Regulation of Off-Duty Conduct and Employment of Law Enforcement Officers
The first part of this article was published in The Municipal Lawyer in January 2005, under the title "Conduct Unbecoming." The second part of this article was published in The Municipal Lawyer in March 2004, under the title "Regulating Moonlighting by Officers." Footnotes have been deleted from this version.
Law enforcement executives know that when a shooting incident, report of sexual misconduct, or allegation of excessive force occurs, neither the news media nor the public want to hear that the officer was "off-duty." Since the chief or sheriff will have to deal with the aftermath of such an incident, knowing the limitations of agency controls on off-duty conduct will help limit the likelihood of an off-duty disaster, or at least mitigate or transfer the liability. The first part of this article explores the legal parameters of officers’ off-duty civil rights of association, conduct and speech weighed against department interests. The second part of the article considers an agency’s ability to restrict off-duty employment.
Two legal principles must be understood when considering an agency’s right to govern an officer’s conduct and secondary employment. First, a public safety officer is legally and morally bound to a higher standard of conduct than the average government or private worker. Second, the agency executive enjoys tremendous latitude in fashioning rules and discipline to enforce the higher standard of conduct.
Utah’s legislators have prescribed that a law enforcement officer’s certification, or legal ability to exercise law enforcement powers, may be revoked for any "conduct or pattern of conduct that would tend to disrupt, diminish or otherwise jeopardize public trust and fidelity with regard to law enforcement." By setting a very low threshold of conduct that would disqualify an officer from exercising law enforcement powers, to wit "tend to disrupt, diminish or otherwise jeopardize the public trust," the Utah Legislature emphasizes the high standard of conduct required to retain one’s badge of office. "Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities."
A chief or sheriff sets the standard of conduct for the agency. As long as there is some rational basis for the agency standards of conduct, the "discipline for employee misconduct is within the sound discretion of the chief." Courts will not disturb the agency executive’s disciplinary decisions as long as they are supported by substantial evidence and the discipline is generally consistent with similar cases.
Dating, Cohabitation & Social Relationships
The first principle affecting the balance of personal liberties and departmental interests is the well-established doctrine that a law enforcement agency may impose restrictions that would not be allowed in a private employment context. Those who casually read court decisions dealing with law enforcement off-duty conduct can easily become frustrated. For example, some courts have upheld a department’s right to fire an officer for an adulterous relationship, while others have barred a department from disciplining an officer for the identical conduct. A careful review of court rulings can offer some general guidelines, but will not easily answer every question.
The second principle to apply is that the greater the general constitutional protection for a particular activity, the higher the challenge for a law enforcement agency that wishes to curtail or limit that activity by its officers. For example, a department could restrict an officer from speaking about internal affairs matters that affected individual officers within the department. Yet the department could not ban an officer from speaking out about a concern that internal affairs complaints are not fairly investigated as a general practice of the agency. The ultimate balancing question is "whether an agency restriction is sufficiently related to the agency’s work to outweigh the protection given to the right" that is restricted.
Regulation of off-duty dating and friendships implicates constitutionally guaranteed rights of freedom of association and privacy. Freedom of association cases most frequently arise in the context of "who’s sleeping with who." Generally, policies which prohibit adulterous relationships or unlawful sexual relations are upheld. Officers’ "purely private" and fully lawful sexual behavior cannot be regulated by the agency. To withstand constitutional scrutiny, an agency need only show a rational connection between the restrictive policy and the promotion of public safety. This is a fairly easy standard to meet in court.
Two Phoenix Police Department officers maintained sexual relationships with two prostitutes, who also occasionally worked as paid informants for the department. The relationships were known to some other prostitutes, and became known to the staff of the county attorneys office. The officers were disciplined under a policy that generally prohibited "conduct unbecoming an officer and contrary to the general orders of the department." Their discipline was sustained because the court found that the conduct was not "purely private" and was "potentially damaging" to the reputations and interests of the department.
That adultery is not generally prosecuted is no bar to disciplining an officer for adulterous sexual conduct, as illustrated by the case of an officer who challenged the constitutionality of Utah’s adultery statute. The officer sued the police department, a number of city officials, Peace Officer Standards and Training, and the State of Utah, in an effort to invalidate the Utah statutory prohibition on adultery. He had engaged in off-duty adulterous sexual relations with a female Police Explorer Post member. He was suspended by his department, and his law enforcement certification was suspended. The officer claimed that his privacy, equal protection, and first amendment constitutional rights were infringed by a ban on adultery. The federal district court disagreed. The court found no need to go beyond ruling that the adultery statute is indeed constitutional, and does not infringe on free speech or equal protection, and does not unreasonably intrude on privacy rights. Thus, it is clear that a department may choose to discipline for off-duty sexual conduct which is unlawful, though often ignored, under state law.
