Opinion Letter to Mr. David R. Freeman

J¥U,m~ §~~ ~(@l(; JOHN ASH CROFT .JEFFERSON CITY ( 31~ ) 751·3321 ATTOHNEY G £N£RAL 65101 April 4, 1979 OPINION LETTER NO. 15 (Answer by Letter-Laughrey) Mr. David R. Freeman Director Department of Social Services Broadway State Office Building Jefferson City, Missouri 65101 FIL ED~ j_s- I f ------ Dear Mr. Freeman: This opinion letter is in response to your predecessor 's r equest for an answer to the following question: "Is the Division of Investigation, Department of Social Services a 'criminal justice agency ' as defined in Title 28, Chapter 1, Part 20 of the Code of Federal Regulations." . Title 28, Chapter 1, part 20 .3(c) defines a criminal jus tice agency as: "1) Courts; 2) A government agency or subunit thereof which performs the administration of criminal justice pursuant to a statute or exe- cutive order and which allocates a substantial part of its budget to the administration of criminal justice." Clearly, the Division of Investigation of the Department of Social Services is a subunit of a governmental agency and as you indicated, allocates a substantial part of its budget to detect welfare fraud. The question then is whether it performs the "administration of criminal justice pursuant to a statute or an executive order ." Title 28, Chapter 1, part 20.3(d) defines the admi nistration of cr iminal justice as any of the following activities: Mr. David R. Freeman " ... detecti on, apprehension .. . prose- cution, adjudication of accused persons or criminal offenders . The administration of criminal justice shall include criminal identi fication activities in the collection, storage and dissemination of criminal history record i nformation." As you have explained, the primary function of the Division of Investigation is to investigate and refer for prosecution instances of welfare fraud. Investigators gather evidence and interview suspects and witnesses and work closely with local prosecutors until the case has been adjudicated. Since these activities involve the "detection, apprehension, and prosecution of accused persons or criminal offenders," the Division of Investigation performs the administration of criminal justice within the mean- ing of Title 28, Chapter 1, part 20 of the Code of Federal Regu- lations . The only remaining question then is whether the Divi- sion of Investigation conducts its activities pursuant to a statute or an executive order. The Department of Social Services was created pursuant to statute, §13.1 of the Omnibus State Reorganization Act of 1974. Under that provision and §191.050 , RSMo, the Director of the Department of Social Services has the power to make "inquiries and investigations . . . as may be necessary in pursuance of his duties ." t.fuile the Director of the Department of Social Services i s not specifically directed by statute to investigate welfare fraud as defined in §§205.966 and 205.967, RSMo Supp . 1975, and §§570 .030 through 570. 050, V.A.M.S., he is directed by statute to administer the Department of Social Services in the best interest of its clients and in the most economical and efficient way . Since welfare fraud is neither economical nor in the best interest of the Department of Social Services' clients, any welfare fraud investigation by the Director of Social Services would be pur- suant to his duties. It i s therefore the opinion of this office that the investigations made by the Division of Investigation are made pursuant to statute. Moreover, on May 17, 1978, the Governor of the State of Missouri approved the Department of Social Services ' Plan which had been submitted pursuant to §1.6(2) of the Omnibus State Reorganization Act of 1974. Such plan provides in part as fol lows: "The Division of Investigation shall have the follm-1ing functions and duties: - 2 - Mr. David R. Freeman 1. To have as its principal function the investigation, identification and collection of evidence for use in criminal prosecutions relating to alleged abuses, suspected frauds and other violations relating to programs administered by the Department of Social Services." We find that this procedure falls within the meaning of executive order which is defined by Title 28, Chapter 1, part 20.3(h). as : "an order of the President of the United States or the Chief Executive of a state which has the force of law and which is published in a manner permitting regular public access thereto." I t i s therefore the opinion of this office that the investiga- t i ons made by the Division of Investigation are made pursuant to executive order. Therefore, the Division is a criminal j ustice agency within the meaning of Title 28, Chapter 1, part 20 of the Code of Federal Regulations. Our conclusion is buttressed by the appendix to Title 28, Chapter 1, part 20 of the Code of Federal Regulations, wherein it states: "The definitions of criminal justice agency and administ ration of criminal justice of 20 .3(c)(d) must be considered together. Included as cr~inal justice agencies would be traditional police, courts and correction agencies as well as subunits or noncriminal justice agencies performing a function of the administration of criminal justice pur- suant to federal or state statutes or exe- cutive order . The above subunits of non- criminal justice agencies would include for example , the Office of Investigation of the U.S. Department of Agriculture which has as its principal function the collection of evidence for criminal prosecutions of fraud." Si nce the Office of Investigation of the United States Department of Agriculture has responsibilities similar to the Division of Investi gation of the Department of Social Services, it seems logical that the Division of Investigation of the Department of Social Services should be entitled to the status of a criminal justice agency. Very truly yours, (i~~~ Attorney General