Dear Chief King:
This office is in receipt of your request for an opinion of the Attorney General in regard to the operation of the police department for the Town of Jena. You indicate you are serving your fourth term as the elected Chief of Police for the Town of Jena, but it has been brought to your attention that the mayor and council are considering closing the police department which consists of yourself and five others. In light of this, you ask the following questions:
1. Does the Mayor and Council have authority to close the police department;
2. Is a police department suppose to be a self-sufficient department, operating on funds derived from fines, tickets and citations written; and
3. Does the Mayor and Council have the authority to set working hours for the department.
It is our understanding that Jena is a Lawrason Act community, and in Atty. Gen. Op. No. 90-490 this office recognized the office of chief of police is established by law in R.S. 33:381.1. Accordingly, it was stated as follows:
It cannot be abolished without express legislative authorization. The Town Council has no legal authority to eliminate this office created by general state law.
Although the office of Chief of Police cannot be abolished or his compensation reduced during the current term of office, the operation of the department can be controlled in part by the governing authority insofar as they approve the budget to finance the department. While the elected chief of police has the inherent authority to control the operation of the police department and its funds, said funds are required to be budgeted and appropriated pursuant to municipal ordinances before they fall within his control.
Establishing a municipal budget is vested exclusively with the Mayor and Council. Therefore, while it cannot be said that a police department must be self-sufficient, it is obviously a matter that will be considered by the governing authority in formulating a municipal budget. Moreover, the fines collected from tickets issued by police are deposited into the city treasury in accordance with R.S. 33:422, and as stated in Atty. Gen. Op. No. 95-118, the deposit is with "no specific designation for exclusive use of the funds for law enforcement purposes." It was observed that in the absence of a local ordinance, "expenditure of fines levied from police tickets remain at the discretion of the local mayor or town council." It was then concluded, "Thus, it is the opinion of this office that a local government is not required under state law to release funds generated by ticket fines to the chief of police to use exclusively for law enforcement purposes." Consequently, the operating funds of the police department are not proportional to the fines, tickets and citations collected, but on a budget established by ordinance by the governing authority as it sees fit.
Having found that the chief of police has general supervisory power over the police department, this office found this supervisory power includes "the scheduling of the work shifts of all members of the police department." It was further observed that the chief of police as an elected official is not required to establish specific working hours, but serves on a full-time basis. Atty. Gen. Op. Nos. 95-13, 90-316, 87-696.
You indicate that when your men, who are paid hourly, work overtime by replacing someone on vacation or sick leave, the mayor and council refuse to pay the department overtime although other town employees are paid overtime. You state the morale is suffering and this policy is resented by the department, and a ruling by this office is needed.
This office has found that law enforcement and fire protection employees are not governed by that section of the Federal Fair Labor Standards Act that provides for payment of time and a half for time worked in excess of forty hours, but are governed by29 U.S.C. § 207(K). Pursuant to this provisions, whether your officers qualify for overtime will depend upon the amount of time they worked over 171 hours in a 28 day period. Also, the Fair Labor Standards Act allows employees of a political subdivision of a state to receive in lieu of overtime compensation, compensatory time off at a rate of not less than one and one-half for each hour of employment for which overtime compensation is required when an agreement exists before the overtime was performed that there be compensatory time in lieu of cash payment.
Therefore, as law enforcement officers your men are not subject to the same provisions of other town employees for overtime, and if they are due any overtime, it will have to be calculated on the basis of work hours in a 28 day period over 171 hours. However, this office has consistently stated that an elected Chief of Police cannot be paid for overtime work. Atty. Gen. Op. Nos. 96-389, 96-88, 79-848.
We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
By: BARBARA B. RUTLEDGE Assistant Attorney General
BBR
Date Received: October 6, 1997
Date Released: