Number 9. October 14, 1976

Number 9. October 14, 1976 Frank A. Hall, Commissioner Department of Correction 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Hall: You have requested my opinion on eight questions relating to trans- portation of prisoners to court. Specifically, you have asked: 1. Should Department of Correction (DOC) transportation officers be compensated by the county for the use of their own private vehicles at the rate of ten cents per mile or twenty cents per mile, for each mile driven in carrying prisoners to or from court? 2. Should DOC transportation officers be compensated by the county for each mile actually driven in their own private vehicles while transporting prisoners to or from court, or should they be compensated instead for mileage as measured on a standard shipper's and carrier's chart between the town in which the institution is located and the town in which the court is located? 3. Should DOC transportation officers be given extra compen- sation upon certification of need for extra security measures, or when the mileage allowance is manifestly inadequate, pursuant to G.L. c. 262, §47, and Superior Court Rule 10? 4. Should DOC transportation officers be given an extra allow- ance for mileage pursuant to G.L. c. 248, §48 in addition to compensation under G.L. c. 262, §21, when carrying more than one prisoner? 5. Are the various county courts bound by G.L. c. 248, §9 to certify in advance the expense which will be allowed in the service of a writ? 6. Is the DOC obligated to use state-owned vehicles and state- salaried correction officers in the service of a county writ with- out compensation by the county? P.D. 12 97 7. Is the county treasurer obligated pursuant to G.L. c. 213, §8 and c. 35, §12, to pay a bill for service of a writ as ordered by a justice of a county court, or may he adjust the bill at his discretion? 8. Should DOC transportation officers be compensated at the rate of twelve cents per mile pursuant to state regulation, or at the rate of twenty cents per mile pursuant to G.L. c. 262, §21, for the use of their own private vehicles in carrying prisoners on transfers from institution to institution, back to institution after parole violation or escape, or other transportation not pursuant to a habeas corpus writ? I will answer each of the questions in order. 1. With respect to the amount of compensation to which DOC officers are entitled for the use of their private vehicles in transporting prisoners to or from court, it is my opinion that they should be compensated at the rate of twenty cents a mile for every mile the prisoner is actually in the custody of the officer and physically within the officer's vehicle. This would include the miles driven transporting a prisoner from an institution to a court, as well as from the court back to the institution, if a round trip is made by the same officer with the same prisoner. 1 General Laws, c. 262, §21 governs the amount of reimbursement allowed an officer for the use of his private vehicle in transporting prisoners to or from a court. 2 The terms of the statute, as amended by St. 1959, c. 581, provide in pertinent part that: In the service of precepts in criminal cases, the officer shall be allowed the actual, reasonable and necessary expenses incurred in going or returning with the prisoner, and if he necessarily uses his own conveyance, he shall be allowed therefor twenty cents a mile for the distance traveled one way, except that in the service of such precepts of the district court of Chelsea, if he necessarily uses his own conveyance, he shall be allowed, if the distance traveled is less than ten miles, thirty cents a mile for the distance traveled, both ways; and if he uses the conveyance of another person he shall be allowed the amount actually ex- pended by him therefor . . . (Emphasis supplied)/' iFor example, if an officer drives from his home to an institution, picks up a prisoner, transports the prisoner to a Court and then continues to another assignment without the prisoner, he should be compensated only for the miles driven from the institution to the court during which time the prisoner is physically in the officer's automobile. ^Expenses incurred under this section are paid by the Commonwealth's counties. The provision in the Commonwealth's budget act for fiscal year 1977 (St. 1976. c. 283, §6), limiting the allowance to state employees for expenses incurred in operating their own automobiles on official business to twelve cents per mile, appears to apply only to expenses paid for by the Commonwealth and is therefore inappli- cable. In any event, it is my opinion that the specific provisions of G.L. c. 262, §21 must take prece- dence over the more general language of Section 6 of the Budget Act in determining the expense allowance to be made for transporting prisoners to or from a court. See e.g., Pereira v. New England LNG Co., Inc. 364 Mass. 109 (1973). 3On its face, G.L. c. 262, §21 applies only to the service of precepts in criminal cases by sheriffs, deputy sheriffs and constables; however. G.L. c. 262, §43 provides that whenever any public officer performs a duty or service described in Chapter 262, he shall be reimbursed "at the rate prescribed in this chapter for like services." A precept is defined as a "command or mandate in writing", Adams v. Vose, 1 Gray 51, 67 Mass. 51 (1854), and includes all warrants and processes. Id. at 58. 