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Law Enforcement Off-Duty Employment
-- Should It Be Regulated?

(Copyright © 2001, by LAAW International, Inc..  All rights reserved.)

Introduction:
     It’s 5:00 p.m. and you are finally ready to slip away at a reasonable hour when your secretary pops her head in the door.  “Chief, the Chief of Police from Smalltown is on the phone and he says it’s urgent!”  You sigh in relief knowing this will only be the neighboring Chief calling you for advice on one of HIS problems. Unfortunately, HIS problem is a fatal incident (in his town) involving two of YOUR officers (Officers Smith and Jones).

     The Smalltown chief tells you that Officers Smith and Jones have been working as part-time security guards at the Smalltown Liquor Store.  You were unaware that the two officers were working off duty.  The Chief tells you that while Smith and Jones were working at the liquor store today, two underage minority males entered the store and the clerk refused to wait on them. The two males started a commotion in the store and Smith and Jones ordered them to leave. They refused, and immediately Smith and Jones physically escorted them from the store. Once outside, they verbally attacked Smith and Jones with allegations of racist improprieties. Smith became irritated, and as he badged the males, he said “I’m a cop and you are under arrest!” The two belligerent males started to walk away.  As Smith grabbed one of the males, he pulled away and attempted to kick Smith in the groin. Smith wrestled the male to the ground while yelling for Jones to call 911. Just as Smith was about to be jumped by the second male, Jones came running out of the store and lunged at the attacker, twisting his (Jones’) knee as he fell to the ground, while pulling the suspect down with him. The Smalltown police arrived and the second male rolled off Jones and ran.

     Smith now had the resisting arrestee on the ground in a neck restraint. The arriving Smalltown officers assisted Smith with the handcuffing, while Smith told the officers that the male had resisted and he should be further restrained (for his own protection)--hog-tied. Smith and the Smalltown officers hog-tied the arrestee and placed him face down in the back of the squad car. Rather than taking the hog-tied suspect directly to the police station, the Smalltown officer, transporting the arrestee, circled the area looking for the other male. After about ten (10) minutes the officers gave up the search and headed for the station. At the station the officers went into the back seat to remove the arrestee.  To their surprise he was dead.  The Smalltown Chief also tells you that Officer Jones is in the hospital with torn knee ligaments that will require extensive surgery.

     As you are reciting the facts of this case to your city attorney and asking for guidance, he asks you several questions about your off-duty employment policy, a policy that you do not have; and he tells you that if everything is not in place, the other side “could retire off this case.” This is embarrassing.

     After carefully analyzing the above case, you identify several major problems: (1) the potential workers’ compensation claims of Officer Jones for his injured knee, (2) the staffing costs for replacing Jones while he is out on disability leave, (3) the potential administrative consequences of Smith and Jones’ behavior, (4) the potential criminal prosecution of Smith and Jones, (5) the civil litigation by the decedent’s survivors, (6) the potential civil litigation by Jones for violations of his constitutional rights, (7) the negative impact of the media’s scrutiny of the incident, (8) the uproar that will be heard from the minority community for the death.

     Being an optimistic chief you reason that you have a great opportunity for your agency’s self-examination and improvement--assuming you survive the aftermath of the incident.

Defining the Problem:
     The secondary employment issue is not whether a law enforcement agency should regulate off-duty (or secondary) employment, but rather to what extent should secondary employment be regulated. That is the focus of this article: to discuss some of the issues in developing guidelines for off-duty (secondary) uniformed employment.

     After hearing of an incident as described above, some agencies will simply take an unreasonable  position of banning all secondary employment. This response is not only unfair to the agency’s officers who quite often rely on the extra income for their families’ financial survival, but it is also a waste of a valuable community resource:  the utilization of trained law enforcement professionals for security services.  A more appropriate response is a thorough analysis of the agency’s present secondary employment environment, development of a sound plan to provide acceptable secondary employment, and adequate management of the secondary employment to minimize foreseeable risks to the agency, the officer, and the community.

     This means the development of a sound policy to regulate secondary employment and to minimize liability exposures. Before examining the various considerations of what this policy may entail, let’s look at a few policy basics.  First, a policy should provide competent guidance and direction. The policy should be fair to all and allow a WIN-WIN relationship whenever possible. Only put into policy those requirements that line supervisors will actually enforce [policy must be consistent with custom and usage]. The policy needs to be clear, unambiguous, and realistic to allow full understanding by all those involved.  And, the policy must be legally sound.

