Opinion
August 2, 1999
R.S. 34:26 R.S. 40:2402 R.S. 11:3690 R.S. 34:25 R.S. 11:3690
Port and Harbor Police for the Board of Commissioners of the Port of New Orleans are "Peace Officers" and have all the power of Sheriffs as Peace Officers in all places and on all premises under the jurisdiction and control of the Board of Commissioners of the Port of New Orleans, and of the streets and approaches thereto. The disposition of statutory fines to be placed in the Harbor Police Pension Fund is constitutional in accordance with Attorney General Opinion 98-320. The amounts and fines for violations of ordinances of the Board of Commissioners for the Port of New Orleans are assessed in accordance with the schedules as adopted by the Port of New Orleans.
Mr. Maurice B. Friedman Traffic Court of New Orleans 727 South Broad Street New Orleans, La 70119
Dear Mr. Friedman:
This office is in receipt of your opinion request in which you present the following issues:
1. What is the status of harbor police as "peace officers" empowered to enforce state statute, ordinances of Board of Commissioners of the Port of New Orleans, and ordinances of City of New Orleans.
2. Is the disposition of statutory fines to be placed in the Harbor Police Pension Fund Constitutional?
3. What is the limitation of the amount that can be assessed to the defendant for a violation of ordinances related to speeding on port property?
Regarding the status of port and harbor police as "peace officers" La. R.S. 34:26 states in pertinent part:
The port and harbor police shall have, under the direction and control of the board of commissioners, the same power to make arrests, in and upon the property within the jurisdiction of the board and approaches thereto, and to execute and return all criminal warrants and processes, as sheriffs of this state have, and shall under the same direction and authority, have all the powers of sheriffs as peace officers in all places and on all premises under the jurisdiction and control of the board, and the streets and approaches thereto. Any person arrested by officers of the board and the return of all warrants or processes served by said officers shall be forthwith surrendered or delivered to the criminal sheriff of the Parish of Orleans or sheriffs of St. Bernard and Jefferson parishes; provided this shall in no way deprive the New Orleans City Police or any sheriff or deputy sheriff in the Parishes of Orleans, St. Bernard or Jefferson from making arrests or from serving warrants or process of court in any such place or on any such premises. The Board of Commissioners shall make rules and regulations for the conduct, management and control of the port and harbor police, and shall, from time to time, enlarge, modify or change such rules and regulations in its discretion.
Based on the statute, the port and harbor police are clearly peace officers and have all the powers of sheriffs in all places and on all premises under the jurisdiction and control of the Board of Commissioners for the Port of New Orleans. See also Attorney General No. 82-1125 (attached) which defined the New Orleans Harbor Police as "peace officers" in accordance with La. R.S. 40:2402, which states:
"any full time employee of the state, a municipality, a sheriff, or other public agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state, but not including any elected or appointed head of the law enforcement department."
Your second question asks the constitutionality of the disposition of statutory fines to be placed in the harbor police pension fund. In response to question, please see attached Attorney General Opinion No. 98-320 which concluded that the provision of R.S. 11:3690 calling for the payment of fines collected by the traffic courts of Orleans Parish to be paid directly to Harbor Police Retirement System are constitutional. Regarding the harbor police retirement system for the Port of New Orleans, R.S. 11:3690(9) states:
All fines collected by any court, official or agency from violators of ordinances of the City of New Orleans applicable to the wharves, landings, and river front of the city or ordinances of the Board of Commissioners of the Port of New Orleans, as provided for in R.S. 34:25, shall be transmitted to the board of trustees of this system. Such funds shall be used by the board solely for the payment of the retirement allowances provided for in Subsections B, C, and D of this Section, and such funds shall be supplemented by such other funds as are now or may be hereafter paid into the system on account of members of the harbor police department of the Port of New Orleans.
