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Official Opinion 2009-5

Official Opinion 2009-5

June 12, 2009
To: 

Director, Georgia Public Defenders Standards Council

Re: 

The director of the Georgia Public Defender Standards Council has broad authority and is responsible for the day to day operation of the agency.   The Council’s limited responsibilities, to be carried out concurrently with the director, include setting standards, conducting audits, making financial disclosures, receiving funds, providing for legal education, reporting to the General Assembly, and providing procedures for the appointment of conflict council.

You have requested my opinion on the scope of the duties of the director of the Georgia Public Defender Standards Council (“GPDSC”) in relation to the authority of the Council, particularly in light of the enactment of House Bill 1245 in 2008.[1]   It is my opinion that in enacting H.B. 1245 the General Assembly gave broad authority and responsibility for the day to day operation of the GPDSC to the director.  The Council’s limited responsibilities, to be exercised concurrently with the director, include setting standards, conducting audits, making financial disclosures, receiving funds, providing for legal education, reporting to the General Assembly, and providing procedures for appointment of conflict council. 

As a successor to the former Georgia Indigent Defense Council, the Georgia Public Defender Standards Council was created in 2003 as part of a wide-ranging effort to revamp the standards and practices of the indigent defense system in Georgia.   2003 Ga. Laws 190.  Prior to that time public defense was primarily the responsibility of counties or multi-county districts and the standards governing appointment, payment for defense, and the preparation and conduct of the defense varied widely by court, county, or district in which a case arose.  See former Ga. Code Ann. §§ 27‑3001a to 27‑3003a, 27‑3201 to 27‑3215, 27‑3301 to 27‑3316 (Harrison 1978 and Supp. 1981) (recodified as O.C.G.A. §§ 17‑12‑1 to 17‑12‑96 (1982) (repealed 2003)).  The law was a patchwork of different directives and authorities enacted at various times.  Superior courts had a recognized authority to appoint attorneys to defend indigents in their courtrooms and in some instances to set rates for that representation.  See 1968 Ga. Laws 999 (the “Georgia Criminal Justice Act” which provided for appointment by superior courts, payment and financing by counties, and allowed counties to establish public defender offices, among other things); O.C.G.A. §§ 17‑12‑1 to 17‑12‑14, 17‑12‑44 (2002) (repealed 2003); Perry v. State, 120 Ga. App. 304 (1969) (discussing provision of counsel mechanisms); see also Sacandy v. Walther, 262 Ga. 11 (1993) (discussing scope and validity of former Georgia Criminal Justice Act); Flanagan v. State, 218 Ga. App. 598 (1995) (discussing obligation of court to appoint counsel and make determinations of indigency). Counties were required under this plan to pay for indigent defense as part of their court budgets.  1968 Ga. Laws at 1002, 1005; O.C.G.A. §§ 17‑12‑4, 17‑12‑13 (2002) (repealed 2003). 

In 1979, in conjunction with state supplementation of local budgets[2] for indigent defense, the General Assembly passed the Georgia Indigent Defense Act.[3]   1979 Ga. Laws 367; see O.C.G.A. §§ 17-12-30 to 17-12-44 (2002) (repealed 2003).  This Act created a state agency, the Georgia Indigent Defense Council (the “GIDC”), to contract for and supervise the spending of state criminal defense funds and provide approval, guidelines, and training for local indigent defense programs, and called for local tripartite committees to select local public defenders or panel attorneys.  Id. at 369 to 374.  The Act also called for the GIDC to propose indigent defense guidelines to be promulgated by the Supreme Court of Georgia, which quickly occurred.  Id. at 370, 372; Guidelines for Local Indigent Defense Programs, 246 Ga. 837 (1980).   The guidelines that were adopted provided that indigent defense attorneys be governed by local standards (subject to general guidelines) and at rates promulgated by the local tripartite committee.  Guidelines for Local Indigent Defense Programs, 246 Ga. at 842-46.

