STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5237

November 1, 1977

PRISONS AND PRISONERS:

Transportation charge for prisoners on work-pass programs.

The Department of Corrections may assess a transportation charge upon inmates who participate in a work-pass program only if the transportation is actually furnished. The same amount may be charged for transportation of all participants in the work-pass program even though the distance may vary in individual cases.

Mr. Perry M. Johnson

Director

Michigan Department of Corrections

Mason Building

Lansing, Michigan 48913

You have requested my opinion as to authority of the Department of Corrections to impose various charges upon prisoners in the Department's Work/Study-Pass Program, who are employed by private industry at the minimum or above minimum wage as established by the Michigan Minimum Wage law or the Federal Fair Labor Standard Act.

You have noted that until recently the department has been assessing residents in the work-pass program an administrative fee of $2.00 per work day for the cost of food, clothing, medical services, etc., the fee being remitted to the general fund. You have noted that the collection of this 'administrative fee' has been discontinued. It is therefore unnecessary to consider the legality of the imposition of this fee.

Participants in the program, however, are currently required to pay for job-related costs such as transportation, additional clothing and tools. You have stated that these charges have resulted in some hardship to certain residents in the program because the transportation charge varies greatly in individual cases as this cost is dependent upon the distance of the job from the penal institution.

You have therefore requested my opinion as to whether the Department may charge all participants an identical fee of $3.00 fee of $3.00 per day for transportation costs for driving prisoners to and from work, to be placed in a fund. From this revolving fund, all institutional transportation-related costs are to be paid, any excess monies remaining at the end of the fiscal year to be turned over to the general fund.

The Prison Reimbursement Act, 1935 PA 253; MCLA 800.401 et seq; MSA 28.1701 et seq, authorizes the department to recover the cost of care and custody from residents' estates.

However, 1935 PA 253, supra, Sec. 7, specifically excludes recovery from any savings from earnings of residents while incarcerated. This section provides, in pertinent part, as follows:

This provision indicates that the intent of the Legislature was to exclude recovery under the reimbursement act for costs of care and custody from any earnings of residents while incarcerated.

In considering whether charges may be imposed on inmates for job-related costs in the work-pass program, the nature of the program and the circumstances under which residents are employed are relevant considerations.

The purpose of the program is to provide carefully selected residents with an opportunity to engage in work and training programs outside the confirnes of programs outside the confines of in the work-pass program is voluntary, and application for such participation is initiated by the resident with the assistance of his counselor. After being placed on a job the resident has the option of terminating the employment.

Participants in the program are generally paid the prevailing wage for the particular position which may not be less than the minimum wage and they are eligible for salary advances based on longevity or merit.

The circumstances of their employment are different from those of inmates working behind prison walls. Inmates confined to correctional facilities are assigned jobs based on their availability after their programming needs have been met. They receive varying wages, which are less than the minimum wage.

It will be noted that the policy of the Department of Corrections with respect to the charges for transportation are incorporated in its Policy Directive of February 15, 1977.

These provisions are as follows:

'This transportation assessment may be fully or partially waived where the Work-Pass resident must use public transportation, or where transportation is provided by the employer or a fellow employee.'

Since participation in the work-pass program is voluntary, residents receive the same wages as employees not incarcerated and the charges upon them do not involve basic care and custody, it is my opinion that charges for job-related costs such as transportation, additional clothing and tools are valid charges.

It is also my opinion that the department may assess a $3.00 transportation charge upon participating residents which charge is imposed only if transportation is furnished. The fact that the same $3.00 transportation charge is imposed on all participants in the work-pass program regardless of the distance which an inmate must be transported is, in my opinion, reasonable since it is more convenient for the purpose of maintaining records and determining charges than to attempt to impose a variable charge.

Frank J. Kelley