Rules for reserve officers clear as mud
Hey savvy news reader! Thanks for choosing local.
You are now reading
1 of 3 free articles.
RONAN — July correspondence from the state attorney general’s office to the Ronan city clerk advised that reserve police officers cannot be paid under state law, but departments and sheriff’s offices across the state, including local law enforcement agencies, continue to offer compensation without any consequences.
Ronan suspended its reserve program at a Sept. 16 meeting.
According to assistant communications director to the attorney general’s office Anastasia Burton, the attorney general could issue an official opinion clarifying the matter if city attorney Jessica Cole-Hodgkinson requests one.
“I don’t think we’re going to get an official attorney general opinion,” Cole-Hodgkinson said in an interview. “More important than the endorsement of the attorney general’s office is the endorsement of the POST Council.”
Recent questions about the capacity in which reserve officers can be used and paid by cities and counties date back to 2008, when the Montana Public Safety Officer Standards and Training (POST) Council passed a resolution requiring reserve officers to receive 88 hours of training from the law enforcement agency they are appointed by within two years of becoming a reserve officer; these requirements are also set by the Montana Code Annotated.
In 2007, POST made the transition from being an advisory board to the Montana Board of Crime Control into a quasi-independent, judicial board that has investigative powers and authority to certify and decertify law enforcement officers.
In a Dec. 26, 2009 faxed letter, former Ronan City Attorney James Raymond voiced his frustrations to former Chief of Police Dan Wadsworth about the new council’s rules. The fax’s recipient was able to authenticate it, but Raymond said in an email that he had no “recollection of having penned” the document, and if he had he couldn’t discuss any of the details of legal counsel he had given Wadsworth.
In regards to whether or not reserve officers could receive pay, in the fax Raymond referred Wadsworth to a 1988 opinion written by former state attorney general Mike Greeley that held: “County public funds may be used to reimburse a reserve deputy sheriff’s expenses, provide reasonable benefits, and pay nominal compensation, but the total amount of these provisions may not be given as a form of compensation tied to productivity.”
Raymond advised Wadsworth that reserve officers could be paid, but that their wages should be considered part of a “reimbursement package,” and that reserves should be characterized as volunteers, not hired employees.
Raymond suggested in the letter that marking the jackets of reserves with a “volunteer” label could help the city’s case if a legal issue arose at a later date.
“We thought we were doing everything 100 percent right,” Ronan Mayor Kim Aipperspach said in an interview.
But in July, the police department came under scrutiny when POST stripped Wadsworth of his upper level law enforcement certificates and suspended his basic certification for 15 years. POST alleged that Wadsworth had falsified the Montana Law Enforcement Application of his son, Trevor. Wadsworth said the allegations were untrue and that a disgruntled former police officer likely took Trevor’s documentation. Wadsworth appealed the decision to the Montana Board of Crime Control, which has not returned calls for comment on the case.
Instead of simply replacing the police chief, a series of closed-door executive session decisions resulted in the reserve officers being pulled from their duties and left “in limbo,” Aipperspach said, while the council explored its options for the program. Throughout the summer, officers waited anxiously outside the meetings for a verdict. Aipperspach confirmed that the city attempted to get the officers to sign a release to not talk to the media about problems within the police department. Aipperspach said the council decided it was unnecessary to have the officers sign the release. Officers said they refused to sign the release.
On Sept. 16 the reserve program was suspended, with intentions of reinstating it at a later date. An explanation about what exactly had gone wrong with the program and how the city intended to correct those issues was never conducted in session open to the public.
In an interview, Aipperspach would not go into specific details of what the city allegedly did wrong, but did vaguely reference ambiguity about whether or not officers could be paid as one problem, as well as how much supervision the officers required. He refused to answer questions about exactly how reserves were paid and trained. Aipperspach said four or five reserve officers were affected by the city’s decision to terminate the program.
In a July 18 email, Ronan City Clerk Kaylene Melton told Assistant State Attorney General Stuart Segrest that she was “to obtain information pertaining to how Ronan can go about paying Reserve officers using the ‘stipend’ method.”
