Relates to creating volunteer peace officers' benefits in the event of injuries or death in the line of duty

Summary of provisions

Various sections seek to codify the existence of auxiliary police, while creating a benefit for them based on that given to volunteer fireman and ambulance workers.

Justification

This legislation is vastly important to: 1) Consolidate uniformed volunteer members of law enforcement agencies within the State of New York, including but not limited to Auxiliary Police, Special Deputy Sheriffs. Reserve Sheriffs/Police, Special Police, Reserve Police, SPCA, SPCC, Search and Rescue Squads, and Public safety Emergency Officers; 2) Establish legal authority for law-enforcement agencies to conduct volunteer law enforcement operations; 3) Establish legal authority for volunteer officers to perform their duties; 4) Establish recruiting standards; 5) Increase minimal training standards; 6) Provide deserved benefits; 7) Protect uniformed volunteers in law enforcement agencies; and 8) Protect law enforcement agencies from liability lawsuits due to lack of workers compensation coverage. Passage of this legislation will legalize existing volunteer officers and operations as well as help recruit and retain current members.

AUTHORITY The establishment of Auxiliary Police or Special Deputy Sheriffs was mandated by the New York State Defense Emergency Act of 1951. At that time, auxiliary police were organized and empowered to direct vehicular traffic to air raid shelters and to perform crowd control functions at those shelters in the event of a nuclear attack CPL 2,10(26) provides the authority for auxiliary police to direct and control traffic during a period of attack or imminent attack by enemy forces or during "official drills".

PROBLEM With the cold war over and changing needs, all Auxiliary Police units are extensively utilized by law enforcement agencies for many activities which are far outside of the original intent and scope of the Act and authority granted by CPL 2.10(26). Auxiliary police officers volunteer their time to perform these assigned duties at substantial personal risk. When performing duties without legal authority, auxiliary police officers do not have workers compensation

protection for medical treatment, lost wages and are exposed to personal liability. In fact, seriously injured auxiliary police officers have found themselves without compensation and an auxiliary police officer was found to be personally liable for a car accident while driving a marked auxiliary police car (see Fitzgibbon, infra).

Without proper legal authority for auxiliary police officers to perform routine duties,. the law enforcement agencies they work for are vulnerable to lawsuits for injuries sustained Under the workers compensation law, when employees are covered by workers compensation' their employers cannot be liable for injuries sustained on the job because auxiliary police officers do not have workers compensation insurance, they can maintain liability actions against the agencies for whom they work Providing legal authority to auxiliary police officers will provide them with workers compensation coverage and also protect the law enforcement agencies for whom they work.

AUTHORIZED ACTIVITIES Other than attack or imminent attack by enemy forces, only official drills can be authorized. An official drill is a "single-event" training exercise to be performed on a specific date. A request for authorization to perform a training exercise at an event must be requested of the state by the law-enforcement agency in writing prior to the date at the event.

UNAUTHORIZED ACTIVITIES Because it is usually impractical to request authorization to conduct an official drill in advance of events and the time needed to fill out requests, blanket requests covering a period of time such as one year are sometimes filed by police departments. Blanket requests, to "drill" over a broad period of time are not authorized and no benefits or protections will be afforded to auxiliary police officers performing under a blanket request. An example of a drill which can qualify as an authorized official drill, under the proper circumstances, is traffic control and/or crowd control at a particular scheduled event.

Official drills are not contemplated by the Act to include routine or daily functions, which comprise 99% of assigned auxiliary police duties. In fact, in David Fitzgibbon, Jr., Plaintiff-Respondent v the County of Nassau, the Auxiliary Police Unit 316, et al, Appellants-Respondents, the Supreme Court of the State of New York Appellate Division, Second Department, ruled that routine patrols were not contemplated by the Act and held the auxiliary police officer and his auxiliary police unit liable for injuries caused.

UNAUTHORIZED DUTIES PERFORMED The duties and activities of auxiliary police vary considerably, depending upon the needs of the police department, and usually include monthly minimum hourly requirements for performing routine patrols and traffic control at details, none of which is authorized by the state. Failure to meet the minimum hourly requirements will result in termination of the auxiliary police officer. Virtually all auxiliary police activities are outside of the scope of the Act and the CPL, placing volunteer officers at great personal risk, liability, and without workers compensation protection for medical

coverage, pharmaceutical bills, household help, lost wages and other benefits.

Duties which are not authorized official drills, outside the scope of the Act and commonly assigned on a routine daily basis by law enforcement agencies to auxiliary police consist of the following: 1) Directing traffic at accidents, inoperable traffic lights, power outages, parades, fairs, religious and most special events; 2) Assisting police with crowd control at school, religious and most special events; 3) Nightly patrols in squad cars to find and report crime and accidents to supervising law enforcement agencies, as a deterrent to crime by maintaining a visible public presence, and to observe, detect and report suspicious activity and possible terrorism; 4) Issuing complaints for handicap parking violations; 5) Providing additional eyes for police officers at traffic stops; and 6) Assisting in locating missing persons. Additional unauthorized duties assigned by some police departments may include: Searches for missing persons; Emergency rescues; Riding as second man in patrol cars; Performing administrative work for police, departments; Patrolling trains, subway platforms and bus terminals; and assisting with animal humane law enforcement.

Although these assigned duties are important to police departments, they are being performed without any authority of law. Due to fear of liability, some counties and cities have disbanded their Auxiliary Police Programs, in the late 1970's, despite the mandate of the Act.

Auxiliary Police officers drive patrol cars that resemble police Cars and wear similar uniforms carrying a nightstick and handcuffs (some auxiliary departments carry guns), but many do not have the same protective equipment a police officer would have to protect himself. To recruit new members and retain current members, it is imperative that law enforcement agencies receive sufficient funds to purchase protective equipment for volunteer members and that while on duty Auxiliary Police Officers have the same statutory protection of a Peace Officer that other unformed services have.

TRAINING Not all Auxiliary Police have the same recruiting, training and minimum standards. A uniform system of recruiting, operations and training under the auspices of NYS DCJS would help to solidify procedures, rules and regulations.

PARITY Auxiliary police DO NOT have a Benevolent Law like The Volunteer Firefighters' Benefit Law and the Volunteer Ambulance Workers' Benefit Law which provide real estate tax credits, a service award program, and workers compensation benefits for medical care, lost wages, and other benefits to volunteer members who are injured or become ill in the line of duty. Recognizing the unselfish service of volunteer firefighters and volunteer ambulance workers, laws designed to protect such volunteers who are injured or become ill in the line of duty, were enacted in 1957 and 1989, respectively. Auxiliary police volunteers deserve the SAME protection those volunteers receive

including real estate tax credits, a service award program, and workers compensation benefits.

This new legislation would help to create proposed minimum standards with which all units would need to comply in order to reap the benefits that will, hopefully, be gained with this legislation The benefits can act as incentive for the various forces to voluntarily comply with the proposed minimum standards.

It is unreasonable to expect a viable and modem volunteer force existing today and providing tremendous aid to the various communities in which they serve, to work without reasonable benefits in dangerous conditions and without legal authority under the guise of a law that came about in 1950 and did not foresee current needs.

Legislative history

S.5624A of 2008

Fiscal implications

None.

Effective date

This act shall take effect on the first of April next succeeding the date it becomes law.