Wednesday, August 27, 2003

Commission vs. Sheriff on county marshals' police powers: 3 positions

[Editor's note: The following is the text of a letter sent last week to Fayette County Commission Chairman Greg Dunn from Sheriff Randall Johnson.]

I am writing you to express my concerns over the conduct of the Marshal's Office. My concern is, not withstanding the recent comments to the press, an attempt seems to be afoot to use the Marshal's Office as a county police department. The law is clear and unambiguous that they are not the same, and marshals cannot perform duties that may be performed by a county police department.

Although marshals must be certified, their authority is limited. O.C.G.A. 15-10-100 (c)(2) specifically states that:

No person employed or appointed as a marshal pursuant to paragraph (1) of this subsection shall exercise any of the powers or authority which are by law vested in the office of the sheriff or any other peace officer, including the power of arrest, except as may be authorized by law. (emphasis added)

I am deeply concerned that no attempts be made by marshals to enforce traffic, or any other violations of state law. Any traffic stop may necessitate an arrest, and thus a marshal would have placed himself as well as the county in a position of tremendous liability. In addition any investigation of violations of any other state law, whether having been committed on county property or not, might also necessitate an arrest and again would place the marshal and the county in a position of significant liability. It is important for you to know that marshals do not have the power of arrest without a warrant.

In view of this fact, I will not accept traffic cases, or any other accusations of violations of state law made by marshals, into the county jail. To do otherwise would place me personally and the county in a position of tremendous legal liability. The only duties marshals/constables have are the ones conferred on them by statue. Marshals do not have general police powers, and are not charged with any duty to enforce criminal laws of the state.

In addition I am concerned about the new marshal badges which prominently identify them as Public Safety Deputy and only display the word marshal in smaller letters. I am concerned this will mislead the public as to the authority of these Marshals.

I know we both stand ready to do all that we can to make sure we have the best law enforcement protection and service for all of our citizens. I pledge to do my part.

I am enclosing with this letter an opinion from the Attorney General's Office which outlines the authority of Marshals in Georgia.

Sheriff Randall Johnson

Fayette County Sheriff's Office

[Editor's note: The following is the text of a letter sent last week from Fayette County Commission Chairman Greg Dunn to Sheriff Randall Johnson.]

This responds to your letter delivered to the Board of Commissioners dated August 21, 2003, in which you expressed your "concerns" about the Fayette County Marshal's office. Your letter has triggered a few concerns of our own.

First, we are troubled and disappointed that you chose to launch a public relations assault on the County Commission rather than simply talking to us about the issue. Comments made to the press a few days ago and your letter to us which was sent to the press, before I received it, would lead any reasonable person to conclude that your prefer to discredit the County Commission publicly rather than making any sincere attempt to determine if there is any basis for your unwarranted "concerns."

Secondly, we are alarmed that whoever researched this issue for you lacks a clear understanding of the law as it applies to the Marshal's office and has inadvertently caused you to make inaccurate public statements and to adopt public positions which are not supported by law.

Your letter and its enclosed Unofficial Opinion U95-14 dated July 17, 1995 address many things but unfortunately have nothing to do with the issue at hand. Your position relies on O.C.G.A. 15-10-100 and O.C.G.A. 36-8-1(b) to make your case. Neither of these code sections applies to the creation or operation of the Fayette County Marshal's office.

In 1983 the County Commission established the Marshal's office in accordance with O.C.G.A. 36-8-1. By opting to use O.C.G.A. 36-8-1, rather than some other section of the Code, the County Commissioners chose to establish a County police department. Calling it the Marshal's office helped to eliminate confusion but in no way changed the status of the office conferred upon it by complying with the provisions of this particular Code Section.

Furthermore, in July 1989 the County Commission granted the County Marshal powers pursuant to O.C.G.A. 36-8-5. This statute and Fayette County Resolution No. 89-07 specifically granted the Marshal "the power to make arrests and to execute and return criminal warrants and processes in Fayette County, and all the powers of the Sheriff as peace officers in Fayette County."

O.C.G.A. 36-8-1(b) amends O.C.G.A. 36-8-1, which was used to create the County police department (the Marshal's office). O.C.G.A. 36-8-1(b) does not apply to county police departments established prior to January 1, 1992, per O.C.G.A. 36-8-1(c).

Your concern that the current County Commission is attempting to "secretly" create a County police department is preposterous. Our predecessors publicly created a County police department (the Marshal's office) over 20 years ago. This legally established County police department has been in continuous operation since 1983. As a result, this action provides certain options to the County Commission.

Most of the counties in our region have chosen to deny funding to their sheriffs for patrol, investigative and traffic operations, opting to have their county police departments perform those duties instead. The Fayette County Commission has had that option since 1983 but has never acted upon it.

We can assure you that although our current Commissioners are aware of our options we prefer to operate in the same manner as we have for the last 20 years. As long as the quality of law enforcement continues to be the best in the region it would not make good sense to potentially jeopardize our successes by reorganization.

It should be noted that in the last few years, your department has received significant increases in dollars and personnel while most County departments (including the Marshal's office) have experienced reduced funding and no new personnel authorizations. That hardly has the earmarks of a conspiracy to us.

As to your threat that you will not accept violators arrested by our Marshal's office into our Fayette County Jail, we would suggest that you consider your position. You are required by state law, O.C.G.A. 42-4-12, to accept persons charged with an indictable offense in Fayette County. The Fayette County Police Department (Marshal's office) is no different than city police departments in this regard.

