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Official Opinion 2002-5

Official Opinion 2002-5

September 24, 2002
To: 

Director
Criminal Justice Coordinating Council

Re: 

Under Georgia law federal forfeiture funds may not be used to pay the salaries, including overtime pay and other benefits, to law enforcement officers.

You have requested my opinion whether state and local law enforcement officers assigned to drug task forces may be paid for overtime using federal forfeiture funds. It is my opinion that such use of federal forfeiture funds is prohibited by O.C.G.A. §§ 16-13-48.1 and 16-13-49(u)(4)(D)(i).

Generally, state and local law enforcement agencies may receive forfeited assets through either state or federal forfeiture procedures. Under Georgia law, property, money, or other things of value which are either directly or indirectly linked to a violation of the Georgia Controlled Substances Act, O.C.G.A. §§ 16-13-20 through 16-13-56, are subject to forfeiture pursuant to O.C.G.A. § 16-13-49. While proceeds from assets forfeited pursuant thereto may be used “for any official law enforcement purpose,” proceeds may not be used “for the payment of salaries or rewards to law enforcement personnel.” O.C.G.A. § 16-13-49(u)(4)(D)(i). See also 1992 Op. Att’y Gen. U92-22 (assets forfeited pursuant to O.C.G.A. § 16-13-49 may not be used to pay the salary of the executive director of a multi-agency narcotics squad).

Assets received by state and local law enforcement agencies may also result from federal law. See 18 U.S.C. § 981; 19 U.S.C. §§ 1613b(a)(1)(F) and 1616a(c)(1)(B)(ii); 21 U.S.C. § 881. The disposition of federally forfeited property or sale proceeds generated therefrom is generally left to the discretion of the Attorney General of the United States or the Secretary of the Treasury of the United States depending upon the nature of the forfeiture. 18 U.S.C. § 981(e). Pursuant to this discretion, these officials may “transfer such property on such terms and conditions as [t]he[y] may determine . . . to any State or local law enforcement agency which participated directly in any of the acts which led to the seizure or forfeiture of the property.” 18 U.S.C. § 981(e)(2) (emphasis supplied). Your question is whether proceeds received by state and local law enforcement agencies pursuant to this type of federal forfeiture may be used to pay overtime to law enforcement officers assigned to local and regional drug task forces.

Regarding federal forfeitures received by state and local law enforcement agencies, Georgia law states:

Money or property seized or forfeited pursuant to federal law regarding controlled substances, marijuana, or dangerous drugs, which money, property, or proceeds therefrom are authorized by that federal law to be transferred to a cooperating law enforcement agency of this state or any political subdivision thereof, shall be utilized by the law enforcement agency or political subdivision to which the money, property, or proceeds are so transferred as provided by such federal law and regulations thereunder. Unless otherwise required by federal law or regulation, such funds shall be received and utilized as provided by Georgia law.

O.C.G.A. § 16-13-48.1 (emphasis supplied).

Therefore, “unless otherwise required by federal law,” money or property received pursuant to federal forfeitures must be used in accordance with Georgia law. The initial question is whether federal law requires that federally forfeited assets be used for the payment of salaries of state and local law enforcement agents.

As to the federal forfeiture statutes, there is no federal requirement that forfeited property or proceeds transferred to state and local law enforcement agencies must be used for the payment of law enforcement overtime salaries. On the contrary, the only statutory reference to overtime salaries is in a discretionary context where the payment of overtime salaries is listed as an “available” use of the transferred forfeitures. See 19 U.S.C. § 1613b(a)(3)(F); 28 U.S.C. § 524(c)(1)(I). Thus, payment of overtime salaries is not a required use under federal law.

Moreover, as noted above, transfers of federally forfeited assets may be made “on such terms and conditions as [the federal officials] may determine.” 18 U.S.C. § 981(e). The United States Attorney General has provided compliance guidelines to assist in the proper sharing of federal forfeiture funds. See EXECUTIVE OFFICE FOR ASSET FORFEITURE, OFFICE OF THE DEPUTY ATT’Y GEN., U.S. DEP’T OF JUSTICE, A GUIDE TO EQUITABLE SHARING OF FEDERALLY FORFEITED PROPERTY FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES (1994) (hereinafter “the GUIDE”). As stated in the foreword of the GUIDE by the Attorney General, the purpose of the GUIDE is “to enhance the integrity of the sharing program so that it will continue to merit public confidence and support.” In the absence of other directives, the GUIDE is assumed to set out the United States Attorney General’s terms and conditions for 18 U.S.C. § 981(e)(2) transfers to state and local law enforcement agencies.

The GUIDE states that overtime for state and local law enforcement agents is a “permissible” use of transferred funds, but the GUIDE also contains a caveat that such use is “[s]ubject to laws . . . of the state or local jurisdiction governing the use of public funds available for law enforcement purposes.” GUIDE, § X.A.1.a, at 10. Moreover, the GUIDE’s “Impermissible Uses” section provides that

[s]hared funds may not be used for any purpose that would constitute an improper use of state or local law enforcement funds under the laws . . . of the state or local jurisdiction of which the agency is a part.

Id., § X.A.2.e, at 12.

A policy statement issued by the United States Department of Justice as an addendum to the GUIDE provides:

The prospect of receiving forfeited funds should not influence the relative priorities of law enforcement agencies. Moreover, there should be no appearance that law enforcement decisions are motivated by the prospect of receiving forfeited funds. Accordingly, asset forfeiture funds generally should not be used to pay the salaries of law enforcement officers.

Id., Addendum, § 3, at 3.

Since there is no federal requirement that federally transferred forfeiture funds must be used for the payment of overtime to state and local law enforcement agents, the use of such funds is controlled by state law. The General Assembly has prohibited state law forfeitures from being used “for the payment of salaries or rewards to law enforcement personnel.” O.C.G.A. § 16-13-49(u)(4)(D)(i). Thus, it is my opinion that such funds may not be used to pay the salaries of law enforcement officers since such use is prohibited by O.C.G.A. § 16-13-49(u)(4)(D)(i).

Moreover, the Georgia Supreme Court has broadly defined “salary” as “compensation paid by an employer for services rendered . . . . [It] is not dependent on the frequency or duration of the services performed.” Bardugon v. Bardugon, 268 Ga. 361 (1997). Additionally, benefits received by an employee as a part of the employee’s compensation package are also included within the broad definition of “salary.” Guntin v. Guntin, 263 Ga. 241, 242 (1993). Given these holdings, it is my further opinion that overtime compensation and other related benefits are included within the definition of “salaries” prohibited by O.C.G.A. § 16-13-49(u)(4)(D)(i).

Therefore, it is my official opinion that under Georgia law federal forfeiture funds may not be used to pay the salaries of law enforcement officers, including overtime pay and other benefits.

Prepared by:

J. JAYSON PHILLIPS
Assistant Attorney General