Are arson investigators at the Georgia Forestry Commission and investigators at the Department of Agriculture eligible for the Peace Officers' Annuity and Benefit Fund?

Plain-English summary

The Director of the Georgia Forestry Commission and the Commissioner of the Department of Agriculture both asked whether their certified investigators were eligible for membership in the Peace Officers' Annuity and Benefit (POAB) Fund. POAB is a state-administered supplemental retirement fund for peace officers. Eligibility hinges on whether the employee meets the definition of "peace officer" in O.C.G.A. § 47-17-1(5)(A): someone employed full-time on the preservation of public order, the protection of life and property, or the detection of crime in this state, who is also required to comply with the Peace Officer Standards and Training Act in Title 35, Chapter 8.

The Forestry Commission's arson investigators and the Department of Agriculture's investigators both hold P.O.S.T. certification. They have authority to make arrests, carry weapons, and investigate offenses related to their substantive area of law. The question was whether they fit within the POAB statute's definition of "peace officer."

The Attorney General said no. The Georgia Supreme Court in Bd. of Comm'rs of POAB Fund v. Clay (1958) drew a clear line: the legislature meant to "exclude from the definition of 'peace officer' public employees or officers who, incidental to the primary duties of their employment, occasionally perform some of the services of a police officer." To qualify, an officer must have "full authority to generally enforce the criminal laws," not just authority over one specialized area.

The forestry investigators' core duties are forestry-law enforcement (fire scene investigations, arson investigation, forestry-law violations). They have arrest powers, but those powers tie back to forestry-related offenses. The agriculture investigators' core duties are enforcing Titles 2, 4, 10, 26, and 43 (agriculture, food, drugs, professions). They have arrest powers, but again limited to their substantive area.

The AG read this as analogous to Vandiver v. Endicott (1959), where the Atlanta city fire marshal was held not to be a peace officer despite having city-ordinance peace officer powers, because his actual duties were fire prevention and arson, not general law enforcement. The forestry and agriculture investigators were in the same position: substantive subject-matter experts with limited arrest powers, not general peace officers.

Currency note

This opinion was issued in 2010. 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.

Note that the POAB statute at O.C.G.A. § 47-17-1(5)(B) through (K) contains a list of specifically-included job titles. The 2010 opinion notes "none of them is relevant here." Subsequent amendments may have added forestry or agriculture investigators to that list; the current statute should be checked.

Common questions

Q: What is the POAB Fund?
A: A state-administered supplemental retirement fund for peace officers, separate from the Employees' Retirement System (ERS) that covers most state employees. Peace officers participate in both: ERS as their primary pension and POAB as a supplemental benefit. The opinion notes at the end that the forestry and agriculture investigators remain ERS members regardless of POAB ineligibility.

Q: What is the "Clay test"?
A: From Bd. of Comm'rs of POAB Fund v. Clay, 214 Ga. 70 (1958). The test is whether the officer's primary duties involve generally enforcing the criminal laws and engaging in the preservation of public order, the protection of life and property, and the detection of crime. Officers whose authority is limited to one specialized area do not meet the test even if they have arrest powers within that specialized area.

Q: Who has been held to qualify under the Clay test?
A: Police officers (the paradigm case), Atlanta Police Department communications engineers (Fleming v. Maddox, 1969), Fulton County adult probation officers (Vandiver v. Manning, 1960), and Georgia Tech security officers (1961 Op. Att'y Gen. 330).

Q: Who has been held NOT to qualify?
A: Public Service Commission motor carrier inspectors (Clay itself), the Atlanta city fire marshal (Vandiver v. Endicott, 1959), Richmond County Health Department deputies (Connors v. Vandiver, 1959), Parks Department employees (1971 Op. Att'y Gen. 71-155), and tax collectors/tax commissioners who become ex-officio sheriffs (1982 Op. Att'y Gen. U82-9).

