STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5390

November 21, 1978

INCOMPATIBILITY:

Auxiliary policemen serving as an elected official in same municipality

Volunteer firemen serving as elected official in same municipality

POLICE:

Volunteer auxiliary policemen serving as an elected official in same municipality

FIREMEN AND FIRE DEPARTMENTS:

Volunteer firemen serving as an elected official in same municipality

CONFLICT OF INTEREST:

Volunteer firemen and volunteer auxiliary policemen

MUNICIPALITIES:

Liability for conduct of auxiliary policemen

Volunteer firemen and auxiliary policemen are not employees of a city when offering services on an informal basis without compensation and without control by the city. Conversely, however, where a volunteer fire department or an auxiliary police force is established as an official agency of the municipality to provide fire or police protection, they are employees and it would be incompatible for a member of the volunteer force to serve as an official who reviews the work or determines the compensation and conditions of service of such persons.

Although volunteer firemen or auxiliary policemen who are not members of an official organized volunteer force are not employees or officers so as to create incompatibility of office, they have a sufficient contractual relationship with the municipality to require compliance with the conflict of interest law, 1968 PA 317.

Where volunteer firemen and auxiliary policemen who are not employees provide services at the invitation of a public agency, the public agency, by reason of its invitation, incurs the same liability as service by its employees. Where liability is based upon negligence in the course of official duties, however, the governmental unit may avail itself of the defense of governmental immunity.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan 48909

Honorable Bobby D. Crim

Honorable Michael H. Conlin

State Representatives

The Capitol

Lansing, Michigan 48909

In separate communications you have each requested my opinion on the following related questions:

These questions will be addressed seriatim.

'1. May a City charter provide that an elected official may serve as a volunteer auxiliary policeman or a volunteer fireman?'

It must first be noted that section 36 of the Home Rule Cities Act, 1909 PA 279, Sec. 36, MCLA 117.36; MSA 5.2116, provides that:

In addition, courts have recognized that provisions of a homerule city charter may not conflict with or contravene the provisions of a general law of the state and that the latter is paramount. Amberg v Welsh, 325 Mich 285, 293; 38 NW2d 304, 306 (1949); City of Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich 694; 48 NW2d 362 (1951); Geftos v Lincoln Park, 39 Mich App 644, 654; 198 NW2d 169, 174 (1972). It is, therefore, necessary to consider whether any statute would be contravened by the adoption of a charter provision allowing a city official to serve as a volunteer fireman or as a volunteer auxiliary policeman.

1976 PA 169, Sec. 3(2), MCLA 15.403(2); MSA 4.1702(3)(2), provides in pertinent part:

This section was the basis for the determination that a township fireman elected to the office of township trustee must resign or obtain leave of absence from his employment during his elected term. OAG, 1975-1976, No 5108, p. 685 (November 18, 1976).

To respond to the questions, however, it is necessary to consider whether a person who serves the governmental unit as a volunteer is a public employee of the unit.

1976 PA 169, supra, Sec. 1 defines the term 'public employee':

In a letter opinion addressed to Senator Robert W. Davis dated May 10, 1971, it was held that neither an auxiliary policeman nor a volunteer fireman is an officer or an employee of the municipality which uses his or her services where the services are informally offered without compensation and accepted. However, where a local ordinance establishes the duties and responsibilities of the members of an officially-organized voluntary force, police reservists are employees of the municipality. This conclusion was based upon a rule recognized by the Michigan Supreme Court that the municipality's right to control work done by a person, renders the person an employee. Buskirk v Ide, 302 Mich 154; 4 NW2d 504 (1942).

In summary, it is my opinion that auxiliary policemen and volunteer firemen are not employees of the city when offering services without compensation, without control by the city and on an informal basis in the absence of an ordinance setting forth duties and responsibilities of such volunteers. Where these conditions are met, a city charter may provide that an individual may serve as a volunteer and also as an elected official.

However, in such cases the volunteer fireman or auxiliary policeman has a sufficient contractual relationship with the municipality to require compliance with the conflict of interest law, 1968 PA 317, MCLA 15.321 et seq; MSA 4.1700(51) et seq.

Conversely, where a volunteer auxiliary police force or a volunteer fire department is established as an official agency of the municipality to provide police or fire protection, as the case may be, it is incompatible for a member of the volunteer force to serve as an official who reviews the work or determines the compensation and conditions of service of such persons.

'2. Where a volunteer township fireman has been elected township clerk and continues to serve as a volunteer fireman after a two-thirds vote of the township board approving such, may he or she vote on matters coming before the township board which relate directly to the fire department of the township?'

