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

Official Opinion 2016-3

August 15, 2016
To: 

Interim Executive Director 

Criminal Justice Coordinating Council

Re: 

To the extent 2002 Op. Att’y Gen. 2002-5 is inconsistent with O.C.G.A. § 9‑16‑21, it is withdrawn.

In 2002 your predecessor requested an opinion on the propriety of using federal forfeiture funds to pay overtime to law enforcement officers.  Based on prohibitions in O.C.G.A. § 16‑13‑48.1 and O.C.G.A. § 16‑13‑49 at the time, this office issued 2002 Op. Att’y Gen. 2002-5 opining that federal forfeiture funds could not be used to pay overtime to law enforcement officers.  The Code sections upon which 2002 Op. Att’y Gen. 2002-5 was based have been amended and, in some instances, repealed.

Last year the General Assembly enacted the Georgia Uniform Civil Forfeiture Procedure Act, which substantially revised civil forfeiture procedure in Georgia.  2015 Ga. Laws 693.  Former O.C.G.A. § 16‑13‑48.1 was repealed, and O.C.G.A. § 16‑13‑49 was amended to delete language prohibiting the use of forfeited assets to pay for law enforcement salaries.  The distribution of property subject to federal forfeiture is now governed by O.C.G.A. § 9‑16‑21, enacted in the 2015 Uniform Act.  Id.  That Code section provides that such property may be utilized by law enforcement agencies “as authorized by . . . federal law and regulations or guidelines promulgated thereunder.”  If such federal law and regulations or guidelines promulgated thereunder permit the use of the proceeds of federal forfeitures for overtime pay, such use would be permitted under Georgia law.  To the extent 2002 Op. Att’y Gen. 2002-5 is inconsistent with O.C.G.A. § 9‑16‑21, it is hereby withdrawn.

Prepared by:

Joseph Drolet

Senior Assistant Attorney General