Q: Why isn't a P.O.S.T. certification enough?
A: Because P.O.S.T. certification is a training credential, not a job description. The POAB statute requires both P.O.S.T. compliance AND that the job be one of full-time peace officer work. Many specialized investigators meet the training requirement but not the substantive-job requirement. The forestry and agriculture investigators are required by statute to have P.O.S.T. certification to exercise their arrest powers, but their underlying job is still substance-specific enforcement.

Q: Why does the Vandiver v. Manning probation officer qualify when these investigators don't?
A: Manning is the harder case. The Supreme Court reasoned that probation officers have broader-than-normal arrest authority over their probationer caseload (they can arrest for violations of probation conditions, not just crimes committed in their presence). The court treated this as broad enough to qualify. The 2010 opinion does not deeply explain the difference, but the structural distinction is that the probation officer's caseload spans all categories of crimes (whatever the probationer was originally convicted of), while the forestry investigator's caseload is bounded by forestry law and the agriculture investigator's caseload is bounded by agriculture law.

Q: What happens to forestry and agriculture investigators in retirement?
A: They remain members of the Employees' Retirement System of Georgia, the primary state pension. The opinion specifically notes: "This conclusion, of course, in no way limits their status as members of the Employees' Retirement System of Georgia, the primary pension fund for state employees." So they retain a state retirement benefit; they just do not get the supplemental POAB benefit.

Q: Has the General Assembly ever overridden this rule by adding a specific job title to the included list?
A: Yes, the POAB statute lists numerous job titles that are specifically included regardless of the Clay test, in O.C.G.A. § 47-17-1(5)(B) through (K). Footnote 1 of the opinion notes that these provisions exist but were not relevant to forestry or agriculture investigators in 2010. The General Assembly remains free to add additional job titles by statute.

Background and statutory framework

The POAB Fund was created in 1950 to provide retirement benefits to Georgia peace officers. From the start, the Fund's eligibility rules were narrower than its name might suggest. Clay (1958) is the foundational decision interpreting "peace officer" narrowly, holding that motor carrier inspectors did not qualify because they enforced only one substantive area of law. Vandiver v. Endicott (1959) extended the same logic to a city fire marshal.

The two specialized investigators at issue in the 2010 opinion (forestry and agriculture) are creatures of detailed enabling statutes. Forestry Commission investigators under O.C.G.A. § 12-6-20 have authority to enter land to suppress fires and enforce forestry laws. Agriculture investigators under § 2-2-13 have police powers to enforce statutes within the Commissioner of Agriculture's jurisdiction (Titles 2, 4, 10, 26, 43) and to respond to bioterrorism. Both sets of investigators must hold P.O.S.T. certification to exercise their full statutory arrest powers.

The 2010-4 opinion is a clean application of the Clay test to two new categories. The investigators have arrest powers, weapons authority, and P.O.S.T. certification, but their jobs are substantive subject-matter enforcement (arson, forestry violations, agricultural fraud, food safety, animal disease), not general law enforcement. Under the Clay test, that is not enough for POAB membership.

Citations and references

Statutes:
- O.C.G.A. § 47-17-1(5)(A), definition of peace officer for POAB
- O.C.G.A. § 47-17-1(5)(B)-(K), list of included job titles
- O.C.G.A. § 47-17-40, POAB membership eligibility
- O.C.G.A. § 12-6-20, Forestry Commission investigator authority
- O.C.G.A. § 12-6-20(c), P.O.S.T. certification requirements for full powers
- O.C.G.A. § 2-2-13, Commissioner of Agriculture's police powers
- O.C.G.A. § 2-2-13(b): investigator deputization

Cases:
- Bd. of Comm'rs of POAB Fund v. Clay, 214 Ga. 70 (1958), foundational test; specialized inspectors not peace officers
- Vandiver v. Endicott, 215 Ga. 250 (1959), fire marshal not a peace officer
- Connors v. Vandiver, 215 Ga. 371 (1959), health department deputy not a peace officer
- Vandiver v. Manning, 215 Ga. 874 (1960), probation officer is a peace officer
- Fleming v. Maddox, 225 Ga. 737 (1969), police communications engineer is a peace officer

