Can off-duty New York deputies respond to a neighboring county's mutual aid request and be paid by the race track they're protecting?

Plain-English summary

The Wayne County attorney described an arrangement that had been in place for several years. When NASCAR ran at Watkins Glen (in Schuyler County), the Schuyler sheriff declared a state of emergency and asked surrounding counties for mutual aid. Wayne County deputies and corrections officers signed up for shifts, used scheduled days off or vacation accruals, drove their patrol cars to Watkins Glen wearing their Wayne County uniforms, and were sworn in as Schuyler deputies on arrival. Schuyler verbally accepted liability for the deputies' actions and any vehicle damage. Wayne County itself received no compensation. The race track paid the deputies directly (with 1099 statements, no county involvement).

The AG said this is not authorized under General Municipal Law mutual aid.

The mutual aid statute (General Municipal Law Article 10, § 209-f) does let one sheriff request another sheriff to assign deputies during a declared emergency, and § 209-g sets out the cost-allocation rules: the requesting sheriff pays for equipment operation, salaries, and other compensation (though the responding county can choose to absorb the cost). The statute makes no provision for a private third party paying the officers directly. So the off-duty deputies being paid by the race track does not fit § 209-f/§ 209-g.

The AG then walked through four legitimate alternatives.

Formal mutual aid under § 209-f. Schuyler County can request mutual aid, Wayne can respond, and the cost allocation follows § 209-g. The track does not pay the officers.

Municipal cooperation under § 119-o. Under Article 5-G of the General Municipal Law, two counties can enter into a cooperation agreement for any service either has authority to provide. A Schuyler-Wayne agreement on Watkins Glen coverage could include personnel arrangements, compensation, and territorial jurisdiction (Op Atty Gen (Inf) No. 92-17). This is a more flexible vehicle than § 209-f because it does not require a declared emergency.

Gift to the County under County Law § 215(3). Schuyler County can accept an unconditional gift from the track for lawful county purposes. The track cannot dictate the use, but if the legislative body decides on its own to use the funds for law enforcement at the track, that satisfies the statute. The gift cannot be conditional on the track getting specific services.

Off-duty private employment. A separate AG line (Op Atty Gen (Inf) No. 85-45) says officers can take outside employment during off-duty hours absent a local prohibition or specific conflict-of-interest concern. If the officer is privately employed by the track, the track is responsible for compensation, benefits, and direction; the officer is not acting in his county capacity; and the county vehicle should not be used. Common-law conflicts must be considered.

So there are legitimate ways to put law enforcement on the ground at Watkins Glen. The hybrid the parties had been using (county-uniform deputies riding county cars sworn in by another county and paid by a private entity) does not fit any of them.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is the AG so focused on who pays the deputies?

Because the cost allocation built into the mutual aid statute is what keeps the system honest. § 209-g requires the requesting sheriff to pay (with the responding county able to absorb costs as a matter of choice). The statute prevents a private party from buying its own custom police detail through the mutual aid mechanism, which would create equity problems (only big spenders get extra coverage) and accountability problems (officers paid by a private party may be effectively subject to private direction).

If the deputies are off-duty and the track pays them, why is this even a county matter?

Because they were wearing county uniforms, driving county vehicles, and were being framed as mutual aid responders sworn in as Schuyler deputies. The form of the arrangement looked like official law enforcement, but the compensation flow ran outside the formal statutory framework. That mismatch creates legal exposure for the county (the county vehicle is being used for non-county work, the badge is being worn for private-party benefit) and confuses the relationship.

What's the cleanest way to run security at a big private event?

Usually a municipal cooperation agreement (§ 119-o) between the host county and any contributing counties. The agreement sets responsibilities, jurisdictional grants, and compensation flows. The private venue can pay the host county (often through a venue-services contract or a venue-impact gift under § 215(3)), and the host county pays the participating counties under the cooperation agreement.

Can a NASCAR-style event qualify as a state of emergency?

The AG hints yes: large-attendance events implicate public safety concerns that fall within the mutual aid statute's intended purpose. The sheriff has discretion under § 209-f(2)(a) to declare an emergency when the public peace is threatened or life or property may be endangered. A high-volume event with crowd and traffic control needs can satisfy that standard if facts justify it.

Does this opinion bar all private payment of law enforcement?

No. Off-duty officers can be privately employed. The point is form has to match substance. If the officers are private employees of the track, they cannot also be acting in mutual aid capacity, and the county vehicle should stay home.

