Restitution for Oregon Police Overtime Not Recoverable

 

The Oregon Court of Appeals reversed a restitution order requiring payment of $7,808.34 in overtime pay to officers assigned to guard a hospitalized defendant.

 

Jeffrey E. Kuehner was arrested on sex offense, kidnapping and resisting arrest charges. He posted bail then forced his way into the victim's apartment with a knife. Kuehner sexually assaulted her and threatened to kill her and himself for an hour and a half. He later released the victim but barricaded himself in the apartment, threatening to kill himself. The standoff ended when he stabbed himself in the neck.

 

Kuehner underwent emergency surgery and remained hospitalized for approximately one week. Officers were posted outside Kuehner's room throughout his hospitalization.

 

Kuehner eventually pleaded guilty and the state moved for restitution and prosecution costs, seeking "to recover under ORS 161.665(1) the $7,808.34 in overtime salary paid to Medford police officers to guard defendant, which the state characterized as 'budget-unforeseeable special expenses.'"

 

ORS 161.665(1) specifically excludes expenditures that the public must make for the maintenance and operation of government agencies. "The State acknowledged that the statute generally precludes recovery of the salary paid to government employees involved in prosecuting people accused of crimes, including most overtime pay." It argued for an exception, however, claiming "that the overtime salary paid to police officers to guard defendant was unforeseeable and unbudgeted by the Medford Police Department; therefore, it was not the type of expenditure" excluded by the statute.

 

The trial court ordered Kuehner to pay $7,808.34 in officer overtime expenses, agreeing that "because the specific overtime payments were the direct result of defendant's conduct and would not otherwise have been incurred."

 

The Oregon Court of Appeals reversed, beginning "with a basic point on which the parties and our prior case law agree: the salaries of government employees involved in the prosecution of a defendant may not be recovered as costs under ORS 161.665(1)." This "point is rooted both in the text of the statute and its legislative history," the court found.

 

"ORS 161.665(1) does not permit the state to recover regular or overtime pay expenditures to its employees as costs of prosecution," the Court concluded. "Salary-related payments — whether for regular, overtime, or unbudgeted overtime work — are excluded from the scope of ORS 161.665(1) as expenditures in connection with the maintenance and operation of government agencies." Therefore, the trial court erred in awarding the state $7,808.34 in prosecution costs because those expenses were composed of salary paid to Medford police officers. See: State v. Kuehner, 288 P.3d 578 (Or. Ct. App. 2012).

 

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