Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Poff, Senior Justice

CITY OF VIRGINIA BEACH POLICE DEPARTMENT
                     OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 952224
                                   November 1, 1996
JOYE ANNETTE COMPTON-WALDROP, DECEASED

               FROM THE COURT OF APPEALS OF VIRGINIA


     In this appeal, we decide whether a person, at the time she

was killed, was an employee of the City of Virginia Beach within

the definition of the Virginia Workers' Compensation Act, Code

§ 65.2-100 et seq. (the Act), and thus entitled to benefits.
                                   I

     Joye Annette Compton-Waldrop was killed while rendering

assistance at the scene of an automobile accident.      Her estate

filed a workers' compensation claim for death benefits against

the City of Virginia Beach Police Department (the Department).

The Workers' Compensation Commission (the Commission) denied the

claim, concluding that Compton-Waldrop was not an employee of the

Department when she was killed.    The Court of Appeals, however,

reversed the Commission's decision and remanded the claim to the

Commission.   Compton-Waldrop v. Virginia Beach Police, 21 Va.

App. 255, 463 S.E.2d 675 (1995).       In doing so, the Court of

Appeals held that, "because the City of Virginia Beach had passed

a resolution extending its workers' compensation coverage to

members of its auxiliary police force, when Compton-Waldrop was

required to assist [a City] auxiliary police officer in [a]

rescue, she became an ad hoc member of the [City's] auxiliary

police force and thereby became an `employee' under the Act."        21
Va. App. at 258, 463 S.E.2d at 676.

      Having determined that the decision involves a matter of

significant precedential value, Code § 17-116.07(B), we awarded

the Department an appeal.

                                  II

     The facts are undisputed.    In the early morning of August

31, 1991, Compton-Waldrop and a co-worker, Martin John Egert,

III, left their employment at a restaurant.     While travelling

eastbound along Route 44 in the City of Virginia Beach, they

witnessed a serious, two-car collision.     Egert, the driver,

stopped his vehicle at the accident scene, and he and Compton-

Waldrop began to render assistance to the injured.     While they

were doing so, George W. Starr, a City auxiliary police officer,

arrived and "took charge" of the accident scene.     Although Starr

was not on duty, he was in uniform and displayed his badge.
     At first, Starr ordered everyone to the side of the highway.

Shortly thereafter, however, he asked Egert to turn his vehicle

around to face oncoming traffic and to shine the vehicle's

headlights on the accident scene.      Starr also asked Egert to take

a flashlight and a reflective vest in order to alert oncoming

drivers.   Egert complied with Starr's requests.

     Starr, saying, "Ma'am, come here, I need some help with this

man," then engaged Compton-Waldrop to assist him with an injured

man lying in the highway.   As Compton-Waldrop responded by

entering the highway, a vehicle approached the accident scene at




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high speed.    The vehicle struck and killed both Compton-Waldrop

and Starr.

                                  III

     In reaching its decision, the Court of Appeals made two

holdings to which the Department has assigned error.    First, the

Court held that, by virtue of Code § 18.2-463 1 and the doctrine

of posse comitatus, Compton-Waldrop "became an ad hoc member of

the [City's] auxiliary police force."    21 Va. App. at 260, 463

S.E.2d at 677-78.    The Court also held that Compton-Waldrop, as

an auxiliary police officer, was an "employee" under the Act,

and, therefore, her estate is entitled to workers' compensation

benefits.     Id. at 262-63, 463 S.E.2d at 678-79.

     As the Court of Appeals aptly noted, in the context of the

present case, "[w]hether a person is an `employee' depends upon

whether the person meets the definition under the Act, not

whether the person satisfies a common-law definition of master-

servant as a result of Code § 18.2-463 or the doctrine of posse
comitatus."    21 Va. App. at 261, 463 S.E.2d at 678.   Therefore,

we need not express an opinion with respect to the Court's first

holding.
     1
      Code § 18.2-463 provides as follows:

          If any person on being required by any sheriff or
     other officer refuse or neglect to assist him: (1) in
     the execution of his office in a criminal case, (2) in
     the preservation of the peace, (3) in the apprehending
     or securing of any person for a breach of the peace, or
     (4) in any case of escape or rescue, he shall be guilty
     of a Class 2 misdemeanor.




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                                IV

     In holding that Compton-Waldrop was an employee under the

Act, 2 the Court of Appeals relied upon subsection (1)(l) of the

definition of "employee" set forth in Code § 65.2-101.   Id. at

261-62, 463 S.E.2d at 678.   Subsection (1)(l) provides that the

Act shall apply to "volunteer firefighters . . . [and] auxiliary

or reserve police . . . if the governing body of [the] political

subdivision . . . has adopted a resolution acknowledging" that

coverage under the Act shall be extended to such persons.   Thus,

subsection (1)(l) empowers local governing bodies to extend

workers' compensation benefits to persons who serve without

compensation, such as members of volunteer fire departments and

auxiliary police forces.
     The City's council has adopted such a resolution.   City Code

§ 2-4 states, in pertinent part, the following:
          In gratitude to and in recognition of the valuable
     and necessary services performed by police, fire
     companies and rescue squads and the individual members
     thereof, both professional and volunteer, which service
     the city, the following police agencies and chartered
     fire companies and rescue squads are recognized and
     acknowledged to be an integral part of the official
     public safety program of the city, and the volunteer
     members of these police, and chartered and nonchartered
     fire companies and rescue squads, shall be deemed
     employees for the purposes of the Virginia Worker[s']
     Compensation Act:

          . . .
     2
      The Court of Appeals also held that Compton-Waldrop was not
an "employee" under the Act based upon an implied contract for
hire because she neither received nor expected to receive payment
for her services. 21 Va. App. at 261, 463 S.E.2d at 678.
Compton-Waldrop has not assigned cross-error to this ruling.



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     Virginia Beach Auxiliary Police

(Emphasis added.)


     The Court of Appeals concluded that, because the City had

extended workers' compensation benefits to members of the City's

auxiliary police force, Compton-Waldrop was an "employee" under

the Act and, thus, entitled to workers' compensation benefits.

Id. at 263, 463 S.E.2d at 679.    We do not agree.

     The City, in Code § 27-4, set forth how one becomes an

auxiliary police officer. Code § 27-4 provides that
     [t]he chief of police is hereby authorized to appoint
     auxiliary police officers as he deems necessary, not to
     exceed one hundred (100) in number. The chief of
     police, with the approval of the city manager, shall
     make rules and regulations concerning the operation of
     the auxiliary police officers, their uniforms, arms,
     other equipment and training. Such rules and
     regulations shall be subject to ratification by the
     council.


     We think that Compton-Waldrop, not having been appointed an

auxiliary police officer by the City's chief of police, was not a

member of the City's auxiliary police force within the City Code

and, thus, had not been extended workers' compensation benefits

under the City Code.   Therefore, she did not meet the definition

of "employee" under the Act, and the Court of Appeals erred in

holding otherwise and in remanding Compton-Waldrop's claim to the

Commission for entry of an award under the Act.

                                   V

     Consequently, we will reverse the judgment of the Court of

Appeals and enter final judgment for the Department dismissing


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the application for workers' compensation benefits.

                                      Reversed and final judgment.




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