98 P.D. 12 I find this statutory language to be ambiguous when considered in re- lation to your question. The first part of this section — up to the clause referring to the Chelsea district court — refers only to the reimbursement rate an officer is to receive in "going" with a prisoner or in "returning" with a prisoner and speaks of the distance traveled "one way"; it does not explicitly address the question of a round trip. The clause concerning service of precepts of the Chelsea district court does, however, introduce the idea of mileage reimbursement for an officer's travel "both ways." The question posed by the juxtaposition of these two clauses is whether the Legislature intended an officer transporting a prisoner from an institution to a court — other than the Chelsea district court — and back again to be reimbursed at the rate of twenty cents a mile for only one or for both ways. Basic principles of statutory interpretation require that when the language of a statute is ambiguous, resort may be had to certain aids in interpretation, including the legislative history. See, e.g. Massachusetts Mutual Life Insurance Co. v. Commissioner of Corporations & Taxation, 363 Mass. 685, 296 N.E. 2d 805 ( 1 973 ) . In the end, a statute must be con- strued so "as to make it an effectual piece of legislation in harmony with common sense and sound reason." Morrison v. Selectmen of Weymouth, 279 Mass. 486, 492, 181 N.E. 786 (1931); Atlas Dist. Co. v. Alcoholic Beverages Control Commission, 354 Mass. 408, 414, 237 N.E. 2d 609 (1967). Given my conclusion about the ambiguities in the language of §21, I have turned to the legislative history of that section to answer the question stated above. The origins of §21 date back to 1860. St. 1860, c. 191, §3 provided that "expenses necessarily incurred and actually disbursed in the service of any precept shall be allowed and paid" to the officer performing the service. In 1862, the provision was amended to allow for both a fee and expenses in the service of precepts: if the distance traveled was less than twenty miles, the officer was to be paid a fee of five cents a mile each way, and the actual reasonable expenses necessarily incurred in "going or re- turning with the prisoner," not to exceed fifteen cents a mile for the dis- tance traveled one way. It is clear that the statute contemplated an individual officer would himself be making only one trip with the prisoner, for the distances were to be computed "between the place of service and the place of return." St. 1 862, c. 2 1 6, § 1 ( 3 ) . In 1882, the statute governing reimbursement for travel expenses in the service of precepts was amended again. St. 1882, c. 199, §9 first introduced the language similar to that found in the present statute: In the service of any precept in criminal cases, the officer shall be allowed the actual reasonable and necessary expenses incurred in going or returning with the prisoner, and, if he necessarily uses a horse and carriage, he shall be allowed not exceeding fifteen cents a mile for the distance traveled one way, to be in- cluded in such necessary expense. . . . >.D. 12 99 The reference to horse and carriage is significant. The statute was written i an era preceding automobile transportation. Distances were not covered s quickly or conveniently as they are today. It is reasonable to assume hat the legislators in 1882 did not contemplate prisoners would be carried ound-trip in the same day from prison to court and back to prison. Pay- cient was to be made for the distance required when the prisoner was ctually being transported, either in going to court or in returning from ourt. The language of the 1882 statute was substantially repeated in amend- nents made in 1885 and 1930. The 1885 amendments included provisions equiring the officer to certify that it was necessary for him to use a horse md carriage in the service of the precept and that he actually did travel he distances reported. St. 1885, c. 254. In the 1930 amendments, the erm "conveyance" was substituted for the terms "horse and carriage", and he amount of reimbursement was increased to "twenty cents a mile for he distance traveled one way." St. 1930, c. 370. The most recent amendment to G.L. c. 262. §21, namely St. 1959. ;. 581, added the particular proviso concerning Chelsea district court. It s this proviso that causes the ambiguity at issue here in introducing the ;oncept of reimbursement for distances traveled "both ways." It is my opinion, however, that the specific proviso in St. 1959. c. 5S1 regarding :he district court of Chelsea is not inconsistent with my interpretation of 3.L. c. 262, §21, discussed above. Rather, the proviso merely recognizes and distinguishes a special situation anticipated by the Legislature with regard to the relatively short distances traveled in transporting prisoners to or from Chelsea. In sum, when G.L. c. 262, §21, as amended by St. 1959, c. 581, is read in its entirety, common sense and sound reason dictate the following inter- pretation: "In the service of precepts in criminal cases, an officer who necessarily uses his own vehicle should be reimbursed at the rate of twenty cents a mile for the distance traveled one way in transporting a prisoner from one point to another; and, if he returns the prisoner to the point of origin, either in response to the original precept or in response to a second precept, he is to be reimbursed at the rate of twenty cents a mile for the return trip as well; except that, if the service of the precept requires transporting a prisoner to or from the Chelsea District Court and the dis- tance covered is less than ten miles, the officer is to be reimbursed at the rate of thirty cents a mile for the distance traveled both ways, regardless of whether he transports a prisoner on the return trip." 2. In answer to your second question concerning the measurement of mileage for which reimbursement must be paid, I am of the opinion that G.L. c. 262, §21 requires payment based on miles actually traveled. As noted above, §21 provides that: In the service of precepts in criminal cases, the officer shall be allowed the actual, reasonable and necessary expenses incurred . . . (emphasis supplied). 