The provisions of 1969’s Georgia Criminal Justice Act and 1979’s Georgia Indigent Defense Act, both of which were in effect in 2003, were not exclusive.   Georgia law also allowed counties with populations over 550,000 and a county manager to establish public defender offices with a public defender selected by the county manager and the staff selected and supervised by the public defender.  1984 Ga. Laws 495; see O.C.G.A. §§ 17‑12‑71 to 17‑12‑72 (2002) (amended 2003).  The law also established a “multicounty public defender” to defend indigents accused of capital crimes for which the death penalty was sought and which a county office elected not to defend.  1992 Ga. Laws 1963; see O.C.G.A. §§ 17-12-90 to 17-12-97 (2002) (amended 2003, 2008).  The office of the multicounty public defender functioned in conjunction with Georgia laws still on the books that governed the appointment of attorneys in capital cases, laws in fact predating the Georgia Criminal Justice Act and the Georgia Indigent Defense Act.  1953 Ga. Laws 478; see O.C.G.A. §§ 17-12-60 to 17-12-62 (2002) (repealed 2003); O.C.G.A. §§ 17‑12‑100 to 17‑12‑128 (2003) (renumbering of sections and replacement of multicounty public defender with Office of the Georgia Capital Defender, amended 2003)); compare In re Straughan & Straughan, 260 Ga. 821 (1991) (calling into question the continuing validity of the 1953 law), with 1992 Ga. Laws at 1963-64 (continuing 1953 law but removing its $50 fee minimum and $150 fee cap for capital cases).  The law also called for a “mental health advocate” to provide for the defense of persons found not guilty by reason of insanity.  1996 Ga. Laws 1636; see O.C.G.A. §§ 17-12-45 to 17-12-51 (2002); O.C.G.A. §§ 17‑12‑80 to 17‑12‑87 (2003) (renumbering of former provisions as to mental health advocate, amended 2003, 2008)).

The 2003 creation of the GPDSC accompanied elimination of the county control over indigent defense reflected in the 1969 Georgia Criminal Justice Act[4] as well as elimination of tripartite committees and their control over local public defenders or panel attorneys as called for by the 1979 Georgia Indigent Defense Act.[5]   The GPDSC was expressly made the successor to the GIDC, 2003 Ga. Laws at 200-01, and the Mental Health Advocate and Georgia Capital Defender – a successor to the multicounty public defender – were placed under the management of the GPDSC although they were formally designated separate “offices.”  Id. at 212, 216.

Despite the broad powers the GPDSC necessarily had in assuming the role previously filled by the GIDC and local tripartite commissions, the specific substantive authority given the GPDSC was not extensive.  The GPDSC, substantively, was expressly[6] given authority to contract; to own property; to budget, accept, manage, and audit funds both for the state offices and circuit defender offices; to hire or fire a director and administrative and clerical personnel; to manage the offices of the Mental Health Advocate and Georgia Capital Defender; to provide assistance, research, forms, and training for circuit defender offices; and to establish rules, regulations, and standards governing public indigent defense in Georgia.[7]   Id. at 196, 198, 199-201, 212, 216.

In contrast with the by and large non-specific powers given the GPDSC, its director was given numerous specific powers and duties.   He was charged with supervising circuit defender offices “and other attorneys representing indigent persons” including providing “technical, research, and administrative assistance; educational and training programs for attorneys, investigators, and other staff; assistance with the representation of indigent defendants with mental disabilities; assistance with the representation of juveniles; and assistance with appellate advocacy.”  Id. at 197.  He was given the express authority to establish divisions, with the consent of the Council, and to hire staff employees (presumably attorneys and support personnel, while the GPDSC was only directly given authority to hire “administrative and clerical personnel”).  Id. at 196, 197.

