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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. 6158 June 24, 1983 WORKER'S DISABILITY COMPENSATION: Status of court sentenced offender in community service programs for the Department of Natural Resources An offender who is sentenced by a court to the performance of community service work for the Department of Natural Resources is not an employee of the Department for purposes of the Worker's Disability Compensation Act of 1969. Mr. James F. Cleary Acting Director Department of Natural Resources Stevens T. Mason Building Lansing, Michigan Your predecessor asked my opinion on the following question: Are civil-criminal offenders who are sentenced by the court to the performance of community service work in lieu of jail, prison or fine and who perform such work for the Department of Natural Resources, considered employees for purposes of the Worker's Disability Compensation Act of 1969? In Michigan, there is no express statutory provision dealing with court sentenced offenders doing community service work in lieu of fine or incarceration. However, two specific statutes do provide for 'community service.' The first such statute is 1980 PA 514 which amended the Code of Criminal Procedure, 1927 PA 175, c 11, Sec. 3; MCLA 771.3; MSA 28.1133(3), so as to provide that, as a condition of probation, a court may require the probationer to engage in community service. The second statute is 1982 PA 309 which amended the Michigan Vehicle Code, 1949 PA 300, Secs. 625 and 625b; MCLA 257.625; MSA 9.2325, and MCLA 257.625b; MSA 9.2325(2), so as to provide, inter alia, that a person who is convicted of driving while under the infuence of intoxicating liquor or a controlled substance, or a combination thereof, may be sentenced by a court to perform service to the community as designated by the court, without compensation, for a period not to exceed 12 days. It is parenthetically noted that innovative community service sentencing programs are discussed in 30 Buffalo L Rev 387 (1981). 1969 PA 317, supra, Sec. 161(1), provides: 'As used in this act, 'employee' means: '(a) A person in the service of the state, a county, city, township, village, or school district, under any appointment, or contract of hire, express or implied, oral or written. . . . Members of a volunteer fire department of a city, village, or township shall be considered to be employees of the city, village, or township, and entitled to all benefits of this act when personally injured in the performance of duties as members of the volunteer fire department. . . . The benefits of this act shall be available to a safety patrol officer who is engaged in traffic regulation and management for and by authority of a county, city, village or township, whether the officer is paid or unpaid. . . . A volunteer civil defense worker who is a member of the civil defense forces as provided by law and is registered on the permanent roster of the civil defense organization of the state or a political subdivision of the state shall be considered to be an employee of the state or the political subdivision on whose permanent roster the employee is enrolled when engaged in the performance of duty. . . . A volunteer ambulance driver or attendant shall be considered to be an employee of the county, city, village or township and entitled to the benefits of this act when personally injured in the performance of duties as a volunteer ambulance driver or attendant. . . . '(b) Every person in the service of another, under any contract of hire, express or implied. . . . '(c) Every person engaged in a federally funded training program or work experience program. . . .' While the statute specifically includes volunteer members of a fire department, safety patrol officers, volunteer civil defense workers, volunteer ambulance drivers or attendants and persons engaged in a federally funded training and work experience program, it contains no specific reference to court sentenced offenders engaged in the performance of community service work not in a federally funded program. It should be noted that in the event an offender is sentenced to a community service work program which is federally funded under a federal program mandating the provision of appropriate worker's compensation for participants in the program, 1969 PA 317, Sec. 161(1)(c), supra, expressly provides that the person participating in such program would be an employee of the sponsor of the program for the purposes of worker's disability compensation. To be considered an 'employee' of the state for worker's disability compensation purposes, a person must alternatively show an employer-employee relationship either by appointment or by contract of hire, express or implied, oral or written, inasmuch as 1969 PA 317, supra, is predicated on the existence of such a relationship. See, Betts v Ann Arbor Schools, 403 Mich 507, 512; 271 