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Official Opinion 2010-4

Official Opinion 2010-4

August 5, 2010
To: 

Director, Georgia Forestry Commission
Commissioner, Georgia Department of Agriculture

Re: 

Investigators employed by the Georgia Forestry Commission and by the Georgia Department of Agriculture are not eligible for membership in the Peace Officers Annuity and Benefit Fund.

Each of you has requested my opinion concerning whether certain investigators employed by your respective agencies are eligible for membership in the Peace Officers’ Annuity and Benefit (“POAB”) Fund.  Having researched the relevant law, it is my official opinion that the investigators at issue who are employed by the Georgia Forestry Commission and by the Georgia Department of Agriculture do not meet the definition of peace officer in the POAB Fund statute as that definition has been interpreted by the Georgia Supreme Court and that they therefore are not eligible for membership in the POAB Fund.

“The POAB Fund is a supplemental retirement fund which is available to all persons who are employed in a capacity of ‘peace officer’ as that term is defined in the Act governing the POAB.  Compare O.C.G.A. § 47‑17‑40 with O.C.G.A. § 47‑17‑1(5).”  1991 Op. Att’y Gen. U91‑12.  The POAB Fund statute defines peace officer, in pertinent part, as:

Any peace officer who is employed by this state or any municipality, county, or other political subdivision thereof who is required by the terms of such peace officer’s employment, whether by election or appointment, to give such peace officer’s full time to the preservation of public order, the protection of life and property, or the detection of crime in this state or any municipality, county, or other political subdivision thereof and who is required by the terms of such peace officer’s employment to comply with the requirements of the ‘Georgia Peace Officers Standards and Training Act’ contained in Chapter 8 of Title 35 . . . .

O.C.G.A. § 47‑17‑1(5)(A).[1]   Construing this definition and earlier versions of it, the Georgia Supreme Court has found that the clear “intent of the legislature was to exclude from the definition of ‘peace officer’ public employees or officers who, incidental to the primary duties of their employment, occasionally perform some of the services of a police officer.”   Bd. of Comm’rs of Peace Officers Annuity & Benefit Fund v. Clay, 214 Ga. 70, 72 (1958).  The court has held that “the authority of [public officers or employees] to act as peace officers must be found in some public law” and that, in order to qualify for membership in the POAB Fund, the law must give them authority to act as “‘peace officers’ in the general sense” and not just authority to enforce or regulate one specific or restricted area of the law.  Id.  at 73-74.  “That is to say, eligibility for membership in the fund is extended to peace officers who possess full authority to generally enforce the criminal laws and generally engage in the preservation of public order, the protection of life and property, and the detection of crime.”  1982 Op. Att’y Gen. U82‑9.  In Clay, the supreme court concluded that motor carrier inspectors for the Public Service Commission were not eligible for membership in the POAB Fund because they only had “the power to enforce the laws relating to a restricted class of motor vehicles using the highways.”  Id. at 74.

In a case that is particularly relevant to your requests, Vandiver v. Endicott, 215 Ga. 250 (1959), the supreme court held that the City of Atlanta fire marshal was not a peace officer within the meaning of the POAB Fund statute and therefore was not entitled to membership in the POAB Fund.  The fire marshal asserted that he “devotes his full time to the preservation of public order, the protection of life and property, and the detection of crime in the City of Atlanta, that he is by city ordinance vested with the powers of a police officer, that it is his duty to see that the Georgia fire-safety regulations and the fire-prevention ordinances of the City of Atlanta are enforced, that he has exercised his authority as a police officer of the City of Atlanta, and that he apprehended and prosecuted violators of the laws of Georgia and the ordinances of the City of Atlanta.”  Id. at 250-51.  The fire marshal put forth evidence that his specific duties “relate to fire prevention and fire safety and consist primarily of detecting fire hazards and in eliminating them, in enforcing the laws and ordinances relating to fire prevention and fire safety, and in making arrests and prosecuting those suspected of arson and the violation of other laws and ordinances relating to fire protection, fire prevention, fire safety, fire fighting, etc.”  Id.  at 251.  The court explained that “[i]n general, it may be said that a peace officer is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crimes.”  Id. (citations omitted).  Citing its previous holding in Clay, the court held here that the fire marshal was not a peace officer for POAB Fund purposes because his duties as a police officer and his authority to make arrests were only incidental to the primary duties of his employment.  Id.  at 251-52.  See also Connors v. Vandiver, 215 Ga. 371 (1959) (holding that deputy at Richmond County Health Department was not peace officer for POAB Fund purposes).