Off-duty intimate relationships, even without evidence of sexual relations, may be restricted by the department, if the department establishes a rational basis for the restriction, and takes the steps to clearly articulate that basis. At a minimum, the department must show that the off-duty conduct could reasonably diminish public confidence in law enforcement. For example, the City of Amarillo, Texas, prohibited any conduct which "could result in justified unfavorable criticism" of the department. A related policy prohibited officers of different ranks from sharing a residence. Two officers of equal rank were disciplined for cohabitation, even though they maintained separate residences, had notified a supervisor that they were dating, did not specifically admit to sexual conduct, and no evidence showed that the public was aware of the relationship. The court found that there was no constitutional violation of privacy rights in a policy which prohibited non-sexual cohabitation between department members.
A similar result occurred in Kukla v. Village of Antioch. A patrol sergeant and dispatcher had a dating relationship, contrary to a policy which barred "employees of different ranks to socialize in situations inimical to the discipline and order of the Department." Upon learning that discipline might be pending, the pair traveled to Las Vegas for a prompt wedding. Notwithstanding their newlywed status, the department fired both. The court determined that the policy could withstand constitutional scrutiny, in part because the department had only twelve sworn officers and four dispatchers and served a relatively small community.
Departments are not always victorious in disciplining officers for off-duty dating and sexual relationships. For example, in Shuman v. City of Philadelphia, an officer was disciplined for adulterous cohabitation and successfully sued to reverse his discipline. The court suggested that a police department in a smaller town than Philadelphia might well be able to justify such discipline. In Wilson v. Taylor, an officer was disciplined for dating the adult daughter of an organized crime boss. The chief of police argued that the department could essentially control all dating activities by officers. The court disagreed, finding the department’s claim to control essentially all dating to be far overreaching. The cases in which officers prevail reinforce that an agency must propound a reasonable basis for off-duty conduct restrictions, particularly when the restrictions affect personal relationships.
"Conduct Unbecoming an Officer"
Other types of off-duty conduct, not involving personal relationships, may be also significantly restricted. General prohibitions on "conduct unbecoming an officer" have been used to support discipline ranging from associating with persons on felony probation, to wearing black face cosmetics and carrying a watermelon. Such policies often generate constitutional challenges, claiming that a prohibition of "conduct unbecoming an officer" is too vague to be understood and obeyed. Only rarely do such challenges succeed; common sense frequently prevails.
An officer disgruntled with the customer service at a bank where he was cashing a check, grumbled at the cashier. "Just wait until the next time they’re getting robbed and I’m the first one in getting shot at. That’s my job, you know, I’m a policeman." The bank administrator complained to the police chief, who disciplined the officer for conduct unbecoming an officer. In granting summary judgment to the police chief, the court cited numerous court decisions interpreting "conduct unbecoming" regulations and found that the prohibition was not unreasonably vague as applied to the officer. In other words, any reasonable officer should have known that an implicit threat to a bank teller constituted "conduct unbecoming an officer."
A department drafting a policy barring conduct unbecoming an officer should be careful to ban the conduct itself, and not require that the conduct actually result in some adverse consequence to the department. In Walck v. City of Albuquerque, the Albuquerque Police Department disciplined an officer after he rammed his wife’s car several times. She was just leaving the garage of a home of another man, where presumably she had spent the night. The court found the discipline to be improper because the department’s ban on "conduct unbecoming" required conduct "which actually brings the department into disrepute or which impairs the operation or the efficiency of the department."
Courts have not generally been concerned with the on-duty or off-duty status in matters of misconduct. For example, in Utah Dep’t of Corrections v. Despain, the court rejected the argument that discipline for off-duty misconduct requires an evaluation of the connection between the misconduct and the job standards. The court ruled that when a position requires "high morals, control, and discipline" such as a law enforcement officer, the conduct need not be directly related to the job performance. The court also noted that any distinction between the off-duty conduct of a law enforcement officer and a corrections officer is meaningless. "Both categories of officers are charged with protecting the public, supervising criminals, and are sworn to uphold the law." Thus, the court reasoned that off-duty conduct may lawfully be required to be "worthy of public confidence . . . ." Similarly, the Idaho Court of Appeals upheld the firing of an Idaho Falls police officer who used excessive force at home in disciplining his step-children, affirming an administrative ruling that the excessive discipline negatively affected the officer’s ability to perform as a law enforcement officer.