The director’s specific duties were enumerated as follows:

(c) The director shall:

   (1) Prepare and submit to the council a proposed budget for the council. Said budget shall not contain any request for funding for the operation of the circuit public defender offices until the budget submission for Fiscal Year 2005. The director shall also prepare and submit an annual report containing pertinent data on the operations, costs, and needs of the council and such other information as the council may require;

   (2) Develop such rules, policies, procedures, regulations, and standards as may be necessary to carry out the provisions of this chapter and comply with all applicable laws, standards, and regulations, and submit these to the council for approval;

   (3) Administer and coordinate the operations of the council and supervise compliance with rules, policies, procedures, regulations, and standards adopted by the council;

   (4) Maintain proper records of all financial transactions related to the operation of the council;

   (5) At the director's discretion, solicit and accept on behalf of the council any funds that may become available from any source, including government, nonprofit, or private grants, gifts, or bequests;

   (6) Coordinate the services of the council with any federal, county, or private programs established to provide assistance to indigent persons in cases subject to this chapter and consult with professional bodies concerning the implementation and improvement of programs for providing indigent services;

   (7) Provide for the training of attorneys and other staff involved in the legal representation of persons subject to this chapter;

   (8) Attend all council meetings, except those meetings or portions thereof that address the question of appointment or removal of the director;

   (9) Ensure that the expenditures of the council are not greater than the amounts budgeted or available from other revenue sources; and

   (10) Perform other duties as the council may assign.

Id.  at 197-98. 

In 2008 the General Assembly passed H.B. 1245, again comprehensively revising the provisions regarding indigent defense and its financing in Georgia.[8]   2008 Ga. Laws 846.  This Act removed from the Council the authority to hire and fire the GPDSC’s director, granting that authority to the Governor instead.  Id. at 859, 860. 

House Bill 1245 also removed the requirement that the director obtain the consent of the Council in establishing agency divisions, giving him the discretionary authority to do so, and formally made the mental health advocate and Georgia capital defender divisions within the agency.  Id. at 860, 864-65.  With a few minor changes, the director’s duties remained the same.  Compare id. at 861 with 2003 Ga. Laws at 197-98; see O.C.G.A. § 17‑12‑5.  The director was also given new specific powers and authority:

(1) The power and authority to take or cause to be taken any or all action necessary to perform any indigent defense services or otherwise necessary to perform any duties, responsibilities, or functions which the council is authorized by law to perform or to exercise any power or authority which the council is authorized by law to exercise;

   (2) The power and authority to make, promulgate, enforce, or otherwise require compliance with any and all rules, regulations, procedures, or directives necessary to perform any indigent defense services, to carry into effect the minimum standards and procedures promulgated by the council, or otherwise necessary to perform any duties, responsibilities, or functions which the council is authorized by law to perform or to exercise any power or authority which the council is authorized by law to exercise; and

   (3) The power and authority to assist the council in the performance of its duties, responsibilities, and functions and the exercise of its power and authority.

2008 Ga. Laws at 860-61; see O.C.G.A. § 17-12-5(c).[9]

While the director is given authority to “perform any duties, responsibilities, or functions which the council is authorized by law to perform …,” 17‑12‑5(c)(1), the Council remains a legal entity, O.C.G.A. § 17‑12‑3, with enumerated powers and responsibilities, O.C.G.A. § 17‑12‑4.   The Council’s remaining powers include, among other things, the power to contract, own property, and hire clerical and administrative staff, id.; to receive funds, grants, and gifts, id.; to provide procedures for handling funds and conduct audits, id; to approve standards governing public defense, O.C.G.A. § 17‑12‑8; to provide for continuing education, O.C.G.A. § 17‑12‑9; to make an annual report of its activities to the General Assembly, O.C.G.A. § 17‑12‑10; and to provide a procedure for appointment of counsel in conflict cases, O.C.G.A. § 17‑12‑22.

The above duties of the Council are exercised concurrently with the director’s authority also to engage in those tasks.  In providing authority to the director under O.C.G.A. § 17‑12‑5(c), the General Assembly did not remove it from the Council as a body; the exercise of these powers is not made or declared to be mutually exclusive but is provided by law to both.

