Can a Georgia drug task force use federal asset forfeiture funds (DOJ equitable sharing money) to pay overtime to participating state and local police officers?

Plain-English summary

The Director of the Criminal Justice Coordinating Council asked whether state and local officers assigned to multi-jurisdictional drug task forces could be paid overtime out of federal asset forfeiture proceeds (the equitable sharing funds DOJ and Treasury transfer to local agencies after a federally adopted forfeiture). Attorney General Thurbert Baker said no.

The reasoning ran in three steps. First, Georgia's own forfeiture statute, O.C.G.A. § 16-13-49(u)(4)(D)(i), forbids using state-forfeited funds "for the payment of salaries or rewards to law enforcement personnel." Second, the companion statute governing federal forfeiture pass-throughs, O.C.G.A. § 16-13-48.1, requires that funds received from federal forfeitures "shall be received and utilized as provided by Georgia law" unless federal law affirmatively requires a different use. Third, federal law and the DOJ's equitable sharing GUIDE list overtime as a "permissible" use, but explicitly subject that to whatever the recipient state allows; nothing in federal law mandates overtime as a use. So Georgia's prohibition controlled, and overtime payment was barred.

The opinion then closed the obvious workaround: defining "salary" narrowly to exclude overtime. The AG cited the Georgia Supreme Court's broad definition in Bardugon v. Bardugon and Guntin v. Guntin and concluded that overtime compensation and benefits are part of "salary" within the meaning of § 16-13-49(u)(4)(D)(i).

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Georgia's controlled substances forfeiture statute (formerly O.C.G.A. § 16-13-49) was substantially restructured by Georgia's omnibus civil forfeiture reform legislation (HB 1, the 2015 Georgia Uniform Civil Forfeiture Procedure Act, codified at O.C.G.A. § 9-16-1 et seq.). Anyone relying on the salary-prohibition rule today should look at the current version of the controlled-substances forfeiture provisions and the Uniform Civil Forfeiture Procedure Act, not at § 16-13-49 as it stood in 2002.

Common questions

Q: What is "equitable sharing" and why does it matter to a Georgia agency?
A: When a Georgia agency participates in a federal seizure (or asks the federal government to "adopt" a state seizure), the federal government can transfer a portion of the proceeds back to the participating state and local agencies under 18 U.S.C. § 981(e)(2) and related statutes. This was a significant funding stream for drug task forces in the early 2000s. The opinion addresses what those received funds can be spent on.

Q: Did the AG say federal law required Georgia to allow overtime payments out of these funds?
A: No. The AG looked specifically at whether federal law forced overtime as a permissible use, and concluded it did not. The relevant federal statutes (19 U.S.C. § 1613b(a)(3)(F); 28 U.S.C. § 524(c)(1)(I)) treat overtime as one of several "available" uses, not a required one. The DOJ's equitable sharing GUIDE explicitly subordinates overtime use to whatever state law permits.

Q: Why does it matter how "salary" is defined?
A: Because § 16-13-49(u)(4)(D)(i) prohibits "salaries or rewards." If "salary" only meant base pay, then overtime, hazard pay, and benefits would not be covered. The AG cited Georgia Supreme Court precedent reading "salary" broadly: in Bardugon the court said salary "is not dependent on the frequency or duration of the services performed," and in Guntin benefits were treated as part of compensation. That foreclosed any argument that overtime sat outside the prohibition.

Q: Could a task force still use forfeiture money for equipment, training, or operational expenses?
A: At the time of this opinion, yes, those were "official law enforcement purposes" allowed by the statute. The narrow prohibition was on personnel compensation. The current civil forfeiture statutes should be checked for the modern list of permitted uses.

Q: Did the AG discuss any earlier opinions reaching the same conclusion?
A: Yes, the opinion cites 1992 Op. Att'y Gen. U92-22, which had already concluded that state-forfeited assets could not be used to pay the salary of the executive director of a multi-agency narcotics squad. The 2002 opinion extended that reasoning to federally received forfeiture proceeds.

Background and statutory framework

By 2002, equitable sharing proceeds were a significant supplemental revenue source for Georgia drug task forces. The federal program (rooted in 18 U.S.C. § 981(e), 19 U.S.C. § 1616a, and 21 U.S.C. § 881) lets the U.S. Attorney General and the Secretary of the Treasury transfer forfeited property and proceeds to participating state and local agencies "on such terms and conditions as [t]he[y] may determine." DOJ's Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies (1994) carried that policy, listing permissible and impermissible uses.