Generally regarding the constitutionality of this as with other statutes, it shall be noted that all laws are presumed to be constitutional. ( Ricks v. Close 201 La. 242, 9 So.2d 534 (La. 1942)). The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. Hayden v. Richland Parish School Board, 554 So.2d 164 (La.App 2d Cir. 1989), writ denied 559 So.2d 124 (La. 1990). Thus, legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. McGee v. State, 502 So.2d 121 (La.App. 4th Cir. 1986), writ denied 505 So.2d 730 (LA 1987); Derouen v. Miller, 614 So.2d 1304 (La.App. 3rd Cir. 1993).
Your third issue related to the limitation of the amount that can be assessed to a violator-defendant. While R.S. 11:3690 does not state how much such fine should be, the Board of Commissioners of the Port of New Orleans has passed an Ordinance which sets out the fine schedule for such violations. Such ordinance was passed June 25, 1998 by the Board of Commissioners of the Port of New Orleans and states in part as follows:
"AN ORDINANCE BY THE BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS"
(A Political Subdivision of the State of Louisiana)
AN ORDINANCE REGULATING THE USE OF CARTS, DRAYS, WAGONS, AUTOMOBILES, TRUCKS, MOTORCYCLES, MOTOR VEHICLES, OR OTHER VEHICLES AND PEDESTRIANS ON THE WHARVES, ROADWAYS, OR ANY OTHER PROPERTY UNDER THE JURISDICTION, ADMINISTRATION AND CONTROL OF THE BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, INCLUDING FRANCE ROAD, JOURDAN ROAD, SUREKOE ROAD, THE CLARENCE HENRY TRUCKWAY, COFFEE DRIVE, WAREHOUSE ROAD, PORT OF NEW ORLEANS PLACE, PROHIBITING PARKING, SPEEDING AND OTHER ACTIVITIES, PROVIDING EXCEPTIONS THERETO, AND PROVIDING PENALTIES FOR THE VIOLATIONS OF ITS PROVISIONS. BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS THAT THE TRAFFIC ORDINANCE ENACTED BY THE BOARD ON AUGUST 25, 1964, AS AMENDED IS HEREBY FURTHER AMENDED AND RE-ENACTED, AS FOLLOWS:
Section 14. For violation of Section 8 and 9(A) of this Ordinance, the fines shall be as set out below:
SPEEDING VIOLATIONS
__________________________________________________________________________ | | 1st Violation | 2nd Violation | 3rd Violation | |_____________|___________________|___________________|___________________| | 1-9 miles | | | | | per hour | | | | | over limit | 45.00 | 60.00 | 75.00 | |_____________|___________________|___________________|___________________| | 10-14 miles | | | | | per hour | | | | | over | 75.00 | 105.00 | 135.00 | |_____________|___________________|___________________|___________________| | 15-20 miles | | | | | per hour | | | | | over limit | 150.00 | 180.00 | 210.00 | |_____________|___________________|___________________|___________________|
Citations for speeding more than twenty (20) miles per hour over the speed limit must be tried in court, and the fine shall not exceed five hundred dollars ($500) and/or one hundred eighty (180) days in jail in addition to any costs imposed by the court.
In conclusion, Port and Harbor Police for the Board of Commissioners of the Port of New Orleans are "Peace Officers" and have all the power of Sheriffs as Peace Officers in all places and on all premises under the jurisdiction and control of the Board of Commissioners of the Port of New Orleans, and of the streets and approaches thereto. The disposition of statutory fines to be placed in the Harbor Police Pension Fund is constitutional in accordance with Attorney General Opinion 98-320. The amounts and fines for violations of ordinances of the Board of Commissioners for the Port of New Orleans are assessed in accordance with the schedules as adopted by the Port of New Orleans.
We hope the foregoing has sufficiently addressed your concerns. If our office can be of further service, please do not hesitate to contact us at your convenience.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: J. RICHARD WILLIAMS Assistant Attorney General
RPI/JRW:crt
OPINION NUMBER 82-1125
December 20, 1982
LAW OFFICERS — AUTHORITY JURISDICTION . . . . . . . . 60 La. R.S. 40:2402 et seq.
