Judges: JAMES D. COLE, Assistant Attorney General
Filed Date: 12/29/1998
Status: Precedential
Modified Date: 7/5/2016
Stephen M. Abella, Esq. Informal Opinion County Attorney No. 98-57 County of Chautauqua Gerace Office Bldg. 3 North Erie Street Mayville, N Y 14757-1007
Dear Mr. Abella:
You have inquired whether restrictions on political activity under section
Generally, subdivisions 1 and 2 of section 17-110 provide that it is a misdemeanor for "a police commissioner or any officer or member of any police force" to use official powers to aid, reward or punish a political organization, citizen or officer or member of a police force because of political views or affiliation.
Subdivision 3 of section 17-110 provides:
. . .Any person who, being a police commissioner or any officer or member of any police force in this state:
3. Solicits, collects or receives any money for, any political fund, club, association, society or committee, is guilty of a misdemeanor.2
The seminal 1940 Attorney General opinion, 1940 St Dept Rep 122, which was relied upon in subsequent opinions and cases, concludes that the sheriff is not subject to the campaign restrictions. We conclude here, however, in view of amendments to State law regarding the definitions of police officer and peace officer and the current role of the sheriff and his deputies as a police force, that section 17-110 does apply to sheriffs and deputy sheriffs. We note it has been decided that the candidacy of a police officer for an elective public office does not violate section 17-110. N Y State Bd. Of Elections, 1983 Formal Opinion No. 8; Jones v. Seneca Bd. of Elections,
The Election Law does not define "officer or member of any police force." The 1940 opinion of this office (1940 St Dept Rep 122) concluded that a sheriff was not an officer or member of a police force and therefore did not fall within the predecessor of current section
While a sheriff is a peace officer (Code of Criminal Procedure, Section 154), in my opinion a sheriff is not an officer or member of any police force in this State within the meaning of Section 756 of the Penal Law.
At that time, the Election Law restrictions were located in section 756 of the Penal Law, and applied, as does the current statute, to a police commissioner or any officer or member of any police force of the State. Penal Law (1938), § 756. Significantly, when the 1940 opinion was issued section 154 of the Code of Criminal Procedure provided:
§ 154. Who are peace officers
A peace officer is a sheriff of a county, or his under sheriff or deputy, or a county detective appointed pursuant to chapter sixty-two of the laws of eighteen hundred ninety-seven, as amended by chapter five hundred and thirty-two of the laws of nineteen hundred and by chapter five hundred and ninety-eight of the laws of nineteen hundred eleven, or a constable, marshal, police constable or policeman of a county, city, town or village. . . .
Thus, at the time of our 1940 opinion, the term "peace officer" included a sheriff, undersheriff and deputy sheriff of a county and, as a separate category of peace officer, a policeman of a county, city, town or village. While there is little reasoning in the 1940 opinion, the distinction between these two categories seems to be the basis for the conclusion that section 756 of the former Penal Law does not apply to the sheriff.
The opinion also states, immediately prior to its conclusion, that the sheriff is an elective officer with criminal and civil duties.
In subsequent opinions, we also concluded that a sheriff is not an officer or member of a police force within the meaning of section 756 of the former Penal Law (1963 Op Atty Gen [Inf] 182) and that sheriffs, under-sheriffs and deputy sheriffs do not fall within these restrictions (1971 Op Atty Gen [Inf] 131). These later opinions were based upon the 1940 opinion. The State Board of Elections reached the same conclusions, relying upon our 1971 opinion. 1978 Formal Opinion No. 7.
The 1971 opinion of the Attorney General also cites Matter of Gretzingerv. Board of Elections of Monroe County (Sup Ct, Monroe County, June 4, 1970, unreported), affd,
Current State law defining a "police officer" and "peace officer" sharply contrasts with the definition of these terms at the time of our 1940 opinion. "Police officer" has been defined by the Criminal Procedure Law to include "[s]heriffs, under-sheriffs and deputy sheriffs of counties outside of New York City." Criminal Procedure Law §
Thus, sheriffs and deputy sheriffs currently are police officers, not peace officers. Their powers under State law are the same as members of any other police department.
Section
[A] sheriff has the power to enforce the law, which is what a police department does. If a sheriff provides a service to those municipalities that do not have a police force and does not provide the same service to municipalities that do have a police force and if that service is general law enforcement, the sheriff is in effect operating a "police department" even if it is called a "road patrol." Id.
In some instances, the sheriff's department supplements local law enforcement. See, Op Atty Gen (Inf) No. 95-43. A rule like the Election Law provisions
which prohibits a police officer from participating in the political arena, whether it be by soliciting votes or financial aid or by influencing any voter at any election, "comports with (the) sound administration policy that the removal of police personnel from active politics and from active participation in any movement for the nomination or election of candidates for political or public office is conducive to the effective maintenance of discipline and the preservation and promotion of the integrity and efficiency of the Police Department and its personnel." . . .
[T]his rule prohibits a policeman from utilizing his status and authority as a law enforcement officer as the means to aid or to hinder a political entity. Purdy v. Kriesberg,
47 N Y 2d 354 ,361 (1979).
It makes no sense to distinguish between sheriffs and deputy sheriffs, who are now police officers commonly performing general law enforcement functions, and members of other police departments.
As the county executive pointed out in his letter, a similar analysis was made in applying restrictions applicable to the manufacture or sale of alcoholic beverages. Alcoholic Beverage Control Law §
We note, however, that deputy sheriffs have been found not to be members of a police force for purposes of residency under section
Neither the provisions of this section . . . requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall apply to the appointment of a person as a member of the police force of any political subdivision or municipal corporation of the state if such person resides . . . . Public Officers Law §
3 (2).
The Appellate Division without analysis narrowly held that "[w]hile petitioners may perform some criminal law enforcement activities, they are not members of the police force of any political subdivision or municipal corporation as contemplated by section 3." Myles v. Phillips,
the Legislature had no difficulty in specifying that special deputy sheriffs were exempt from the residency requirements of the statute (§ 3(2-b)), thereby indicating that it considered a specific exemption for that class of deputy sheriffs necessary and that they were not otherwise exempt by the provisions of section 3(2) as members of a police force. Mazzo, supra.
Section
Exceptions . . . extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception. Where a general rule is established by statute with exceptions, the court will not curtail the former nor add to the latter by implication, and it is a general rule that an express exception excludes all others. In re Charles' Estate,200 Misc 452 ,461 (NY SurCt), affd,279 App. Div. 741 (1st Dept 1951), affd,304 N.Y. 776 (1952).
We believe that sheriffs and deputy sheriffs are subject to section
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,
JAMES D. COLE
Assistant Attorney General
In Charge of Opinions