Request By:
Mr. G. T. Harding
Mayor, City of Brooksville
P.O. Box 216
Brooksville, Kentucky 41004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising numerous questions concerning members of an auxiliary police force created pursuant to KRS 95.445. Your first question asks whether members of an auxiliary police force would have the same powers as members of the regular police force.
KRS 95.445 provides as follows:
"The legislative body of a city of the second, third, fourth, fifth, or sixth class or urban-county government, except a city of the fifth or sixth class in a county containing a first-class city, may by ordinance provide for the establishment or abolishment of an auxiliary police force to perform special duties within the city on terms it deems proper. The ordinance shall prescribe the number of officers and men of such force and the manner of their appointment, and rules and regulations governing the powers and duties of members of such force."
In OAG 78-675, copy enclosed, at page two, we said that under the above-quoted statute a city may create pursuant to ordinance an auxiliary police force, the members of which will possess the same powers as regular police officers, including the power of arrest. Thus, auxiliary police officers, generally, have the powers of regular police officers which are not limited to the time that they are on duty.
You next ask whether auxiliary police officers have the same rights as regular city policemen concerning authority outside the city limits.
KRS 95.445 states in part that an auxiliary police force may be established to perform such special duties within the city on terms the city legislative body deems proper. This statutory limitation is an exception to the provisions of KRS 95.740 and 95.786 which give the regular police force of a city of the fifth class county-wide jurisdiction. KRS 95.445 was enacted subsequent to KRS 95.740 and 95.786. Thus, KRS 95.445 is controlling as to the jurisdiction of members of a city auxiliary police force and their jurisdiction is confined to within the city limits. See OAG 74-668, copy enclosed, at page two.
Your next two questions ask whether members of the city auxiliary police force are covered by the minimum wage law if they are primarily part time workers who are more often on call than actually on patrol and whether such auxiliary police officers are covered by KRS Chapter 337 while on call and not on patrol.
KRS 337.275 requires that every employer pay to each of his employes at least the state minimum wage rate. The state minimum wage law does not exclude from coverage under its terms part time or seasonal city employes. See OAG 76-377, copy enclosed.
While members of the city auxiliary police force must be paid at least the state minimum wage rate for those hours actually worked, even though they are part time employes, they are not entitled to pay for that portion of time spent "on call" as opposed to hours actually worked. In Spellman v. Fiscal Court of Jefferson County, Ky. App., 574 S.W.2d 342 (1978), the Court said that police officers were not entitled to be compensated while "on call" even though the officers were required to be reachable by telephone and able to arrive at a police substation within thirty minutes if an emergency arose.
Your last two questions ask whether an auxiliary policeman would have any authority under KRS 431.005(2) and whether a regular police officer who worked less than full time would have any authority under KRS 431.005(2).
A city may by ordinance create an auxiliary police force, the members of which have the same powers as regular police officers, including the power of arrest. As stated in OAG 78-675, special policemen have the same powers as regular policemen unless their powers are expressly limited by statute or ordinance and special or auxiliary police officers have the same power of arrest as is conferred upon regular policemen.
In addition, a regular police officer's power of arrest is not affected or limited by the number of hours he works. He has the same powers of arrest as any other regular member of the police force.
Thus, a member of a properly established auxiliary police force and a regular member of the police force who works less than forty hours in a week may utilize the peace officer's power of arrest set forth in KRS 431.005. In utilizing the warrantless arrest procedure sanctioned by KRS 431.005(2), all peace officers should exercise caution and carefully follow the required procedures as outlined in OAG 81-81, copy enclosed.