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Auxiliary Police

( Published in April 1992 Masschiefs.org )
Collins, Reed & Wienburg
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There is specific statutory authority for creation of auxiliary police officer units in the cities and towns of Massachusetts. This authority appears in the state's Civil Defense Act, St.1950,c 639, Section11(a), which provides that the mayor and city council in cities and the selectmen in towns, or other authorized appointing authority, may appoint, train and equip volunteer, unpaid auxiliary police.
Auxiliary police may be appointed in any municipality, whether or not its regular police department is subject to the provisions of the Civil Service law, G.L. c. 31. In no event are persons who are appointed as auxiliary police officer subject to the Civil Service law, ( St 1950, c 639, Section2) nor are they covered by the retirement law, G.L. c. 32, or the workman's compensation law, G.L. c.152, St 1950, c.639 Section 11(a).
Although auxiliary police officers may posses such powers and duties of police officers as the appointing authority allows, the lawful exercise of those powers is specifically conditioned upon the following statutory provisions:

The auxiliaries must be on active duty;
The auxiliaries must display an authorized badge or insignia, ( uniforms apparently are not necessary, but they are certainly not prohibited);
The situation for which the auxiliaries are called to duty by the police chief must be one which in his opinion cannot be adequately handled by the municipality's regular police force and reserve police force, if any; and
Auxiliary police in towns, but not in cities, may be authorized by the appointing authority to enter upon private property for the purpose of enforcing blackout or air raid precaution rules, regulations or orders issued by or under the authority of the governor or as otherwise provided by law.


Anti-subversive /Loyalty Oath Requirement

No person shall be employed or associated in any capacity in any civil defense organization established under St.1950, c. 639, who advocates, or has advocated, a change by force or violence in the constitutional form of the government of the United States, or in the Commonwealth of Massachusetts, or in the overthrow of any government of the United states by force or violence or has been convicted of, or is under indictment or information charging any subversive act against the united States. This would arguably apply to the appointment of auxiliary police officers. The Act mandates that each person who is appointed to serve in an organization for the civil defense is required, before entering upon his duties, to take an oath, in writing, before a person authorized to administer oaths in the Commonwealth of Massachusetts, which oath must substantially state as follows:

" I,______________, do solemnly swear that I will support and defend the constitution of the United States and the constitution of the Commonwealth of Massachusetts against all enemies, foreign or domestic; that I ill bear true, faith and allegiance to the same; that I take this obligation freely, without mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of which I am about to enter." And I do further swear (or affirm) that I do not advocate nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or of this Commonwealth by force or violence,-, and that during such time as I am a member of ( name of civil defense organization ),I will not advocate nor become a member of any political party or organization that advocates the overthrow of the government of the United States or of this Commonwealth by force or violence."


Training


Auxiliary police are frequently called to duty in non-emergency situations, i.e., they are called upon to perform routine police duties which could be adequately handled by the regular and reserve police forces. This procedure is justified by the need for the auxiliary police to receive training in police operations and procedures prior to the occurrence of a disaster or other emergency situation. It should be recognized, however, that if auxiliary police are improperly called to duty (I.e., if there is no emergency and their activities cannot be categorized as " training" ), they may not have legal authority to act as police officers.
Auxiliary police officers are not required by statute to attend police training academies. G.L. c.410, s .96B is limited to the regular officers appointed on a permanent full-time basis. Further, the statue prescribes "each person appointed as a reserve, or intermittent police officer, in a city or town shall, prior to the exercise of any police powers, satisfactorily complete a course of study prescribed by the council." The legislature did not intend the words "reserve" and "intermittent" appearing in this section to be used generically. Opinion of the Attorney General, January 16, 1978. Thus, there is no statutory mandate to provide training to auxiliary police officers.
On the other hand, in that a city or town may be liable for the auxiliary officer's actions or inactions, it is obviously beneficial to provide, to the extent financially possible, some training to auxiliary police officers.

