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Official Opinion 2012-3

Official Opinion 2012-3

February 29, 2012
To: 

Chairman,
State Board of Workers Compensation

Re: 

Investigators of the Enforcement Division who are certified as peace officers may enforce the new statute of aggravated identity fraud, O.C.G.A. § 16-9-121.1, by arrest and the execution of search warrants provided that it is the result of a criminal investigation of an alleged violation of the workers’ compensation laws of Chapter 9 of Title 34.

You have requested my official opinion regarding the authority of the Enforcement Division of the State Board of Workers’ Compensation to enforce the new criminal statute of aggravated identity fraud under O.C.G.A. § 16-9-121.1. It is my official opinion that the Enforcement Division is authorized to enforce this criminal statute provided that its investigators are certified as peace officers and the enforcement results from an investigation into alleged violations of the workers’ compensation laws in Chapter 9 of Title 34.

The new offense of aggravated identity fraud was recently enacted as part of the Illegal Immigration Reform and Enforcement Act of 2011, 2011 Ga. Laws 794. A person commits this offense when "he or she willfully and fraudulently uses any counterfeit or fictitious identifying information concerning a real, fictitious, or deceased person with intent to use such counterfeit or fictitious identifying information for the purpose of obtaining employment." O.C.G.A. § 16-9-121.1(a). A violation of Code Section 16-9-121.1 is "punishable by imprisonment for not less than one nor more than 15 years, a fine not to exceed $250,000, or both, and such sentence shall run consecutively to any other sentence which the person has received." O.C.G.A. § 16-9-126(a.1).

The offense of aggravated identity fraud is found in Article 8 of Chapter 9 which covers identity fraud offenses in the Criminal Code of Georgia. See O.C.G.A. §§ 16-9-120 through -132. Although the Administrator of the Governor’s Office of Consumer Protection has been designated to initiate investigations and receive consumer complaints regarding identity fraud, this designation does not "preclude any otherwise authorized law enforcement or prosecutorial agencies from conducting investigations and prosecuting offenses of identity fraud." O.C.G.A. § 16-9-123.

The Enforcement Division of the State Board of Workers’ Compensation is established by O.C.G.A. § 34-9-24. That statute authorizes the Enforcement Division to "assist the chairperson in administratively investigating allegations of fraud and non-compliance" and also authorizes it to "promptly notify the appropriate prosecuting attorney’s office of any action which involves criminal activity." O.C.G.A. § 34-9-24(a). The statute further states that "[w]hen so required or requested by the chairperson or the specific district attorney, the unit shall cooperate with the district attorney in the investigation and prosecution of criminal violations." Id.

Investigators within the Enforcement Division who are certified as peace officers "in compliance with Chapter 8 of Title 35 shall have the authority to execute search warrants and make arrests pursuant to warrants only if such warrants [are] issued as the result of a criminal investigation of an alleged violation of this chapter." O.C.G.A. § 34-9-24(c). Investigators are also "authorized to serve subpoenas in connection therewith." Id. However, the use of subpoenas should be avoided once it appears that the focus of an investigation is criminal.

The Georgia Peace Officer Standards and Training Act in Chapter 8 of Title 35 defines "peace officer" in part as "[a]n agent, operative, or officer of this state . . . who . . . is vested either expressly by law or by virtue of public employment or service with authority to enforce the criminal or traffic laws through the power of arrest and whose duties include the preservation of public order, the protection of life and property, and the prevention, detection, or investigation of crime." O.C.G.A. § 35-8-2(8)(A). "Peace officer" is alternatively defined as "an administrative investigator who is an agent, operative, investigator, or officer of this state whose duties include the prevention, detection, and investigation of violations of law and the enforcement of . . . requirements of his or her respective employing agency." O.C.G.A. § 35-8-2(8)(D).

According to Code Section 16-9-123, any authorized law enforcement or prosecutorial agency may conduct investigations of aggravated identify fraud. The statute establishing the Enforcement Division clearly authorizes investigators certified as peace officers to make arrests and execute search warrants "as the result of" a criminal investigation of an alleged violation of the workers’ compensation laws. O.C.G.A. § 34-9-24(c). It is important to note, however, that this is a limited authorization and investigators should ensure that their conduct conforms to the wording of the statute.

Therefore, it is my official opinion that investigators of the Enforcement Division certified as peace officers may enforce the new statute of "Aggravated Identity Fraud" by arrest and the execution of search warrants provided that it is the result of a criminal investigation of an alleged violation of the workers’ compensation laws of Chapter 9 of Title 34. 

Prepared by:

Alex F. Sponseller

Assistant Attorney General