The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5265

February 13, 1978

LAW ENFORCEMENT OFFICERS TRAINING COUNCIL ACT:

Exemption for a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties while under the direction of the sheriff or police department.

WORDS AND PHRASES:

'temporarily engaged'; 'while under the direction of'

POLICE:

Exemption for a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties while under the direction of the sheriff or police department.

SHERIFFS:

Exemption for a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties while under the direction of the sheriff or police department.

Within the context of the exemption from the training requirements of the Law Enforcement Officers Training Council Act of a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties and while under the direction of the sheriff or police department, the term 'temporarily engaged' means that the person is available for call on an ad hoc assignment; it does not mean that the person is temporarily employed for a given period nor that the person serves on a part-time basis.

Within the context of the same exemption, the phrase 'while under the direction of' means that method of communication providing guidance to the untrained person.

Honorable W. V. Brotherton

State Representative

The Capitol

Lansing, Michigan 48901

You have requested my interpretation of the statutory terms 'temporarily engaged' and 'while under the direction of', found in 1965 PA 203, Sec. 9(1)(d)(iv); MCLA 28.609(1)(d)(iv); MSA 4.450(9)(1)(d)(iv). Section 9(1)(d) provides:

'(d) The requirements in subdivision (c) (1) shall be waived if any of the following occur:

iv) The person is a member of a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties and while under the direction of the sheriff or police department.' (emphasis added)

In a letter addressed to Senator Pursell on December 15, 1975 I stated:

'The Michigan Law Enforcement Officers Training Council Act, MCLA 28.601 et seq; MSA 4.450(1) et seq, provides that all police officers or law enforcement officers who are 'regularly employed' and who are 'responsible for the prevention and detection of crime and the enforcement of the general criminal laws of this state' must meet the training and instructional requirement set forth by the Law Enforcement Officers Training Council. MCLA 28.602; MSA 4.450(2).

'A police officer or law enforcement officer who fails to comply with the Act's requirements, '. . . shall not be empowered to exercise all the authority of a police officer in this state, nor be employed in a position which is granted the authority of a peace officer by statute. . . .' MCLA 28.609(2); MSA 4.450(9)(2).

'The Act also exempts certain persons from its training and instructional requirements. For example, the exemption applies if

'The person is a member of a sheriff's posse or police auxiliary temporarily engaged in the performance of his duties and while under the direction of the sheriff or police department.' MCLA 28.609(1)(d)(iv); MSA 4.450(9)(1)(d)(iv).' (emphasis added)

The term 'temporarily engaged' should be construed as consistent with the purpose of the legislation, that purpose being to set minimum peace officer training standards as a condition of employment. Thus, where an officer is 'regularly employed', whether full time or part time, and whether the employment is for a limited period of time such as one month or one year, the legislature requires that he be trained.

The legislature, however, carved out an exception to training requirements for persons acting as temporary peace officers and authorized governmental units to use temporary officers who are without training in carefully defined circumstances. For example, 1935 PA 59, Sec. 6(b) as added by 1968 PA 194; MCLA 28.6b; MSA 4.436(2) empowering the director of the state police to establish an 'auxiliary' force, expressly states its intent to create 'a standby force for use during emergencies.' 1846 RS 14, Sec. 70; MCLA 51.70; MSA 5.863 authorizes county sheriffs to appoint 'special' deputies 'to do particular acts.' 1895 PA 215, Sec. 2; MCLA 92.2; MSA 5.1750 allows mayors of fourth class cities to appoint 'temporary policemen' in emergencies, but stipulates that 'such appointments . . . shall not continue longer than 3 days.'

These statutes anticipate the use of temporary police officers in particular emergency situations. This type of employment is by nature irregular and intermittent.

In a case of first impression, Berridge v Willcome, 25 Mich App 339; 181 NW2d 276 (1970), the court affirmed the Workmen's Compensation Appeal Board's interpretation of the words 'regularly employed' as contained in a section of the Workmen's Compensation Act. In concluding that defendant regularly had three employees, the appeal board stated in part: (Berridge, supra, p 343)

'What is regular employment? This board has never considered 'regular' to be clock-punching regularity day in and day out nor the demands of the employer remaining static from week to week. The compensation law is social legislation to protect workers from job injury and wage loss suffered. It therefore cannot be turned on and off like a water faucet just because an employer has three men for two months and two men for two months or because his business is seasonal. Neither is the day to day uncertainity of men turning up due to other commitments or weather relevant. All the employees had a part-time aura about their hours, but there is no doubt defendant considered them as employees and started the 1964 season with three of them. To us, regular means a pattern of conduct, however irregular it is pursued. . . . 'regular' means that course of conduct that is repetitive in nature, whether ten hours irregularly, 40 hours a week, or like firemen in shifts up to two days and beyond. Part-time employment can be as regular as full-time employment, and we find here that defendant had three regular employees when there was work available. There was no 'casual' employment relationship.'

In discussing what constitutes a casual employment relationship, the court in Dyer v Masonry & Contracting Co., 192 Mich 400; 158 NW 959 (1916) stated:

'The word 'casual' is in common use. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity and is occasional and incidental. Its meaning may be more clearly understood by referring to its antonyms, which are, 'regular,' 'systematic,' 'periodic,' and 'certain'.'

It is, therefore, my opinion that the term 'temporarily engaged' as used in the context of 1965 PA 203, Sec. 9(1)(d)(iv), supra, means that the person serves on an ad hoc basis without any regularity as to the time when the service is to be performed; it does not mean that the person is temporarily employed for a specific period such as one month, six months or one year nor that the person serves on a part-time basis.

The phrase 'while under the direction of' found in 1965 PA 203, Sec. 9(1)(d)(iv), supra, does not denote face-to-face contact. As I stated OAG 1967-1968, No 4559, p 73, 74-75 (August 14, 1967):

'The word 'direction' is one of common usage. As employed in its ordinary signification, it means 'An act of directing, guidance, management; that which is imposed by direction; command; also, authoritative instruction, information as to method . . .'

. . . The term 'direction' . . . does not require . . . personal presence . . .'

The legislature, while exempting temporarily engaged members or a police auxiliary from instructional requirements, required the untrained auxiliary member be 'under the direction of the sheriff or police department.' The legislature was concerned with providing the untrained person with experienced guidance in the absence of formal training.

It is, therefore, my opinion that the phrase 'under the direction of' in the above context means any method of communication providing the guidance necessary for an untrained person to execute his duties.

Frank J. Kelley

Attorney General

(1) 1965 PA 203, supra, Sec. 9(1) states: 'The council shall prepare and publish minimum employment standards with due consideration varying factors and special requirements of local police agencies relative to: . . . (c) Minimum courses of study, attendance requirements of at least 240 instructional hours, equipment, and facilities required at approved city, county, township, village, or corporation police training schools.'