Georgia Department of Law, from the office of Samuel S. Olens, Attorney General

Unofficial Opinion 2016-2

October 5, 2016
To: 

President, Council of Superior Court Judges

Re: 

A judicial secretary appointed pursuant to O.C.G.A. §15‑6‑25 may not simultaneously serve the same court as an official court reporter.

On behalf of the Council of Superior Court Judges, you have asked my opinion whether a person appointed pursuant to O.C.G.A. § 15‑6‑25 as a state paid full-time judicial secretary may also serve the same court at the same time as an official court reporter.  It is my opinion that state law prohibits such an arrangement.

Georgia’s superior court judges are authorized to appoint both a secretary and a court reporter.  O.C.G.A. §§ 15‑6‑25 and 15‑14‑1.  Judicial secretaries are state employees of the judicial branch of government who receive full-time pay and the same benefits as other state employees.  See O.C.G.A. § 15‑6‑27(d), (e), and (f).  County governing authorities may also supplement the salary or fringe benefits of any state-paid person appointed pursuant to this statute.  O.C.G.A. § 15‑6‑27(h).  Alternatively, a judicial secretarial position may be filled by a county employee, but the county is to be reimbursed from appropriated state funds available for the operation of the superior court.  O.C.G.A. § 15‑6‑27(j).

Similarly, a judge of the superior courts has the power to appoint and remove a court reporter for the courts of his or her circuit.  O.C.G.A. § 15‑14‑1.  However, court reporters are compensated pursuant to a fee schedule established by the Judicial Council and the Board of Court Reporting.  See, e.g., Website of the Georgia Board of Court Reporting, Fees for Official Court Reporters, http://bcr.georgiacourts.gov/sites/default/files/BCR_Fees_for_Services_C... (last visited September 30, 2016).  A reporter may also receive travel and expense allowances as established by law in O.C.G.A. § 15‑14‑6, but may receive only one contingent expense and travel allowance regardless of whether he or she is appointed in one or more judicial circuits.

These statutes demonstrate that these two court-related positions are very different in nature, and contemplate distinct duties and responsibilities.  A judicial secretary is a state employee who is required by law to dedicate the entirety of his or her working time to the state and the court for which he or she works because this is a full-time position.  If the secretary is not performing his or her job during regular work hours, then O.C.G.A. § 15‑6‑27(d) contemplates that the employee will otherwise be accounting for his or her time through the use of annual, sick, or other authorized leave.  This is not the same for an official court reporter, whose position is not defined in terms of work hours, but is instead task-based, and contemplates that the reporting duties will be performed on an “as needed” basis.  It is also apparent as a matter of practicality that the distinct duties and responsibilities of each position may need to be performed at the same time, i.e., a court reporter may need to be in a hearing or a trial while the judicial secretary may be required to be performing necessary administrative tasks at the same time.

The Code of Ethics for Government Service requires that any person in government service should “[g]ive a full day’s labor for a full day’s pay and give to the performance of his duties his earnest effort and best thought.”  O.C.G.A. § 45‑10‑1(III).  Thus, both O.C.G.A. § 15‑6‑27 and O.C.G.A. § 45‑10‑1(III) reinforce the understanding that the job of judicial secretary is a full‑time job to which the employee is expected to give his “earnest effort and best thought.”  O.C.G.A. § 45‑10‑1(III).  A judicial secretary cannot comply with this requirement should he or she also be attempting to perform court reporting duties at the same time for the same court.

In 1998 the Attorney General was asked whether a state judicial employee could contract with the county to perform certain administrative work during the same forty‑hour work week that he was performing his job as a state judicial employee.  1998 Op. Atty. Gen. U98‑12.  The Attorney General opined that “a state employee who contracts to perform separate duties for a non‑state entity during the same work time cannot provide a full day’s work to the state.”  Id.  Similarly, a judicial secretary cannot contract with the judge for whom he or she is employed to work also as his or her court reporter and still be able to give “a full day’s labor for a full day’s pay” as required under the Code of Ethics for Government Service.  O.C.G.A. § 45‑10‑1(III).

I note that in 1974 the Attorney General opined that nothing in the law prohibited a judge from appointing the same person to serve as both his judicial secretary and court reporter.  1974 Op. Atty. Gen. U74‑1.  The opinion did not address O.C.G.A. § 45‑10‑1 and the requirement that a state employee’s obligation is to provide a full day’s work for a full day’s pay.  To the extent that 1974 Op. Att’y Gen. U74‑1 reached a different conclusion from the one presented herein, that opinion is withdrawn and the opinion itself is modified in accordance with the law as outlined above.

Therefore, it is my unofficial opinion that a judicial secretary appointed pursuant to O.C.G.A. § 15‑6‑25 may not simultaneously serve the same court as an official court reporter because such an arrangement would prevent the secretary from complying with O.C.G.A. § 45‑10‑1(III) and providing the state with a full day’s work for a full day’s pay.

Prepared by:

Julia B. Anderson

Senior Assistant Attorney General