Officers employed by the following agencies would be classified as "peace officers" within the meaning and intent of La. R.S. 40:2402 and as such must complete the basic law enforcement training course as defined in La. R.S. 40:2405 if employed after January 1, 1983. Wildlife Fisheries Agencies, Capital Police, Airport Security Officers, Levee Board Police in the Ponchartrain, Orleans Jefferson Levee Districts, Airport Security Mr. Elmer Litchfield Officers, New Orleans Harbour Police, Executive Director Campus Police, Department of Louisiana Commission on Agriculture Brand Commission Law Enforcement Officers, Department of Public Safety Room 615 Security Personnel, Mississippi River 1885 Wooddale Blvd. Bridge Police, District Attorneys Baton Rouge, LA 70806 Investigators, State Park Rangers, Alcohol Beverage Control Board Officers.
Dear Mr. Litchfield:
Your letter of November 16, 1982 requesting the opinion of this office has been referred to the Criminal Division for research and reply. Your questions, as we appreciate them are:
(1) Do the officers of the following agencies fall into the category of "peace officer" as defined in La. R.S. 40:2402?
(a) Correctional personnel (local and state agencies
(b) Wildlife Fisheries Agents
(c) Department of Health Human Resources Security personnel (Charity Hospitals)
(d) Capitol police
(e) Airport Security Officers
(f) Levee Board Police
(g) New Orleans Harbor Police
(h) Campus Police
(i) Department of Agriculture (Brand Commission Officers)
(j) Department of Public Safety Revocation Officers
(k) Department of Public Safety Security Personnel
(l) Department of Transportation (Weights Standards Officers)
(m) Department of Corrections (Probation Parole Officers)
(n) Mississippi River Bridge Police
(o) District Attorneys' Investigators (p) State Fire Marshalls
(q) Louisiana State Parks
(r) Alcohol Beverage Control Board Officers
(s) Department of Health Human Resources (Support Enforcement Officers)
(2) Must the officers who are employed by these agencies after January 1, 1983 complete the basic law enforcement training course as defined in La. R.S. 40:2405?
Louisiana Revised Statute 40:2402 defines peace officer as "full-time employee of the state, a municipality, a sheriff or other public agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state, but not including any elected or appointed head of a law enforcement department."
Having analyzed this particular statute it is our opinion that the legislation was intended to cover those individuals whose day to day activities bear a substantial relationship to those skills taught in the basic law enforcement training program. Stated another way, could the employee adequately perform his duties without training in the areas of search and seizure, arrest and search warrants? In addition is the employee routinely responsible for the prevention and detection of crime or for the enforcement of the penal, traffic or highway laws of this state? This implies that only those individuals who havesubstantial contact with the public in the performance of law enforcement related duties should be considered "peace officers" as defined in La. R.S. 40:2402. This is opposed to those individuals who may perform some of these functions such as arrest but do so within a specialized environment or situation. An example of the latter would be a guard at a state prison facility or a security guard at one of the charity hospitals. Using these criteria the following opinion is rendered.
(A) Correctional personnel (local state agencies)
A review of the job descriptions (Exhibit "A" attached hereto) indicates that correctional personnel do not fall within the category of peace as defined by La. R.S. 40:2402. While probation and parole officers do have the authority to make an arrest they do so within the context of their supervision of parolees and probationers and not the general public. It is our opinion that these employees do not routinely perform the duties outlined in La. R.S. 40:2402.
(B) Wildlife Fisheries agents:
A review of the job descriptions attached as Exhibit "B" indicates that all enforcement agents would be classified as peace officers under La. R.S. 40:2402.
(C) Department of Health Human Resources Security Personnel (Charity Hospitals)
A review of Exhibit "C" which is attached hereto indicates that these persons would not be classified as peace officers under the statute. This is based on the fact that they too function in a specialized environment and do not routinely perform those duties set out in La. R.S. 40:2402.
(D) Capitol Police:
La. R.S. 49:149 et. seq. creating the capitol police clearly indicates that these officers fall within the intent of the statute and would be considered peace officers.
