Director, Georgia Public Defenders Standards Council
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. 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
In 1979, in conjunction with state supplementation of local budgets for indigent defense, the General Assembly passed the Georgia Indigent Defense Act. 1979
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
The 2003 creation of the GPDSC accompanied elimination of the county control over indigent defense reflected in the 1969 Georgia Criminal Justice Act 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. 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.”
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 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.
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.”
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.
In 2008 the General Assembly passed H.B. 1245, again comprehensively revising the provisions regarding indigent defense and its financing in
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
(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.
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
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.
Senior Assistant Attorney General
Act. No. 229, 2008
Counties also received federal funding or grants for indigent defense, as well as some funding from private sources.
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
Certain counties were permitted to remain independent, but this required application to the GPDSC and that certain stringent conditions be met. 2003
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
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
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.
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
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