfer tax in the House. So, on Feb. 5, 1998, representatives Larry Walker (141st), Robert Irvin (45th), Terry Coleman (142nd), Kathy Ashe (46th), Mary Jamieson (22nd), and DuBose Porter (143rd) introduced H.B. 1551 amending Georgia's revenue code. H.B. 1551 was reported from committee by substitute, which was amended on the floor of the House and approved on Mar. 6, 1998. It was immediately transmitted to the Senate, where passed on Mar. 18. H.B. 1551 was sent to Gov. Miller on Apr. 7 and was signed into law on Apr. 20, 1998. However, the bill's effectiveness is contingent on voter approval of Amendment No. 1. If the amendment is not ratified in the November general election, H.B. stands repealed.

Actual text of Amendment No. 1:

If Amendment No. 1 is approved, the following new subparagraph (k) will be added to the end of Art. 3, Sec. 9, Par. 6 of the Georgia Constitution:

"(k) The General Assembly is required to provide by law for the creation of a Land, Water, Wildlife, and Recreation Heritage Fund from which funds shall be disbursed for the purposes of: (1) local government recreation grants; and (2) acquiring, conserving, managing, or preserving Georgia's natural and historic areas, water resources, and wildlife habitats. The General Assembly shall provide by law for a portion of the moneys derived from the real estate transfer tax to be transferred to the heritage fund. The General Assembly may also provide by general law for the dedication and deposit into the heritage fund of revenues raised from other specific sources for the purposes of the heritage fund. The heritage fund shall constitute a separate account in the state treasury. Heritage fund proceeds shall be specifically identified by the Governor in the annual budget as a separate category entitled 'heritage fund proceeds'; and, in the General Appropriations Act, the General Assembly shall appropriate not more than 25 percent of the heritage fund proceeds for local government recreation grants and not more than 75 percent of the heritage fund proceeds for the other purposes authorized in this subparagraph. Funding for recreation grants shall be appropriated to one or more executive branch agencies and shall be awarded by such agency or agencies through a competitive grant process which shall be equally open to all units of local government. The General Assembly may provide by law for the administration of the heritage fund and may provide for the sunset or termination of the heritage fund or any or all of its revenue sources. Moneys paid into the heritage fund shall not be subject to the provisions of Article III, Section IX, Paragraph IV(c), relative to lapsing of funds, or of Article VII, Section III, Paragraph II, relative to funds paid into the state treasury, except that moneys appropriated from the heritage fund and not committed shall lapse back to the heritage fund."

Special notes on Amendment No. 1:

1. Amendment No. 1 is not permissive but rather mandatory. If the amendment passes, the General Assembly must set up the Heritage Fund.

2. Amendment No. 1 is not self-implementing. It's meaning can only be taken in the context of the language of two companion bills -- H.B. 1551 and S.B. 496. The latter bill provides the details on what purposes monies in the Heritage Fund can be appropriated, namely:

"(1) Assisting local governments with grants to be used for the acquisition and improvement of parks and recreational facilities; and

"(2) For acquiring, conserving, managing, or preserving Georgia's natural and historic areas, water resources, or wildlife habitats that meet or achieve one of the following purposes:

(A) The conservation and protection of native wildlife habitat;

(B) The conservation and protection of rare, threatened, or endangered species habitat;

(C) The protection of watersheds of streams that are used for public water supply;

(D) The protection of the purity of ground water;

(E) The protection of river corridors;

(F) The protection of wetlands;

(G) The protection of mountain or coastal areas;

(H) The conservation of land to provide a park or public recreation area which is made significant by reason of its natural features or scenic beauty, or of land that may be adjacent thereto;

(I) The preservation of significant historical, archeological, or cultural areas;

(J) The rehabilitation of historic or prehistoric resources that are owned or operated by local governments or nonprofit organizations that are listed in or eligible for listing in the Georgia Register of Historic Places and that meet funding guidelines as provided by rules and procedures of the Heritage 2000 program; or

(K) The administration of the heritage fund and the management of any state owned or state operated area that is acquired or purchased for one of the other purposes provided for in this subsection. "

3. Note that the summary of Amendment No. 1 on the ballot specifically says "Shall the Constitution be amended so as to require the General Assembly to provide by law for the creation of a Land, Water, Wildlife, and Recreation Heritage Fund with moneys derived from an increase in the real estate transfer tax from $1.00 to $2.00 per $1,000.00 . . . ?" However, the actual language of the amendment says nothing about increasing the real estate transfer tax or what that rate will be. Based on the language on the ballot, voters may believe the amendment is authorizing a $2 tax rate. In reality, however, the $2.00 rate is set by statute, which raises an interesting question -- does inclusion of additional statutory detail in the official description of a constitutional amendment on the ballot raise that statutory detail to constitutional status? This may end up being an issue for the courts to decide.

Impact of Amendment No. 1 on the Georgia Constitution:

a. Sections of Georgia Constitution amended or exempted:

(1) The amendment specifically amends Art. 3, Sec. 9, Par. 6 (the prohibition on dedicated taxes or sources of revenue).

(2) The amendment specifically exempts the proposed trust fund from the provisions of Art. 3, Sec. 9, Par. 4 (c) (the requirement that unspent funds lapse at the end of the fiscal year and revert to the state treasury).

(3) The amendment specifically exempts the proposed trust fund from the provisions of Art. 7, Sec. 3, Par. 2 (the requirement that state revenues be paid into the general fund of the state treasury). Instead, the amendment requires that the $1 tax increase be deposited in a special account of the state treasury.

b. Total number of words that will be added to the Georgia Constitution: 325

c. Is it necessary to amend Georgia Constitution to achieve amendment's objective?

It is not necessary to amend the Georgia Constitution to raise the real estate transfer tax or to appropriate state funds for local government recreation grants or for acquiring, conserving, managing, or preserving Georgia's natural and historic areas, water resources, and wildlife habitats. It is necessary to amend the constitution, however, in order to dedicate the proceeds of the tax increase for these purposes or to create a continuing trust fund in which unspent funds do not lapse at the end of the fiscal year.

d. Are there alternative ways to achieve the amendment's objective?

To raise revenue for heritage protection, the General Assembly can raise the real estate transfer tax -- or any other tax -- with the revenues deposited into the state's general fund. Each year, the General Assembly can then allocate the amount needed as a line item in the appropriation to the Department of Natural Resources. However, if the amendment's objective is to create a dedicated tax, the proceeds of which will to into a continuing trust fund, then a constitutional amendment is needed. However, rather than amend the state constitution trust fund by trust fund, the constitution could be amended by adding general language governing the conditions under which the General Assembly can create trust funds.

Arguments for and against Amendment No. 1

The Carl Vinson Institute of Government takes no position for or against Amendment No. 1. What follows are some actual or potential arguments and issues that have been or could be raised with respect to the amendment. Obviously, many other considerations can and will be raised prior to the Nov. 3 general election.

Potential arguments for the amendment:

1. There are countless worthy projects in Georgia -- such as historic county courthouses, threatened landmark buildings, and archeological sites -- that could be helped with the Heritage Fund authorized by this amendment.

2. In terms of number of new residents, Georgia is the fourth fastest growing state in the nation, with its population having grown by over one million since 1990. As a result, the state is losing its natural and historic resources at an alarming rate.

3. The tax increase only affects those who purchase property -- arguably the group most responsible for the loss of Georgia's natural and historic resources. In any event, the increase is quite modest, adding an extra $100 to every $100,000 in real estate value. Yet, overall this will mean an extra $30 million per year in new revenue for important heritage projects -- at least for the four years initially authorized for the $1 tax increase.

4. The general criticism that trust funds authorize spending outside the normal budget process is less true with the Heritage Fund, which will receive dedicated tax revenues for only four years (unless subsequently extended). The revenues will go into a special account of the state treasury. All expenditures from the fund will be appropriated by the General Assembly, only with the stipulation that not more than 25 percent of the money appropriated go to local governments and not more than 75 percent to state agencies. There is no constitutional or statutory requirement that the General Assembly spend anything from the Heritage Fund if it chooses not to.

Potential arguments against the amendment:

1. This amendment will result in a 100 percent increase in a tax paid only by property owners. If the purposes of the fund are important to all Georgians, then fund it from taxes paid by all Georgians.

2. The tax increase necessary to fund the trust fund is scheduled to terminate after only four years, which is too short of time to warrant amending the state constitution. It is true that the tax increase can be continued for six-year increments, but many legal experts believe that under the Georgia Constitution, the procedure for doing this -- passing an act and then conditioning the effectiveness of that act on voter approval in a statewide referendum -- amounts to an unconstitutional delegation of legislature authority. That's why the General Assembly doesn't hold a general referendum on the state flag -- that's the legislature's job to determine through statute. The only general referendum used in Georgia -- that for ad valorem property tax exemption -- is specifically provided for in the Georgia Constitution. However, the language of Amendment No. 1 includes no authorization for a general referendum. Rather, this procedure has been authorized by H.B. 1551.

3. The amendment allows the General Assembly to terminate the Heritage Fund and its revenue source at any time -- and, indeed, the legislature has already passed a statute sunsetting the tax increase on Dec. 31, 2002. However, there is no provision for removal of the language from the state constitution.

4. Passage of the amendment will result in yet one more earmarked trust fund in a growing patchwork of exceptions to the Georgia Constitution's general prohibition on dedicated taxes and continuing funds.

5. This amendment opens the door to new earmarked taxes. Currently, every dedicated state tax or revenue source is specifically identified in the Georgia Constitution. Each earmarked tax or revenue source was specifically authorized by separate constitutional amendments approved by the voters of Georgia. Amendment No. 1 does that with the real estate transfer tax -- but, what has been overlooked -- and is totally missing from the description on the ballot -- is that if Amendment No. 1 passes, for the first time in history, the General Assembly will be given blanket authority to earmark by statute any tax or revenue source it chooses -- so long as the proceeds go to the Heritage Fund. If the amendment passes, this approach of allowing the legislature to dedicate revenue sources by statute could well become the pattern for future trust funds.

6. This amendment also is subject to the general criticisms of any dedicated revenues and trust funds.

For additional arguments for and against Amendment No. 1 by the Georgia League of Women Voters, click here.

Amendment No. 2

Limit the Purposes for Which State Lottery Funds Can Be Spent

Language that will appear on the ballot

What the amendment will do

Effective date if approved

Legislative history of amendment

Actual text of amendment

Impact of amendment on the Georgia Constitution

Arguments for and against the amendment

Amendment No. 2 language that will appear on ballot:

"Shall the Constitution be amended so as to limit the educational purposes and programs for which lottery proceeds may be appropriated and expended and to specify that scholarships, pre-kindergarten programs, and shortfall reserves shall receive priority over teacher technology training and capital outlay projects for educational facilities?"

(Note that the above language is not the actual text of a proposed constitutional amendment but rather a summary so voters will understand in general terms what the amendment will do. See below for the actual language of Amendment No. 2.)

What Amendment No. 2 will do:

This amendment would further limit the purposes and programs for which state lottery funds can be spent. Currently, the Georgia Constitution requires the net proceeds of the lottery to be appropriated by the legislature for "educational programs and educational purposes as specified by the General Assembly." The proposed amendment deletes "as specified by the General Assembly" and specifically provides that lottery proceeds go to: (1) tuition, grants, and loans, (2) voluntary pre-kindergarten, (3) educational shortfall reserves, (4) K-12 teacher training in computer technology and distance learning, and (5) capital outlay projects for education facilities. The amendment further provides that no funds can be spent on categories (4) and (5) until all persons applying for assistance in categories (1) and (2) have been served, plus the educational shortfall reserve is fully funded.

Effective date of Amendment No. 2 if approved: Jan. 1, 1999

Legislative history of Amendment No. 2:

On Jan. 27, 1998, senators Terrell Starr (44th), Nadine Thomas (10th), Mark Taylor (12th), and Sonny Perdue (18th) introduced S.R. 529, a proposed constitutional amendment limiting the purposes for which state lottery funds could be spent. Following committee approval of a substitute version, the resolution was approved on the floor of the Senate on Feb. 10. S.R. 529 was introduced the next day in the House, where a committee substitute was approved. A floor substitute, as amended, was approved in the House on Mar. 12. A conference committee was appointed on Mar. 19, and its report was approved by both houses that same day. S.R. 529 was sent to the governor on Apr. 3. On Apr. 20, Gov. Miller signed the resolution (although a proposed constitutional amendment does not require the governor's signature -- and cannot be vetoed).
Amendment No. 2 is self-implementing and does not require any companion statute to go into effect.

Actual text of Amendment No. 2:

If Amendment No. 2 is approved, Art. 1, Sec. 2, Par. 8 of the Georgia Constitution will be amended by striking subparagraph (c) and inserting in its place a new subparagraph to read as follows: [Deleted language in green enclosed in brackets, new language in red italics]

"(c) The General Assembly may by law provide for the operation and regulation of a lottery or lotteries by or on behalf of the state and for any matters relating to the purposes or provisions of this subparagraph. Proceeds derived from the lottery or lotteries operated by or on behalf of the state shall be used to pay the operating expenses of the lottery or lotteries, including all prizes, without any appropriation required by law, and for educational programs and purposes as hereinafter provided. Lottery proceeds shall not be subject to Article VII, Section III, Paragraph II; Article III, Section IX, Paragraph VI(a); or Article III, Section IX, Paragraph IV(c), except that the net proceeds after payment of such operating expenses shall be subject to Article VII, Section III, Paragraph II. Net proceeds after payment of such operating expenses shall be separately accounted for and shall be specifically identified by the Governor in his annual budget presented to the General Assembly as a separate budget category entitled 'Lottery Proceeds' and the Governor shall make specific recommendations as to educational programs and educational purposes to which said net proceeds shall be appropriated. In the General Appropriations Act adopted by the General Assembly, the General Assembly shall appropriate all net proceeds of the lottery or lotteries by such separate budget category to educational programs and educational purposes [as specified by the General Assembly]. Such net proceeds shall be used to support improvements and enhancements for educational programs and purposes and such net proceeds shall be used to supplement, not supplant, non-lottery educational resources for educational programs and purposes. The educational programs and educational purposes for which proceeds may be so appropriated shall include only the following:

 

"(1) Tuition grants, scholarships, or loans to citizens of this state to enable such citizens to attend colleges and universities located within this state, regardless of whether such colleges or universities are operated by the board of regents, or to attend institutions operated under the authority of the Department of Technical and Adult Education;

 

"(2) Voluntary pre-kindergarten;

 

"(3) One or more educational shortfall reserves in a total amount of not less than 10 percent of the net proceeds of the lottery for the preceding fiscal year;

 

"(4) Costs of providing to teachers at accredited public institutions who teach levels K-12, personnel at public postsecondary technical institutes under the authority of the Department of Technical and Adult Education, and professors and instructors within the University System of Georgia the necessary training in the use and application of computers and advanced electronic instructional technology to implement interactive learning environments in the classroom and to access the state-wide distance learning network; and

 

"(5) Capital outlay projects for educational facilities; provided, however, that no funds shall be appropriated for the items listed in paragraphs (4) and (5) of this subsection until all persons eligible for and applying for assistance as provided in paragraph (1) of this subsection have received such assistance, all approved pre-kindergarten programs provided for in paragraph (2) of this subsection have been fully funded, and the education shortfall reserve or reserves provided for in paragraph (3) of this subsection have been fully funded."

Impact of Amendment No. 2 on the Georgia Constitution:

a. Sections of Georgia Constitution amended or exempted:

(1) The amendment specifically amends Art. 1, Sec. 2, Par. 8. If approved, the new language added to the paragraph does not further amend or exempt -- either specifically or by implication -- any other provision of the Georgia Constitution.

b. Total number of words that will be added to the Georgia Constitution: 294 net (6 words deleted, 300 words added)

c. Is it necessary to amend Georgia Constitution to achieve amendment's objective?

Yes -- if the objective is to insure that the distribution formula contained in Amendment No. 2 is binding on future legislatures.

d. Are there alternative ways to achieve the amendment's objective?

Art. 1, Sec. 2, Par. 8 currently limits spending the net proceeds of the lottery to education purposes as specified by the General Assembly. Presumably, the legislature could pass a statute directing the distribution of lottery proceeds according to the same requirements of Amendment No. 2. However, there is no way in Georgia to bind future legislatures by ordinary statute.

Arguments for and against Amendment No. 2

The Carl Vinson Institute of Government takes no position for or against Amendment No. 2. What follows are some actual or potential arguments and issues that have been or could be raised with respect to the amendment. Obviously, many other considerations can and will be raised prior to the Nov. 3 general election. As these additional arguments are raised, they will be added to this web page as appropriate.

Potential arguments for the amendment:

1. There have been tremendous pressures to divert lottery proceeds to an expanding number of programs that technically fall under the definition of "educational programs and educational purposes." In particular, there is concern that the HOPE scholarship and pre kindergarten programs could be threatened if net lottery proceeds decline or are divided among too many competing programs. Gov. Miller has been able to prevent the diversion of lottery proceeds into other programs, but the next governor may have different priorities. Passage of Amendment No. 2 foremost will insure the continuation of the HOPE and pre-kindergarten programs. Second, it will place the next priority on maintaining an educational shortfall reserve. Any remaining proceeds will then be committed to training teachers in using computers and other electronic technology and for building educational facilities.

Potential arguments against the amendment:

1. Although training in the use computers and distance learning may be important for Georgia teachers today, in five or ten years it may be unnecessary as use of these will be so widespread. Also, it is dangerous to freeze the purposes to specific types of training, when in ten years there may be other more important priorities for Georgia educators.

2. The amendment will add terms (such as "computer" and "distance learning network") that probably don't belong in a state constitution. Also, the amendment makes constitutional reference in several places to the Department of Technical and Adult Education, which is a statutory agency. This possibly could result in the necessity of a constitutional amendment to ever rename or replace that agency.

3. In a republican form of government, decisions as to taxing and spending should be made by the elected representatives of the citizens and not frozen in the state constitution.

For additional arguments for and against Amendment No. 2 by the Georgia League of Women Voters, click here.

Amendment No. 3

Creation of Brain and Spinal Injury Trust Fund

Language that will appear on ballot

What amendment will do

Effective date if approved

Legislative history of amendment

Actual text of amendment

Special notes on amendment

Impact of amendment on Georgia Constitution

Arguments for and against amendment

Amendment No. 3 language that will appear on ballot:

"Shall the Constitution be amended so as to provide for additional penalties for offenses involving driving under the influence of alcohol or drugs and provide for their allocation to the Brain and Spinal Injury Trust Fund for care and rehabilitation purposes?"

(Note that the above language is not the actual text of a proposed constitutional amendment but rather a summary so voters will understand in general terms what the amendment will do. See below for the actual language of Amendment No. 3.)

What Amendment No. 3 will do:
If ratified by the voters, Amendment No. 3 will allow creation of a new trust fund that would otherwise be prohibited by the Georgia Constitution. Additionally, ratification will activate S.B. 110 (see discussion below). Together, they will create a state Brain and Spinal Trust Fund to be funded by a new 10-percent mandatory penalty added to all fines imposed by superior, state, or municipal courts for driving under the influence of drugs or alcohol. [However, because the 10 percent penalty is provided for solely by statute, that rate could be changed by a future legislature without a constitutional amendment.] Revenues collected from such penalties will be deposited in a special account for use in providing care and rehabilitative services to Georgia citizens who have severe head or spinal cord injuries resulting from neurotrauma. Unspent funds in the trust fund would not lapse at the end of the fiscal year but would carry over to the next fiscal year.

Effective date of Amendment No. 3 if approved: Jan. 1, 1999

Legislative history of Amendment No. 3:

On Jan. 27, 1997, senators Charles Walker (22nd), Connie Stokes (43rd), and Eddie Madden (47th) introduced S.B. 110 in the Georgia Senate. The bill proposed to authorize additional fines for anyone convicted of DUI, with the additional fines earmarked for a new Brain and Spinal Injury Trust Fund to serve Georgians with severe brain and spinal cord injuries. S.B. 110 passed the Senate on Feb. 13, 1997, and was sent to the House. The bill remained in committee until it was reported out with amendment on Jan. 14, 1998. It was passed by the House on Mar. 16 and returned to the Senate, which three days later accepted the House amendment. S.B. 110 was signed by Governor Miller on Apr. 6, 1998.
As noted below, the funding scheme set up by S.B. 110 violates three -- and probably four -- provisions of the Georgia Constitution. Therefore, it would be unconstitutional -- unless the constitution is amended to exempt the trust fund. Therefore, on Feb. 4, 1997, senators Walker and Stokes introduced S.R. 144, a joint resolution proposing a constitutional amendment authorizing creation of the Brain and Spinal Injury Trust Fund. S.R. 144 passed the Senate Feb. 12, 1997, and the House on Mar. 16, 1998. Gov. Miller signed the joint resolution on Apr. 6, 1998 (though the governor's signature is not necessary for proposed constitutional amendments).