     In order to create a policy that everyone can live with, input from within the department should be encouraged--with, of course, the agency executive having final authority (and responsibility).  Any policy that is adopted should be carefully scrutinized, and approved in writing, by the agency’s attorney, the governmental employer’s executive officer (mayor, city administrator, county administrator), the agency’s risk/insurance manager, the finance director, the labor union and its bargaining component.

Why Should An Agency Allow Secondary Employment?
     There are some positive benefits of secondary employment. Many officers need the secondary employment to survive financially--especially in these lean times of budget cuts and minimal wage increases. But, in addition to the officers’ need for secondary employment, the off-duty employment can also benefit the community. There is a presumption that there is a genuine public benefit when officers work for outside employers. Since the number of law enforcement personnel is often insufficient to meet the demands for service, officers engaged in secondary employment are viewed as a readily available resource. Off-duty officers may be used for traffic control and pedestrian safety, crowd control, private security and protection of life and property, routine law enforcement for public authorities (parades, inaugurals, etc.), and special plainclothes assignments.

Off-Duty Accountability Factors
     In analyzing whether it could be liable for the acts of off-duty officers, an agency should consider several factors including:

1. What is the degree of appearance or perception of your officer, while off-duty, as a law enforcement officer of your agency? Is the officer in full uniform and carrying on-duty equipment while engaged in off-duty employment?  The more the officer looks like a sworn law enforcement officer, the more the public will regard him as such. If the officer’s appearance strongly suggests he is a sworn law enforcement officer, it is likely that the officer’s employing agency will be brought into a lawsuit after an off-duty incident.
    
2. During an incident, has the officer announced that he is a law enforcement officer, thus giving the impression that he is functioning under that authority?  If the officer exercises his sworn authority then that use of authority will probably be deemed to be within the scope of his sworn law enforcement status and the agency may face liability.
    
3. Is the officer within his jurisdiction? There is often a “presumption” that an officer is “on-duty” twenty-four (24) hours a day. What we really mean is that the officer is “available” to function as an officer, under the “scope of authority” twenty-four (24) hours a day, while within his jurisdiction.
    
4. Does the agency have off-duty employment, off-duty arrest, extra-jurisdictional arrest authority policies and training? If the agency has done a thorough job of providing policy, training, and supervision in the law enforcement areas that directly impact off-duty employment, it may be able to minimize liability stemming from an off-duty incident.

     The bottom line is this: Is the officer acting like an officer?  Can the public reasonably interpret the officer’s appearance and demeanor as being that of a sworn officer with authority of his jurisdiction? If the answers to these questions are “yes,” then liability stemming from an off-duty incident will probably flow back to the officer’s governmental employer.  Even if liability does not flow back to the governmental employer, the employer will likely be a named defendant in the lawsuit and the cost of defense alone can be very expensive.

Determining Off-Duty Employment Limitations
     When determining boundaries for off-duty employment, first look at past practices. For example, have officers historically been responsible for enforcing the law when off duty? If in the past an officer working off duty witnessed a violation of the law that allowed for arrest by a sworn law enforcement officer, but not a civilian under citizen’s arrest statutes, and if the officer (while working off duty) made the arrest and this arrest was ratified by the department’s command staff, this would be a strong indicator that the department’s past practice was to allow off-duty officers to use their sworn authority to make arrests.

The agency must also determine:

1. Will the off-duty employment require the exercise of the officer’s sworn authority? If the job requires the exercise of sworn authority, the agency will surely find itself a defendant in any civil litigation stemming from an off-duty incident.
    
2. Will the off-duty employment create compensation problems for the department? Liability here includes: workers’ compensation, supervisory/training time, additional over-time, etc.  If an officer is injured while working off duty and the off-duty employer does not have adequate workers’ compensation insurance, the officer will probably attempt to collect from the agency’s insurance program.  If the officer is functioning with sworn authority and there is an off-duty incident, there could be viable allegations that the injuries/damage to the plaintiff were caused by negligent direction, training, or supervision by the officer’s primary employer--the law enforcement agency.
    