(E) Airport Security Officers
(1) Baton Rouge Metro Airport, full time employees empowered with the same authority as Baton Rouge City Police Department by special act of the City-Parish Government of Baton Rouge. These employees would be classified as "peace officers"
(2) Shreveport Metro Airport. These are full time employees commissioned by the Shreveport City Police Department. These employees are classified as peace officers.
(3) Alexandria Regional Airport: Full-time employees commissioned by the Rapides Parish Sheriff's Office. These employees would be classified as peace officers.
(4) Lafayette Airport. These are full time employees commissioned by the Lafayette Parish Sheriff's Office and they would also be classified as peace officers.
(5) Lake Charles Chennault Field. These are full time employees commissioned by the Calcasieu Parish Sheriff's Office with pay supplemented by the Airport Commission. These employees would be classified as peace officers.
(6) Monroe Selman Field. These are city police officers commissioned by the City Police Department of Monroe and would also be considered peace officers.
(F) Levee Board Police
Only three levee boards have full time policemen, Jefferson Levee District, Orleans Levee District and the Ponchartrain Levee District. The Jefferson Levee officers are commissioned by the Louisiana Department of Public Safety and would be classified as peace officers. The Orleans Levee District officers are commissioned by the New Orleans City Police Department and would be classified as peace officers. The Ponchartrain Levee District officers are commissioned by the Louisiana Department of Public Safety and operate under the authority of La. R.S. 38:1328. They would also be classified as peace officers. We checked with the remaining levee districts and find that they have no full-time police officers.
(G) New Orleans Harbor Police
La. R.S. 34:26 creates the position of port and harbor policeman. That statute, a copy of which is attached as Exhibit "G" indicates that such employees would be classified as peace officers.
(H) Campus police:
La. R.S. 17:1805 et. seq. defines the authority of a campus police officer. Based on that statute, a copy of which is attached as Exhibit "H", campus police would be classified as peace officers.
(I) Department of Agriculture (Brand Commission Officers)
La. R.S. 3:749 attached hereto as Exhibit "I" indicates that brand commission officers would be classified as peace officers.
(J) Department of Public Safety Revocation Officers
While a review of the job description reveals that these officers do have the power to make an arrest their duties are primarily administrative or clerical in nature. Moreover, they do not routinely prevent or detect crime as it relates to the general public. We are of the opinion that this employee could adequately perform his job without those skills taught by the basic law enforcement training program. Because of this the employee would not be classified as a peace officer under the statute. See Exhibit "J" attached hereto.
(K) Department of Transportation Development (Weights and Standards Officers)
The weights and standards officer has the limited authority to enforce state weight laws and regulations specified in La. R.S. 32:380 through 32:389. He or she falls within the category of those persons who may perform limited law enforcement functions but do so within a specialized environment or situation, namely insuring that the trucking industry complies with weight and size regulations on state highways. These officers are unarmed and are not responsible for the prevention or detection of crime as it pertains to the general public. Because of this it is our opinion that such personnel would not be classified as peace officers within the meaning of the statute. See Exhibit "K" attached hereto.
(L) Department of Correction (Probation Parole Officers)
While these officers also have the power to make an arrest it is only within a restricted situation that they may do so, namely, the apprehension of parole or probation violators. Their day to day activities do not include the detection and prevention of crime as it pertains to the public nor do their duties require the execution of arrest or search warrants as to the general public. These employees would not be classified as peace officers within the meaning of La. R.S. 40:2402. See Exhibit "A" attached hereto.
(M) Mississippi River Bridge Police
La. R.S. 48:1101.1, a copy of which is attached hereto and made a part hereof as Exhibit "M", outlines the authority of this agency. Officers employed by this agency would be classified as peace officers under the statute.
(N) District Attorney Investigators:
We are not able to render a definitive opinion on this position due to the fact that each District Attorney sets his own policy relative to the duties of his investigators. District Attorney Investigators in East Baton Rouge, Orleans, and Jefferson Parishes are commissioned by the Louisiana State Police and local sheriffs' offices. Those investigators routinely make arrests, conduct search and seizures, execute warrants and assist in the detection and prevention of crime. District Attorney Investigators who perform similar duties throughout the state would be considered peace officers under the statute.
