61 OAG 256 (1972)

 
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Deputy Sheriffs - Police Protection - Neither
sheriff nor his deputy can solicit or receive
compensation not provided by law for official
duties but deputy, while off duty, can be
employed as a private security officer.

May 24, 1972.

ALLAN 0. MAKI, District Attorney
St. Croix County

You have requested my opinion relative the
furnishing of police protection for bars and
restaurants in your county.

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You inquire as to potential liability the
county may have to "private police" sent
out by the sheriff, potential liability
the county may have for injuries to third
persons caused by such "private police,"
and whether the practice described
below is authorized by law.

Your letter states:

     Under the present practice, bar owners
     and operators of all-night restaurants
     who foresee a problem with unruly crowds
     call the Sheriffs Department and request
     that a "deputy" be sent out.

     One of the full-time deputies spends a
     substantial portion of his work week
     handling such requests and lining
     up persons to handle such duties.

     The County does not have a Civil Service
     System for its deputies.

     The County has enacted a Dance Hall
     Ordinance in accordance with state law
     and has a number of persons who act as
     dance hall inspectors.

     These men purchase their own badges and
     uniforms. Under the Dance Hall Ordinance
     the owner or operator of a licensed
     dance hall obtains a permit from the
     County Clerk to hold a dance and the
     County sends out an inspector.

     In practice, the same persons who have
     acted as dance inspectors are also sent
     to the bars and restaurants to act in
     the capacity of private police.

     The County pays the dance inspectors for
     each night they are on duty.  However,
     the persons dispatched to the bars and
     restaurants are paid directly at the
     end of the evening by the proprietor.

     To my knowledge, social security and
     withholding tax are not being withheld
     or paid in properly from the money paid
     by the bar owner to the "deputy".

     I have had citizens complain to me and
     question the legality of this practice,
     which appears to the public to be one
     wherein the county is furnishing
     "bouncers" to the taverns.

     I have also had a complaint from a
     private detective agency which complains
     that the County is unfairly competing
     with a private business by providing
     private police in this manner.

Specific answers cannot be given to each of
your questions as there will always be a
question in each case whether such
individuals are acting in their
private or official capacities.

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As you point out, dance halls or places of
amusement defined in Section 59.07(18)(b),
Stats., are not involved, and although such
individuals may at times act as dance hall
inspectors, they are not so employed here.

Section 59.07(18)(b), Stats.,
provides in part:

     . . . Upon the passage of such an
     ordinance the board shall select a
     sufficient number of persons whose
     duty it shall be to supervise public
     dances according to assignments to
     be made by the board.

     Such persons while engaged in
     supervising public dances or places
     of amusement shall have the powers
     of deputy sheriffs, and shall make
     reports in writing of each dance
     visited to the clerk, and shall
     receive such compensation as
     the board determines. . . .

By reason of Section 59.07(18)(d), Stats.,
such county ordinances would not be
effective in any city or village
which by ordinance regulates and
controls such places in any event.

Generally, a sheriff has a duty to keep
the peace and enforce state law and county
ordinances throughout the county regardless
of municipal boundaries, and may take such
means as he deems necessary to carry out
those duties.

Andreski v. Industrial Comm. (1952),
261 Wis. 234,
52 N.W. 2d 135.

Article VI, Section 4, Wis. Const.,
provides in part:

   . . . the county shall never be made
   responsible for the acts of the sheriff. .

For many purposes a sheriff and his deputies
are regarded as one officer, and the
sheriff is held responsible for
the acts of his deputies.

Russell v. Lawton (1861), 14 Wis. 219.

A county is no longer immune
from tort liability.

However, recision of the former rule did
not create any liability against the
county for acts of the sheriff.

Holytz v. Milwaukee (1962),  17 Wis. 2d 26,
                           115 N.W. 2d 618.

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A county is not liable for the acts of the
undersheriff or deputies, at least where
deputies are not under civil service.

45 OAG 152 (1956).

Section 59.22(1), Stats., makes the sheriff
responsible for every default or misconduct
in office of his undersheriff or deputies.

Under Section 59.21(2), Stats., a sheriff in
noncivil-service counties can appoint as
many deputies as he deems proper.

However, under Section 59.15(2)(c), Stats.,
the board determines the number who shall be
compensated on a salary basis by the county
and the amount of compensation.

If no salary is provided by the county and no
fee is established by law, a deputy cannot
"in his official capacity" make a charge to
private individuals for official services.

Section 946.12(5), Stats., provides a penalty
for a public officer or public employe who:

     Under color of his office or employment,
     intentionally solicits or accepts for
     the performance of any service or duty
     anything of value which he knows is
     greater or less than is fixed by law.

With respect to your questions, and in light
of the above, I summarize as follows:

1.   A sheriff may assign a deputy to keep
     the peace at a given establishment.

     However, neither the sheriff nor the
     deputy can solicit compensation from
     such operator for the benefit of the
     deputy for any "on duty" services or
     services rendered in an official
     capacity.

2.   An operator of a private establishment
     may contract with an individual who is
     also a deputy, for services in keeping
     the peace during the deputy's off-duty
     hours, and such individual may accept
     and retain compensation therefor, if
     not prohibited by the rules of the
     sheriff, and may wear his
     privately-owned uniform and badge,
     if not prohibited by the rules
     of the sheriff.

     An argument can be made that a sheriff
     should as a matter of policy restrict
     the use of the deputy's official uniform
     and badge to official duty situations.

     A deputy has official power
     twenty-four hours a day.

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     However, such fact does not prohibit a
     deputy compensated on a fee or part-time
     basis from being otherwise employed in a
     capacity which is not in irreconcilable
     conflict with his official duties.

3.   The county could not be held liable for
     the acts of the sheriff and probably
     could not be held liable for acts of
     his deputies against third persons
     even while engaged in official duties,
     although the sheriff may be.

4.   The county may be liable on a workmen's
     compensation basis to both the sheriff
     and his deputies injured in carrying
     out their official duties.

 RWW:RJV

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