Paid Details

The performance of paid details by the auxiliary police raises several problems. By statutory definition, Auxiliary police officers are unpaid volunteers. Obviously, this statutory definition is in conflict with the concept of paid details. Additionally, the performance of paid details by auxiliary police officers may create certain obligations pursuant to the Fair Labor Standards Act. According to the Act, bona fide volunteers are those who perform hours of service for civic, charitable, or humanitarian reasons without promise, expectation or receipt of compensation for services rendered. 29 C.F.R. Section 553.101
Volunteers lose their status and become employees if they are compensated for their time. In contrast, the Fair Labor Standards Act permit's the volunteers to be reimbursed for expenses, reasonable benefits, or nominal fees. Included in the definition of expenses, reasonable benefits, or nominal fees are:

Uniform allowance or reimbursement for cleaning expenses;
Out of pocket expenses such as meals and transportation;
Tuition, transportation and meal cost involved in attending special classes or training; books, supplies or other materials;
Benefits such as inclusion in group insurance plans, pension plans, or length of service awards;
Nominal fees, including "per call fees" .29 C.F.R. 553.106

Pursuant to the Fair Labor Standards Act, a volunteer might be considered an employee if he or she is entitled to receive compensation for performing paid details. Moreover, the performance of paid details is not in line with the apparent statutory intent of using the auxiliary police only in emergency situations, such as war, civil disorder or natural disaster. Unless the paid details are in line with the "training" aspect of the statute, it would appear that the use of auxiliary police officers for paid details is unlawful.
Problems such as these can be avoided by having auxiliary police officers appointed to be special police officers. Furthermore, since the use of auxiliary police officers might restrict the amount of paid details or overtime available to regular officers, this may be raised by regular officer's bargaining representative as an issue for collective bargaining as a mandatory subject of bargaining. Town of Andover, 3 MLC 1710 (1977)

Strikes / Labor Disputes

Under no circumstances may auxiliary police be utilized in any industrial or labor dispute or to regulate picketing in connection with a strike, nor may they engage in direct riot control activities. ( See G.L. c.149, s.23B)

Mutual Aid

While Section 11 of the Civil Defense Act authorizes mutual aid arrangements involving regular police and fire departments under certain circumstances, this does not appear to extend to the auxiliary police. In the event the auxiliary officers are to be utilized outside their home community, as an added precaution, they should be appointed as special police officers in the receiving community. While it is arguable that auxiliary police officers of one community could, under Section 14 of the Civil Defense Act, be dispatched to another municipality (and even out of state) and fall within the general protections of said Act, a formal Mutual Aid Agreement should be executed to clarify liability and compensation arrangements.

Civil Liability

With respect to civil liability, Section 12 of the Civil Defense Act provides
" On and after declaration of an emergency neither the commonwealth nor any political subdivision thereof, nor other agencies, nor any person engaged in any civil defense activities while in good faith complying with or attempting to comply with this act or any other rule or regulation promulgated pursuant to provisions of this act, shall be civilly liable for the death of or any injury to persons or damages to property as a result of such activity except that the individual shall be liable for his or her negligence…" Thus, pursuant to the strict language of the Act, the individual auxiliary police officer may be liable for his or her own acts of negligence. However, the legislature has more recently enacted the Massachusetts Torts claim Act, G.L. c. 258 which in cases of negligent or wrongful conduct by public employees, imposes liability solely upon the public employer. In that auxiliary police are subject to the direction and control of public employers (I.e., the governor, the civil defense agency, or the chief of police of their respective municipality) these officers would seem to come within the scope or definition of the public employee section of c. 258, Section 1 (See Smith v. Steinburg ,395 Mass. 66, 451 N.E. 2d 1344 (1985). Thus, when an auxiliary police officer is acting within the scope of his duties, it would appear that the city or town, and not the individual officer, is liable for the officer's negligence, gross negligence or wrongful act.


Line of duty injuries

An auxiliary police officer is not covered by the injured on provision of G.L. c.41, Section 111F. Likewise, an auxiliary police officer is not entitled to the statutory benefits conferred upon special police officers by virtue of c.32, Section 85H. There is no clear provision in the civil Defense Act which provides that an officer who is injured in the line of duty is entitled to reimbursement for lost civilian wages or even coverage for medical bills from the Commonwealth or municipality. A community could consider purchasing an insurance policy to cover such potential losses. As discussed above, such insurance coverage is permissible under Fair Labor standards Act and does not jeopardize the volunteer status of auxiliary police officers.
 
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