3. Will the off-duty employment create a conflict of interest between the department and the secondary employer? The department may wish to prohibit officers from holding jobs where there is a reasonably foreseeable conflict of interest between the officer’s duties as a law enforcement officer and the duties required by the officer’s secondary employer. This conflict could take the form of the officer’s symbolic authority being used improperly to serve the private employer.  The conflict could occur by virtue of officers working in closely regulated (licensed) areas (e.g. businesses that sell and/or dispense liquor, businesses that sell guns, lottery tickets, etc.). The agency may also decide to preclude work where the officer’s authority would confer a special advantage to a private interest at the expense of the public interest. Also, the department may wish to prohibit officer-owned enterprises with inherent conflicts (e.g. security and private investigative services).
    
4. Will the off-duty employment cause the department’s image to be tarnished? Will the employment be a threat to the status or dignity of law enforcement as a professional occupation?
    
5. Will the off-duty employment cause a deterioration or interruption in the officer’s on-duty performance? Does the secondary employment create an unacceptable risk of temporary or disabling injury that could limit the officer’s return to regular duty, e.g. boxing and wrestling. Or, does the officer become so fatigued by working the secondary employment, just prior to his normal on-duty shift, that the agency suffers from the officer’s physical and emotional exhaustion?
    
6. Will the officer be breaking any laws by working the off-duty employment? If the officer is paid in cash for his services, he will be breaking numerous federal and state laws.
    
7. Will the agency place any limit on off-duty employment compensation or number of acceptable hours per work period?

Major Management Models for Secondary Employment:
     There are three basic off-duty employment management models: (1) the Officer Contract Model, (2) the Union Brokerage Model, and (3) the Department Contract Model. Each model has different strengths and weaknesses that should be thoroughly examined and analyzed before implementing.

The Officer Contract Model:
     In the Officer Contract Model each officer searches for his own secondary employment.  The officer independently contracts with the employer regarding conditions of work, hours of employment, and rate of pay.  Before commencing work, the officer applies for permission to work the particular off-duty job that has been negotiated with the prospective employer.  The department either grants permission to work that job, modifies the job to meet agency requirements, or denies permission to work the job. The secondary employer pays the officer directly for his work. This method is often called a “cash detail.” The main problems with this model are: (1) law violations if the officer is paid in cash, (2) often there is no workers’ compensation coverage for the officer, and (3) if the officer is sued for an off-duty incident, he may not be covered with sufficient levels of liability insurance.

The Union Brokerage Model:
     In the Union Brokerage Model the union becomes a third party broker arranging the independent contracts between officers and private employers.  The union may search for paid details and set conditions for those details, including rates of pay.  The union assigns the officers, often on seniority basis.  Under this model, the union may bargain with the primary employer (law enforcement agency) for secondary-employment rights. The principle objection to this system is the loss of control by agency command staff. There may also be allegations of unfair assignment of work details by the union.

The Department Contract Model:
     Under the Department Contract Model the department contracts with the employers for part-time work.  The department assigns officers to the work.  The department pays the officers from reimbursements by employers. It is important to note that as long as he officer is not working a “same or similar” detail for the “same employer,” the city, county, or state which is the officer’s primary employer, the employer does not have to pay the officer overtime for these off-duty/extra-detail jobs. This system can work; but in order for the officer’s primary employer (the governmental subdivision--not the agency) to be fully compensated, the primary employer should charge the secondary employer for the officer’s time, the workers’ compensation costs, the incremental liability insurance costs, a contribution to the primary employer’s SIR (Self-Insured Reserve), and if the officer is using agency equipment, the primary employer should be reimbursed for the equipment’s use.  If the primary employer were to charge the secondary employer the ACTUAL costs of that officer working the off-duty shift, the secondary employer would not hire the officer because the expenses would be financially prohibitive.

Risks of Off-Duty (Secondary) Employment
     The agency must decide whether it will accept the following foreseeable consequences of allowing off-duty employment. If it decides to accept these consequences, it must take proactive steps (through policy and training) to minimize them.

     What reasonably foreseeable consequences are there to an off-duty (secondary) employment incident?

1.   Civil litigation resulting form the off-duty incident:

1. The officer caused injury to the plaintiff because of the direction (policy) he received from the department.
    
2. The officer was acting under “color of law.”
    
3. The officer was inadequately trained by the department:
   1) the officer was not trained in extra-jurisdictional arrest authority.
   
   2) the officer was not trained in citizen arrest/self-defense law.
   
