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Official Opinion 2008-5

Official Opinion 2008-5

June 10, 2008
To: 

Commissioner, Department of Juvenile Justice

Re: 

The Department’s probation staff may assist prosecuting attorneys in obtaining necessary reports and files and in creating delinquency petitions but may not conduct an accusatory proceeding.  The Department’s probation staff must also comply with valid court orders issued pursuant to O.C.G.A. § 15‑11‑24.2(6).

You have requested advice regarding the extent to which the Department of Juvenile Justice’s probation staff may participate in various juvenile delinquency proceedings.  In particular, you have asked whether the Department’s staff would engage in the unauthorized practice of law by drafting delinquency petitions, preparing orders, or conducting hearings.  Finally, you have asked whether the juvenile court has any authority to order Department staff to assist with the petition process.  It is my official opinion that the Department’s probation staff would engage in the unauthorized practice of law by conducting any accusatory proceedings.  However, the Department is required to assist prosecuting attorneys in obtaining necessary documents and files and to comply with court orders issued pursuant to section 15‑11‑24.2(6) of the Official Code of Georgia Annotated (“Georgia Code”).  This may include assistance in drafting of documents.

 

Delinquency Petitions and the Unauthorized Practice of Law

 

The Department’s probation staff would not engage in the unauthorized practice of law by drafting charging documents such as delinquency petitions.   However, since those petitions are charging documents, they would be filed in court to initiate a new action against the juvenile.  Filing of such documents should be done by the prosecutor or a law enforcement officer rather than by the Department’s probation staff.

Title 15, Chapter 11 of the Georgia Code sets forth Georgia’s statutory requirements for juvenile court proceedings.  Under O.C.G.A. § 15‑11‑38, a “petition alleging delinquency, deprivation, or unruliness of a child may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true.”  However, probation officers are specifically forbidden from conducting “accusatory proceedings against a child who is or may be under such probation officer’s care or supervision” by O.C.G.A. § 15‑11‑24.2(5), and juvenile court rules explicitly forbid a probation officer from conducting any accusatory proceeding.  See Unif. Juv. Ct. R. 2.4.  An accusatory proceeding is “any hearing or court proceeding in which the child stands accused of violating the law or an order of the court and is subject to court sanctions as a result thereof.”  Id.  In such proceedings, a probation officer may not serve “either as the trier of facts or in a prosecutorial role, but may give testimony as to any violation of a valid order of probation or supervision of which he or she has personal knowledge.” Id.  Thus, drafting of documents may be permissible but the ultimate responsibility for the work product would rest on someone other than the probation officer.

 

The Department’s Responsibilities in the Prosecution of Juvenile Delinquency Matters

 

The Department’s probation staff has a duty to assist the district attorneys in obtaining files, transcripts, reports, and recommendations.  However, the probation officer’s role in juvenile court proceedings is distinct and separate from the district attorney’s role.  In juvenile proceedings, district attorneys “conduct the proceedings on behalf of the state.”  O.C.G.A. § 15‑11‑64.1.  In contrast, probation officers “make investigations, reports, and recommendations to the court . . . ; receive and examine complaints and charges of delinquency, unruly conduct, or deprivation of a child . . . ; and supervise and assist a child placed on probation . . . .”  O.C.G.A. § 15‑11‑24.2(1), (2), and (3).  Additionally, probation officers are statutorily forbidden from conducting “accusatory proceedings against a child who is or may be under such probation officer’s care or supervision,” and juvenile court rules provide that a “probation or non-judicial officer shall not conduct an accusatory proceeding against any child.” O.C.G.A. § 15‑11‑24.2(5); Unif. Juv. Ct. R. 2.4.

Probation officers do have a duty “to assist the district attorney or staff member in obtaining any such files, transcripts, reports, or records, or copies thereof, as may be requested by the district attorney or staff member.”  O.C.G.A. § 15‑11‑64.1.   Therefore, although probation officers are specifically forbidden from conducting accusatory proceedings, they are required to help the district attorney.

The Georgia Court of Appeals has discussed, in dicta, both the legal and ethical considerations of probation officers’ involvement in juvenile court proceedings.  See In the Interest of P.L.S., 170 Ga. App. 74 (1984) (declining to reverse the juvenile court’s decision because appellant’s argument that it was error for a probation officer to conduct the accusatory proceedings was not raised below).  According to the Court of Appeals, “[i]t is clear that the official whose statutory responsibilities include the supervision and assisting of juveniles can best serve that remedial function if, insofar as possible, he remains an objective and unbiased figure in the eyes of those juveniles whom he supervises and assists.”  Id. at 76.