Background and statutory framework

Mutual aid: Article 10. General Municipal Law § 209-f governs sheriff-to-sheriff mutual aid during declared emergencies. § 209-g handles cost allocation, with the requesting sheriff responsible by default.

Municipal cooperation: Article 5-G. General Municipal Law § 119-n(c) authorizes contracts between municipalities for any service either has authority to provide. § 119-o(1) and § 119-o(2)(b) set the framework for cooperation agreements. Op Atty Gen (Inf) No. 92-17 confirms law enforcement is a permissible subject for inter-county cooperation.

County gifts: County Law § 215(3). Permits counties to accept gifts for lawful county purposes, with use determined by the legislative body and not dictated by the donor.

Off-duty private employment. Op Atty Gen (Inf) No. 85-45 sets the framework for off-duty police employment, including the prohibition on using municipal vehicles and on conflicts of interest.

Citations

• General Municipal Law § 209-f(2)(a), (2)(b) (mutual aid declaration and response).
• General Municipal Law § 209-g (cost allocation); § 209-g(5) (salaries and equipment).
• General Municipal Law § 119-n(c), § 119-o(1), § 119-o(2)(b) (Article 5-G municipal cooperation).
• General Municipal Law Article 10 (mutual aid).
• General Municipal Law Article 5-G (municipal cooperation).
• County Law § 215(3) (gifts to county).
• Op Atty Gen (Inf) No. 92-17 (law enforcement cooperation under Article 5-G).
• Op Atty Gen (Inf) No. 85-45 (off-duty private employment).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-53_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW, ART 5-G, ART 10, §§ 119-n(c), 119-o(l) and
(2)(b), 209-f(2)(a) and (2)(b), 209-g.
Mutual aid must be carried out consistent with the
provisions of the General Municipal Law.
November 19, 1998

Mark H. Alquist, Esq.
County Attorney
County of Wayne
Wayne County Court House
28 Church Street
Lyons, New York 14489

