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Opinion 172

A part-time Magistrate, whose duties include issuing criminal warrants and holding warrant hearings at night and hearing Good Behavior cases on Saturdays, seeks an Advisory Opinion concerning possible conflicts if he goes into the “private, for-profit, probation service” for:

(i) the Superior Court of the Circuit in which his magistrate court is located;

(ii) the Probate Court of the County in which his magistrate court is located; and

(iii) the Magistrate Court of the County in which his court is located.

As amended in 1991, O.C.G.A. § 42-8-100 authorizes the chief judge of any court within the county, with the approval of the governing authority of that county, to enter into various contracts and agreements for probation services. Whether that proposed contract with the Superior Court of the Circuit in which the Magistrate Court is located is or is not authorized is a question of law for the courts and not an issue for this Commission.

While such contracts with the Probate Court and the Magistrate Court would appear to be authorized by the above-cited Code section, the execution of any such contract by a part-time Magistrate, or any other judicial officer for that matter, would inevitably give rise to an impermissible appearance of impropriety in violation of Canon 1 and accordingly, cannot be sanctioned. In short, no judge should have any interest, financial or otherwise, in any such “private, for-profit, probation service company,” and the questions posed must therefore be answered in the negative.

The Commission also notes that Section 7 and 8 of the HB, 1607 (1992) strike O.C.G.A. § 42-8-100 and 42-8-101 and substitute new language for both sections. As amended, O.C.G.A. § 42-8-101 creates a County Probation Advisory Council which, among other things, is directed to “promulgate rules and regulations regarding contracts or agreements for probation services as authorized by this article.” To the best of the Commission’s knowledge, this council has not yet been named, nor have any rules and regulations been promulgated as of the date of this opinion. Accordingly, any opinions expressed herein are conditioned upon and subject to review an modification, if necessary, upon promulgation of the rules and regulations authorized by this Code Section.

[Pertinent Code of Judicial Conduct provisions: Canons 1 and 3, Rules 1.2(B), 2.4(B), 2.11(A). Cross reference to other relevant opinions for review: #34, #70, #101, #137, #151, #162, #171, #179, #215, #219.]

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