Unofficial Opinion U2018-3

October 11, 2018
To: 

Representative, District 14

Re: 

Simultaneously serving as a legislator and a deputy sheriff violates the Georgia Constitution’s separation of powers provision and potentially violates other constitutional provisions and common law rules governing conflicts of interest.

 

You have asked for my opinion as to whether a member of the General Assembly may also serve as a county deputy sheriff.  It is my opinion that a member of the General Assembly may not do so because simultaneously serving as a legislator and a deputy sheriff violates the Georgia Constitution’s separation of powers provision and potentially violates other constitutional provisions and common law rules governing conflicts of interest.                                                                      

The Georgia Constitution provides that:

The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

Ga. Const. Art. I, Sec. II, Para. III.  This office has previously opined that, “[t]his provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’”  2009 Op. Att’y Gen. U2009‑2, citing Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008) (internal citations omitted).

In order to determine whether an activity violates the separation of powers provision, it is necessary to “look both at the legal designation of the branch of government to which a particular provision is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.”  2014 Op. Att’y Gen. U2014‑2.  While the separation of powers provision applies only to state legislative, judicial, and executive functions, it is important to keep in mind that a county or municipal officer may be performing state functions, in which case this provision applies to bar service in separate branches.  For example, in an earlier unofficial opinion, my predecessor determined that a member of the General Assembly could not also serve as a municipal court judge because a municipal court judge exercises state judicial powers by adjudicating state offenses. Id.

In determining whether the separations of powers bars simultaneous positions, the analysis focuses on whether the positions relate to the exercise of state functions, irrespective of whether the agency is a state office.  A state legislator is obviously performing a state legislative function.  Determining whether he or she can simultaneously work as a sheriff’s deputy thus hinges on whether a sheriff’s deputy engages in state functions related to the other two branches of government: the judicial or executive branches.  If the deputy sheriff position requires state executive or judicial functions, then the separation of powers provision would bar a member from holding the two positions simultaneously.

A review of the statutory duties of a sheriff makes clear that both the sheriff and his or her deputies, which are authorized and appointed pursuant to O.C.G.A. § 15‑16‑23, are performing executive, and to some extent, judicial state functions.[1]  For example, the sheriff’s duties include:

  • execut[ing] and return[ing] the processes and orders of the courts[;]
  • attend[ing]  . . . all sessions of the superior court of the county[;]
  • attend[ing polling places on election day] as police to preserve order[;]
  • keep[ing] an execution docket . . . ready for use in any court of his county[;]  and
  • perform[ing] such other duties as are or may be imposed by law or which necessarily appertain to his or her office.

O.C.G.A. § 15‑16‑10(a)(1),(2), (3), (5) and (8).  Sheriffs’ deputies are agents and employees of the sheriff: “They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform.”  Drost v. Robinson, 194 Ga. 703, 710 (1942); Warren v. Walton, 231 Ga. 495, 499-500 (1973).  The duties of the deputy sheriff are identical to those of the sheriff set forth in O.C.G.A. § 15‑16‑10.  Thus, under Georgia law, the sheriffs’ deputies, like the sheriff for whom they act as an agent, are “agents for the state in enforcing the laws and keeping the peace.”  Grech v. Clayton County, 335 F.3d 1326, 1333 (11th Cir. 2003).

A sheriff’s deputy, whose duties mirror those of the sheriff, thus performs state executive and, to a limited extent, judicial branch functions.  Serving as a legislator and a sheriff’s deputy would, therefore, violate the constitutional provision mandating separation of powers because the same person would be engaging in state legislative functions while also performing state executive and judicial functions.  Additionally, the General Assembly controls central aspects of the operation of the sheriff’s office, including delineating the duties and authority of the sheriff and his or her deputies, authorizing funding for the Office, and establishing fees for services provided by the sheriff and his or her deputies.  Service as a legislator and a sheriff’s deputy presents the potential for “conflicts of interest inherent in situations where an individual serves concurrently in two of the branches of state government,” which the constitutional separation of powers provision was designed specifically to prevent.  See Galer v. Board of Regents of University System, 239 Ga. 268, 270 (1977).

I also note that the Georgia Constitution provides that “[n]o person holding any civil appointment or office having any emolument annexed thereto under the United States, this state, or any other state shall have a seat in either house.”  Ga. Const. Art. III, Sec. II, Para. IV(b).  An emolument of office is “[a]ny advantage, profit, or gain received as a result of one’s employment or holding of office.” See 2014 Op. Att’y Gen. U2014-2; 2009 Op. Att’y U2009-2 (both citing Black’s Law Dictionary 563 (8th ed. 2004)).  Emoluments may include retirement benefits and even the accrual of annual and sick leave benefits to be used in calculating retirement benefits. Amerson v. Bd. of Trustees of the Ret. Sys. of Georgia, 257 Ga. 579, 581 (1987).  See also 2009 Op. Att’y U2009-2 (determining that legislator cannot serve simultaneously as an assistant district attorney); 2014 Op. Att’y U2014-2 (determining that legislator cannot serve simultaneously as a municipal court judge).  You have not indicated the scope or source of the compensation provided to the deputy sheriff; however, the bar in the emoluments clause may also be potentially applicable to this situation.

Given the above and foregoing, it is my opinion that simultaneously serving as a legislator and a deputy sheriff violates the Georgia Constitution’s separation of powers provision and potentially violates other constitutional provisions and common law rules governing conflicts of interest.

Prepared by:

Elizabeth A. Monyak

Senior Assistant Attorney General

 

[1] Generally speaking, law enforcement activities are considered to be executive branch functions.  See Hawkins v. State, 130 Ga. at 428 (“As a lieutenant in the police force, he was discharging the duties of a law enforcement officer, which is an executive function . . .).  However, one of the sheriff’s statutory duties is “to attend all sessions of the superior court of the county” and never to “leave same without the presence of himself or his deputy, or both, if required.”  O.C.G.A. § 15‑16‑10.  A sheriff or deputy performing this duty could potentially be considered to have executed a state judicial function, and sheriffs have been called “officers of the court.”  1983 Op. Att’y U83-62.