Though signed into law, S.B. 110 only becomes effective if the constitutional amendment proposed by S.R. 144 is ratified in November. In that event, its effective date will be the same as that of Amendment No. 3 -- Jan. 1, 1999.

Actual text of Amendment No. 3:

If Amendment No. 3 is approved, the following new subparagraph (k) will be added at the end of Art. 3, Sec. 9, Par. 6 of the Georgia Constitution:

"(k) The General Assembly is authorized to provide by general law for additional penalties or fees in any case in any court in this state in which a person is adjudged guilty of an offense involving driving under the influence of alcohol or drugs. The General Assembly is authorized to provide by general law for the allocation of such additional penalties or fees to the Brain and Spinal Injury Trust Fund, as provided by law, for the specified purpose of meeting any and all costs, or any portion of the costs, of providing care and rehabilitative services to citizens of the state who have survived neurotrauma with head or spinal cord injuries. Moneys appropriated for such purposes shall not lapse. The General Assembly may provide by general law for the administration of such fund by such authority as the General Assembly shall determine."

Special notes on Amendment No. 3:

Amendment No. 3 is permissive -- it allows the General Assembly to create a Brain and Spinal Injury Trust Fund. However, the 1998 General Assembly went ahead and enacted S.B. 110 to implement the proposed constitutional amendment should it be ratified in Nov. 1998. [S.B. 110 only becomes effective if the amendment passes.] Thus, in reality, voters are voting on Amendment No. 3 and S.B. 110 as a package.

A knowledge of this package is important, as there provisions in S.B. 110 not found in Amendment No. 3 per se. That statute creates the Brain and Spinal Injury Trust Fund as a separate fund in the state treasury. To provide revenue for this fund, the act provides for an additional penalty to any fine imposed for violating O.C.G.A. sec. 40-6-391 (or any municipal ordinance which has incorporated sec. 40-6-391 by reference), which prohibits driving under the influence of drugs or alcohol. Such additional penalty shall equal 10 percent of the original fine and will be deposited into the Brain and Spinal Injury Trust Fund. The act further creates a 15-member Brain and Spinal Trust Fund Authority with responsibility for overseeing implementation of the trust fund program. Additionally, the law provides:

"The authority may authorize the disbursement of available money from the trust fund, after appropriation thereof, for the purposes of providing care and rehabilitative services to citizens of the state who have survived neurotrauma with head or spinal cord injuries, to a person, entity, or program eligible pursuant to criteria to be set by such authority."

Apparently, this means that the General Assembly must appropriate specific amounts from the trust fund each year before the authority can spend those funds. The language of the statute does not address whether the General Assembly has any discretion in appropriating money from the trust fund--although presumably the legislature would be free to appropriate whatever it chooses, as the constitutional amendment is silent on the matter and as Georgia's Supreme Court has ruled that no legislature can bind a future legislature on matters on which it has an equal right to legislate.

Impact of Amendment No. 3 on the Georgia Constitution:

a. Sections of Georgia Constitution amended or exempted:

(1) The amendment specifically amends Art. 3, Sec. 9, Par. 6 (the prohibition on dedicated taxes or sources of revenue).

(2) By its language, but without specific reference to the constitutional citation, the amendment amends Art. 3, Sec. 9, Par. 4 (c) (the requirement that unspent appropriations lapse at the end of the fiscal year) by granting an exemption to such requirement.

(3) Although containing no reference to language or constitutional citation,, the proposed amendment may amend by implication Art. 3, Sec. 6, Par. 6 (the prohibition on the General Assembly granting any donation or gratuity). The amendment and implementing statute allow state revenues to go for "care and rehabilitation purposes" -- but it is unclear what that includes. For example, victims of neurotrauma often have sophisticated (and expensive) equipment needs (e.g., computers for communication and wheel chairs). If the amendment authorizes use of state revenues to purchase equipment for private individuals or to make payment or reimbursements, then it probably creates an exemption to the gratuity clause of the constitution.

(4) Although the amendment does not specifically provide that revenues from penalties bypass the state's general fund, an accompanying statute implementing the amendment does, which would by implication amends Art. 7, Sec. 3, Par. 2 (a) (the requirement that all revenue collected from taxes, fees, and assessments be paid into the general fund of the state treasury.

b. Total number of words that will be added to the Georgia Constitution: 143

c. Is it necessary to amend Georgia Constitution to achieve the amendment's objective?

(1) If the amendment's purpose is to allow the expenditure of state funds for care and rehabilitation services to Georgia citizens with severe brain and spinal cord injuries -- especially if payments or reimbursements are being made or equipment purchased -- the answer is probably yes (because of the constitution's general prohibition on donations and gratuities)

(2) If the amendment's purpose is to create a trust fund that is exempt from other provisions of the constitution, the answer is yes

d. Are there alternative ways to achieve the amendment's objective?

(1) If the objective is to allow the expenditure of state funds for care and rehabilitation services for Georgians with severe brain and spinal cord injuries, this can be done be amending Art. 3, Sec. 6, Par. 6 (the prohibition on gratuities) to specifically allow state funds to be spent for these purposes, followed by a legislative enactment of a statute implementing the amendment. By virtue of Art. 7, Sec. 3, Par. 1 (a), the General Assembly would then be free to appropriate state tax revenues for care and services of victims of such injuries and still comply with Art. 3, Sec. 9, Par. 4 (c), Art. 3, Sec. 9, Par. 6 (a), and Art 7, Sec. 3, par. 2 (a).

(2) If the amendment's purpose is to create a trust fund, the state constitution could be amended to add general language governing the conditions under which the General Assembly can create trust funds.

Arguments for and against Amendment No. 3:

The Carl Vinson Institute of Government takes no position for or against Amendment No. 3. What follows are some actual or potential arguments and issues that have been or could be raised with respect to the amendment. Obviously, many other considerations can and will be raised prior to the Nov. 3 general election. As these additional arguments are raised, they will be added to this web page as appropriate.

Potential arguments for the amendment:

1. Georgia has around 130,000 victims of brain and spinal injuries. It is estimated that half of all severe brain and spinal cord injuries are caused by automobile accidents--many of which are caused by drivers under the influence of alcohol or drugs.

2. Many of the victims of brain and spinal injuries do not qualify for certain insurance and other benefits and services, and the new trust fund would help pay for rehabilitation and services not otherwise available.

3. The trust fund would require no general tax revenues but rather would target a class of drivers that cause many of these severe injuries. It is anticipated that the new DUI penalties would generate $2 million annually for the proposed trust fund.

Potential arguments against the amendment:

1. While DUI is a serious problem in Georgia, according to the Georgia Highway Safety 1997 Fact Book, the three leading cause of accidents in Georgia are excessive speed, following too close, and failure to yield the right of way. Most brain and spinal injuries, therefore, are not the result of someone having driven under the influence, and the great majority of DUI offenses do not result in crashes or injuries of any type. In fact, according to the latest statistics available from the Georgia Department of Public Safety, in 1995 less than 10 percent of all crashes resulting in any type of injury involved drinking. However, if this amendment passes, the vast majority of people who pay the new penalty will not have caused an injury of any type, while the majority of people eligible for payments from those penalties are not victims of a DUI injury. Moreover, those guilty of the three main causes for accidents that cause injury are exempt from the assessment to help victims of neurotrauma.