100 P.D. 12 Many county and state institutions are removed from the center of the nearest town. A standard shipper's or carrier's chart such as you describe in your question do not reflect these geographic realities. In light of the statute's express direction to reimburse for "actual expenses," reliance on these charts, without adjustment, would not appear to be permitted. Nevertheless, the terms "reasonable" and "necessary", which also appear in the statute, indicate that the DOC would not be precluded from devel- oping rules or a mileage chart of its own that would standardize the num- ber of miles between two institutions for which an officer might seek travel reimbursement. Such a chart could take into account whatever security considerations relating to the transportation of prisoners that the DOC thought appropriate. 3. With respect to your third question regarding extra compensation upon certification of need for extra security measures, or "when the mileage allowance is manifestly inadequate", I am of the opinion that the awarding of such extra compensation is entirely committed to the judgment and discretion of the superior court justice. General Laws, c. 262, §47 provides that, on certain conditions, a superior court judge "may . . . allow extra compensation for any meritori- ous service for which fees allowed by law are manifestly inadequate. . . ." It is clear that the award of extra compensation pursuant to this section is at the discretion of the superior court judge, and it is beyond my author- ity to render an opinion which would compel or channel the performance of such a discretionary administrative act by a member of the judiciary. 4. In answer to your fourth question, I am of the opinion that G.L. c. 262, §48 4 does not allow for extra compensation in those situations where more than one prisoner is transported. That section of Chapter 262 clearly states that "if . . . two or more prisoners are conveyed at one time by the same officer, by virtue of mittimus, habeas corpus or state prison warrant . . . one traveling fee and one service only shall be allowed in conveying such additional prisoner or prisoners, in addition to the actual reasonable expense necessarily incurred." In other words, the cost of transporting a prisoner is determined solely by the amount of mileage traveled. Reimbursement for a traveling fee is to be at the rate of twenty cents per mile for each mile a prisoner is actually carried (G.L. c. 262, §21). The number of prisoners carried does not increase the rate. 5. Your fifth question asks whether county courts are required by G.L. c. 248, §9 to certify in advance the expense which will be allowed. General Laws, c. 248, §9 provides that a court or magistrate granting an application for a writ of habeas corpus must certify on the writ the amount to be paid for the expense of transporting the prisoner from the place of his confinement. That section also provides that, "the officer [who has custody of the prisoner] shall not be bound to obey the writ unless -tin your request, you refer to G.L. c. 248, §48 as the statutory source of your fourth question. I have assumed that you intended to refer to G.L. c. 262, §48, and have answered accordingly. P.D. 12 101 the amount [to be paid for the expense of transporting him from the place of imprisonment] is paid or tendered to him." Your question concerns the obligation of a court. The Attorney Gen- eral is responsible under G.L. c. 12, §3 for rendering opinions to state officials and state officers regarding their legal obligations, II Op. Atty. Gen. 100 (1899); courts are not considered "state officials" for purposes of these opinions. I Op. Atty. Gen. 603 ( 1898). Therefore, I must decline to answer this question. 6. In question six, you ask whether the DOC is obligated to use state- owned vehicles and state-salaried correction officers in the service of a county writ without compensation by the county. I have not found any statute or regulation which would impose such an obligation. To the contrary, I have found certain statutory provisions that impose the costs of (1) committing all prisoners (G.L. c. 127, §122), (2) removing certain prisoners (G.L. c. 127, §123), and (3) transporting certain prisoners (G.L. c. 248, §40 and G.L. c. 276, §20M) on the coun- ties. The relationship between the DOC and the counties regarding trans- portation of prisoners and reimbursement for the costs of such transporta- tion is not clear. I am reluctant to answer this question without reference to a specific situation. However, it seems clear that a state-salaried DOC officer is not obligated to use his private vehicle in the service of a county writ without compensation from the county. 7. Your seventh question asks whether the county treasurer is obligated by G.L. c. 213, §8 and G.L. c. 36, §12 to pay a bill for service of a writ as ordered by a justice of a county court, or whether he may adjust the bill at his discretion. On first impression both these statutes appear to require county treasurers to pay for services and expenses incurred in the sitting of court in the various counties. Like your fifth question however, this question also concerns the obligation of one who is not a state official, and for that reason I decline to answer it. See II Op. Atty. Gen. 100, supra. 8. In response to your final question, I am of the opinion that DOC transportation officers should be compensated at the rate of twelve cents per mile for the use of their own vehicles in carrying prisoners in any manner, except in the service of precepts provided for by G.L. c. 262, §21. Reimbursement for transporting prisoners from institution to institution, or back to an institution after escape or parole violation, or in any other way which would be considered a department transfer (as opposed to transfer in the service of precepts in criminal cases), is determined by G.L. c. 30, §25. The most recent amount established by the comptroller of the Commonwealth under the authority of that statute is twelve cents per mile. 5 Very truly yours, FRANCIS X. BELLOTTI Attorney General ""This amount conforms to the Legislature's authorization for such expenses in the FY 1977 budget. See St. 1976, c. 283, §6, discussed above in n.2. 102 P.D. 12