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Official Opinion 2012-7

Official Opinion 2012-7

December 19, 2012
To: 

Chairperson,

County and Municipal Probation Advisory Council

Re: 

Intergovernmental agreements for the provision of misdemeanor probation services

You have requested my opinion on the legality of intergovernmental agreements for the delivery of probation services. Specifically, you have asked: (1) whether intergovernmental agreements for the provision of misdemeanor probation are legal under Georgia law, (2) whether a municipality can enter into an intergovernmental agreement with a county to provide misdemeanor probation services to a county, and (3) whether the operation of a circuit-wide misdemeanor probation entity is lawful.

Intergovernmental contracts are authorized by the Georgia Constitution:

The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.

Ga. Const. Art. IX, § III, ¶ I(a).

There are two requirements for a valid intergovernmental contract.  “First, the contract must pertain to “the provision of services, or … the joint or separate use of facilities or equipment.” Second, the contract “must deal with ‘activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.’”  Greene County Sch. Dist. v. Greene County, 278 Ga. 849, 851 (2005) (footnotes omitted).  Thus, intergovernmental agreements for probation services are permitted to the extent that the contracting parties are authorized to

provide probation services.  The authorization to establish a probation system is found in O.C.G.A. § 42‑8‑100, which provides that

[t]he chief judge of any court within the county, with the approval of the governing authority of that county, is authorized to enter into written contracts with corporations, enterprises, or agencies to provide probation supervision, counseling, collection services for all moneys to be paid by a defendant according to the terms of the sentence imposed on the defendant as well as any moneys which by operation of law are to be paid by the defendant in consequence of the conviction, and other probation services for persons convicted in that court and placed on probation in the county.

O.C.G.A. § 42‑8‑100(g)(1).

O.C.G.A. § 42‑8‑100 authorizes county and municipal court judges to enter into agreements for probation services with “corporations, enterprises, or agencies.”  Intergovernmental agreements for such services, including probation services, are legal in instances in which both contracting parties are authorized by law to provide such service.  Therefore, the authority of any municipal corporation to provide such probation services would be permissible but would be limited by the powers conferred upon the municipality in its individual charter and by the general powers granted to municipal corporations by law.  See O.C.G.A. § 36‑34‑2.

In regard to the provision of probation services on a circuit-wide basis, the same principles apply.  The State of Georgia is divided into judicial circuits which may comprise multiple counties but not less than one county.  See Ga. Const. Art. VI, § I, Para.VI.  Judicial circuits, however, are not units of government that could enter into intergovernmental contracts. O.C.G.A. § 42‑8‑100 provides that judges within a county can enter into probation agreements, with the approval of their governing authority, for probation services to be provided to that county.  There is no provision for judicial circuits to enter into such agreements. Thus, within a judicial circuit, the court of each county that the judicial circuit comprises must enter into a separate agreement for probation services and comply with O.C.G.A. § 42‑8‑100 to operate lawfully in Georgia.

Therefore it is my official opinion that intergovernmental agreements for probation services are legal in instances in which the contracting parties are authorized by law to provide probation services.   Also, when providing probation services for a judicial circuit, a probation entity must be authorized to provide the service and must enter into separate agreements with the court of each county that composes that judicial circuit.

Prepared by:

Angelique B. McClendon

Assistant Attorney General