2. Why single out victims of brain and spinal injuries to the exclusion of victims with other permanent handicaps as a result of an injury?

3. This proposed amendment marks the first instance of language in Georgia's constitution targeting a specific criminal or traffic offense as a revenue source for any purpose. If it passes, any number of similar trust funds for victims of any number of acts (e.g., speeding) could follow.

4. Passage of the amendment will result in yet one more earmarked trust fund in a growing patchwork of exceptions to the Georgia Constitution's general prohibition on dedicated taxes and continuing funds.

5. This amendment also is subject to the general criticisms of any dedicated revenues and trust funds.

For additional arguments for and against Amendment No. 3 by the Georgia League of Women Voters, click here.

Amendment No. 4

Creation of Roadside Enhancement and Beautification Fund

Language that will appear on ballot

What amendment would do

Effective date if approved

Legislative history of amendment

Actual text of amendment

Text of Sec. 2 of S.B. 337 implementing amendment

Impact of amendment on Georgia Constitution

Arguments for and against amendment

Amendment No. 4 language that will appear on ballot:

"Shall the Constitution be amended so as to authorize the General Assembly to provide by general law for a roadside enhancement and beautification fund from which funds shall be disbursed for enhancement and beautification of public rights of way; for allocation and dedication of revenue from tree and other vegetation trimming or removal permit fees, other related assessments, and special and distinctive wildflower motor vehicle license plate fees to such fund; that moneys paid into the fund shall not lapse; and that an Act creating the fund and making such provisions may originate in the Senate or the House of Representatives?"

(Note that the above language is not the actual text of a proposed constitutional amendment but rather a summary so voters will understand in general terms what the amendment will do. See below for the actual language of Amendment No. 4.)

What Amendment No. 4 would do:

Amendment No. 4 authorizes the General Assembly to create a continuing trust fund known as the "Roadside Enhancement and Beautification Fund" to finance roadside vegetation control, cleanup, and other roadside enhancement and beautification projects along the right-of-way of Georgia roads and highways. According to legislation already enacted to implement this power, the trust fund primarily will be funded from revenues from the sale of special wildflower license plates and from permit fees for trimming trees and other vegetation blocking the view of outdoor advertising signs. The trust fund will also be able to receive contributions from other sources, including any funds that the General Assembly might appropriate. Trust fund revenues would not go into the state treasury but rather into a special interest-bearing account administered by the Georgia Department of Transportation. Any unexpended monies in the trust fund at the end of the fiscal year would not lapse but rather be carried forth into the new fiscal year.

Effective date of Amendment No. 4 if approved: Jan. 1, 1999

Legislative history of Amendment No. 4:

On Feb. 28, 1997, senators Steve Thompson (33rd), Van Streat Sr. (19th), Steven Langford (29th) and B. Joseph Brush (24th) introduced S.B. 337 in the Georgia Senate. Among its provisions, the bill sought to establish a vegetation maintenance program along public roads in Georgia to be funded by a continuing trust fund. Money for the new trust fund would come from new tree trimming permit fees, proceeds from the sale of wildflower licenses plates, possible appropriations from the legislature, and contributions from other sources.
S.B. 337 remained in committee until reaching the Senate floor, where it passed on Feb. 6, 1998. After being amended and approved by the House on Mar. 12, the bill returned to the Senate. After the Senate refused to accept the House amendments, a conference committee finally reached agreement, with both houses approving a compromise version on Mar. 19, and the governor signing the bill on Apr. 20.

Because the Roadside Enhancement and Beautification Fund created in Sec. 2 of S.B. 337 is a continuing trust fund that would violate several provisions of the Georgia Constitution, and because under the act involves the raising or spending of revenue and thus under the Georgia Constitution must be introduced in the House, Sec. 2 of S.B. 337 can become law only if the constitution is amended to exempt it from mandates and prohibitions in the constitution. Thus, S.B. 337 contains a provision that Sec. 2 only becomes effective if a companion constitutional amendment is ratified by the voters, though all other provisions of the act became effective on the governor's approval and are not dependent upon passage of the amendment.

The proposed constitutional amendment required by Sec. 2 of S.B. 337 was introduced in the 1998 session as S.R. 559 by Sen. Steve Thompson (33rd) on Feb. 2, 1998. The joint resolution passed the Senate on Feb. 10, and the House on Mar. 10. House amendments, however, forced a conference committee, whose report was agreed by both houses on Mar. 19. Though the governor's signature is not necessary on a proposed constitutional amendment, Gov. Miller signed S.R. 559 on April 20, 1998.

Actual text of Amendment No. 4:

If Amendment No. 4 is approved, the following new subparagraph (k) will be added to Art. 3, Sec. 9, Par. 6:

"(k) The General Assembly is authorized to provide by general law for the creation of a roadside enhancement and beautification fund from which funds shall be disbursed for enhancement and beautification of public rights of way; for allocation and dedication of revenue from tree and other vegetation trimming or removal permit fees, other related assessments, and special and distinctive wildflower motor vehicle license plate fees to such fund; that moneys paid into the fund shall not lapse, the provisions of Article III, Section IX, Paragraph IV(c) notwithstanding; and for any matters relating to the purpose or provisions of this subparagraph. An Act creating such fund and making such provisions effective January 1, 1999, or later may originate or have originated in the Senate or the House of Representatives."

Note, however, Amendment No. 3 also proposes to add a new subparagraph (k) to Art. 3, Sec. 9, Par. 6. If both amendments pass, there are three possibilities: Art. 3, Sec. 9, Par. 6 will have two different subparagraphs identified as (k), the provisions of both amendments will be combined as a single subparagraph (k), or subparagraph (k) created by Amendment No. 4 will be redesignated as subparagraph (l) [although it is not clear who -- if anyone -- has the authority to make such redesignation].

Text of Sec. 2 of S.B. 337 implementing Amendment No. 4:

"(a) There is established a special fund to be known as the 'Roadside Enhancement and Beautification Fund.' This fund shall consist of all moneys collected under Code Section 32 6-75.3, any appropriations by the General Assembly to the fund, revenues derived from the sale of any special and distinctive wildflower motor vehicle license plates issued as may be otherwise provided by law, any contributions to the fund from any other source, and all interest thereon. All moneys collected under Code Section 32-6-75.3 [fees for tree trimming permits] and manufacturing fees for any special and distinctive wildflower motor vehicle license plates shall be paid into the fund. All balances in the fund shall be deposited in an interest-bearing account identifying the fund and shall be carried forward each year so that no part thereof may be deposited in the general treasury. The department shall administer the fund and expend moneys held in the fund in furtherance of roadside enhancement and beautification projects along public roads in this state and administration of the tree and vegetation trimming permit program under Code Section 32-6-75.3. Contributions to the fund shall be deemed supplemental to and shall in no way supplant funding that would otherwise be appropriated for these purposes. The department shall prepare, by February 1 of each year, an accounting of the funds received and expended from the fund. The report shall be made available to the members of the State Transportation Board and to members of the public on request."