As with other agencies, the director and the Council “should work together in harmony to accomplish the carrying out of sound … policy for the State of Georgia.”  2001 Op. Att’y Gen. 2001-5 (answering questions regarding relative authority of State School Superintendent and State Board of Education).  It is not unheard of nor is it contrary to law that a Board and an agency head are given concurrent powers that either may exercise.  See 2005 Op. Att’y Gen. 2005-3 (finding that State Election Board and Secretary of State in the area of elections did not have exclusive authority over the day to day operations of or the ability to exercise direct control over the substantive or policy-making role of the other).  As with other agencies with similar relations, the GPDSC’s director and the Council have a symbiotic relationship where each depends on the other to act appropriately and consistently to benefit their mutual constituency: indigents who are defendants in criminal cases.  Id.

Therefore, given the above, it is my official opinion that in enacting HB 1245 the General Assembly gave broad authority and responsibility for the day to day operation of GPDSC to the director while leaving the Council in the limited role, concurrently with the director, of conducting certain tasks such as setting standards, conducting audits, making financial disclosures, receiving funds, providing for legal education, reporting to the General Assembly, and providing procedures for the appointment of conflict council.

Prepared by:

STEFAN RITTER

Senior Assistant Attorney General


[1]Act. No. 229, 2008 Ga. Laws 846 (codified in scattered sections of Titles 15 and 17).

[2]Counties also received federal funding or grants for indigent defense, as well as some funding from private sources.

[3]The Georgia Indigent Defense Act was expressly not intended to supplant local funding or local programs, and counties or superior courts could refuse state funds.  1979 Ga. Laws at 369; McCorkle v. Bignault, 260 Ga. 758, 760-61 (1991).  If a county did not receive state funds, its indigent services were governed primarily by the 1969 Georgia Criminal Justice Act, and if it did receive state funds its indigent services were governed by a tripartite commission, the Supreme Court’s guidelines, and the provisions of the 1979 Georgia Indigent Defense Act.  See McCorkle, 260 Ga. at 759-61.

[4]Certain counties were permitted to remain independent, but this required application to the GPDSC and that certain stringent conditions be met.  2003 Ga. Laws at 209-10.  Local control also remained in each judicial circuit of the State in the selection of circuit public defenders, who in turn could select assistant circuit public defenders, investigators, and staff.  Id. at 201-09.  All of these, however, remained subject to the standards set by the GPDSC.

[5]These changes were also reflected in a massive increase of state spending for indigent defense, which was financed by directing funds to the GPDSC from the interest on bonds and funds paid to the registry of the courts.  2003 Ga. Laws at 217-20.

[6]The GPDSC was also given a non-specific grant of “such other powers, privileges, and duties as may be reasonable and necessary for the proper fulfillment of its duties.”  2003 Ga. Laws 191, 196.

 

[7]As befits the GPDSC’s designation as a “Standards Council,” the creation of uniform standards governing indigent defense was arguably GPDSC’s most important early task.  The standards developed thus far can be found at “Standards” of the Georgia Public Defender Standards Council, http://www.gpdsc.com/cpdsystem-standards-main.htm.

[8]Among other revisions between 2003 and 2008, in 2007 the GPDSC was formally made an agency in the executive branch of government rather than the judicial branch.  2007 Ga. Laws 65, 66; see 2009 Op. Att’y Gen. 2009-2 (finding the assignment to the executive branch was lawful).

[9]There were other revisions not significant here.  House Bill 1245 removed the Council’s authority to provide assistance, research, forms, and training for circuit defender offices, with that authority presumably transferred to the director.  2008 Ga. Laws at 862; see O.C.G.A. § 17‑12‑5(c)(7) (director shall provide for training).  In addition it removed much of the detail regarding the standards the Council was obligated to enact; changed some reporting requirements from the Council to the director; formed a Legislative Oversight Committee to review the operations of the GPDSC; made substantial changes to the GPDSC’s funding structure from local fees and interest; and changed to the law regarding the assignment and payment of conflict attorneys, among other things.  Id. at 847-54, 862-64, 867-73.