Opinion Number

Dear Mr. Thompson:

Your request for an Attorney General Opinion was forwarded to me for research and reply. In particular, you have asked the following questions:

1. What authority do levee district police have under La. R.S. 38:326 and their "Special Officer" commission by the Louisiana State Police?

2. Are levee district police construed to be city, parish or state peace officers?

3. Are levee district police responsible for law enforcement on the waters surrounding their respective districts?

4. Does La. R.S. 38:326(C) adequately reflect the training requirements of the P.O.S.T. Council of Louisiana?

These questions will be answered in this order.

Under La. R.S. 38:326, levee district police officers are granted general power within the limited jurisdiction of their levee districts. Thus, they have the authority to arrest and enforce all laws within their particular districts. However, under La. R.S. 40:1379.1, the superintendent of the Louisiana State Police may, at his discretion, issue a special officer's commission upon a showing by the applicant that there is a need for statewide police power, that the applicant is bonded, and that the applicant conforms to all conditions of the special officer's commission. Levee district police officers who have received special officer commissions have the statewide power to arrest and enforce all laws, provided, however, that such officers are performing tasks directly related to the special officer's commission. That is, when outside of their districts, levee district police officers must be engaged in the activities for which they obtained the special officer's commission in the first place — otherwise, those officers will be regarded as private citizens outside of their districts (see subsection (B)).

Your second question was addressed in Attorney General Opinion No. 96-22, in which this office stated that a levee board police officer has the same powers as a state police trooper within the jurisdiction of the levee district. However, the state police are a distinct group which enjoys nearly unrestricted statewide police power, and having the same authority does not equal "the same as" (see Attorney General Opinion No. 93-719). Since the authority of municipal and parish officers is limited to those boundaries, levee district police would not fit into either of those categories. It is the opinion of this office that the levee district police are a distinct group of peace officers who, although they have a power analogous to state police officers within their districts, would not be construed to be either city, parish, or state peace officers. Rather, they are a specially-created group with limited jurisdiction and authority.

Your third question was answered by Attorney General Opinion No. 96-22, which held, ". . . the levee district police officer may enforce state laws on the surrounding waters of his levee district as LSA-R.S. 38:326(A) provides that the jurisdiction extends, `upon its surrounding waters'."

In response to your final question, subsection (C) of La. R.S. 38:326 makes no mention of the training requirements of the Police Officer's Standards and Training Council (P.O.S.T.). This provision does not give a complete description of training requirements, but is by no means defective. Whether this section should be amended to reflect P.O.S.T. requirements, however, is beyond the scope of this office, since that is a legislative function.

I hope this opinion adequately addresses your questions. If I may be of further assistance, please do not hesitate to contact my office. With warmest regards, I remain

Sincerely,

RICHARD P. IEYOUB Attorney General

BY: __________________________ ELLISON C. TRAVIS Assistant Attorney General

Attachment

Office of the Attorney General State of Louisiana Opinion No. 93-771 February 17, 1994
5 ARREST 63 LEVEE, DRAINAGE DISTRICT FLOOD CONTROL 60 LAW OFFICERS — AUTHORITY JURISDICTION 16 CRIMINAL LAW — CRIMES OFFENSES La. R.S. 38:326(A), La. R.S. 14:134

Levee police have primary responsibility for investigating crimes occurring within their jurisdiction. Levee police who do not perform their statutory duties may be charged with malfeasance in office. The Levee Board has discretion over whether to employ levee police, however, they may not limit the police powers.

Chief Robert D. Thompson, Jr. State of Louisiana Tensas Basin Levee District Office of Police 505 Richwood Road, #1 Monroe, Louisiana 71202-6875

Dear Chief Thompson:

Your request for an Attorney General opinion concerning the authority and jurisdiction of levee district police has been forwarded to me for research and reply. This opinion should be read in conjunction with A.G.O. No. 93-719 recently released to your office which addresses similar issues.

You asked the following questions:

1. Do Levee District Police have primary responsibility for investigating all crimes and motor vehicle accidents that occur on a levee or property that is under the control of the Levee District?

2. Can Levee District Police, as commissioned peace officers, be held criminally liable for failing to act on any crime that occurs in their presence within their jurisdiction?

3. Can a Levee District's Board of Commissioners restrict or prohibit the authority of the Levee District Police in enforcing or investigating all criminal law violations on their levees? If so, can the board restrict what a Levee District Police Officer can enforce?

In response to your first question, La. R.S. 38:326 (A) provides:

Those persons who are designated levee district or levee and drainage district police officers in accordance with this Section are responsible for maintaining order and exercising general police power on and off the levees, within the area of the levee district or levee and drainage district, and upon its surrounding waters. (emphasis added).

Section (A), therefore, suggests that levee district police have primary responsibility for the investigation of crimes and motor vehicle accidents occurring within their jurisdictions. However, see A.G.O. No. 93-719, wherein we said that investigatory powers of levee police do not extend outside of their jurisdiction.