As stated by the Court of Appeals, probation officers must maintain a degree of objectivity in order to carry out their responsibilities of reporting on, making recommendations for, supervising, and assisting juveniles.  Although probation officers must help the district attorney obtain necessary reports and files, they must not conduct the accusatory proceeding.

 

The Court’s Authority to Order Department Staff to Assist in the Petition Process

 

Your letter questions whether the Department’s probation staff, as employees of the executive branch, are subject to O.C.G.A. § 15‑11‑24.2.  It is my opinion that they are, and that Department staff serving as probation officers in a juvenile court must comply with valid court orders issued pursuant thereto.

To find that Department employees are not subject to O.C.G.A. § 15‑11‑24.2 would be to find that the General Assembly intended to leave it to the Department to decide what duties and powers constitute probation services.   Such does not appear to be the case.  The Department provides probation officers in certain juvenile courts.  The Department is authorized to provide probation services “pursuant to a request from a court under Article 1 of Chapter 11 of Title 15.”  O.C.G.A. § 49‑4A‑7.   Given that provision’s specific reference to Title 15, it would be illogical to divorce the Department’s probation work from the guidelines set forth under that Title.  Further, the Georgia Code provides that

the intake and probation services of the juvenile court of each county may be transferred to and become a part of the state-wide juvenile and intake services and fully funded through the department. The intake and probation employees of juvenile courts of those counties whose intake and probation services are transferred pursuant to this Code section shall become employees of the department . . . .

O.C.G.A. § 15‑11‑24.3(b).   See also Unif. Juv. Ct. R. 2.4 (declaring “the judge may designate a court service worker of the Department of Juvenile Justice to perform the duties of a probation officer”).   Probation and intake services are defined as “those services provided by probation and intake employees for the juvenile court of a county.”  O.C.G.A. § 15‑11‑24.3(a)(3).  In addition, a juvenile court probation officer’s duties are set forth in O.C.G.A. § 15‑11‑24.2, including the language therein clearly showing that Department employees may serve as probation officers, as it recognizes both “county juvenile intake or probation officer[s]” and “staff of the Department of Juvenile Justice serving as juvenile intake or probation officer[s].”  Thus, “where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.”  City of Jesup v. Bennett, 226 Ga. 606, 608 (1970). 

In Wolcott v. State, 278 Ga. 664 (2004), the Supreme Court considered the argument that the statute authorizing an adult probation officer to file a petition for revocation of probation violated constitutional principles of the separation of powers. After acknowledging that probation officers act “in a dual capacity as an agent for the State and as an officer of the court,” the court described their role to be “an investigative and supervisory arm of the court.” Id. at 665, 666 (quoting Huzzie v. State, 253 Ga. App. 225, 227 (2002)).  The court held the statute to be constitutional because, although it required probation officers to share their reports and recommendations with the court, the “power and jurisdiction to determine whether a probationer violated the terms of his sentence so that probation should be revoked” remained a power of the judiciary.   Id. at 666. 

In this situation, as in Wolcott, the Department’s probation staff is expected to provide investigatory and monitoring services and to report their findings to the court.   Thus, although the Department’s probation staff is employed by the executive branch, it is not unconstitutional for them to serve also as officers of the court and for them to assist in the petition process.  Id.  As the court held in Wolcott, this assistance is not an unconstitutional violation of separation of powers principles.  Id.

It is clear that the Department’s probation staff is employed by the Department.  However, when they act as probation officers, the Department’s employees are subject to the provisions of O.C.G.A. § 15‑11‑24.2, which lists the duties of probation officers and does not distinguish between officers employed by the court and officers employed by the Department.  Of particular note is O.C.G.A. § 15‑11‑24.2(6), which requires probation officers to “perform all other functions designated by this chapter or by order of the court pursuant thereto.”  The cardinal rule of statutory interpretation is that statutes must be construed in a manner that gives effect to the underlying legislative intent and purpose.   See O.C.G.A. § 1‑3‑1(a).  The plain language of that statute makes it clear that the General Assembly intended to authorize the juvenile court to direct probation officers to perform certain functions.  SeeCityof Jesup v. Bennett, 226 Ga. at 608.  Thus, the juvenile court does, in fact, have authority to direct Department employees who are acting as probation officers.  Of course, the court’s authority to direct those employees is limited by the Georgia Code and the juvenile court rules; the court cannot direct them to do something they do not have authority to do.

Therefore, it is my official opinion that the Department’s probation staff may assist prosecuting attorneys in obtaining necessary reports and files and in creating delinquency petitions but may not conduct an accusatory proceeding.   The Department’s probation staff must also comply with valid court orders issued pursuant to O.C.G.A. § 15‑11‑24.2(6). 

 

Prepared by:

JOSEPH DROLET

Senior Assistant Attorney General