Impact of Amendment No. 4 on Georgia Constitution:

a. Sections of Georgia Constitution amended or exempted:

(1) The amendment specifically amends Art. 3, Sec. 9, Par. 6 (the prohibition on dedicated taxes or sources of revenue). by adding a new subparagraph( k). [However, there is the problem that Amendment No. 3 also proposes to add a new subparagraph (k). What would happen if both amendments pass is discussed above.]

(2) The amendment specifically exempts the proposed roadside enhancement and beautification fund from Art. 3, Sec. 9, Par. 4 (c) (the requirement that unspent appropriations lapse at the end of the fiscal year).

(3) Although the amendment does not specifically exempt the proposed fund from Art. 7, Sec. 3, Par. 2 (a) (the requirement that all revenue collected from taxes, fees, and assessments be paid into the general fund of the state treasury), Sec. 2 of S.B. 337 specifically provides that no revenues for the fund shall be deposited in the state treasury.

(4) The amendment specifically exempts the implementing statute (S.B. 337) from Art. 3, Sec. 5, Par. 2 (which requires all bills raising revenue or appropriating money to originate in the House).

b. Total number of words that will be added to the Georgia Constitution: 129

c. Is it necessary to amend Georgia Constitution to achieve amendment's objective?

It is not necessary to amend the Georgia Constitution to spend state funds for roadside enhancement and beautification. It is necessary to amend the constitution, however, in order to dedicate the proceeds of any revenue source for this purpose. It is also necessary to amend the Georgia Constitution to create a continuing trust fund in which unspent funds do not lapse at the end of the fiscal year.

d. Are there alternative ways to achieve the amendment's objective?

The General Assembly already has the authority to appropriate money to the Department of Transportation for roadside enhancement and beautification. [See point 3 under "Potential Arguments Against the Amendment" below for funding sources.] Another alternative is to amend the Georgia Constitution by adding general language governing the conditions under which the General Assembly can create trust funds by statute.

Arguments for and against Amendment No. 4

The Carl Vinson Institute of Government takes no position for or against Amendment No. 4. What follows are some actual or potential arguments and issues that have been or could be raised with respect to the amendment. Obviously, many other considerations can and will be raised prior to the Nov. 3 general election. As these additional arguments are raised, they will be added to this web page as appropriate.

Potential arguments for the amendment:

1. Amendment No. 4 is not about whether billboard owners should be allowed to trim or cut down trees that block their billboards. That matter has already been decided by the General Assembly and will be unaffected by this amendment. Rather, this amendment allows creation of a continuing trust fund to be used to enhance the appearance along the right-of-way of Georgia's roads and highways.

2. The General Assembly already has the authority to create special wildflower license plates, but what it does not have is the power to earmark the proceeds from their sale to road enhancement and beautification. If Amendment No. 4 doesn't pass, then Art. 2 of S.B. 337 will not become effective. This will mean no road enhancement and beautification trust fund, which in turn will mean no earmarked, non-lapsing revenues from wildflower license plates and tree-trimming permits. Instead, permit fees and any license plate revenues will go into the state's general fund for appropriation by the legislature.

3. Passage of the amendment should mean more attractive roadways in Georgia without any new taxes.

Potential arguments against the amendment:

1. This amendment--or more specifically Sec. 2 of S.B. 337--creates a funding and spending arrangement entirely outside of the authority or oversight of the General Assembly, outside of the governor's budgetary authority, and outside of four important mandates of Georgia's constitution. Moreover, the amendment is subject to the general criticisms of dedicated revenues and trust funds.

2. Revenues for the trust fund will go into a special account set up by the Department of Transportation, with no statutory guidance other than to see that the account earns interest. Further, neither the statute nor the amendment define what type of activities constitute "road enhancement and beautification," which leaves the DOT without any legal guidance as to what are proper expenditures.

3. This amendment is not needed. The General Assembly already has the authority to appropriate money to the DOT for road enhancement and beautification. If the money is simply not available, then spread the cost to everyone who uses Georgia's roads -- not just to billboard owners. Rather than creating a special trust fund, increase Georgia's motor fuel excise tax (the lowest in the nation--see chart) from 7.5 to 7.6 cents per gallon (which would still be the lowest in the nation). Even with the additional 3 percent motor fuel sales tax, Georgia's effective motor fuel tax is third lowest in the nation [see chart]. Nevertheless, based on current revenue raised by the motor fuel tax, a one-tenth cent increase in the motor fuel tax would generate $7.8 million annually, while costing the average Georgian less than 2 cents per tankful. Art. 3, Sec. 9, Par. 6 (b) of the Georgia Constitution dedicates the motor fuel tax for use on "all activities incident to providing and maintaining an adequate system of public roads and bridges in this state," so the DOT could earmark the extra tenth of a cent per gallon to road enhancement and beautification -- with all highway users contributing to the cost and without having to amend the constitution.


For additional arguments for and against Amendment No. 4 by the Georgia League of Women Voters, click here.

Amendment No. 5

Establish the Georgia Citizens Commission on Compensation of Public Officials

Language that will appear on ballot

What amendment will do

Effective date if approved

Legislative history of amendment

Actual text of amendment

Impact of amendment on Georgia Constitution

Arguments for and against amendment

Amendment No. 5 language that will appear on ballot:

"Shall the Constitution be amended so as to provide for a Georgia Citizens Commission on Compensation of Public Officials and to remove from the General Assembly the authority to fix the compensation of the Governor, the Lieutenant Governor, the members and officers of the General Assembly, the members of the Public Service Commission, the members of the State Board of Pardons and Paroles, the constitutional officers elected state wide, the superior court judges, and the district attorneys and to place such authority in the commission, with the action of the commission subject to rejection by both houses of the General Assembly?"

(Note that the above language is not the actual text of a proposed constitutional amendment but rather a summary so voters will understand in general terms what the amendment will do. See below for the actual language of Amendment No. 5)

What Amendment No. 5 will do:
This amendment would create a special commission to study the salaries and compensation of major officials in Georgia state government (including all elected officials); compare their compensation with that of comparable officials in the federal government, other state government, local governments, business and industry, and the professions; and by Dec. 31 of 1998 (and every two years thereafter) prepare a schedule of salaries and per diem rates for state officials under its jurisdiction. This schedule would be submitted to the next session of the General Assembly, where legislators would have twenty days to pass an act rejecting the proposed salaries. If the salary schedule is not rejected within that time frame, it would go into effect.

Effective date of Amendment No. 5 if approved: Jan. 1, 1999

Legislative history of Amendment No. 5:

On Feb. 14, 1997, representatives Ray Holland (157th), Terry Coleman (142nd), Jimmy Skipper (137th), Larry Walker (141st), Carl Von Epps (131st) and Doug Teper (61st) introduced H.R. 296 -- a proposed constitutional amendment to create a citizens commission with authority for setting salaries of elected state officials subject to veto by the General Assembly. On Mar. 17, the bill passed the House in the form of an amended floor substitute. It was immediately transmitted to the Senate, where H.R. 296 was amended in committee and then lost on a floor vote on Mar. 27. However, a motion to reconsider key the joint resolution alive, and it passed in another vote the next day and was sent back to the House, which accepted the Senate amendment on Mar. 28. The resolution was then sent to the governor on Apr. 17. On Apr. 29, 1997, Gov. Miller signed H.R. 296 (although his signature was not necessary on a proposed constitutional amendment).
While H.R. 296 authorizes the General Assembly to enact general laws providing for the administration of the affairs of the commission and to add other public officials to the list of officials whose salaries will be set by the citizens commission, the General Assembly did not enact implementing legislation contingent on the amendment's passage.

