You are here

Official Opinion 97-22

Official Opinion 97-22

June 18, 1997
To: 

Joint Secretary
State Examining Boards

Re: 

(1) Peace officers are exempt from licensure by the Georgia Board of Private Detective and Security Agencies in very limited circumstances. (2) A peace officer engaged in the private detective or security business may not employ other peace officers, unless those individuals are licensed or registered by the Board. (3) All peace officers, licensed by the Board and intending to carry firearms, must obtain a Board-issued weapons permit.

You requested a legal opinion concerning three matters related to licensure by the Georgia Board of Private Detective and Security Agencies ("the Board") and exemptions for law enforcement officers. First, you inquired whether police officers are exempt from the Board's licensure requirements. Second, you inquired whether a police officer who owns a private detective/private security firm may employ other police officers without licensing or registering those individuals with the Board. Finally, you inquired whether police officers who are licensed by the Board must obtain a separate weapons permit issued by the Board.

Official Code of Georgia Annotated § 43-38-14(a)(5) sets forth the exemption criterion for peace officers as follows:

(a) This chapter shall not apply to . . . . (5) A peace officer employed on a full-time basis by a state, county, or local law enforcement agency who contracts directly with an employer to work during his off-duty hours and whose off-duty employment is conducted on an independent contractor

basis with an employer other than a peace officer engaged in the private detective or private security business or a private detective or private security agency, subject to Code Section 16-10-3, relating to the receipt of funds by state officers or employees for the enforcement of penal laws.

First, the peace officer must be "employed on a full-time basis by a state, county, or local law enforcement agency." O.C.G.A. § 43-38-14(a)(5); 1974 Op. Att'y Gen. 74-148 (exemption extends only to individuals who devote, on a regular basis, their full time to maintaining the public order). Second, the peace officer must contract directly with an employer. The employment must take place during a time in which the peace officer is off-duty, and the contract relationship must be that of an independent contractor.

The peace officer's independent contractor relationship with an employer is subject to O.C.G.A. § 16-10-3. Official Code of Georgia Annotated § 16-10-3(a) provides that it is a misdemeanor for a state employee or officer to receive a thing of value "to be used in the enforcement of the penal laws or regulations of the state." Official Code of Georgia Annotated § 16-10-3(b) provides parallel provisions for political subdivisions of the state. Official Code of Georgia Annotated § 16-10-3(c)(1), however, provides:

(c) Nothing contained within this Code section shall be deemed or construed so as to prohibit any law enforcement officer of the state or any political subdivision thereof: (1) From being employed by private persons, firms, or corporations during his off-duty hours when such employment is approved in writing by the chief or head, or his duly designated agent, of the law enforcement agency by which such law enforcement officer is employed.

Any peace officer contemplating employment of this nature should discuss such employment with the chief or head of the respective law enforcement agency and obtain written approval.

Finally, an unlicensed peace officer is limited in the employers with whom he may contract. An unlicensed peace officer may not work for another "peace officer engaged in the

private detective or private security business or a private detective or private security agency." O.C.G.A. § 43-38-14 (a)(5).

Peace officers, therefore, are exempt from Board licensure in extremely limited circumstances. The foregoing analysis also resolves your second inquiry. A peace officer engaged in the private detective or private security business may employ off- duty peace officers, but only if those off-duty peace officers are licensed by the Board.

Your last inquiry addresses whether peace officers licensed by the Board must obtain a weapons permit from the Board in addition to Peace Officer Training Certification. This matter was answered previously in Opinion of Attorney General No. 86-22. See also O.C.G.A. § 43-38-10(c) (all licensees seeking to carry firearms "shall be required to obtain from the board a weapons permit"). Consistent with the law, all peace officers who are licensed by the Board and intend to carry firearms must obtain a Board-issued weapons permit.

Prepared by:

KEVIN H. HUDSON
Assistant Attorney General