Even an agency that takes a general hands-off approach to off-duty conduct should regulate one aspect of off-duty action – the storage of duty weapons at an officer’s home. A Chicago police officer’s "negligent storage" of his service weapon at home was ruled legally incidental to his police employment. The City of Chicago was held liable for more than one and one-half million dollars to the family of a 14 year-old shot and killed by the officer’s 13 year-old son, who took the officer’s gun from an unlocked cabinet in the house. Departments ought to even consider supplying locking cases and require their use.
Not just violent or threatening off-duty conduct may be regulated. In Shaya-Castro v. New York City Police Dept., the court sustained the firing of a female police officer who posed nude for Playboy magazine while wearing or holding NYPD insignia and other police equipment. A male police officer from Findlay City, Ohio, was fired after posing, with his wife, for a nude magazine. Non-sexually oriented public nudity has also been the subject of affirmed terminations and discipline. In Morrow v. Safir, the court approved termination of a police officer who slid down a bannister in a hotel, naked, while partying off-duty at a hotel. A California Highway Patrol officer who was repeatedly seen at his front picture window unclothed or in his back yard sunbathing nude was terminated after being warned to be more discreet in his practice of nudity. The recurrent theme of these and similar cases is that the officers’ conduct brought discredit to the law enforcement agency, even though the conduct may not have violated a specific policy or statute.
Frustration over drafting a policy that will withstand constitutional challenge as not being too vague should not deter an agency from barring conduct unbecoming an officer. Courts recognize that vague language is a necessary evil in the face of a myriad ways to misbehave. "It is not feasible or necessary for the Government to spell out in detail all that conduct which will result in [discipline]. The most conscientious of codes that define prohibited conduct of employees include ‘catchall’ clauses prohibiting . . . ‘conduct unbecoming.’"
A law enforcement administrator drafting policy to curb conduct "unbecoming an officer" enjoys the latitude to use general language describing inappropriate conduct that will discredit the department. Such a policy should not prohibit conduct that actually discredits the department or impairs the law enforcement mission. It will often be a substantial evidentiary challenge to show actual damage to the agency’s reputation. Rather, the administrator should recognize that discipline for off-duty conduct unbecoming an officer must be tempered by a strong dose of common sense. Of course, in the words of Will Rogers, "common sense ain’t too common anymore" or the agency would not have to impose a "conduct unbecoming" policy in the first place.
Limitations on Officers’ Freedom of Speech
Becoming a law enforcement officer does not mean accepting a "watered down version of constitutional rights." Perhaps the most judicially guarded constitutional right is the first amendment guarantee of free speech. An agency must answer two threshold questions before disciplining or restricting speech of an officer. First, is the subject of the speech or expression a matter of public concern? Second, does the officer’s free speech right outweigh the agency’s interest in promoting efficient operation?
Courts hold agencies to a strict interpretation of the second question, whether the officer’s first amendment right outweighs the agency’s wish for institutional peace and quiet. For example, after the New York Department of Correctional Services disciplined an officer for prominently displaying a nazi flag from his front porch, the court ordered the officer’s discipline reversed. The officer, an avowed white supremist, had received local news media attention for his racist statements and signs at his home. He worked in a prison with eighty percent of the inmates identifying themselves as black or Hispanic. The court ruled that the department had not shown actual harm to the department’s interests by the officer’s action, and any speculated harm was insufficient to silence the officer. There was no discussion in the case as to whether the neo-nazi affiliation constituted a "matter of public concern;" the court seemed to presume as much. The court implied that the high profile nature of the officer’s statements and actions placed the officer squarely in need of the fullest first amendment protection allowed by law.
Most judicial challenges to discipline where a first amendment issue is raised take an equally hard look at whether the matter spoken about truly implicates the public concern. An officer involved in a convoluted real estate deal to buy a new home used the department’s social organization fund to temporarily hold a money gift from his realtor, with the approval of the chief of police. The realtor could not lawfully give money directly to the officer to use for the down payment. When a captain learned of the money transfers, he ordered the officer to repay the money. Within a short time, the city’s web site received an anonymous posting criticizing the agency and the chief for "laundering" the gift from the realtor. The officer was suspended for providing the information to the person who actually posted the web site article. The court ruled that exposing the money switch was a matter of public concern.
