County jail inmates generally may not be utilized to clean graffiti from private property unless it can be clearly demonstrated that the use of such inmates for this purpose confers a substantial public benefit.
You have requested my opinion whether it is legal for a county government to utilize county jail inmates to remove or paint over what you have described as gang-related graffiti where a request for such work has been received from a private property owner pursuant to a county-created program. I understand that this service would be performed at county expense with no charge to the requesting private property owner. It is my opinion that the use of such penal labor in the general situation that you have described in the absence of a clear and substantial public benefit would violate the Gratuities Clause of the Georgia Constitution. GA. CONST. Art. III, Sec. VI, Para. VI(a).
The Gratuities Clause of the Georgia Constitution provides that “the General Assembly shall not have the power to grant any donation or gratuity.” Id. While this clause specifically addresses gratuities conferred by the General Assembly, it also applies to cities and counties. Grand Lodge of Ga., I.O.O.F. v. City of Thomasville, 226 Ga. 4, 8 (1970). A gratuity is defined as “something given freely or without recompense; a gift.” Garden Club of Ga. v. Shackelford, 266 Ga. 24 (1995); McCook v. Long, 193 Ga. 299 (1942). Where the State receives no substantial benefit, the free use of state labor generally or state property violates the constitutional prohibition regardless of the worthiness of the purpose or the recipient. See Garden Club of Ga. v. Shackelford, 266 Ga. at 25; 1993 Op. Att’y Gen. U93-14.
Notwithstanding these general prohibitions, when the State is acting pursuant to its police powers, incidental benefits flowing to a private recipient can be outweighed by a greater benefit flowing to the State, and thus not violate the Gratuities Clause.1 Examples within this category include welfare programs, disaster assistance programs and police and firefighting services. Specifically in the case of penal labor, where such labor has been utilized in such a way that it results in some benefit to a private land owner, the use is permissible under the Gratuities Clause “so long as [the transaction] was entered into in good faith, for the purpose of procuring the use of land for the state [a substantial benefit], rather than as a guise whereby the private land-owner is enabled to receive a gratuity from the state.” 1958 Op. Att’y Gen. 248 (acreage cleared by penal labor in exchange for three years occupation of the land by prison). See also 1969 Op. Att’y Gen. 69-158 (use of penal labor on private property is permissible “in situations where the sole benefit flows to the State”).
In the proposal you have described, the county would use county prisoners to clean up gang-related graffiti from private property. Undoubtedly, the impact of criminal street gang activity upon society is a continuing public safety concern. However, despite the aesthetic value that would result to the public from this proposal, in the usual circumstances in which gang-related graffiti removal would occur the essential benefit inures to the private property owner who, with the receipt of the free labor and materials, is relieved of the expense of painting over or removing the graffiti from his property. Whether any reciprocal and substantial benefit would accrue to the public is not apparent from the information provided to me.2
In previous opinions of the Attorney General, similar circumstances have been viewed as violative of the Gratuities Clause. See 1999 Op. Att’y Gen. 99-11 (state inmate labor at solid waste management authority which contracts with private, for-profit entity for consulting and marketing services is prohibited by O.C.G.A. § 42-5-60, a statute which derives its authority from the Gratuities Clause); 1967 Op. Att’y Gen. 67-452 (inmates in automobile training section of a state prison program cannot perform free work upon privately-owned vehicles). Moreover, the intent of the General Assembly in regard to penal labor is reflected in O.C.G.A. § 42-5-60(e), which states that in the case of state inmates penal labor is authorized “for the construction, repair, or maintenance of roads, bridges, public buildings, and any other public works.” (Emphasis added.) Such projects do not contemplate using such labor to improve private property.3
The alternative authority granted to the General Assembly under Article III, Section VI, Paragraph VI(f) of the Georgia Constitution does not alter that view. It authorizes the General Assembly to provide for compensating innocent victims of crimes from government funds. However, the General Assembly has limited the class of victims to which this provision of the Gratuities Clause applies. See O.C.G.A. §§ 17-15-1 through -14. While persons whose private property has been marked with graffiti are certainly the victims of a property crime, see O.C.G.A. § 16-7-21 (criminal trespass) and § 16-7-23(a)(1) (criminal damage to property), the General Assembly has defined “victim” to require physical injury and prohibited compensation to the victims of property crimes. O.C.G.A. §§ 17-15-2(8) and -7(g).
Based upon the limited factual circumstances set forth in your letter, and with no clearly articulated and substantial benefit flowing to the public, it is my unofficial opinion that a county program that provides free penal labor for the purpose of removing or painting over gang-related graffiti on private property is prohibited by the Gratuities Clause of the Georgia Constitution. Use of inmate labor in these circumstances would be permissible only if it can be clearly demonstrated that such labor confers a substantial public benefit.
J. JAYSON PHILLIPS
Assistant Attorney General
1 “The inherent police power of the state extends to the protection of the lives, health and property of the citizen, and to the preservation of good order and public morals and is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of public interest.” Pope v. City of Atlanta, 242 Ga. 331, 333 (1978).
2 This does not preclude the possibility that, in some circumstances, the use of inmate labor might be authorized pursuant to the State’s police power, thus resulting in a substantial benefit to the State. Such a circumstance might include, for instance, removing gang-related graffiti painted upon a house if the text of said graffiti urged people to riot at some future date and time. See O.C.G.A. § 16-11-31(a).
3 Using penal labor to remove or paint over graffiti on government-owned buildings is not violative of the Gratuities Clause. See O.C.G.A. § 42-5-60(e), authorizing the use of state inmates as labor on public roads and public works.