Actual text of Amendment No. 5:

Amendment No. 5 has seven different sections that amend seven different provision of the Georgia Constitution. [Deleted language in green enclosed in brackets, new language in red italics]

SECTION I.

If Amendment No. 5 is approved, the following new Sec. 8 will be added at the end of Art. 4:

"SECTION VIII.
"GEORGIA CITIZENS COMMISSION ON COMPENSATION OF PUBLIC OFFICIALS

"Paragraph I. Powers and duties. The Georgia Citizens Commission on Compensation of Public Officials shall set the salaries of the Governor; the Lieutenant Governor and the Speaker of the House of Representatives which shall be uniform; the Justices of the Supreme Court; the Judges of the Court of Appeals; the members of the General Assembly, which shall be uniform for all members, and any additional salaries for the officers of the General Assembly who are members of the General Assembly; the members of the Public Service Commission; the members of the State Board of Pardons and Paroles; the constitutional officers who are elected state wide; the superior court judges; the district attorneys; and such other officers of state government as may be provided for by general law. The Georgia Compensation Commission shall also set the amount of per diem compensation, if any, to be received by such officers.

"Paragraph II. Membership. (a) The commission shall be composed of 18 members who shall serve for terms of four years commencing December 1, 1998, and quadrennially thereafter. Each member shall serve until his or her successor has been appointed and qualified. Six members shall be appointed by the Governor. Three members shall be appointed by the Lieutenant Governor, one of whom shall be selected from a list of at least three names provided by the political party electing the second highest number of members of the Senate at the most recent general election. Three members shall be appointed by the Speaker of the House of Representatives, one of whom shall be selected from a list of names provided by the political party electing the second highest number of members of the House of Representatives at the most recent general election. Three members shall be appointed by the Supreme Court and three members by the Court of Appeals. Appointments shall be made not later than November 30, 1998, and every fourth year thereafter. The General Assembly shall enact general laws relating to the appointment procedure to ensure that at least one member of the commission resides in each congressional district. Should any vacancy on the commission occur from death, resignation, or otherwise, the appointing authority shall appoint a successor member to serve during the unexpired term.

"(b) In selecting members of the commission, each appointing authority shall seek to appoint a commission constituting a cross section of the citizens of Georgia with a broad and representative variety of opinions, backgrounds, business experience, personal experience, and education, such that the members shall exist as a true independent citizens commission.

"(c) No member of the commission shall hold any other public office or public employment. No member shall be a lobbyist as such term is defined by general law. The members of the commission shall receive no salary for their service on the commission but may be reimbursed as provided by law for expenses incurred in the service of the commission.

"Paragraph III. Manner of fixing compensation. (a) The commission shall no later than December 31 of 1998 and each subsequent even-numbered year thereafter fix the salaries and per diem committed to its jurisdiction under Paragraph I of this section; provided, however, that the commission shall report the salaries to the Governor and the General Assembly in writing on the first day of the first regular session of the General Assembly in odd-numbered years. The salaries so fixed by the commission shall become effective unless within the first 20 days of the first regular session of the biennium both houses of the General Assembly reject such action of the commission by an Act of the General Assembly adopted by a majority of the members elected to each house. The presiding officers shall call such proposed Act for a vote on the floor of each chamber within the first 20 legislative days of the first year of the biennium. The Governor may only veto such Act of the General Assembly rejecting the commission's actions within ten legislative days of its adoption. In such event, the General Assembly may still reject the commission's action by overriding the Governor's veto within ten legislative days thereof by a two-thirds' vote of both houses of the General Assembly. This section, however, shall not prohibit laws and other actions affecting the reimbursement of actual expenses incurred in public service by officers whose compensation is subject to the jurisdiction of the commission or laws and other actions defining retirement benefits, insurance benefits, and other employment benefits to be provided to such officers.

"(b) The commission shall biennially make a study of the compensation currently being paid by the state to the officers whose compensation is subject to its jurisdiction, and the commission shall compare such compensation with that currently being received by officers and employees serving in comparable positions with the federal government, this state, other states, and local governments and in industry, business, and the professions. The members of the commission shall be guided in setting the salaries by the levels of compensation that will attract and maintain qualified individuals in public service, as well as by the fact that public salaries must be financed through tax dollars paid by the state's citizens and businesses. The compensation fixed by the commission shall be based upon such study and on the principles stated in this subparagraph.

"Paragraph IV. Enactment of laws. Except as specifically provided otherwise in subparagraph (a) of Paragraph III of this section, the General Assembly may enact general laws providing for the administration of the affairs of the commission and other general laws in aid of this section. The General Assembly may from time to time provide for other public officers' compensation to be fixed by the commission and may likewise from time to time withdraw any such other public officers' compensation from the jurisdiction of the commission, but the General Assembly shall not withdraw from the jurisdiction of the commission the compensation of the officers specifically provided for in Paragraph I of this section."

SECTION 2.

Art. 3, Sec. 4 of the Georgia Constitution is amended by striking Par. 6 and inserting the following new Par. 6 in its place:

"Paragraph VI. Salaries. The members of the General Assembly shall receive such salary and per diem allowance as shall be provided for [by law, provided that no increase in salary shall become effective prior to the end of the term during which such change is made] in Article IV, Section VIII of this Constitution and may receive employment benefits and be reimbursed for actual expenses as provided by law."

SECTION 3.

Art. 4, Sec. 7 of the Georgia Constitution is amended by striking Par. 1 and inserting the following new Par. 1 in its place:

"Paragraph I. Qualifications[, compensation,] and removal from office. The qualifications, compensation, and removal from office of members of constitutional boards and commissions provided for in this article shall be as provided by law. The compensation of members of constitutional boards and commissions provided for in this article shall be as provided for in Section VIII of this article for those boards and commissions subject to the Georgia Citizens Commission on Compensation of Public Officials and otherwise shall be as provided by law."

SECTION 4.

Art. 5, Sec. 1 of the Georgia Constitution is amended by striking Par. 1 and inserting the following new Par. 1 in its place:

"Paragraph I. Governor: term of office; compensation and allowances. There shall be a Governor who shall hold office for a term of four years and until a successor shall be chosen and qualified. Persons holding the office of Governor may succeed themselves for one four-year term of office. Persons who have held the office of Governor and have succeeded themselves as hereinbefore provided shall not again be eligible to be elected to that office until after the expiration of four years from the conclusion of their term as Governor. The compensation and allowances of the Governor shall be as provided [by law] in Article IV, Section VIII of this Constitution."

SECTION 5.

Art. 5, Sec. 1 of the Georgia Constitution is amended by striking Par. 3 and inserting the following new Par. 3 in its place:

"Paragraph III. Lieutenant Governor. There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term, and in the same manner as the Governor. The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution. The compensation and allowances of the Lieutenant Governor shall be as provided [by law] in Article IV, Section VIII of this Constitution."