Several factors guide the evaluation of a subject as a matter of public concern. "Matters of public concern are those which can ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’" Any speech that addresses alleged misconduct or wrongdoing within a law enforcement agency will likely be held to be a matter of public concern. Employee grievances over working conditions may even become a matter of public concern. However, an officer’s complaints about a supervisor’s ability or style, or the questioning of orders or policies, generally are purely internal matters. Officers’ public statements that have nothing to do with their law enforcement employment receive greater protection; they are not subject to the "matter of public concern" test.
First amendment considerations cannot be used to extend constitutional protection to every passing gripe and grievance simply because it is a public employee making the statement in a public forum. In the case of the unhappy bank customer who commented that his response to the next robbery alarm might be affected by the way that he was treated by bank tellers, discussed above, the court refused to find any free speech protection for the officer’s off-duty comment. The comment had no bearing on the operations or policies of the agency, and was simply not a matter of public concern. Thus, when disciplined for conduct unbecoming an officer, he could not hide behind the first amendment.
Protected "speech" may include regulation of the types of off-duty employment, if the regulation is based on the viewpoints expressed through the nature of the work. A chief of police who vehemently disagreed with citizens’ efforts to liberalize concealed carry handgun laws barred officers from teaching classes to qualify citizens to obtain a state permit. The chief himself ran a part-time consulting business. The chief told the officer that the concealed carry statute was a "bad law." The officer successfully sued, with the court finding a plain violation of the first amendment right of free speech. Similarly, a group of law enforcement academy instructors who worked part time as use of force expert witnesses won a battle against several police chiefs whose departments boycotted academy training, causing financial loss to the instructors. The police chiefs organized the boycott with the express intent of silencing the academy instructors after the instructors testified against a police department in a case where a young boy was killed by a police sniper. The Fifth Circuit Court of Appeals, in a lengthy and detailed opinion, took pains to state that the law is quite clear on an officer’s freedom to speak out in a public forum, denying the chiefs’ effort to use qualified immunity as a defense to money damages.
In one unusual free speech challenge, two officers successfully vindicated their right to rent sexually explicit videotapes to the public. The officers were disciplined after refusing the chief’s order to remove the tapes from the store inventory of their video rental business. Though local news media featured the controversy in repeated stories, because the rental business was wholly separate from the officers’ employment with the city, the court did not need to reach the issue of whether the "speech" was a matter of public concern. The court also noted that constitutional protection for the distribution of sexually explicit (but not technically "obscene") films was firmly established law. Because the right to rent sexually explicit tapes by a public employee in an off-duty circumstance was not "clearly established," the police chief was immune from damages.
Any policy designed to control public comments of law enforcement officers must be very narrowly tailored to restrict sharing legitimately confidential information, and/or promote order within the department. The policy should emphasize the availability of an agency grievance system, and not specifically bar officers from speaking out on matters plainly evident as public. Open and frank communication between administrators and officers will help create a climate where matters can be discussed and resolved in private, thereby avoiding the need for a debate in the public forum.
Risk Management of Off-Duty Employment
The headline from the Los Angeles Daily Journal gave one hundred and two million reasons for regulating off-duty jobs for law enforcement officers. The paper announced that the Los Angeles Police Department was liable for $102,000,000.00 to the family of a man shot by an off-duty officer working a private security job. Fortunately for the LAPD, that astronomical (at least by non-southern California standards) verdict was later overturned on appeal, after hundreds and hundreds of billable attorney hours. There is no shortage of lawsuits stemming from officers’ off-duty jobs where the agency paid large sums in damages, or at least paid out huge sums for attorneys fees, in addition to the significant internal costs of defending a lawsuit. The easy answer is to bar all off-duty work, and pay officers a salary that makes such an approach feasible. And then there is the counter argument: reality.
Off-duty employment is a critical supplement to many officers’ family budgets. The Iowa Supreme Court noted "regrettably, exemplary service as an officer does not necessarily, or even often, call for exemplary pay." In Tucson, Arizona, estimates of off-duty income top $2,000,000.00 annually for the city police department. Proponents of off-duty work claim that the agency receives a significant benefit from off-duty officers available for service calls that would take on-duty officers away from other work. When officers are working in a private security capacity at the sports event or concert, trouble may well be averted, or at the very least quelled before calling on-duty officers away from patrol duties. Road construction traffic control by off-duty officers is becoming increasingly common, and poses an obvious boon to traffic safety and crash reduction.