NW2d 498 (1978); Higgins v Monroe Evening News, 404 Mich 1, 20; 272 NW2d 537 (1978); Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211; 180 NW2d 798 (1970); and Davidson v Wayne County Board of Road Commissioners, 86 Mich App 592, 595; 272 NW2d 740 (1978). The Michigan appellate courts have not addressed the precise question whether such a court sentenced offender is an employee within the meaning of 1969 PA 317, Sec. 161, supra. However, our Supreme Court and Court of Appeals have addressed issues whether prisoners, inmates, convicts or jailed individuals who perform work while under sentence of a court meet the employer/employee definition. Such decisions hold that there is no employer/employee relationship between incarcerated individuals and the state, city, county, etc., since there is neither an appointment nor true contract of hire but rather a custodial and rehabilitative relationship. See, Thompson v Bronk, 126 Mich 455, 456-457; 85 NW 1084 (1901); Cadeau v Boys' Vocational School, 359 Mich 598, 608-609; 103 NW2d 443 (1960); Green v Department of Corrections, 30 Mich App 648; 186 NW2d 792; aff'd 386 Mich 459; 192 NW2d 491 (1971); and Prisoners' Labor Union at Marquette v Department of Corrections, 61 Mich App 328; 336; 232 NW2d 699; lv den 394 Mich 843 (1975). These decisions are persuasive precedent to the issue presented herein. In Green, supra, the Michigan Court of Appeals (1) specifically held that a prison-inmate relationship is not an employer-employee arrangement. The court stated in footnote 19, pages 660-661: 'Some states have amended their workmen compensation acts to include recovery by prisoners who are injured in job-related activities: North Carolina, PA 1929, Ch 120, Sec. 14 Rev 1941; Maryland, PA 1939, art 101, Sec. 47; Wisconsin, PA 1951, Ch 539. Arizona has allowed recovery to prisoners under Workman's Compensation by judicial decree: Watson v Industrial Commission (1966), 3 Ariz App 32 (411 P2d 455). 'Michigan has not decided the question directly. A reading of the available state rulings would seem to indicate that recovery would not now be available under the Workmen's Compensation Act, although at first blush that may appear to be the most logical source for recovery. See: OAG Opinions, fn 14, supra. In Cadeau v Boys' Vocational School (1960), 359 Mich 598, the Supreme Court refused to permit the plaintiff, an inmate of the boys' vocational home, to recover under the Workmen's Compensation Act for an injury sustained in the school shop. The Court reasoned that the home was engaged in training the plaintiff in a skill and further, the relationship between plaintiff and the school was not an employer-employee arrangement, there being no contract of employment. . . .' (Emphasis added.) OAG, 1975-1976, No 5061, p 522, 524 (June 28, 1976), stated: 'In regard to your question dealing with liability under the Worker's Disability Compensation Act of 1969, it is clear that a prisoner working on a public project for the benefit of the county is not entitled to recover under the said compensation act. 1969 PA 317 et seq; MCLA 418.101 et seq; MSA 17.237(101) et seq. In OAG, 1958, Vol 2, No 3160, p 1 (January 16, 1958), this office declared: 'A county is not exposed to liability under the provisions of the Michigan workmen's compensation law for injuries or illness incurred by county prisoners performing lawful labor for the benefit of the county. Section 7 of that act contemplates that a contractual employer-employee relationship must exist if compensation is to be recovered under the statutes. No such contractual relationship exists between a prisoner and a county. The servitude of a prisoner is compulsory, not voluntary, and the prisoner cannot be held to be an employee of the county.' 'The same conclusion was also reached in OAG, 1928-1930, p 135 (October 30, 1928). 'Further, in Prisoners' Labor Union at Marquette v Department of Corrections, 61 Mich App 328, 336; 232 NW2d 699 (1975), the Court stated that the relationship between inmates and the Department of Corrections is not an employment relationship, but rather a custodial, rehabilitative relationship with employment utilized as a means to reach those ends.' The Attorney General of California has addressed a similar issue of offenders performing voluntary community service work and has concluded that offenders voluntarily performing community service work are not employees as defined by California's worker's disability compensation law because of the absence of consideration. California OAG, 1978, Vol 61, p 265. It is my opinion, therefore, that a court sentenced offender who is sentenced by a court to the performance of community service work for the Department of Natural Resources is not an employee of the department for purposes of the Worker's Disability Compensation Act of 1969, supra. Frank J. Kelley Attorney General (1)
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