Segrest responded in an email the next day and referenced the same 1988 opinion Raymond interpreted years earlier.
“ ... The City may not use a ‘stipend,’ or any other payment method, to pay its reserve officers,” Segrest advised the city.
Many departments in Montana do pay their reserves, however.
Lake County reserve deputies make $75 per shift, according to Undersheriff Dan Yonkin. The county is trying to revive its reserve program, Yonkin said. Although the role of reserves became less prominent when the county passed a mil levy that allowed the department to hire more deputies a few years ago, they have played a vital role in the past, Yonkin said.
“There have been times when I don’t know if we could have done everything we’re supposed to without (reserves),” Yonkin said.
A Lake County reserve officer worked the street dance during Pioneer Days that Ronan reserves were told they could not work.
Ravalli County has one of the state’s top reserve officer programs, according to Sheriff’s Deputy Lt. Zae Hudson. Reserves are members of a non-profit Reserve Deputy Association that has its own set of bylaws.
“It’s a great program for people who want to get into law enforcement and get their foot in the door,” Hudson said, adding that he was once a reserve officer. Ravalli reserves are required to volunteer 10 hours per month, and are be eligible for paid duties after accumulating 500 volunteer hours, and completing a 600-hour field-training program.
In 2012, Ravalli reserve officers volunteered 4,886 hours. They were paid for 1,345 hours. Paid duties include serving as a jail guard or patrolling campgrounds. The paid duties must first be offered to full-time employees, Hudson said.
The Ravalli reserves are supervised and ride with a full-time deputy. It’s a model that not all Montana law enforcement agencies follow.
“The state is in flux about what they are going to do with the reserves,” Hudson said. “Different agencies use reserve deputies in a different capacity. Eventually POST is going to have to step in and define it.”
Without a clear definition, the law is left up to interpretation of individual lawyers.
“It’s a ‘tomato, to-mah-to’ situation,” Aipperspach said.
St. Ignatius town attorney James Lapotka concluded reserve officers could be paid a stipend, using his interpretation of the same 1988 opinion the state attorney general’s office referenced when it advised Ronan that reserve officers could not be paid. The St. Ignatius Town Council voted in August to reinstate its reserve program to alleviate stress on its single officer during major events like Pioneer Days. The city intends to offer a $50 or $60 per shift stipend, according to Lapotka.
“My suggestion for anyone asking for interpretation would be that they contact the attorney general’s office and ask for a new opinion,” said former state attorney general Mike Greeley, who wrote the original 1988 opinion.
July advice from the attorney general’s office to Ronan was not an official opinion, but informal advice. A request for a formal opinion must come from an official legal representative of a government. Cole-Hodgkinson, who also works as a deputy attorney for Lake County, said she doesn’t intend to request a formal opinion because POST has authority much like the legislature that supersedes the attorney general’s authority.
She said she expects POST to write new resolutions clearing up what is permissible and what isn’t in the future. The questions that need answering include if officers can be paid and whether reasonable control of a reserve officer means a full-time officer is in the car with the reserve or across town.
“Span and control is definitely something we need an answer to,” Cole-Hodgkinson said.
She also said the city intends to communicate with both POST and the attorney general’s office as it moves forward in reshaping its reserve program.
“We will absolutely make sure the AG’s office is on board,” Cole-Hodgkinson said.
Perry Johnson, who became executive director of POST in July after serving as Ravalli County Undersheriff, said he doesn’t think POST needs to clarify the 1988 opinion.
“Actually, I think it’s pretty clear they cannot be compensated,” Johnson said. He said paying a stipend is acceptable, but paying an hourly wage is not. He said he was not aware of the July email between the attorney general’s office and the Ronan City Clerk that deemed stipends impermissible.
His interpretation of POST and the attorney general’s power was the exact opposite of what Cole-Hodgkinson said it was.
“We apply standards set by the attorney general,” Johnson said.