For the reasons stated in my response to question 1, a conflict of interest also exists where a volunteer fireman or auxiliary policeman is elected to the office of township clerk. The township clerk is a member of the township board and may vote on township business before the board. RS 1846, ch 16, Sec. 70, as amended by 1949 PA 9, Sec. 1, 1952 PA ex sess 2, Sec. 1, MCLA 41.70; MSA 5.62. The township board has the power to set the rate of compensation for fire fighters or volunteer policemen. RS 1846, ch 16, Sec. 96, MCLA 41.96; MSA 5.83.

Thus, when a volunteer is also a township clerk, a conflict is created since the volunteer is 'a party, directly or indirectly, to a contract between himself and the public entity of which he is an officer or employee' within the scope of the conflict of interest law, 1968 PA 317, supra, Sec. 2(1). The conflict may be avoided if the township official is paid for working less than 25 hours per week for the township board and he discloses his pecuniary interest in the contract to the board, but only if the contract is approved by two-thirds of the full board's membership without the interested party voting. 1968 PA 317, supra, Sec. 3.

As a result, the township clerk may vote on general township business, but he may not vote on matters which directly affect his or her compensation as a fire fighter.

'3. Does a police agency which utilizes volunteers in an organized, ongoing effort to observe and report suspected criminal activity expose itself or the local government subdivision it serves to liability in the event that a volunteer is injured or dies while engaging in this activity?'

Before answering your third question, it should be noted that generally liability does not arise in the absence of negligence. Therefore, if the personnel involved in the establishment and operation of the volunteer police program act in a reasonable manner the agency or political subdivision will not be found liable even if death or injury should occur.

The statute imposing liability in the absence of fault for injuries sustained by an employee is the Worker's Disability Compensation Act of 1969, 1969 PA 317, MCLA 418.101 et seq; MSA 17.237(101) et. seq. Section 161 of the Act states that:

lthough not expressly referred to in the Act, I have stated that auxiliary policemen providing services under the direct supervision of a regular full-time police officer may receive the benefits of the Worker's Disability Compensation Act. OAG, 1975-1976, No 4879, p 114 (July 22, 1975). That opinion held that auxiliary policemen were 'public employees' because:

Similary, voluntary policemen offering services in an organized and ongoing police effort could be deemed employees of a police agency, but only if the agency receiving their services has the right to control work done by them. Buskirk v Ide, supra. If the volunteer can be classified as an employee, he may receive all the benefits permitted under the Worker's Disability Compensation Act.

There is also a possibility that through negligence, liability on the part of the governmental unit for injury to a volunteer may be established. The rule established in negligence cases for 'volunteers' has been stated in 65 CJS, Negligence, Sec. 63(148), p 935, as:

However, if a police agency is utlizing these volunteers in an organized and ongoing effort, they are more than 'mere volunteers' under negligence law. Although defined as volunteers by the police agency, they are within the rule stated in 65 CJS, Negligence, Sec. 63(148), p 935-936:

When volunteers are used by a police agency in an organized effort, it is manifest that they are acting by invitation or request and the police agency which they serve has a duty to exercise ordinary care in their protection. Thus, although volunteer policemen and auxiliary firemen are neither officers nor employees of the public agency for which they work, there is a sufficient relationship to the public agency by reason of its invitation that impose the same liability on the public bodies as if they were employees.

Where liability is grounded upon negligence of an auxiliary policeman, the governmental unit may avail itself of the defense of governmental immunity. The continued viability of the governmental immunity statute, 1964 PA 170, MCLA 691.1401 et seq; MSA 3.996(101) et seq, was reaffirmed in Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), as it applies to governmental functions. The activity involved in your question would constitute a governmental function within the meaning of the immunity statute. 'Effective crime prevention and detection' has been recognized as an important 'governmental interest.' People v Rivers, 42 Mich App 561; 202 NW2d 498 (1972).

In summary, it is my opinion that a police agency which utilizes volunteers in an organized, ongoing effort to observe and report suspected criminal activity exposes itself to liability for injury or death to a volunteer engaging in this activity if the volunteers are 'public employees' within the Worker's Disability Compensation Act and the injury is one covered by the Act, or if the agency has failed to exercise ordinary care in the protection of its volunteers. Where a third party is injured or killed as a result of the negligent conduct of a volunteer policeman or fireman, the governmental unit may avail itself of the defense of governmental immunity.

Frank J. Kelley