Although marshals must be certified,

their authority is limited. O.C.G.A. 15-10-100 (c)(2) specifically states

that:

No person employed or appointed

as a marshal pursuant to paragraph (1) of this subsection shall exercise

any of the powers or authority which are by law vested in the office of

the sheriff or any other peace officer, including the power of arrest,

except as may be authorized by law. (emphasis added)

I am deeply concerned that

no attempts be made by marshals to enforce traffic, or any other violations

of state law. Any traffic stop may necessitate an arrest, and thus a marshal

would have placed himself as well as the county in a position of tremendous

liability. In addition any investigation of violations of any other state

law, whether having been committed on county property or not, might also

necessitate an arrest and again would place the marshal and the county

in a position of significant liability. It is important for you to know

that marshals do not have the power of arrest without a warrant.

In view of this fact, I will

not accept traffic cases, or any other accusations of violations of state

law made by marshals, into the county jail. To do otherwise would place

me personally and the county in a position of tremendous legal liability.

The only duties marshals/constables have are the ones conferred on them

with any duty to enforce criminal laws of the state.

In addition I am concerned

about the new marshal badges which prominently identify them as Public

Safety Deputy and only display the word marshal in smaller letters. I

am concerned this will mislead the public as to the authority of these

Marshals.

I know we both stand ready

to do all that we can to make sure we have the best law enforcement protection

and service for all of our citizens. I pledge to do my part.

I am enclosing with this letter

an opinion from the Attorney General's Office which outlines the authority

of Marshals in Georgia.

Sheriff Randall Johnson

Fayette County Sheriff's

Office

[Editor's note: The following

is the text of a letter sent last week from Fayette County Commission

Chairman Greg Dunn to Sheriff Randall Johnson.]

This responds to your letter

delivered to the Board of Commissioners dated August 21, 2003, in which

you expressed your "concerns" about the Fayette County Marshal's

office. Your letter has triggered a few concerns of our own.

First, we are troubled and

disappointed that you chose to launch a public relations assault on the

County Commission rather than simply talking to us about the issue. Comments

made to the press a few days ago and your letter to us which was sent

to the press, before I received it, would lead any reasonable person to

conclude that your prefer to discredit the County Commission publicly

rather than making any sincere attempt to determine if there is any basis

for your unwarranted "concerns."

Secondly, we are alarmed that

whoever researched this issue for you lacks a clear understanding of the

law as it applies to the Marshal's office and has inadvertently caused

you to make inaccurate public statements and to adopt public positions

which are not supported by law.

Your letter and its enclosed

Unofficial Opinion U95-14 dated July 17, 1995 address many things but

unfortunately have nothing to do with the issue at hand. Your position

relies on O.C.G.A. 15-10-100 and O.C.G.A. 36-8-1(b) to make your case.

Neither of these code sections applies to the creation or operation of

the Fayette County Marshal's office.

In 1983 the County Commission

established the Marshal's office in accordance with O.C.G.A. 36-8-1. By

opting to use O.C.G.A. 36-8-1, rather than some other section of the Code,

the County Commissioners chose to establish a County police department.

Calling it the Marshal's office helped to eliminate confusion but in no

way changed the status of the office conferred upon it by complying with

the provisions of this particular Code Section.

Furthermore, in July 1989 the

County Commission granted the County Marshal powers pursuant to O.C.G.A.

36-8-5. This statute and Fayette County Resolution No. 89-07 specifically

granted the Marshal "the power to make arrests and to execute and

return criminal warrants and processes in Fayette County, and all the

powers of the Sheriff as peace officers in Fayette County."

O.C.G.A. 36-8-1(b) amends O.C.G.A.

36-8-1, which was used to create the County police department (the Marshal's

office). O.C.G.A. 36-8-1(b) does not apply to county police departments

established prior to January 1, 1992, per O.C.G.A. 36-8-1(c).

Your concern that the current

County Commission is attempting to "secretly" create a County

police department is preposterous. Our predecessors publicly created a

County police department (the Marshal's office) over 20 years ago. This

legally established County police department has been in continuous operation

since 1983. As a result, this action provides certain options to the County

Commission.

Most of the counties in our

region have chosen to deny funding to their sheriffs for patrol, investigative

and traffic operations, opting to have their county police departments

perform those duties instead. The Fayette County Commission has had that

option since 1983 but has never acted upon it.

We can assure you that although

our current Commissioners are aware of our options we prefer to operate

in the same manner as we have for the last 20 years. As long as the quality

of law enforcement continues to be the best in the region it would not

make good sense to potentially jeopardize our successes by reorganization.

It should be noted that in

the last few years, your department has received significant increases

in dollars and personnel while most County departments (including the

Marshal's office) have experienced reduced funding and no new personnel

authorizations. That hardly has the earmarks of a conspiracy to us.

As to your threat that you

will not accept violators arrested by our Marshal's office into our Fayette

County Jail, we would suggest that you consider your position. You are

required by state law, O.C.G.A. 42-4-12, to accept persons charged with

an indictable offense in Fayette County. The Fayette County Police Department

(Marshal's office) is no different than city police departments in this

regard.

We agree that none of us would

ever allow any misunderstanding or difference of opinion to jeopardize

even one Fayette County citizen. We further agree with your statement

that you and us both stand ready to do all we can to make sure we have

the best law enforcement for all our citizens.

Gregory Dunn

Chairman

UNOFFICIAL OPINION U95-14

To: County Attorney, July 17,

1995, Forsyth County

Re: Forsyth County did not

establish a county police force when it created a county marshal's office

in 1985 and, therefore, the county governing authority must comply with

the requirements of O.C.G.A. 36-8-1(b) before creating a county police

force.

You have asked for my opinion

on whether Forsyth County, by its action in creating a county marshal's

office in 1985, created a county police force, thereby rendering inapplicable

O.C.G.A. 36-8-1(b), which requires a referendum before a county governing

authority may create a county police force.

It is my unofficial opinion

that Forsyth County did not establish a county police force when it created

a county marshal's office in 1985 and, therefore, must comply with the

requirements of O.C.G.A. 36-8-1(b) before creating a county police force.

Official Code of Georgia Annotated

36-8-1(b) provides, in pertinent part, that: (1) Each county governing

authority may authorize, through proper resolution or ordinance, the creation

of a county police force. No resolution or ordinance adopted pursuant

to this paragraph shall become effective until the governing authority

of the county has submitted to the qualified electors of the county the

question of whether the resolution or ordinance shall be approved or rejected...."

Official Code of Georgia Annotated

36-8-1(c), however, states that: "The provisions of subsection (b)

shall not apply to any county which has created a county police force

prior to January 1, 1992, which county police force remains in existence

and operational." (Emphasis added.)

Thus, the question is whether

a marshal's office is the same as a county police force; or, stated a

different way, whether a marshal is the same as a county police officer.

The term "marshal"

is not defined under Georgia law, and the only express statutory reference

to marshals is in O.C.G.A. 15-10-100, the title of which is "Appointment

of constables; compensation; chief constable." The relevant portion

of that statute, although enacted in 1991, indicates that a marshal is,

in fact, a constable, the difference being that a constable is appointed

governing authority of a county in order "to perform the duties of

constables." O.C.G.A. 15-10-100(c.1)(1).

Earlier opinions of the Attorney

General support that proposition. See 1983 Op. Att'y Gen. U83-13 (equating

powers and duties of marshals and constables for purposes of the State

Indemnification Act); 1982 Op. Att'y Gen. 82-45 (referring to marshals

and constables as "personnel of courts of limited jurisdiction").

Further, I note that the Forsyth

County Board of Commissioners, in its July 10, 1985 letter appointing

the first County Marshal (Exhibit 4 to your letter), clearly seemed to

indicate that its newly-appointed marshal would be part of the Magistrate

Court's personnel: "The purpose of the office of Forsyth County Marshal

is to afford the means to enforce its ordinances which presently have

no such means. ... Again, as we have discussed, the methods by which we

intend to enforce ordinances will begin with the diss[emination] of information,

assistance, encouragement, persuasion, warning, citation, and prosecution

in the Magistrate Court in the order listed."

Additionally, although O.C.G.A.

15-10-100(c.1)(3) mandates that a person employed or appointed as a marshal

must meet the requirements of Chapter 8 of Title 35 (relating to certified

peace officers), O.C.G.A. 15-10-100(c.1)(2) expressly limits the scope

of a marshal's powers and authority: "No person employed or appointed

as a marshal pursuant to paragraph (1) of this subsection [i.e., employed

or appointed as a marshal by the governing authority of a county] shall

exercise any of the powers or authority which are by law vested in the

office of sheriff or any other peace officer, including the power of arrest,

except as may be authorized by law."

The scope of a constable's

powers and authority is similarly limited by statute. See O.C.G.A. 15-10-103

("Constables shall exercise the power of arrest only with a warrant

or at the direction of and in the presence of a magistrate or the judge

of another court"); O.C.G.A. 15-10-102 (powers and duties of constables).

There are numerous opinions

of the Attorney General which hold that constables possess only those

limited powers conferred upon them by statute, that they do not have general

police powers, and that they are not charged with a general duty to enforce

the criminal laws of this state. See, e.g., Ops. Att'y Gen. 69-214; 69-217;

U87-21; U83-13; U78-30; U75-17.

Of course, a county and, thus,

its agencies and departments, "may exercise only powers that are

expressly given or necessarily implied from the express grant of other

powers." Twiggs County v. Atlanta Gas Light Co., 262 Ga. 276, 277

(1992), citing DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513

(1972) and Ga. Const 1983, Art. IX, Sec. I, Para. I (1994).

In contrast, O.C.G.A. 36-8-5

provides that county police officers have: (1) The same power to make

arrests and to execute and return criminal warrants and processes in the

county of their election or appointment only, as sheriffs have; and (2)

All the powers of sheriffs as peace officers in the county of their election

or appointment. See also 1969 Ga. Laws 875-76 (former O.C.G.A. 15-17-17),

repealed by 1983 Ga. Laws 884, 992 4-2, effective July 1, 1983, providing

that "Constables shall not hold themselves out to the public as State

police or county police or use the name 'State Police' or 'County Police'

on their automobiles or any other property;" and Ops. Att'y Gen.

69-214; 69-217; U78-30; U75-17 (interpreting that statute and its predecessor,

Ga. Code Ann. 24-823).

Based on the foregoing authority,

it is my unofficial opinion that a county marshal's office is not equivalent

to a county police force and, therefore, Forsyth County did not establish

a county police force when it created a county marshal's office in 1985.

Consequently, the county governing

authority must comply with the requirements of O.C.G.A. 36-8-1(b) before

creating a county police force [a public referendum].

Prepared By: Matthew P. Stone

Assistant Attorney General