In response to your second question, La. R.S. 38:326 (A) provides that levee district police "are responsible for maintaining order and exercising general police power on and off the levees, within the area of the levee district" and that the levee district police, as commissioned peace officers, must faithfully perform their duties. La. R.S. 14:134 defines the crime of malfeasance in office as follows:

Malfeasance in office is committed when any public officer or public employee shall:

(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or

(2) Intentionally perform any such duty in an unlawful manner; or

(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.

Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.

Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.

Levee district police officers, as public employees, may be prosecuted under this statute, however, Louisiana jurisprudence requires that the underlying duty which a public employee has refused or failed to perform must be an affirmative duty delineated by a specific statute or provision of law. State v. Perez, 464 So.2d 737 (La. 1985).

In response to your third question, a levee district board of commissioners has sole discretion as to whether or not to employ levee police for its district, as provided by La. R.S. 38:326
(A), which states: "Any levee district. . . may, at the discretion of its boards of commissioners, employ. . . police officers." These officers are commissioned as peace officers by the Department of Public Safety and Corrections.

La. R.S. 38:326 (A) does not specifically address the extent of the enforcement and investigatory powers of the levee police, however, it does provide that levee district police officers "are responsible for maintaining order and exercising police power. . . within the area of the levee district. . . ." (emphasis added). La. R.S. 38:326 (A) provides: "These police officers shall have the right to exercise the power of arrest as peace officers, according to law, within the area of jurisdiction as provided herein." The initial decision of whether or not to employ levee district police officers rests with the levee board of commissioners. Thereafter, however, it does not appear that a levee board of commissioners may limit the statutory authorization of police powers provided for these officers.

I hope this opinion has adequately answered your questions. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

Richard P. Ieyoub Attorney General

By: Donald W. North Assistant Attorney General

Office of the Attorney General State of Louisiana Opinion No. 93-719 December 15, 1993
5 ARRESTS 63 LEVEES, DRAINAGE FLOOD CONTROL 60 LAW OFFICERS — AUTHORITY JURISDICTION La. R.S. 38:326
La. R.S. 14:95 (G)

Levee police are commissioned as peace officers by the Department of Public Safety and Corrections. As peace officers, levee police may enforce all laws within their jurisdiction but do not enjoy State-wide investigatory and arrest powers. Levee police may carry concealed weapons while in the actual discharge of their official duties.

Chief Robert D. Thompson, Jr., Chief of Enforcement Office of Police Tensas Basin Levee District 505 Richwood Road No. 1 Monroe, Louisiana 71202-6875

Dear Chief Thompson:

Your request for an Attorney General opinion has been forwarded to me for research and reply. You asked the following questions:

1) Do levee police have the authority to enforce all state laws, in particular Louisiana Highway Regulatory Laws, anywhere in their district whether on levee or off?

2) Are levee police actually State Police officers in their jurisdiction?

3) Does their commission grant levee police authority to investigate all matters relating to their jurisdiction statewide?

4) Do these officers have powers to go anywhere in the state to make arrests or question suspects on a particular crime?

5) Do levee police have the right to carry concealed firearms during the course of their duty?

In response to your first question, La. R.S. 38:326 provides the levee districts with the authority for hiring police officers and requires that these officers be commissioned as peace officers by the Department of Public Safety and Corrections. Levee police are provided general police powers, including the power of arrest, in their entire district which includes not only the levee but also the area for drainage around the levee. As peace officers, they have both the authority and the duty to enforce all the laws of the state including the Louisiana highway regulatory laws.

In response to your second question, the levee police are commissioned as peace officers by the Department of Public Safety and Corrections and possess law enforcement powers, in their jurisdictions, equivalent to those of a state police officer.

However, the State police are a distinct group established by La. R.S. 40:1371 and enjoy state-wide powers. Therefore, although the levee police possess the equivalent authority while within the boundaries of their levee district, they are not in fact state police officers.

In response to your third and fourth questions, the levee police do not possess state-wide investigatory or arrest powers for matters arising in their jurisdiction. The levee police can enforce all state laws but enforcement power is limited to their own jurisdictions pursuant to La. R.S. 38:326. La. R.S. 38:326
states: "These peace officers have the right to exercise the power of arrest as peace officers, according to law, within the area of their jurisdiction as provided herein." It further provides: "Any person arrested by a levee district or levee and drainage district police officer in the exercise of his powers shall be immediately transferred by such officer to the custody of the sheriff or city police within whose jurisdiction the arrest occurs." Because of their limited jurisdiction, levee police should involve local authorities in order to make an arrest or to conduct questioning outside of their levee district., An exception, however, may be made in a situation of hot pursuit.

In response to your final question, the levee police, as commissioned peace officers, have the authority to carry concealed weapons while on duty pursuant to La. R.S. 14:95 (G) which provides an exception to the prohibition against carrying concealed weapons for "persons vested with police power when in the actual discharge of their official duties."

I hope that this opinion has adequately answered your questions. If our office can be of further assistance to you please do not hesitate to contact us.

Sincerely,

Richard P. Ieyoub Attorney General

Donald W. North Assistant Attorney General