(O) State Fire Marshalls
A review of the job descriptions (Exhibit "O") indicates that these individuals would be classified as peace officers under the statute.
(P) Louisiana State Parks (Park Rangers)
The job descriptions attached hereto as Exhibit "P" indicate that these individuals perform many of the functions outlined in La. R.S. 40:2402 and would be considered peace officers under the statute.
(Q) Department of Public Safety Security personnel
A review of the job description attached hereto as Exhibit "Q" indicates that these officers would be classified as peace officers under the statute.
(R) Alcohol Beverage Control Board Offices:
The job description attached hereto as Exhibit "R" indicates that these officers would be classified as peace officers under the statute.
(S) Department of Health Human Resources (Support Enforcement officers)
A review of the job description attached hereto as Exhibit "S" indicates that the support enforcement officers would not qualify as peace officers under the statute.
In answer to question number 2 those employees who are classified as peace officers above must complete the basic law enforcement training course as defined in La. R.S. 40:2405.
We might note that these classifications are somewhat arbitrary. We would recommend that specific legislation be enacted defining by agency and position those persons who qualify as officers under the statute.
If we can be of further assistance please advise.
Sincerely,
WILLIAM J. GUSTE, JR. Attorney General
BY: RENE SALOMON Assistant Attorney General
RS/fd
OPINION NUMBER 83-226
March 28, 1983
LAW OFFICERS AUTHORITY JURISDICTION . . . . . . . . 60 R.S. 15:574.8
William E. Dunn Probation and Parole Director Probation and parole officers Louisiana Department of of the Department of Corrections Corrections are "peace officers" within the Post Office Box 44304 meaning of R.S. 40:2402. Baton Rouge, LA 70804
Dear Mr. Dunn:
Your request for an opinion has been assigned to this Division for research and reply. You have inquired in regard to Attorney General's Opinion #82-1125. Specifically, you request:
In view of La. R.S. 15:574.8 and La.C.Cr.P. Art. 899, are probation and parole officers of the Department of Corrections "officers"?
Opinion #82-1125 attempted to delineate those state officers which are classified as "peace officers." We based our conclusions upon the Legislature's definition of peace officer. We attempted to review the status of each office by essentially asking: "Does this officer's daily activities bear a substantial relationship to the skills taught in the basic law enforcement training program?" Our opinion, in part, recognized the importance of the basic law enforcement training program. Without proper training, a state officer's performance of his duty may be impaired.
Section 574.8 of Title 15 pertinently provides: "Incidental to the supervision of parolees, parole officers shall be deemed to be peace officers. . . ."
The above section clearly establishes a limitation on parole officers' ability to act as peace officers. It appears that the Legislature intended to authorize a parole officer only to act as a peace officer "incidental to the supervision of parolees."
*Page 2
Sub-section (F) of Article 899 of the Louisiana Code of Criminal Procedure states:
"Incidental to the supervision of probationers, probation officers shall be deemed to be peace officers. . . ."
Article 899, like the provisions of 15:574.8, limits a probation officers' ability to act as a peace officer to instances concerning probationers. There is no indication whatsoever that either probation or parole officers are empowered to act as peace officers in regard to the entire public citizenry, only incidental to their assigned supervisory duties.
The aforementioned provisions establish that probation and parole officers may act as peace officers in limited circumstances. Their duties as probation and parole officers actually encompass the making of arrests, the execution of searches, the serving of warrants, and the enforcement of the laws of this State in regard to those they are assigned to supervise. The need to secure proper law enforcement training to perform the above duties is obvious.
To insure that probation and parole officers are properly educated to perform their law enforcement duties it is the opinion of this office that probation and parole officers of the Department of Corrections are "peace officers" within the meaning of R.S. 40:2402.
To the extent required by this opinion, Opinion #82-1125 is hereby modified.
It is hoped that this opinion satisfies your initial request. If this office can be of further service or if you require additional information, please do not hesitate to contact us again.