Prior AG opinions:
- 1991 Op. Att'y Gen. U91-12, POAB is a supplemental retirement fund for peace officers
- 1961 Op. Att'y Gen. 330, Georgia Tech security officers qualify
- 1971 Op. Att'y Gen. 71-155, Parks Department employees do not qualify
- 1982 Op. Att'y Gen. U82-9: tax collectors as ex-officio sheriffs do not qualify

Source

• Landing page: https://law.georgia.gov/opinions/2010-4
• Original PDF: not linked from landing page

Original opinion text

Each of you has requested my opinion concerning whether certain investigators employed by your respective agencies are eligible for membership in the Peace Officers' Annuity and Benefit ("POAB") Fund. Having researched the relevant law, it is my official opinion that the investigators at issue who are employed by the Georgia Forestry Commission and by the Georgia Department of Agriculture do not meet the definition of peace officer in the POAB Fund statute as that definition has been interpreted by the Georgia Supreme Court and that they therefore are not eligible for membership in the POAB Fund. "The POAB Fund is a supplemental retirement fund which is available to all persons who are employed in a capacity of 'peace officer' as that term is defined in the Act governing the POAB. Compare O.C.G.A. § 47-17-40 with O.C.G.A. § 47-17-1(5)." 1991 Op. Att'y Gen. U91-12. The POAB Fund statute defines peace officer, in pertinent part, as: Any peace officer who is employed by this state or any municipality, county, or other political subdivision thereof who is required by the terms of such peace officer's employment, whether by election or appointment, to give such peace officer's full time to the preservation of public order, the protection of life and property, or the detection of crime in this state or any municipality, county, or other political subdivision thereof and who is required by the terms of such peace officer's employment to comply with the requirements of the 'Georgia Peace Officers Standards and Training Act' contained in Chapter 8 of Title 35 . . . . O.C.G.A. § 47-17-1(5)(A).[1] Construing this definition and earlier versions of it, the Georgia Supreme Court has found that the clear "intent of the legislature was to exclude from the definition of 'peace officer' public employees or officers who, incidental to the primary duties of their employment, occasionally perform some of the services of a police officer." Bd. of Comm'rs of Peace Officers Annuity & Benefit Fund v. Clay, 214 Ga. 70, 72 (1958). The court has held that "the authority of [public officers or employees] to act as peace officers must be found in some public law" and that, in order to qualify for membership in the POAB Fund, the law must give them authority to act as "'peace officers' in the general sense" and not just authority to enforce or regulate one specific or restricted area of the law. Id. at 73-74. "That is to say, eligibility for membership in the fund is extended to peace officers who possess full authority to generally enforce the criminal laws and generally engage in the preservation of public order, the protection of life and property, and the detection of crime." 1982 Op. Att'y Gen. U82-9. In Clay, the supreme court concluded that motor carrier inspectors for the Public Service Commission were not eligible for membership in the POAB Fund because they only had "the power to enforce the laws relating to a restricted class of motor vehicles using the highways." Id. at 74. In a case that is particularly relevant to your requests, Vandiver v. Endicott, 215 Ga. 250 (1959), the supreme court held that the City of Atlanta fire marshal was not a peace officer within the meaning of the POAB Fund statute and therefore was not entitled to membership in the POAB Fund. The fire marshal asserted that he "devotes his full time to the preservation of public order, the protection of life and property, and the detection of crime in the City of Atlanta, that he is by city ordinance vested with the powers of a police officer, that it is his duty to see that the Georgia fire-safety regulations and the fire-prevention ordinances of the City of Atlanta are enforced, that he has exercised his authority as a police officer of the City of Atlanta, and that he apprehended and prosecuted violators of the laws of Georgia and the ordinances of the City of Atlanta." Id. at 250-51. The fire marshal put forth evidence that his specific duties "relate to fire prevention and fire safety and consist primarily of detecting fire hazards and in eliminating them, in enforcing the laws and ordinances relating to fire prevention and fire safety, and in making arrests and prosecuting those suspected of arson and the violation of other laws and ordinances relating to fire protection, fire prevention, fire safety, fire fighting, etc." Id. at 251. The court explained that "[i]n general, it may be said that a peace officer