Number 3 July 9, 1975

Number 3 July 9, 1975 John F. Kehoe, Jr. Commissioner ofPublic Safety 1010 Commonwealth Avenue Boston, Massachusetts 02215 Dear Commissioner Kehoe: You have requested my opinion with respect to the payment of witness fees to officers of the State Police. The propriety of such payments was the subject of opinions issued by previous Attorneys General (see Op. Atty. Gen. Sept. 20, 1960, p. 53; Op. Atty. Gen. Nov. 3, 1967, p. 129), but intervening legislation has caused you to question the continuing validity of these opi- nions. You now ask the following specific questions: 1. What is the effect of Chapter 1004 of the Acts of 1971 (now G. L. c. 149, § 30C) granting State Police a forty hour work week with overtime compensation on the September 20, 1960 and October 18, 1967 Opinions of the Attorney General interpreting G. L. c. 262, § 53C, which requires the payment of witness fees to State Police officers on duty at night? 2. Under G. L. c. 262, § 53C and G. L. c. 149, § 30C is a State Police officer, whose normal tour of duty on a day or court appearance is a day shift, entitled to a witness fee even though the Commonwealth is compensating him for being on duty and pay- ing him for the time he is spending in court? The opinion issued by Attorney General McCormack on September 20, 1960 dealt with the question of when a state officer is "on duty at night" within the meaning of G. L. c. 262, § 53B. At the time of the opinion the officers followed a "military routine" whereby they were subject to twenty four hour call, spent their off hours in the state police barracks and received a day of furlough each four days. After examining the pertinent state and federal case law, the Attorney General concluded that spending off hours in the barracks did not constitute being "on duty." Thus, an officer was on duty at night only if any part of the shift he worked occurred during the night time. Chapter 1004 of the Acts of 1971, now G. L. c. 149, § 30C, eliminated the military routine. State Police officers no longer spend their off hours in the barracks. This change eliminated the occasion for the original request, but P.D. 12 73 did not affect the underlying validity of the opinion's reasoning. I reaffirm the conclusion of that opinion that a State Police officer is eligible for a witness fee under G. L. c. 262, § 53B only when his tour of duty includes night time hours. Your request for an opinion also calls into question the current applicabil- ity of the 1967 opinion of then Attorney General Richardson. In that opinion the Attorney General stated that officers of the State Police were not covered by G. L. c 262, § 53C. They were, therefore, ineligible to receive either compensatory time off or additional hourly compensation in lieu of witness fees, as provided by that Section. The opinion then went beyond the ques- tions posed and attempted to advise municipalities of the scope of Section 53C. Chapter 664 of the Acts of 1970 amended Section 53C so as to negate that portion of the 1967 opinion of the Attorney General dealing with the applic- ability of Section 53C to the State Police. Section 53C now explicitly covers officers of the State Police within the Department of Public Safety. While the legislature altered the applicability of Section 53C, it did not significantly amend the balance of the statute. Thus, that portion of the 1967 opinion which purports to explain the workings of the statute remains valid. Because Section 53C now applies to the State Police, the advisory section of the 1967 opinion pertains to your administration of the statute. I have enclosed a copy of that opinion for your information. Your second question concerns the payment of witness fees to officers of the State Police who are working day shifts. It is my opinion that such payments are unlawful. General Laws, c. 262, § 50 makes it a criminal offense for any police officer receiving a salary from the Commonwealth or a political subdivision thereof to accept witness fees or additional compensa- tion for appearances as a Commonwealth witness - except as provided in the succeeding sections. Witness fees are authorized by Section 53 B to be paid only to State Police officers "on duty at night, or on vacation or furlough, or on a day off" I, therefore, answer your second question in the negative; if an officer is on duty in the day time and must also go to court on that day, he is not entitled to a witness fee. Respectfully submitted, FRANCIS X. BELLOTTI Attorney General