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Unofficial Opinion 92-22

Unofficial Opinion 92-22

December 21, 1992
To: 

District Attorney

Re: 

Use of the proceeds of forfeitures under O.C.G.A. § 16-13-49 to pay the salary of the Executive Director of the Multi-Agency Narcotics Squad.

This responds to your request for an opinion concerning the legality of using the proceeds of forfeited property and cash under O.C.G.A. § 16-13-49 to pay the salary of the Executive Director/Prosecuting Attorney of the Multi-Agency Narcotics Squad in your circuit.  The Squad is made up of law enforcement officers from the Hall County Sheriff's Office, City of Gainesville Police Department and the City of Oakwood Police Department.  There is an Executive Board which is made up of yourself, the Hall County Sheriff, and the Chief of Police from each city.  In addition, the Special Agent in Charge of Drug Enforcement for the GBI's Gainesville Region is a member of the Executive Board.

You have informed me that the Executive Board unanimously decided to employ an Executive Director/Prosecuting Attorney to perform the following functions: (1) manage the Squad's [*2]  administrative activities with respect to obtaining grant funding, and (2) as an appointed Assistant District Attorney, manage the prosecution of the Squad's criminal caseload.  The Executive Director/Prosecuting Attorney does not, however, have the power to hire or fire any of the personnel working in the unit.  It was the decision of the Executive Board that the Executive Director/Prosecuting Attorney would be salaried and paid out of the Squad's forfeiture fund.  Finally, you have informed me that the governing authorities of each of the participating government entities have specifically approved of the use of the fund for this purpose.

Your specific question is whether the provisions of O.C.G.A. § 16-13-49(u)(4)(D)(i) and (ii) prohibit the use of the proceeds of forfeited and condemned property to pay the salary of the Executive Director/Prosecuting Attorney.  These provisions govern the distribution of the proceeds of such forfeitures within local governments and provide as follows:

"(D)(i) Property and money distributed to a local government shall be passed through to the local law enforcement agency until the sum equals 33 1/3 percent of the amount of local funds appropriated [*3]  or otherwise made available to such agency for the fiscal year in which such funds are distributed. Proceeds received may be used for any official law enforcement purpose except for the payment of salaries or rewards to law enforcement personnel, at the discretion of the chief officer of the local law enforcement agency, or may be used to fund victim-witness assistance programs.  Such property shall not be used to supplant any other local, state, or federal funds appropriated for staff or operations.

(ii) The local governing authority shall expend any remaining proceeds for any law enforcement purpose; for the representation of indigents in criminal cases; for drug treatment, rehabilitation, prevention, or education or any other program which responds to problems created by drug or substance abuse; for use as matching funds for grant programs related to drug treatment or prevention; to fund victim-witness assistance programs; or for any combination of the foregoing."

For the purposes of this opinion, it is assumed that there is no issue with respect to the division of the funds among the three local entities involved, the use of the funds being agreed to by all the local governing [*4]  authorities.  The focus of the inquiry, then, is the prohibition in subsection (u)(4)(D)(i) against the use of the funds for the "payment of salaries or rewards to law enforcement personnel . . ." and whether the Executive Director/Prosecuting Attorney falls within the contemplation of this prohibition.

It has been suggested that the Executive Director/Prosecuting Attorney does not fall within the "law enforcement personnel" language because he does not function as a law enforcement officer, making arrests, etc.  It is clear that the Executive Director/Prosecuting Attorney is not a law enforcement officer. He is not a peace officer with the duty to make arrests for the violation of this State's criminal laws.  See Op. Atty Gen. U80-33; O.C.G.A. § 35-8-2(8).

In the construction of statutes, however, words are given their ordinary signification except terms of art.  O.C.G.A. § 1-3-1(b).  Risser v. City of Thomasville, 248 Ga. 866, (1982).  Utilizing this general rule, the phrase "law enforcement personnel" is broader than "law enforcement officer" in that it would encompass "the body of persons employed by or active in an organization, . . . or service." The American Heritage [*5]  Dictionary, 2d College Ed.  p. 926 (1985).  The word "personnel" would include not only those actively involved in the major activities of an organization, but also those who provide support, direction, or oversight.

Therefore, as long as the Executive Director is attached to, and engages in support activities for the Multi-Agency Narcotic's Squad, I cannot say that he is not among the class of persons contemplated by the phrase "law enforcement personnel." Therefore, the payment of his salary from the Squad's forfeiture fund would, in my opinion, be violative of O.C.G.A. § 16-13-49(u)(4)(D)(i).

However, in light of the fact that the Executive Director/Prosecuting Attorney has been appointed an Assistant District Attorney, it is possible that at least a portion of his salary as an Assistant District Attorney could be paid from the proceeds of forfeited property.  Under O.C.G.A. § 16-13-49(u)(4)(B), counties are authorized "to provide for payment of any and all expenses for the operation of the [District Attorney's] office from said forfeiture pool up to 10 percent of the amount distributed, in addition to any other expenses paid by the county to the district attorney's office."  [*6]  The District Attorney's authority to hire additional personnel, including prosecuting attorneys, is found in O.C.G.A. § 15-18-20.  This code section requires either the passage of a local law or official action of the governing authority of the county or counties authorizing the employment of additional assistants.  Of course, to avoid the prohibition of O.C.G.A. § 16-13-49(u)(4)(D)(i), the assistant district attorney would have to be disconnected from the running or management of the Squad.

Under both of these code sections funding comes from the county or counties of the judicial circuit, and there does not appear to be any authority for contributions to the District Attorney's office by municipal governing authorities.  There being no express or implied legislative authority for the municipalities to make such payments, and since it cannot be said that such would be "essential" to the operation of the cities, it is my view that such would not be a lawful expenditure.  See Jewel Tea Co. v. City Council, 59 Ga. App. 260 (1938). Moreover, since the General Assembly has dealt with this subject by general law, municipal participation would not be authorized under "Home Rule"  [*7]  principles.  See O.C.G.A.  § 36-35-3(a).  Therefore, assuming proper authorization under O.C.G.A. § 15-18-20, any such payments would be required to be made from Hall County's ownership share of the forfeiture fund, paid directly into the District Attorney's operating budget, and limited to 10 per cent of the county's share of the fund.

It should be pointed out that there could be some risk associated with this type arrangement since the county share of forfeitures may fluctuate from year to year.  Therefore, an additional arrangement from the county or counties in your circuit pursuant to O.C.G.A. § 15-18-20 to insure a continuity of funding for the position might be warranted.

I trust this has been responsive to your request.  Of course, should you have any questions or comments concerning this matter, please do not hesitate to contact me.

Prepared by:

MICHAEL E. HOBBS,

Deputy Attorney General