is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crimes." Id. (citations omitted). Citing its previous holding in Clay, the court held here that the fire marshal was not a peace officer for POAB Fund purposes because his duties as a police officer and his authority to make arrests were only incidental to the primary duties of his employment. Id. at 251-52. See also Connors v. Vandiver, 215 Ga. 371 (1959) (holding that deputy at Richmond County Health Department was not peace officer for POAB Fund purposes). On the other hand, the supreme court held in Vandiver v. Manning, 215 Ga. 874 (1960), that a Fulton County adult probation officer was a peace officer and eligible for membership in the POAB Fund. The court explained: While the jurisdiction of probation officers to arrest offenders is limited to one class of persons, the probationers under their supervision, their power of arrest is broader with regard to that class of persons than is the general power of arrest by officers . . . since the probation officer may arrest a probationer without a warrant for the alleged violation of any condition of his probation, which might be the commission of a felony or a misdemeanor, or a mere violation of some rule prescribed for his conduct, even though such violation of the conditions of his probation was not committed in the probation officer's presence. The probation officer deals with a group of persons known to have criminal tendencies, since they have been convicted of violations of law, and his arrests are made of persons already convicted of crime, whereas an officer such as a policeman frequently arrests persons only suspected of criminal violations. We therefore conclude that the plaintiff as Adult County Probation Officer of Fulton County should be termed a 'peace officer' and eligible for membership in the fund established for peace officers . . . . Id. at 124 (citations omitted). See also Fleming v. Maddox, 225 Ga. 737 (1969) (holding that Atlanta Police Department communications engineer was peace officer for POAB Fund purposes). My predecessors have been asked on a number of occasions over the years to consider whether certain employees constituted peace officers and were therefore eligible for membership in the POAB Fund. In considering these questions, my predecessors have consistently applied the supreme court's interpretation of the definition of peace officer in § 47-17-1(5)(A) and that Code section's previous incarnations, which the court first fully explained in Clay. My predecessors have opined that security officers at Georgia Tech are peace officers under the statute and therefore eligible for membership, 1961 Op. Att'y Gen. 330, but that employees of the Parks Department, and tax collectors and tax commissioners who become ex-officio sheriffs, are not. 1971 Op. Att'y Gen. 71-155; 1982 Op. Att'y Gen. U82-9. Forestry Commission investigators The Director of the Forestry Commission possesses the statutory authority to "appoint investigators to enforce the forestry laws and regulations of this state." O.C.G.A. § 12-6-20(a). "The investigators so appointed and any fire-fighting crews under their direction may enter upon any land for the purpose of preventing and suppressing fires and enforcing the fire and other forestry laws and regulations of this state." O.C.G.A. § 12-6-20(b). "Investigators who have been so appointed and who have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the 'Georgia Peace Officer Standards and Training Act,' shall be authorized and empowered to" perform a number of other functions. O.C.G.A. § 12-6-20(c). These include the ability to "[m]ake summary arrests for violations of the fire and other forestry laws and regulations of this state"; to "[a]rrest persons accused of violating any law or regulation which such investigators are empowered to enforce by the issuance of a citation, provided that the offense is committed in the presence of the investigator or information concerning the offense constituting a basis for arrest was received by the arresting investigator from a law enforcement officer who observed the offense being committed"; and to "[c]arry weapons in order to enforce the forestry laws and regulations of this state." Id. Based on information Director Farris and his staff have provided, it is my understanding that the Forestry Commission requires its investigators to hold peace officer certification from the P.O.S.T. Council. It is also my understanding that arson investigators regularly undertake the tasks of conducting fire scene investigations to determine the origin and cause of fires and conducting criminal investigations into violations of the arson criminal code including other criminal offenses that impel arson. It is my further understanding that these investigators also investigate violations of Georgia forestry laws and regulations and violations of other laws as appropriate, in addition