With kind regards, I am
Sincerely,
WILLIAM J. GUSTE, JR. Attorney General
BY: RENE SALOMON Assistant Attorney General
RS/fd
OPINION NUMBER 98-320
August 31, 1998
92-A-2-(j) RETIREMENT — Municipal Police Employees: Harbor Police 15-A CONSTITUTIONAL LAW 47 FINES, FORFEITURES AND PENALTIES 90-1 PORT COMMISSIONS LSA-R.S. 11:690
Judge Oliver Delery We conclude that provisions of R.S. Traffic Court, City of New 11:3690 calling for the payment of Orleans fines collected by the traffic 727 South Broad Street courts of Orleans parish to be paid New Orleans, LA 70119 directly to the Harbor Police Retirement System are constitutional
Dear Judge Delery:
Your request for an Attorney General's Opinion was forwarded to me for research and reply. In particular you asked the following:
Are the provisions of RS. 11:3690 that pay money collected as fines by the courts of Orleans Parish directly to the pension fund of the Harbor Police constitutional?
R.S. 11:3690 states, "All fines collected by any court, official or agency from violators of Ordinances of the City of New Orleans applicable to the wharves, landings and river front of the city or ordinances of the Board of Commissioners of the Port of New Orleans, as provided for in RS. 34:25, shall be transmitted to the board of trustees of this system", (the system meaning the Harbor Police Retirement System for the Port of New Orleans).
After a careful review of the jurisprudence and applicable law, it is the opinion of this Office that R.S. 11:3690 and its funding of the Harbor Police pension fund by fines collected on tickets written by the Harbor Police is analogous to the disbursement of forfeited assets provided for in LSA-R.S. 40:2601et seq.
R.S. 40:2616 provides that the District Attorney may retain forfeited assets "for official use or transfer the custody or ownership of any forfeited property to any local, state or federal agency." This statute was reviewed in State v. Clark, 670 So.2d 493 (La.App.Ct. 3rd Cir. 1996). In Clark the court held such a provision does not violate the defendant's constitutional right to a fair and impartial trial even though twenty percent of the forfeiture went to the criminal court fund of the district court. Defendant argued that this incentive to the court deprived him of an impartial tribunal. The appellate court found no merit in this argument, stating that "[s]alaries of judges are fixed by law and are paid out of funds annually appropriated for that purpose by the legislature. The day-to-day expenses of operating the courts are paid by public funds and inure to the benefit of judges individually no more so than to the benefit of every citizen of the state." Clark, supra, at 501.
The provision in question provides a source of funding for the pension system. It does not influence in any way the amount of money to which any officer or group of officers is entitled to receive through the pension fund. That determination is made strictly upon the individual officer's length of service and rate of compensation, RS. 11:3685.
Another analogous situation is found in the Supreme Court's response to a similar challenge levied in the context of enforcing provisions of the Fair Labor Standards Act, Marshall v. Jerrico, 446 U.S. 238, 100 S.Ct. 1610 (1980). Jerrico, Inc. claimed that due process was violated by a provision of the Fair Labor Standards Act providing that money collected as a civil penalty for the employment of child labor should be returned to the Department of Labor as reimbursement for the cost of determining the violation. Jerrico argued this reimbursement provision created an impermissible risk of bias in the enforcement and administration of the Fair Labor Standards Act. In holding the provision constitutional the Supreme Court found "that no official's salary is affected by the levels of the penalties." This, coupled with the fact that "[o]ur legal system has traditionally accorded wide discretion to criminal prosecutors in the enforcement process" Marshall, supra, at 248, persuaded the Court that the provision was constitutional.
Following the logic of the United States Supreme Court inMarshall as well as the Louisiana Third Circuit in Clark, it is the opinion of this Office that RS. 11:3690 does not violate the constitutional rights of a defendant whose prosecution is initiated by the Harbor Police despite that organization's benefit from the collection of fines by the court.
I hope that this opinion sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.
Very Truly Yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: Douglas W. Freese Assiant Attorney General