On the other hand, the supreme court held in Vandiver v. Manning, 215 Ga. 874 (1960), that a Fulton County adult probation officer was a peace officer and eligible for membership in the POAB Fund.  The court explained:

While the jurisdiction of probation officers to arrest offenders is limited to one class of persons, the probationers under their supervision, their power of arrest is broader with regard to that class of persons than is the general power of arrest by officers . . . since the probation officer may arrest a probationer without a warrant for the alleged violation of any condition of his probation, which might be the commission of a felony or a misdemeanor, or a mere violation of some rule prescribed for his conduct, even though such violation of the conditions of his probation was not committed in the probation officer’s presence.  The probation officer deals with a group of persons known to have criminal tendencies, since they have been convicted of violations of law, and his arrests are made of persons already convicted of crime, whereas an officer such as a policeman frequently arrests persons only suspected of criminal violations.  We therefore conclude that the plaintiff as Adult County Probation Officer of FultonCounty should be termed a ‘peace officer’ and eligible for membership in the fund established for peace officers . . . .

Id. at 124 (citations omitted).  See also Fleming v. Maddox, 225 Ga. 737 (1969) (holding that Atlanta Police Department communications engineer was peace officer for POAB Fund purposes).

My predecessors have been asked on a number of occasions over the years to consider whether certain employees constituted peace officers and were therefore eligible for membership in the POAB Fund.  In considering these questions, my predecessors have consistently applied the supreme court’s interpretation of the definition of peace officer in § 47‑17‑1(5)(A) and that Code section’s previous incarnations, which the court first fully explained in Clay.  My predecessors have opined that security officers at Georgia Tech are peace officers under the statute and therefore eligible for membership, 1961 Op. Att’y Gen. 330, but that employees of the Parks Department, and tax collectors and tax commissioners who become ex-officio sheriffs, are not.  1971 Op. Att’y Gen. 71‑155; 1982 Op. Att’y Gen. U82‑9.

Forestry Commission investigators

The Director of the Forestry Commission possesses the statutory authority to “appoint investigators to enforce the forestry laws and regulations of this state.”   O.C.G.A. § 12‑6‑20(a).  “The investigators so appointed and any fire-fighting crews under their direction may enter upon any land for the purpose of preventing and suppressing fires and enforcing the fire and other forestry laws and regulations of this state.”  O.C.G.A. § 12‑6‑20(b).  “Investigators who have been so appointed and who have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the ‘Georgia Peace Officer Standards and Training Act,’ shall be authorized and empowered to” perform a number of other functions.  O.C.G.A. § 12‑6‑20(c).  These include the ability to “[m]ake summary arrests for violations of the fire and other forestry laws and regulations of this state”; to “[a]rrest persons accused of violating any law or regulation which such investigators are empowered to enforce by the issuance of a citation, provided that the offense is committed in the presence of the investigator or information concerning the offense constituting a basis for arrest was received by the arresting investigator from a law enforcement officer who observed the offense being committed”; and to“[c]arry weapons in order to enforce the forestry laws and regulations of this state.”  Id.  

Based on information Director Farris and his staff have provided, it is my understanding that the Forestry Commission requires its investigators to hold peace officer certification from the P.O.S.T. Council.  It is also my understanding that arson investigators regularly undertake the tasks of conducting fire scene investigations to determine the origin and cause of fires and conducting criminal investigations into violations of the arson criminal code including other criminal offenses that impel arson.  It is my further understanding that these investigators also investigate violations of Georgia forestry laws and regulations and violations of other laws as appropriate, in addition to other duties such as conducting training sessions, performing administrative duties, maintaining state vehicles and equipment, and supervising forestry investigators.

Department of Agriculture investigators

The Commissioner of Agriculture is “vested with police powers to enforce those laws governing matters within the jurisdiction of the Commissioner or the department as provided by [Titles 2, 4, 10, 26, and 43] and the rules and regulations adopted pursuant thereto and to prevent, detect, and respond to acts of bioterrorism, other terroristic acts or threats, or natural disasters affecting or potentially affecting plants, animals, products, or facilities that are subject to regulation by the department.”  O.C.G.A. § 2‑2‑13(a).  The Commissioner is also “authorized to employ, designate, and deputize investigators and to delegate to such employees of the department the necessary authority to enforce those” same statutes, rules, and regulations.  O.C.G.A. § 2‑2‑13(b).  “Employees who have been so designated by the Commissioner and who have been certified by the [P.O.S.T. Council] as having successfully completed the training required by . . . the ‘Georgia Peace Officer Standards and Training Act,’ shall be authorized:

  • To carry firearms authorized or issued by the Commissioner while in the performance of their duties;
  • To inspect plants, animals, products, or facilities when the same are subject to regulation by the department
  • To stop and inspect any vehicle transporting plants, animals, or products when the same are subject to regulation by the department;
  • To inspect and require the production of health certificates, waybills, permits, or other documents required by federal or state laws, rules regulations, or orders for the transportation of plants, animals, or products when the same are subject to regulation by the department;
  • To protect any life or property when the circumstances demand action; and
  • To arrest any person found to be in violation of a criminal law when enforcement of such law is authorized under this subsection.

Id. 

Having reviewed the relevant law, it is my opinion that arson investigators at the Forestry Commission and investigators at the Department of Agriculture are not eligible for membership in the POAB Fund because they do not meet the definition of peace officer as that definition has been interpreted by the Georgia Supreme Court.  Under § 47‑17‑1(5)(A), a POAB Fund member must be a peace officer who is required by the terms of his or her employment to (1) give his or her full time to the preservation of public order, the protection of life and property, or the detection of crime; and (2) comply with the requirements of the Georgia Peace Officer Standards and Training Act.  As explained in more detail above, the Georgia Supreme Court has construed the definition to include only those who serve as peace officers in the general sense – those who have as their primary duties by law (not by custom) broad powers to enforce the criminal laws and to make arrests, rather than those whose primary duties are to enforce or regulate one specific area of the law.  The investigators at issue here do not appear to meet this general definition of peace officer under the case law because their core duties involve the enforcement of one specific substantive area of the law and they do not possess broad jurisdiction over the criminal laws or broad arrest powers.

In regard to the Forestry Commission’s arson investigators in particular, their status seems to be very similar to that of the City of Atlanta fire marshal who was deemed not to be eligible for POAB Fund membership by the Supreme Court in Vandiver v. Endicott, 215 Ga. 250.  The status of the Agriculture Department investigators seems to be analogous to that as well.

Therefore, it is my official opinion that the investigators at issue who are employed by the Georgia Forestry Commission and by the Georgia Department of Agriculture do not meet the definition of peace officer in O.C.G.A. § 47‑17‑1(5)(A) as that definition has been interpreted by the Georgia Supreme Court and that they therefore are not eligible for membership in the POAB Fund.   Although it is clear that these investigators perform important functions for the citizens of this State, their specific missions do not meet the criteria established by the General Assembly, as interpreted by the Georgia Supreme Court, for membership in this supplemental retirement fund.  This conclusion, of course, in no way limits their status as members of the Employees’ Retirement System of Georgia, the primary pension fund for state employees.  See O.C.G.A. Title 47, Chapter 2.

Prepared by:

CHRISTOPHER A. MCGRAW

Assistant Attorney General


[1] The statute also goes on to name a number of specific job titles that are expressly included in the definition of peace officer, O.C.G.A. § 47‑17‑1(5)(B) through (K), but none of them is relevant here.