Should an agency decide to take the draconian approach and ban all off-duty employment, it would find past court decisions in its favor. The handful of decisions to consider the question have uniformly ruled that an officer has no constitutional right to any secondary employment while employed as a sworn law enforcement officer. On the other side of the coin, at least one state, New York, preempted complete local control over off-duty employment by giving officers statutory rights to secondary jobs, with certain allowable local restrictions. However, the safe ground of due process is not the only constitutional muster to pass. An agency must also show that employment restrictions do not violate equal protection provisions.
For the vast majority of agencies that permit, and even facilitate, off-duty work, certain restrictions are commonly imposed. Frequently, employment in sexually-oriented businesses, bars and taverns, and private investigative firms are either severely restricted or banned. The International Chiefs of Police Association recommends prohibiting off-duty employment at any establishment that sells pornography, liquor, sex toys, or where gambling occurs. The motivation is evident in the opportunity for discrediting the department as well as the potential for abuse of law enforcement resources and confidential information. The Detroit Police Department received national attention when claims surfaced that female police officers from the 12th precinct were moonlighting as strippers. Two of the nation’s largest municipal police agencies, New York Police Department and Washington, D.C. Metro Police Department, are barred by city ordinance from off-duty work by their officers in bars and strip clubs. Officers may also be placed in conflicting circumstances when they observe a violation by guests, clients, or employees of their off-duty employers, or by the employers themselves. The pressure will be implicit, but potentially strong, to look the other way.
One category of potential off-duty employers – bars and taverns – presents persuasive arguments both for and against allowing officers to work in security or bouncer positions. If officers are present at the drinking hole, there is a visible motivation for patrons to behave. That was the motivator behind a New York City Councilman pushing for a change in city law prohibiting off-duty employment where liquor is served. On the other hand, if the officer notices that a guest of the bartender seems a year shy of the legal drinking age, will this violation be deemed minor, and disregarded?
Many of the off-duty shootings that end in litigation involve officers working security at drinking establishments. A Birmingham, Alabama police officer was working off-duty, in full police uniform, when a patron asked for an escort to his car. The patron was accompanied by a number of young teenagers who had been drinking with him. The bar had a reputation for overlooking underage drinking, despite the presence of off-duty city police officers. As the officer walked the patron to the front door, a crowd of fifteen or more who had been arguing inside the bar followed the patron. At the door, the officer told the youths that they could not fight inside the bar, but he would do nothing about what happened on the street. The patron was chased down and beaten to death by the mob. A jury held the city liable for $1,600,00.00.
Though the city attempted to raise substantive immunity against private violent acts as a defense, and claimed that the officer was not acting as a police officer at the time of the fatal thrashing, the court ruled that the officer acted as a city employee. Because the department had rules governing off-duty work in bars, and because the officer had followed those rules, the city was deemed to have control over the officer’s actions and thereby was liable for his gross misfeasance. The officer was fired following an internal affairs investigation confirmed his unambiguously derelict performance. The police department would have been on solid ground to completely ban off-duty jobs in bars. If the department had established and enforced a policy addressing off-duty powers of arrest and intervention in emergencies, such as that promoted by the International Association of Chiefs of Police recommends, the disaster might well have been avoided. Though many agencies have such prohibitions, court challenges have been infrequent, and the agency is the regular victor.
The City of Birmingham court considered cases from several other jurisdictions that had reached opposite results, finding that the general rule of the law enforcement agency’s liability centers on whether the agency had control over the officer’s actions in the off-duty employment situation. Other cases have reinforced this concept, and considered whether the off-duty officers were in department uniform, and acting under department rules at the time of the harmful event.
The decision in the City of Birmingham case could have easily been predicted. No jury is likely to sympathize with an officer who does nothing when an angry mob follows a minor, with obvious intent to fight or beat the grossly outnumbered victim. It certainly did not help matters that the victim and his young friends had been allowed to drink at the bar in front of the officer. Equally predictable was the revulsion expressed by the Supreme Court of Alabama as the police department tried to escape liability. The decision teaches that departments allowing officers to work off-duty in drinking establishments must insist that the officer strictly adhere to the law and department policies. Both the officer and the off-duty employer must know that the agency expects the officer to perform as if on-duty.