The Georgia General Assembly, however, had drawn a sharp line in O.C.G.A. § 16-13-49(u)(4)(D)(i): proceeds from controlled-substances forfeitures could be used "for any official law enforcement purpose," but not "for the payment of salaries or rewards to law enforcement personnel." The companion provision in O.C.G.A. § 16-13-48.1 piggy-backed federal pass-throughs onto that same regime: federal forfeiture proceeds going to a Georgia agency had to be used as Georgia law required, unless the federal program affirmatively mandated otherwise.

The interpretive question, then, was a narrow one: do federal forfeiture statutes affirmatively require that overtime salaries be paid? The AG concluded they do not, and Georgia's "salary" prohibition therefore controlled.

Citations and references

Statutes:
- O.C.G.A. § 16-13-48.1 (use of federally forfeited assets received by Georgia agencies)
- O.C.G.A. § 16-13-49(u)(4)(D)(i) (state controlled substances forfeiture, salary prohibition)
- 18 U.S.C. § 981(e); 18 U.S.C. § 981(e)(2) (federal forfeiture transfers to state and local agencies)
- 19 U.S.C. § 1613b(a)(1)(F); 19 U.S.C. § 1613b(a)(3)(F)
- 19 U.S.C. § 1616a(c)(1)(B)(ii)
- 21 U.S.C. § 881
- 28 U.S.C. § 524(c)(1)(I)

Cases:
- Bardugon v. Bardugon, 268 Ga. 361 (1997) (broad definition of "salary")
- Guntin v. Guntin, 263 Ga. 241 (1993) (benefits within definition of "salary")

Other AG opinions:
- 1992 Op. Att'y Gen. U92-22 (state-forfeited assets cannot pay narcotics squad executive director's salary)

Federal guidance:
- Executive Office for Asset Forfeiture, Office of the Deputy Att'y Gen., U.S. Dep't of Justice, A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies (1994).

Source

• Landing page: https://law.georgia.gov/opinions/2002-5
• Original PDF: not linked from landing page