to other duties such as conducting training sessions, performing administrative duties, maintaining state vehicles and equipment, and supervising forestry investigators. Department of Agriculture investigators The Commissioner of Agriculture is "vested with police powers to enforce those laws governing matters within the jurisdiction of the Commissioner or the department as provided by [Titles 2, 4, 10, 26, and 43] and the rules and regulations adopted pursuant thereto and to prevent, detect, and respond to acts of bioterrorism, other terroristic acts or threats, or natural disasters affecting or potentially affecting plants, animals, products, or facilities that are subject to regulation by the department." O.C.G.A. § 2-2-13(a). The Commissioner is also "authorized to employ, designate, and deputize investigators and to delegate to such employees of the department the necessary authority to enforce those" same statutes, rules, and regulations. O.C.G.A. § 2-2-13(b). "Employees who have been so designated by the Commissioner and who have been certified by the [P.O.S.T. Council] as having successfully completed the training required by . . . the 'Georgia Peace Officer Standards and Training Act,' shall be authorized: To carry firearms authorized or issued by the Commissioner while in the performance of their duties; To inspect plants, animals, products, or facilities when the same are subject to regulation by the department To stop and inspect any vehicle transporting plants, animals, or products when the same are subject to regulation by the department; To inspect and require the production of health certificates, waybills, permits, or other documents required by federal or state laws, rules regulations, or orders for the transportation of plants, animals, or products when the same are subject to regulation by the department; To protect any life or property when the circumstances demand action; and To arrest any person found to be in violation of a criminal law when enforcement of such law is authorized under this subsection. Id. Having reviewed the relevant law, it is my opinion that arson investigators at the Forestry Commission and investigators at the Department of Agriculture are not eligible for membership in the POAB Fund because they do not meet the definition of peace officer as that definition has been interpreted by the Georgia Supreme Court. Under § 47-17-1(5)(A), a POAB Fund member must be a peace officer who is required by the terms of his or her employment to (1) give his or her full time to the preservation of public order, the protection of life and property, or the detection of crime; and (2) comply with the requirements of the Georgia Peace Officer Standards and Training Act. As explained in more detail above, the Georgia Supreme Court has construed the definition to include only those who serve as peace officers in the general sense, those who have as their primary duties by law (not by custom) broad powers to enforce the criminal laws and to make arrests, rather than those whose primary duties are to enforce or regulate one specific area of the law. The investigators at issue here do not appear to meet this general definition of peace officer under the case law because their core duties involve the enforcement of one specific substantive area of the law and they do not possess broad jurisdiction over the criminal laws or broad arrest powers. In regard to the Forestry Commission's arson investigators in particular, their status seems to be very similar to that of the City of Atlanta fire marshal who was deemed not to be eligible for POAB Fund membership by the Supreme Court in Vandiver v. Endicott, 215 Ga. 250. The status of the Agriculture Department investigators seems to be analogous to that as well. Therefore, it is my official opinion that the investigators at issue who are employed by the Georgia Forestry Commission and by the Georgia Department of Agriculture do not meet the definition of peace officer in O.C.G.A. § 47-17-1(5)(A) as that definition has been interpreted by the Georgia Supreme Court and that they therefore are not eligible for membership in the POAB Fund. Although it is clear that these investigators perform important functions for the citizens of this State, their specific missions do not meet the criteria established by the General Assembly, as interpreted by the Georgia Supreme Court, for membership in this supplemental retirement fund. This conclusion, of course, in no way limits their status as members of the Employees' Retirement System of Georgia, the primary pension fund for state employees. See O.C.G.A. Title 47, Chapter 2. Prepared by: CHRISTOPHER A. MCGRAW Assistant Attorney General [1] The statute also goes on to name a number of specific job titles that are expressly included in the definition of peace officer, O.C.G.A. § 47-17-1(5)(B) through (K), but none of them is relevant here.