Another danger zone for off-duty work is the realm of private investigator. Officers challenging bans on private eye work often raise constitutional issues of right to contract, property interest in employment, and due process. The agency need only show a rational basis for the regulation to prevail. Avoiding the potential conflict of interest is a sufficient justification to exclude private investigative work from the list of approved secondary jobs. There is also the risk of criminal action against the officer for misappropriation of confidential information, or misuse of law enforcement databases.
One case noted a peculiar conflict of interest. An officer took an off-duty investigative job working for a plaintiff’s attorney and was assigned to investigate alleged civil rights violations by officers of the neighboring police department. The matter came to light when the chief of the targeted department called the officer’s own police chief. The investigator became the investigated, and it became evident that he had gained access to records that would not have been available to non-police personnel. He was terminated for failure to obtain permission to work off-duty. He sued and lost. In contesting his termination, the officer argued that off-duty jobs were often posted at the department, and no permission was required to accept those jobs. The court found no difficulty in distinguishing between traffic control at the high school football game and investigating fellow law enforcement officers. The department could legitimately relax the rules for less sensitive off-duty jobs without abandoning its right to hold officers to the stricter standard in appropriate circumstances.
Whether an agency chooses a total ban on off-duty work, or prohibits only secondary employment in particular categories, the agency’s task is merely to advance a legitimate interest in regulating the off-duty work. In addition to the many cases upholding restrictions on employment in the private security, bar and tavern, and private investigative realms, as potential conflicts of interest, courts have recognized the agency’s interests in "reducing mental and physical fatigue, limiting litigation, and lessening liability insurance expenses" as legitimate bases for restrictions. Promotion of department loyalty, avoiding scheduling problems, and promoting department efficiency have also been cited as judicially recognized legitimate reasons to restrict off-duty jobs.
What about those circumstances when "off-duty" moves to "on-duty" in a single moment? For example, an officer hired to direct traffic, or guard the cash box at the ticket window, sees a person known to be the subject of a felony arrest warrant. No on-duty officer being immediately available, the officer attempts an arrest. A scuffle ensues, and the warrant suspect is shot. Who is potentially liable?
Considering first civil rights liability, which carries the litigation incentive of attorney fees, the primary inquiry is whether the officer acted under color of law. Once the officer is found to have acted under color of law, an entire host of claims, such as failure to train, negligent hiring, negligent supervision and retention, are likely to tag along. Courts quickly bypass the question of uniform, badge, and marked patrol car to look at whether the act related to a police duty. Acting under color of law includes an officer acting under the pretense of color of law. An officer who claims the color of law in furthering the officer’s or the secondary employer’s interests will likely be held to have acted under color of law. An action as simple as flashing a badge or stating that one is a law enforcement officer can trigger a finding of acting under color of law.
An agency’s policy about taking off-duty action, whether on a second job or otherwise, should consider that courts have found off-duty officers to be acting under color of law when, first, the officer performs a law enforcement duty, or second, when the officer pretends to act under official authority. Display or use of a weapon is a common theme in cases where courts have found off-duty officers to be acting under color of law. Policies should restrict officers from taking official action where no health or substantial property interest is at stake.
Liability may also arise under traditional agency or master and servant legal principles. An agency who calls on an off-duty officer to assist will undoubtedly be liable for the officer’s action, but what about the officer who takes action by his or her own initiative? That issue arose in the case of an off-duty officer working as a security guard in a retail store. The officer saw a person who he believed to the subject of an arrest warrant for misdemeanor disorderly conduct. He verified the warrant with a phone call and informed his off-duty employer. The off-duty employer urged the officer to apprehend the suspect, who by now had left the premises. The off-duty officer followed the suspect to the suspect’s home, calling for on-duty backup en route. When the officers arrived at the suspect’s home, the suspect told the officers that he had locked himself in and would not come out. The off-duty officer left the scene and shortly returned. Officers secured a key to the front door and found the suspect locked in the bathroom. One officer kicked in the door and shot the suspect in the stomach.
In the lawsuit that followed, the court determined that the off-duty officer could be the servant, or employee, of both the drug store and the police department at the same time. As long as the off-duty officer’s actions were consistent with the duties performed for both employers, both might be considered responsible for the actions of the off-duty officer. The secondary employer would not be jointly liable, leaving only the deep pocket of the police department, only if the off-duty officer’s actions were wholly outside the scope of the private employment. Where the store manager encouraged the arrest of the suspect, the company could be held liable.