Original opinion text

You have requested my opinion whether state and local law enforcement officers assigned to drug task forces may be paid for overtime using federal forfeiture funds. It is my opinion that such use of federal forfeiture funds is prohibited by O.C.G.A. §§ 16-13-48.1 and 16-13-49(u)(4)(D)(i). Generally, state and local law enforcement agencies may receive forfeited assets through either state or federal forfeiture procedures. Under Georgia law, property, money, or other things of value which are either directly or indirectly linked to a violation of the Georgia Controlled Substances Act, O.C.G.A. §§ 16-13-20 through 16-13-56, are subject to forfeiture pursuant to O.C.G.A. § 16-13-49. While proceeds from assets forfeited pursuant thereto may be used "for any official law enforcement purpose," proceeds may not be used "for the payment of salaries or rewards to law enforcement personnel." O.C.G.A. § 16-13-49(u)(4)(D)(i). See also 1992 Op. Att'y Gen. U92-22 (assets forfeited pursuant to O.C.G.A. § 16-13-49 may not be used to pay the salary of the executive director of a multi-agency narcotics squad). Assets received by state and local law enforcement agencies may also result from federal law. See 18 U.S.C. § 981; 19 U.S.C. §§ 1613b(a)(1)(F) and 1616a(c)(1)(B)(ii); 21 U.S.C. § 881. The disposition of federally forfeited property or sale proceeds generated therefrom is generally left to the discretion of the Attorney General of the United States or the Secretary of the Treasury of the United States depending upon the nature of the forfeiture. 18 U.S.C. § 981(e). Pursuant to this discretion, these officials may "transfer such property on such terms and conditions as [t]he[y] may determine . . . to any State or local law enforcement agency which participated directly in any of the acts which led to the seizure or forfeiture of the property." 18 U.S.C. § 981(e)(2) (emphasis supplied). Your question is whether proceeds received by state and local law enforcement agencies pursuant to this type of federal forfeiture may be used to pay overtime to law enforcement officers assigned to local and regional drug task forces. Regarding federal forfeitures received by state and local law enforcement agencies, Georgia law states: Money or property seized or forfeited pursuant to federal law regarding controlled substances, marijuana, or dangerous drugs, which money, property, or proceeds therefrom are authorized by that federal law to be transferred to a cooperating law enforcement agency of this state or any political subdivision thereof, shall be utilized by the law enforcement agency or political subdivision to which the money, property, or proceeds are so transferred as provided by such federal law and regulations thereunder. Unless otherwise required by federal law or regulation, such funds shall be received and utilized as provided by Georgia law. O.C.G.A. § 16-13-48.1 (emphasis supplied). Therefore, "unless otherwise required by federal law," money or property received pursuant to federal forfeitures must be used in accordance with Georgia law. The initial question is whether federal law requires that federally forfeited assets be used for the payment of salaries of state and local law enforcement agents. As to the federal forfeiture statutes, there is no federal requirement that forfeited property or proceeds transferred to state and local law enforcement agencies must be used for the payment of law enforcement overtime salaries. On the contrary, the only statutory reference to overtime salaries is in a discretionary context where the payment of overtime salaries is listed as an "available" use of the transferred forfeitures. See 19 U.S.C. § 1613b(a)(3)(F); 28 U.S.C. § 524(c)(1)(I). Thus, payment of overtime salaries is not a required use under federal law. Moreover, as noted above, transfers of federally forfeited assets may be made "on such terms and conditions as [the federal officials] may determine." 18 U.S.C. § 981(e). The United States Attorney General has provided compliance guidelines to assist in the proper sharing of federal forfeiture funds. See EXECUTIVE OFFICE FOR ASSET FORFEITURE, OFFICE OF THE DEPUTY ATT'Y GEN., U.S. DEP'T OF JUSTICE, A GUIDE TO EQUITABLE SHARING OF FEDERALLY FORFEITED PROPERTY FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES (1994) (hereinafter "the GUIDE"). As stated in the foreword of the GUIDE by the Attorney General, the purpose of the GUIDE is "to enhance the integrity of the sharing program so that it will continue to merit public confidence and support." In the absence of other directives, the GUIDE is assumed to set out the United States Attorney General's terms and conditions for 18 U.S.C. § 981(e)(2) transfers to state and local law enforcement agencies. The GUIDE states that overtime for state and local law enforcement agents is a "permissible" use of transferred funds, but the GUIDE also contains a caveat that such use is "[s]ubject to laws . . . of the state or local jurisdiction governing the use of public funds available for law enforcement purposes." GUIDE, § X.A.1.a, at 10. Moreover, the GUIDE's "Impermissible Uses" section provides that [s]hared funds may not be used for any purpose that would constitute an improper use of state or local law enforcement funds under the laws . . . of the state or local jurisdiction of which the agency is a part. Id., § X.A.2.e, at 12. A policy statement issued by the United States Department of Justice as an addendum to the GUIDE provides: The prospect of receiving forfeited funds should not influence the relative priorities of law enforcement agencies. Moreover, there should be no appearance that law enforcement decisions are motivated by the prospect of receiving forfeited funds. Accordingly, asset forfeiture funds generally should not be used to pay the salaries of law enforcement officers. Id., Addendum, § 3, at 3. Since there is no federal requirement that federally transferred forfeiture funds must be used for the payment of overtime to state and local law enforcement agents, the use of such funds is controlled by state law. The General Assembly has prohibited state law forfeitures from being used "for the payment of salaries or rewards to law enforcement personnel." O.C.G.A. § 16-13-49(u)(4)(D)(i). Thus, it is my opinion that such funds may not be used to pay the salaries of law enforcement officers since such use is prohibited by O.C.G.A. § 16-13-49(u)(4)(D)(i). Moreover, the Georgia Supreme Court has broadly defined "salary" as "compensation paid by an employer for services rendered . . . . [It] is not dependent on the frequency or duration of the services performed." Bardugon v. Bardugon, 268 Ga. 361 (1997). Additionally, benefits received by an employee as a part of the employee's compensation package are also included within the broad definition of "salary." Guntin v. Guntin, 263 Ga. 241, 242 (1993). Given these holdings, it is my further opinion that overtime compensation and other related benefits are included within the definition of "salaries" prohibited by O.C.G.A. § 16-13-49(u)(4)(D)(i). Therefore, it is my official opinion that under Georgia law federal forfeiture funds may not be used to pay the salaries of law enforcement officers, including overtime pay and other benefits. Prepared by: J. JAYSON PHILLIPS Assistant Attorney General