Informal Opinion
No. 98-53

Dear Mr. Alquist:
You have asked whether the current arrangement for the Wayne
County Sheriff Department's provision of law enforcement at the
Watkins Glen NASCAR races in Schuyler County is proper. You have
described the arrangement in detail. You have advised us that
for the past several years the Schuyler County Sheriff has
declared a state of emergency when auto racing is scheduled at
the Watkins Glen track and has requested mutual aid from the
Sheriffs of surrounding counties and from local police
departments.
You state that Wayne County regularly has sent many
Sheriff's Deputies and Corrections Officers to Watkins Glen in
response to requests for mutual aid. When such requests are
made, a sign-up sheet is posted at the Wayne County Sheriff's
Department. Deputies and Corrections Officers who wish to
participate select specific dates and times for duty at the
track. Wayne County personnel are permitted to work at the races
when they are off duty, either on scheduled days off or on
vacation days covered by legitimate time accruals.
You also have advised that Deputies who participate are in
uniform and drive their patrol vehicles to Watkins Glen. Upon
arrival at the track, they are sworn in as Schuyler County
Sheriff's Deputies. Corrections Officers, who do security work
at the track, also wear their own uniforms and are sworn in as
peace officers by Schuyler County . Corrections Officers either
travel with Deputies or arrange their own transportation to
Watkins Glen. Schuyler County has agreed to accept
responsibility for any liability resulting from actions of the
Wayne County personnel and for any damage to patrol vehicles.
This assumption of liability commences when the Deputies and
their vehicles begin their trip to Schuyler County and continues
until they return to their point of origin in Wayne County.
There is no written agreement embodying this assumption of
liability.
You note that Wayne County receives no compensation for the
provision of personnel and vehicles to Schuyler County. Schuyler
County does not compensate the Deputies or the Corrections
Officers who participate. They are paid by the track, a private
entity, and the track issues 1099 statements reflecting the
compensation that is paid to the Deputies and Corrections
Officers. You state that retired Deputies also respond to the
Schuyler County Sheriff's call for mutual aid. They make
independent arrangements with Schuyler County, apparently are
sworn in as Deputies by Schuyler County and are paid by the
track.
In our view, the mutual aid provisions of the General
Municipal Law do not authorize the arrangement described above.
Article 10 of the General Municipal Law provides for mutual aid
service by local police forces outside their geographical
jurisdictions. It authorizes the Sheriff of any county, when the
public interest so requires, to declare a state of special
emergency in any part of the county where the public peace is
threatened or where life or property may be endangered. General
Municipal Law § 209-f(2)(a). The Sheriff may request any other
Sheriff to provide assistance by assigning available Deputies to
the requesting Sheriff for duty and by providing equipment and
supplies during such an emergency. The Sheriff requesting such
aid is empowered to deputize as emergency special deputies any
personnel so assigned. The statute also authorizes the
responding Sheriff to provide the requested aid. Id.,
§ 209-f(2)(b).
Liability in mutual aid situations is addressed by General
Municipal Law § 209-g, which makes the requesting Sheriff
responsible for the expenses of operation and maintenance of
equipment supplied by another Sheriff and for any loss or damage
to such equipment, provided a specified claim procedure is
followed. The statute also makes the requesting Sheriff
responsible for the salaries and other compensation of responding
staff, although the responding county can assume the cost. Id.,
§ 209-g(5). The statute makes no provision for payment of
compensation to county personnel by a private party who is
benefitted by the provision of law enforcement services.
Therefore, the arrangement you have described, where off-duty
personnel answer the call for mutual aid and are paid by the
track, is not authorized under these provisions of the General
Municipal Law.
An auto race by its nature raises safety concerns. A race
that attracts a very large number of attendees implicates
additional public safety concerns and requires increased crowd
and traffic control. Presumably such an event falls within the
intended purpose of the mutual aid provisions. Accordingly, the
Schuyler County Sheriff could employ the mutual aid provisions of
the General Municipal Law to obtain needed assistance.
Compliance with the terms of the statute would be necessary.
Municipal cooperation may be another means of providing the
additional law enforcement services required when racing is held
in Watkins Glen. Under Article 5-G of the General Municipal Law,
a municipality, including a county, may contract with another
municipality for performance of any of its powers, duties and
functions. Each contracting municipality must have the authority
independently to perform the service that will be performed
jointly under the agreement. General Municipal Law §§ 119-n(c),
119-o(1). We previously have opined that municipalities that are
empowered to provide law enforcement may contract to assist one
another in doing so. Op Atty Gen (Inf) No. 92-17. Schuyler and
Wayne Counties thus are authorized to enter an agreement to
cooperate with one another in arranging law enforcement coverage
at the Watkins Glen track as appropriate. In our prior opinion,
we noted that a municipal cooperation agreement extends
appropriate territorial jurisdiction to the police officers for
undertaking their responsibilities under the cooperation
agreement. Under such an agreement, therefore, Wayne County
Deputies could carry out law enforcement duties in Schuyler
County as though they were in their home county. The statute
suggests a number of issues that may be addressed by the terms of
a municipal cooperation agreement, including the manner in which
participating municipalities employ and compensate necessary
personnel. General Municipal Law § 119-o(2)(b).
We note that County Law § 215(3) authorizes counties to
accept gifts for lawful county purposes. Under this provision,
Schuyler County could accept an unconditional gift from the track
for lawful County purposes. The track could not require a
particular use of the gift. Only the County's legislative body
can determine the use of such funds, based solely on its
assessment of overall public needs. Consistent with this
standard the County could, in its discretion, to protect the
public health and safety, use a gift for law enforcement purposes
and defray the cost of mutual aid or municipal cooperation.
Also, in a prior opinion, we recognized that as a general
rule, in the absence of a contrary local law or regulation,
police officers are not prohibited from accepting outside
employment during off-duty hours. Op Atty Gen (Inf) No. 85-45.
In such cases, however, the officers would be subject to the
direction of the private employer, who would be responsible for
all compensation, benefits and related costs. Use of official
vehicles owned by a municipality would not be appropriate in such
circumstances. Moreover, off-duty employment cannot violate
common law conflict of interests doctrines. See, Op Atty Gen
(Inf) No. 85-45. Thus, if local legislation does not bar outside
employment and if the particular employment does not present a
conflict of interests, off-duty Wayne County Deputies may be
employed in a private capacity by the Watkins Glen track and
compensated directly by the track.
We conclude that the arrangement you describe for assignment
of Wayne County Deputies and Corrections Officers to provide law
enforcement at the Watkins Glen racetrack in Schuyler County is
not authorized by the mutual aid provisions of the General
Municipal Law.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General