Under either general theory, agency common law or civil rights statutes, an agency allowing off-duty work where the duties are directly related to law enforcement duties should consider an approach where the agency participates in the contracting and supervising of the off-duty employment. Such an approach is consistent with the model policy on off-duty employment promulgated by the International Association of Chiefs of Police (IACP). The IACP has developed a series of policies addressing off-duty issues, such as employment and off-duty arrest powers that are available to guide individual departments to formulate their own policies.
Additional Off-Duty Employment Considerations
An agency’s legal authority to control off-duty employment is just one of a myriad of complex and perilous legal issues associated with off-duty employment. Although this article is limited to illustrating the agency’s legal control over the types of off-duty work, other vital issues include:
• Scope of Control. Whether the agency will require all off-duty employment involving the use of law enforcement skills and authority to be scheduled through department channels? If this approach is followed, the agency can easily require solid indemnity agreements and third party liability insurance, worker compensation policies, and exercise considerable control over the working conditions. If officers are free to contract for their own secondary jobs, what level of control will the agency have over the working conditions and likelihood that arrest powers and other law enforcement authority will be exercised off-duty?
• Worker Compensation. If the officer is injured on an off-duty related to law enforcement, it is probable that the agency’s carrier will receive a claim. The officer also runs the risk of being deemed an "independent contractor" of the off-duty employer and having no coverage, particularly for injuries not directly related to law enforcement actions. The secondary employer is likely to argue that the employer had no control over how the officer secured the premises, and thus is a true independent contractor. A few courts reject this argument and find both the law enforcement employer and the secondary employer as "joint employers."
• Fair Labor Standards Act. The agency must be careful to define off-duty employment arranged through the agency as non-overtime for purposes of the FLSA, or risk the liquidated damages provision and other penalties of the FLSA. The employment must be purely at the officer’s option, and truly separate and independent from the officer’s normal duties. Consider whether the off-duty work will have an impact on scheduling, potentially increasing overtime costs for the agency.
• Tired Cops. Economic conditions across the nation have dictated small or no pay increases for officers in the past few years. Indeed, many have lost ground in the face of increasing insurance costs and inflation. Cops’ families have the same needs as other families and countless officers resort to off-duty employment just to meet the bills, not to secure luxuries. Obviously, an officer who worked the midnight shift protecting the private property of the local convenience store is less fit to work the patrol division day shift than the officer who had a solid eight hours sleep. The International Association of Chiefs of Police recommends that off-duty jobs be restricted to twenty-four hours per calendar week.
• Equipment and vehicle wear. Agencies allowing officers to use patrol vehicles and other equipment should consider a charge to recover depreciation and damage costs.
• Conflicting loyalties. The agency needs to determine whether vacation or compensatory time may be taken to allow an officer to work off-duty employment.
• Experience. Most off-duty employers just want a cop. The employer may not care or know how much experience the officer has on the job. An agency can certainly argue that an officer should at least be off probation before being placed in a situation of making critical decisions without the availability of a senior officer or field supervisor.
• Training. Will the agency provide training on off-duty response to emergencies? Will the agency train officers to carry restraints, and in the concealment and deployment of off-duty weapons?
• Communications and Backup. Will the off-duty officer be allowed to use a department radio or police channel so that backup is more readily available? What of the risk that the officer will use information resources for private purposes, subjecting both the officer and the department to discipline?
• Fairness. If an established clique within the agency controls the high-paying off-duty jobs, resentment is likely to spill over to on-duty relations within the agency.
• Competition. Local security companies may well resent the competition and complain that a law enforcement agency competes unfairly by virtue of the officers’ authority, ability to wear department uniforms and drive department cars, and connections with business owners. One group of private security providers launched an anti-trust lawsuit against law enforcement officials who facilitated private security details for their officers. Although the suit was generally unsuccessful, the court did allow the action to proceed against the chief and the sheriff in their personal capacities.
Law enforcement is a risk management minefield. Nonetheless, a risk that can be predicted can often be prevented, transferred, or mitigated. Knowing the legal and practical limits on controlling the off-duty activities and secondary employment of law enforcement officers leads to a lawful and sensible policy. In turn, a reasonable policy, coupled with fair enforcement, will help administrators avoid the headaches of off-duty disasters.