   3) the officer was not adequately trained in the weapons/equipment that he is carrying while working the secondary job.
    
4. The agency failed to adequately supervise the officer.

2.   Problems associated with the agency’s depletion of manpower:

1. An officer’s injury while engaged in off-duty employment can result in the agency having to pay overtime to fill the shift.
    
2. An officer’s off-duty employment can interfere with his on-duty performance--the officer works too many hours and is either too tired or too stressed.
    
3. The department can incur the following personnel expenses related to officers injured of killed while working off duty:
   1) workers’ compensation costs,
   
   2) pension fund depletion,
   
   3) replacement hiring expenses,
   
   4) health insurance rate increases or employer contributions, and
   
   5) the costs of taking disciplinary action for officer’s misconduct while
      engaged in off-duty employment.

3.   Problems associated with the officers’ violations of
     laws/regulations/ethics, such as violating the Internal Revenue Code (IRS),
     Social Security laws, Workers’ Compensation laws, or other regulations by being
     paid cash for their services.

4.   Potential conflicts with existing collective bargaining agreements.

5.   If the officer is allowed to use department-owned equipment (including
     weapons) while working the off-duty job, who is going to pay for repair or
     replacement for damaged, lost, stolen, or evidence impounded
     equipment?

6.   Complications created by officers taking jobs away from private security
     agencies.

7.   The negative public, media, government council, special interest group
     impact that can come from an off-duty employment-related incident.

Off-Duty Employment is a Reality--Now What?
     If an agency has decided to allow off-duty employment it must provide guidance (policy) and training to regulate the employment. First, the agency must develop a competent policy. After the policy is completed, the agency must provide training in the limitations of the off-duty employment.  Parameters such as extra-jurisdictional arrest authority, citizen’s arrest authority, self-defense, etc., must be covered.

Final Thoughts to Consider When Drafting and Implementing a Secondary Employment Policy
1.   Even though the agency has wide latitude in regulating its officers’ off-duty
     employment, the regulation will probably be subject to mandatory
     bargaining with the officers’ union.

2.   If the new off-duty employment regulations are not subject to mandatory
     bargaining, the off-duty regulations should be such that everyone can live
     with them--are they fair to all concerned?

3.   Is the policy thorough, clear, and unambiguous?

4.   Does the policy take into account the use of uniforms, equipment, weapons,
     etc. for secondary employment use?

5.   Does the policy require compliance with laws and regulations, such as IRS
     Regulations--no cash payments?

6.   Have all reasonably foreseeable potential risks been considered and
     adequately covered, or at least accepted?

1. Does the secondary employer have adequate workers’ compensation coverage?
    
2. Will the secondary employer’s insurance cover the officers’ actions and will it indemnify the agency (and its executives who may be sued indirectly) for any losses or costs of defense?
    
3. Are any potential exposures created by the off-duty employment NOT covered by the agency’s insurance programs?
    
4. Is the secondary employment system as efficient as possible for administration purposes?
    
5. Does the system create a sound basis for disciplinary action?

7.   Do the regulations take potential Fair Labor Standards Act (FLSA) overtime complications into consideration? If the officer were to perform the “same or similar work for the same employer” then overtime complications can arise. For FLSA purposes the officer is employed by the governmental subdivision (city, county, state), not the law enforcement agency.  For example, if the city park department asked the officer to work security at a picnic the officer is still employed by the city--and doing “same or similar work.”  In this case if the officer exceeds the overtime threshold, he will be entitled to overtime compensation.

8.   Some jurisdictions have statutory requirements or mandates regulating off-duty employment, you must be sure to comply with these.

9.   If your jurisdiction has private security requirements, without a blanket law enforcement exemption, you must be sure to comply with these requirements.

10.  If your agency is going to accept responsibility and liability for the off-duty employment, would it be feasible to provide the off-duty officers with portable radios and access to dispatch. An on-duty officer has access to dispatch, supervisors, and backup.  If the officer is literally working under the same sworn capacity in the secondary employment, then would it not make sense for the officer to have the same access to dispatch, supervisors, and backup? If an off-duty officer became involved in a costly incident, and the officer did not have access to a supervisor, but this same incident requires supervisor involvement while working on duty, the plaintiff could argue that the agency is liable for not providing the officer with the tools necessary to comply with policy and regulations?