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 discussed four ways the parties could arrange assistance or funding under the conditions it identified.

Mutual aid under § 209-f. Schuyler County can request assistance if the statutory emergency conditions are met. The counties must follow § 209-g's cost rules, which do not provide for direct payment of the responding personnel by the track.

Municipal cooperation under § 119-o. Under Article 5-G of the General Municipal Law, each county must independently have authority to perform the service covered by the agreement. The AG said Schuyler and Wayne could cooperate on law enforcement coverage at the track. An agreement may address personnel and compensation; it also extends appropriate territorial jurisdiction to participating officers.

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 its use. The county legislature may independently decide to use the gift for law enforcement and the cost of mutual aid or municipal cooperation.

Off-duty private employment. The AG said deputies may work privately for the track if local legislation does not prohibit it and the particular job poses no conflict of interest. In that arrangement, the track directs and compensates the deputies, and use of official county vehicles is inappropriate.

The arrangement described to the AG, in which responding county personnel were paid directly by the track, was not authorized under the mutual aid provisions.

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?

General Municipal Law § 209-g assigns the responding personnel's salaries and other compensation to the requesting sheriff, though the responding county may assume that cost. The AG said the statute makes no provision for direct payment by a private party that benefits from the law enforcement services.

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

The deputies were sent in response to a sheriff's mutual aid request, wore Wayne County uniforms, drove county patrol vehicles, and were sworn in by Schuyler County. The AG examined that arrangement under the mutual aid statute and concluded that its payment terms were not authorized.

What options did the AG identify for staffing the race?

Schuyler County could seek statutory mutual aid or enter a municipal cooperation agreement with Wayne County. The track could give Schuyler County an unconditional gift, with the county legislature deciding how to use it. Off-duty Wayne County deputies could also work privately for the track if local law permits it and no conflict of interest arises; official vehicles would be inappropriate for that private work.

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

The AG said an auto race with many attendees raises public safety concerns and presumably falls within the intended purpose of the mutual aid provisions. Schuyler County could use those provisions to obtain needed assistance, provided it complies with their terms.

Does this opinion bar all private payment of law enforcement?

No. The AG said off-duty Wayne County deputies could work privately for the track if local legislation does not bar it and the particular work poses no conflict of interest. The track would direct and compensate them; official county vehicles would be inappropriate.

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) and 119-o(1) require each participating municipality to have independent authority to perform the jointly provided service. The AG said Schuyler and Wayne Counties could cooperate on law enforcement coverage at the track. General Municipal Law § 119-o(2)(b) permits an agreement to address how necessary personnel are employed and compensated.

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