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Official Opinion 99-6

Official Opinion 99-6

April 5, 1999
To: 

Executive Director
Georgia Peace Officer Standards and Training Council

Re: 

Special policemen, appointed pursuant to O.C.G.A. §§ 35-9-1 through 35-9-14, have and may exercise the powers of a peace officer "only upon the property or in connection with the property" to which they are appointed for the purpose of "protecting and preserving."

You have inquired about the appointment, enforcement authority and qualifications of special policemen pursuant to O.C.G.A. §§ 35-9-1 through 35-9-14. You have included within the scope of your inquiry persons appointed pursuant to O.C.G.A. § 35-9-15; persons appointed under that Code Section shall be addressed separately below.

Special policemen may be appointed by “the Governor of this state, or any officer or agency to whom or which he may delegate his powers and duties under this chapter,” and may be appointed “[u]pon the application of the governor of any state or subdivision thereof owning or having an interest in any property situated wholly or partly in this state.” O.C.G.A. § 35-9-2. The appointment of such special policemen shall be made in writing, and such “certificate of appointment” shall authorize the appointee to exercise the duties conferred upon him by that Chapter. O.C.G.A. §§ 35-9-3, -5.

The qualifications for a special policeman include only that such appointee “is a citizen of the United States, is a person of good moral character, and has not previously been convicted of a felony.” O.C.G.A. § 35-9-4. Such appointees must “take and subscribe the oath prescribed by Code Section 45-3-1 and file it in the office of the appointing authority” within 15 days of such appointment. O.C.G.A. § 35-9-6.

The powers and duties of special policemen are set forth in O.C.G.A. § 35-9-9. Special policemen are charged with the duty of protecting and preserving the property described by the foreign owner or interest holder, and may exercise the powers of a peace officer, including the power of arrest, “only upon the property or in connection with the property described .” Id. Special policemen may “possess and carry such firearms and other weapons while on duty as may be prescribed by the appointing authority.” Id. Special policemen must, while on duty, wear a metallic badge inscribed with the words “special policeman.” Id.

The appointment of a special policeman may be terminated by either the governor of the state requesting his appointment or by the appointing authority, as is defined by O.C.G.A. § 35-9-1. O.C.G.A. § 35-9-11. No governmental entities in Georgia may be liable for the acts or omissions of such special policemen “in connection with [their] powers and duties under Code Sections 35-9-2 through” 35-9-12. O.C.G.A. § 35-9-12. Special policemen are to be compensated, if at all, by “the state, political subdivision, department, agency, or district requesting his employment,” and shall “be deemed to be an employee of the state, political subdivision, department, agency, or district.” O.C.G.A. §§ 35-9-7, -8.

The Governor of Georgia is authorized to apply to the governor of any other state for the appointment of special policemen for the protection of any property which is owned, or in which any interest is held, by this state or any subdivision thereof. O.C.G.A. § 35-9-13.

While it is clear from the foregoing that special policemen appointed pursuant to O.C.G.A. § 35-9-1 through O.C.G.A. § 35-9-14 are not subject to the requirements of the Peace Officer Standards and Training Act (O.C.G.A. Title 35, Chapter 8), and may exercise the powers and duties of peace officers as described above, those powers and duties may be exercised “only upon the property or in connection with the property described.” O.C.G.A. § 35-9-9(a)(3). Thus, it is axiomatic that a special policeman may not act as a peace officer in this state in any way or at any place not “upon the property or in connection with the property described in the application for his appointment;” that is, the property which is owned, or in which an interest is held, by the foreign state, political subdivision, department, agency, or district requesting his appointment.

It appears clear, therefore, that special policemen may not be appointed pursuant to O.C.G.A. §§ 35-9-1 through 35-9-14 by a political subdivision of this state for such purposes as enforcement of traffic laws and ordinances, as this statutory scheme clearly envisions that the property in need of “protecting and preserving” must be property which is owned, or in which an interest is held, by a foreign state, political subdivision, department, agency, or district requesting his appointment.

You have also included in your inquiry a request for an opinion regarding O.C.G.A. § 35-9-15, dealing with the appointment of law enforcement officers of the United States or of any state as an officer of this state. This Code Section is to be analyzed separately because of its distinct provisions and application.

Pursuant to O.C.G.A. § 35-9-15, a law enforcement officer of the United States or of any state may be appointed, upon the request of “the sheriff or the chief or director of a law enforcement agency of this state or any political subdivision thereof,” for the purpose of providing “mutual assistance in the enforcement of the laws of this state or of the United States.” O.C.G.A. § 35-9-15(a). When so appointed, the appointee has “the same powers, duties, privileges, and immunities as a law enforcement officer employed by the appointing [domestic] agency.” Id.

While Chapter 8 of Title 35 of the Official Code of Georgia Annotated does not apply to a person appointed pursuant to O.C.G.A. § 35-9-15, such person must be a law enforcement officer of the United States or of any state prior to such appointment. Thus, the appointee must necessarily possess the requisite qualifications to hold the position of law enforcement officer within that officer’s home jurisdiction.

Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General