SECTION 6.

Art. 6, Sec. 7 of the Georgia Constitution is amended by striking Par. 5 and inserting the following new Par. 5 in its place:

"Paragraph V. Compensation and allowances of judges. All judges shall receive compensation and allowances as provided by law, except that the compensation of the Justices of the Supreme Court, the Judges of the Court of Appeals, and superior court judges shall be fixed as provided in Article IV, Section VIII of this Constitution. [; county] County supplements are hereby continued and may be granted or changed by the General Assembly. County governing authorities which had the authority on June 30, 1983, to make county supplements shall continue to have such authority under this Constitution. An incumbent's salary, allowance, or supplement shall not be decreased during the incumbent's term of office."

SECTION 7.

Art. 6, Sec. 8, Par. 1 of the Georgia Constitution is amended by striking subparagraph (c) and inserting the following new subparagraph (c):

"(c) The district attorneys shall receive such compensation and allowances as provided [by law] in Article IV, Section VIII of this Constitution and shall be entitled to receive such local supplements to their compensation and allowances as may be provided by law."

Impact of Amendment No. 5 on Georgia Constitution:

a. Sections of Georgia Constitution amended or exempted:

(1) Art. 4 (constitutional boards and commissions) is specifically amended by adding a new Sec. 8.

(2) Art. 3, Sec. 4, Par. 6 (salaries of members of General Assembly) is specifically replaced by a new Par. 6.

(3) Art. 4, Sec. 7, Par. 1 (qualifications, compensation, and removal from office of members of constitutional boards) is specifically replaced by a new Par. 1.

(4) Art. 5, Sec. 1, Par. 1 (governor's term of office, compensation, and allowances) is specifically replaced by a new Par. 1.

(5) Art. 5, Sec. 1, Par. 3 (lieutenant governor's office and compensation) is specifically replaced by a new Par. 3.

(6) Art. 5, Sec. 3, Par. 3 (duties and compensation of elected executive officers) is amended by implication in that salaries of "constitutional officers who are elected state wide" are specifically included among the salaries to be set by the proposed Georgia Citizens Commission on Compensation of Public Officials. Yet, Art. 5, Sec. 3, Par. 3 continues to provide: "Except as otherwise provided in this Constitution, the General Assembly shall prescribe the powers, duties, compensation, and allowances of the above executive officers [the elected officers in the executive branch known as 'constitutional officers'] . . . ." If Amendment No. 5 passes, there will be no elected executive officers for the General Assembly to prescribe their compensation by law.

(7) Art. 6, Sec. 7, Par. 5 (compensation and allowances of judges) is specifically replaced by a new Par. 5.

(8) Art. 6, Sec. 8, Par. 1 (qualifications and compensation of district attorneys) is specifically replaced by a new Par. 1.

b. Total number of words that will be added to the Georgia Constitution: 1,112 net (1,144 added, 32 deleted)

c. Is it necessary to amend Georgia Constitution to achieve amendment's objective?

To institute a procedure where by a commission sets the compensation of designated state officials subject to legislative veto requires a constitutional amendment. Under the Georgia Constitution, setting salaries of state officials is a legislative power and no bill can become law without the approval of a majority of the members of each house. Under this proposed procedure, the power to set salaries would be transferred to an independent commission, with the role of the legislature reversed where a majority of each house could only disapprove the commission's salary schedule.

d. Are there alternative ways to achieve the amendment's objective?

Georgia already has as a statutory compensation commission with advisory powers only. Generally, recommendations of that commission have not influenced actual salaries approved by the legislature. It might be possible to statutorily index the salary increases of major state officials to some objective factor, but any statutory arrangement qualifying the General Assembly's power over salaries probably would be an unconstitutional delegation of legislative power.

Arguments for and against Amendment No. 5

The Carl Vinson Institute of Government takes no position for or against Amendment No. 5. What follows are some actual or potential arguments and issues that have been or could be raised with respect to the amendment. Obviously, many other considerations can and will be raised prior to the Nov. 3 general election. As these additional arguments are raised, they will be added to this web page as appropriate.

Potential arguments for the amendment:

1. Amendment No. 5 attempts to remove the issue of salaries of public officials from the legislative agenda and put it in the hands of a neutral and non-partisan commission of citizens.

2. Since 1971, Georgia has had a statutory State Commission on Compensation with the same purpose as the proposed constitutional Georgia Citizens Commission on Compensation of Public Officials. The big difference is that it could only issue advisory reports to the General Assembly. As a result, its recommendations are generally ignored.

3. Under the present system, there are inequities in the salaries of Georgia's constitutional officers (those executive officers elected by the voters). Politics and personalities may dictate why one officer is paid more or less than another.

4. Georgia loses some of its best leaders, administrators, legislators, and judges because of an archaic system for setting salaries that has nothing to do with the difficulty or importance of the office. Moreover, salaries paid elected state officials cannot compete with the private sector for the top talent needed to lead our state.

5. The simple fact is that politically, most legislators cannot afford to vote for a salary increase for members of the General Assembly. In Georgia, newspaper editors and editorial cartoonists have never seen a salary increase for legislators they think is deserved. More importantly, any legislator voting to raise salaries will see that vote recalled time and time again by opponents in the next election. As a result, legislative salaries being set by legislators makes it less and less likely that qualified people will run for the House or Senate. In particular, the General Assembly needs some mechanism outside of partisan politics to say what are fair and reasonable salaries.

6. What is being proposed is nothing revolutionary. Commissions with similar powers function in Delaware,, Hawaii, Michigan, Nevada, Oklahoma, and Washington, while in Arizona the commission's recommendations bypass the legislature entirely and go directly to the voters.

Potential arguments against the amendment:

1. Amendment No. 5 takes determination of salaries of major officials in the executive, legislative, and judicial branches of state government out of the political process.

2. Concern about editorial and partisan criticism associated with efforts to raise legislative salaries has not deterred Congress and many other state legislatures.

3. The proposed system reverses the historical framework for enacting legislation in Georgia, where the General Assembly says what the law will be -- subject to executive veto. If the amendment passes, a board of citizens will set salaries -- something the legislature has always done - while the General Assembly would be in the role of vetoing proposed salaries.

4. Members of the proposed citizens compensation commission will not have to live with the political and fiscal consequences of the salaries they propose. The reality is that state government is not a business and probably will never be able to compete with the salaries paid in the private sector.

5. Although the amendment authorizes the General Assembly to add other state officers to the list of salaries set by the citizens commission, there are major inconsistencies as to who will be covered. For example, the salary of the chief officer of the State Department of Education is covered but that of the chief officer of the State Board of Regents is not. Salaries of members of the Public Service Commission are covered but those of the State Personnel Board (also a constitutional board) are not. Salaries of the administrators of the largest agencies in state government in terms of employees or expenditures -- such as the Department of Human Services and Department of Transportation -- are not covered.

For additional arguments for and against Amendment No. 5 by the Georgia League of Women Voters, click here.

Go to Part III

(c) 1998 Carl Vinson Institute of Government, The University of Georgia

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