Can Georgia state and local law enforcement agencies use federal forfeiture proceeds to pay officer overtime?

Plain-English summary

Back in 2002, the Attorney General had told Georgia law enforcement agencies that federal forfeiture funds (proceeds shared back to local agencies under federal asset forfeiture programs) could not be used to pay officer overtime. The bar came from former O.C.G.A. § 16-13-48.1 and a parallel restriction in § 16-13-49 that, at the time, prohibited use of forfeited assets for law enforcement salaries.

In 2015, the General Assembly enacted the Georgia Uniform Civil Forfeiture Procedure Act, which substantially rewrote Georgia's civil forfeiture procedure. The 2015 Act repealed § 16-13-48.1 outright and amended § 16-13-49 to delete the salary prohibition. Distribution of federal forfeiture property was moved to a new statute, O.C.G.A. § 9-16-21, which permits law enforcement agencies to use federal forfeiture property "as authorized by . . . federal law and regulations or guidelines promulgated thereunder."

Translation: Georgia law no longer independently prohibited paying officer overtime out of federal forfeiture proceeds. The federal law and DOJ guidelines became the only constraint. If the federal Equitable Sharing Program rules allowed the use, Georgia law allowed it.

The Interim Executive Director of the Criminal Justice Coordinating Council asked AG Sam Olens to confirm. He did, and formally withdrew 2002 Op. Att'y Gen. 2002-5 to the extent it was inconsistent with the new § 9-16-21.

Currency note

This opinion was issued in 2016. 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.

Common questions

Q: What was the practical effect of the 2002 opinion?
A: At the time, Georgia agencies that received DOJ Equitable Sharing payments could not spend those funds on officer overtime, even if the federal program would have permitted it. Georgia law was the more restrictive constraint.

Q: What changed in 2015?
A: The Georgia Uniform Civil Forfeiture Procedure Act, 2015 Ga. Laws 693, repealed § 16-13-48.1 and removed the salary-use prohibition from § 16-13-49. Federal-forfeiture distribution moved to a new statute, O.C.G.A. § 9-16-21, that simply pointed to federal law and guidelines as the limit on use.

Q: Does this mean any agency can spend federal forfeiture money on anything?
A: No. The constraint is now whatever the federal program (most prominently, DOJ's Equitable Sharing Program) allows. The federal Equitable Sharing Guide has its own rules about acceptable uses, including limits on percentage of overtime, prohibitions on supplanting agency budgets, and reporting requirements. Georgia law just stopped layering an extra prohibition on top.

Q: What about state-law forfeitures?
A: Those are separately governed by the rest of the Georgia Uniform Civil Forfeiture Procedure Act. The opinion focused on federal forfeiture proceeds because that was the question presented.

Q: How was the 2002 opinion withdrawn?
A: Only "to the extent" it was inconsistent with the new § 9-16-21. The 2002 opinion's reasoning about the now-repealed statutes is no longer good law as to overtime; the statutory premise is gone.

Background and statutory framework

Federal asset forfeiture programs (administered by DOJ, Treasury, and others) share back to participating state and local law enforcement agencies a portion of the proceeds when those agencies help with seizures of property tied to federal crimes. The DOJ Equitable Sharing Program is the largest, and the DOJ Equitable Sharing Guide sets out the federal restrictions on use.

Pre-2015 Georgia law layered an additional restriction on top of the federal rules. Former O.C.G.A. § 16-13-48.1 and the salary-use clause of § 16-13-49 prohibited use of forfeited assets for law enforcement salaries, which the AG in 2002 read to forbid overtime as well.

The 2015 Georgia Uniform Civil Forfeiture Procedure Act was a top-to-bottom rewrite of state forfeiture law. It moved the rules into a new Chapter 16 of Title 9, modernized definitions, addressed innocent-owner defenses, and changed how federal-forfeiture proceeds were treated. Section 9-16-21 became the new gateway: federal forfeiture property could be used "as authorized by . . . federal law and regulations or guidelines promulgated thereunder."

By withdrawing the inconsistent portion of 2002 Op. Att'y Gen. 2002-5, AG Olens cleared the path for Georgia agencies to spend federal forfeiture proceeds on overtime as long as the federal program permitted it.

Citations and references

Statutes:
- O.C.G.A. § 9-16-21 (post-2015 distribution of federal forfeiture property)
- O.C.G.A. § 16-13-49 (drug forfeiture, pre- and post-2015)
- 2015 Ga. Laws 693 (Georgia Uniform Civil Forfeiture Procedure Act)

Prior opinions:
- 2002 Op. Att'y Gen. 2002-5 (withdrawn to the extent inconsistent)

Source

• Landing page: https://law.georgia.gov/opinions/2016-3

Original opinion text

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