We agree that none of us would ever allow any misunderstanding or difference of opinion to jeopardize even one Fayette County citizen. We further agree with your statement that you and us both stand ready to do all we can to make sure we have the best law enforcement for all our citizens.

Gregory Dunn

Chairman

UNOFFICIAL OPINION U95-14

To: County Attorney, July 17, 1995, Forsyth County

Re: Forsyth County did not establish a county police force when it created a county marshal's office in 1985 and, therefore, the county governing authority must comply with the requirements of O.C.G.A. 36-8-1(b) before creating a county police force.

You have asked for my opinion on whether Forsyth County, by its action in creating a county marshal's office in 1985, created a county police force, thereby rendering inapplicable O.C.G.A. 36-8-1(b), which requires a referendum before a county governing authority may create a county police force.

It is my unofficial opinion that Forsyth County did not establish a county police force when it created a county marshal's office in 1985 and, therefore, must comply with the requirements of O.C.G.A. 36-8-1(b) before creating a county police force.

Official Code of Georgia Annotated 36-8-1(b) provides, in pertinent part, that: (1) Each county governing authority may authorize, through proper resolution or ordinance, the creation of a county police force. No resolution or ordinance adopted pursuant to this paragraph shall become effective until the governing authority of the county has submitted to the qualified electors of the county the question of whether the resolution or ordinance shall be approved or rejected...."

Official Code of Georgia Annotated 36-8-1(c), however, states that: "The provisions of subsection (b) shall not apply to any county which has created a county police force prior to January 1, 1992, which county police force remains in existence and operational." (Emphasis added.)

Thus, the question is whether a marshal's office is the same as a county police force; or, stated a different way, whether a marshal is the same as a county police officer.

The term "marshal" is not defined under Georgia law, and the only express statutory reference to marshals is in O.C.G.A. 15-10-100, the title of which is "Appointment of constables; compensation; chief constable." The relevant portion of that statute, although enacted in 1991, indicates that a marshal is, in fact, a constable, the difference being that a constable is appointed by a chief magistrate, whereas a marshal is employed or appointed by the governing authority of a county in order "to perform the duties of constables." O.C.G.A. 15-10-100(c.1)(1).

Earlier opinions of the Attorney General support that proposition. See 1983 Op. Att'y Gen. U83-13 (equating powers and duties of marshals and constables for purposes of the State Indemnification Act); 1982 Op. Att'y Gen. 82-45 (referring to marshals and constables as "personnel of courts of limited jurisdiction").

Further, I note that the Forsyth County Board of Commissioners, in its July 10, 1985 letter appointing the first County Marshal (Exhibit 4 to your letter), clearly seemed to indicate that its newly-appointed marshal would be part of the Magistrate Court's personnel: "The purpose of the office of Forsyth County Marshal is to afford the means to enforce its ordinances which presently have no such means. ... Again, as we have discussed, the methods by which we intend to enforce ordinances will begin with the diss[emination] of information, assistance, encouragement, persuasion, warning, citation, and prosecution in the Magistrate Court in the order listed."

Additionally, although O.C.G.A. 15-10-100(c.1)(3) mandates that a person employed or appointed as a marshal must meet the requirements of Chapter 8 of Title 35 (relating to certified peace officers), O.C.G.A. 15-10-100(c.1)(2) expressly limits the scope of a marshal's powers and authority: "No person employed or appointed as a marshal pursuant to paragraph (1) of this subsection [i.e., employed or appointed as a marshal by the governing authority of a county] shall exercise any of the powers or authority which are by law vested in the office of sheriff or any other peace officer, including the power of arrest, except as may be authorized by law."

The scope of a constable's powers and authority is similarly limited by statute. See O.C.G.A. 15-10-103 ("Constables shall exercise the power of arrest only with a warrant or at the direction of and in the presence of a magistrate or the judge of another court"); O.C.G.A. 15-10-102 (powers and duties of constables).

There are numerous opinions of the Attorney General which hold that constables possess only those limited powers conferred upon them by statute, that they do not have general police powers, and that they are not charged with a general duty to enforce the criminal laws of this state. See, e.g., Ops. Att'y Gen. 69-214; 69-217; U87-21; U83-13; U78-30; U75-17.

Of course, a county and, thus, its agencies and departments, "may exercise only powers that are expressly given or necessarily implied from the express grant of other powers." Twiggs County v. Atlanta Gas Light Co., 262 Ga. 276, 277 (1992), citing DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513 (1972) and Ga. Const 1983, Art. IX, Sec. I, Para. I (1994).

In contrast, O.C.G.A. 36-8-5 provides that county police officers have: (1) The same power to make arrests and to execute and return criminal warrants and processes in the county of their election or appointment only, as sheriffs have; and (2) All the powers of sheriffs as peace officers in the county of their election or appointment. See also 1969 Ga. Laws 875-76 (former O.C.G.A. 15-17-17), repealed by 1983 Ga. Laws 884, 992 4-2, effective July 1, 1983, providing that "Constables shall not hold themselves out to the public as State police or county police or use the name 'State Police' or 'County Police' on their automobiles or any other property;" and Ops. Att'y Gen. 69-214; 69-217; U78-30; U75-17 (interpreting that statute and its predecessor, Ga. Code Ann. 24-823).

Based on the foregoing authority, it is my unofficial opinion that a county marshal's office is not equivalent to a county police force and, therefore, Forsyth County did not establish a county police force when it created a county marshal's office in 1985.

Consequently, the county governing authority must comply with the requirements of O.C.G.A. 36-8-1(b) before creating a county police force [a public referendum].

Prepared By: Matthew P. Stone

Assistant Attorney General