By John F. Breads, Legal Director, Local Government Insurance Trust, Hanover, Maryland
oonlighting has long been described as the practice of holding a second job, often at night. In the law enforcement community, moonlighting evolved into secondary employment, meaning the private employment of off-duty police officers in a number of capacities, but usually as security guards. Secondary employment became so ingrained in the law enforcement profession that in some states, by law, police agencies cannot prohibit it; they can only reasonably regulate it.1 The liability landscape in Maryland for secondary employment dramatically changed 10 years ago when the Maryland Court of Appeals decided the case Lovelace v. Anderson.2 Law enforcement agencies across the country can take important lessons from this case.
The Lovelace case virtually ended the ability of private employers of off-duty police to automatically shift liability for the officer’s misdeeds back to the police agencies and the local governments that primarily employed them. Instead, through application respondeat superior (a legal doctrine predicated on the assumption that an employer will be held responsible for the acts of an employee), Maryland courts now are required to determine on a case-by-case basis who in fact employed the officer at the time of the events and impose liability accordingly. To reach a decision, courts will look at factors such as the following:
- Who has the power to select and hire the officer?
- Who pays the officer’s wages?
- Who has the power to discharge the officer?
- Who controls the officer’s conduct?
- Is the work a part of the regular business of the employer or ancillary to that business?
A clear implication of the Lovelace decision is that in classic secondary employment situations, both private employers and police agencies may share liability with the offending officer.
Just as moonlighting evolved into secondary employment, secondary employment now is evolving into another form of off-duty officer employment: paid police details. In essence, paid police details are private uses of off-duty, uniformed police. Paid police details bring into question the potential use of law enforcement powers in settings that usually require the presence of more than one officer but with the costs borne by the private entity that engages the officer.
Paid police details have been associated with large-scale events that involve both traffic and public safety concerns. Many sponsors of events such as festivals, outdoor concerts, sporting events, fund-raisers, and large parties have used paid police details in lieu of retaining private security. In fact, paid police details have been used by the very governments that employ the police officers. Yet as with secondary employment of off-duty officers, there are myriad issues arising from paid police details.
In March 2011, the Civil Rights Division of the U.S. Department of Justice (DOJ) released an investigative report on the New Orleans Police Department (NOPD). The DOJ found many systemic problems with the NOPD, including its handling of paid police details. Some of the problems identified included corruption, officer fatigue, undermining of the chain of command, excessive demands on department resources, and cost. The report stated that “there are few aspects of [the] NOPD more broadly troubling than its paid detail system.”3 The DOJ made broad recommendations for improvements. In response, the mayor of New Orleans directed the police superintendent to completely revamp the department’s paid detail system. The troubled detail system gained further negative notoriety when revelations emerged about the city’s use of off-duty officers to examine traffic camera violations at lucrative hourly rates.
But there are more positive aspects of paid police details, and such arrangements create an avenue for agencies to enhance public safety while under budgetary constraints. This is especially true when police agencies and local governing bodies devote sufficient time and energy to written policies and procedures controlling paid police details. Advocates of paid police details emphasize such details offer a more controlled and uniform means of providing police protection without many of the pitfalls associated with traditional secondary employment. Advocates also urge that paid details enhance public safety by providing a clear, visible police presence at locations and events where officers might otherwise not be present until after something bad has occurred. There is much to be said for these justifications. And, while it is true that there are departmental costs related to paid details, a recent report from the Bureau of Governmental Research (BGR) points out that “departments can price details to cover those costs and generate surplus revenue.”4 While the notion of surplus revenue may be enticing in troubled economic times, it should be noted that such profit making could be used to counter an assertion of governmental immunity in a state nonconstitutional tort action.
If upon balancing the pros and cons a department elects to offer paid police details, there must be departmental policies and procedures in place to minimize risk. Simply stated, if a law enforcement agency is currently using paid details, departmental policies and procedures must be clear and comprehensive. An abundance of departmental control over details is best. Officers’ duties and responsibilities for each paid detail should be delineated and understood. Departments, not uniformed officers, should receive requests for paid details. Departments, not rank-and-file officers, should arrange for staffing, scheduling, supervision, use of equipment, and payment. Supervision should come from police personnel only, and any request for additional police activity from the detail’s sponsor must be approved by police supervisory personnel.
As to payment, the BGR report states that, “placing control of payments in the department eliminates direct cash payments to officers, makes the compensation system more transparent, and allows the department to remove taxes from paychecks. It also prevents officers from charging exorbitant rates for details and enables the department to cover its detail-related costs.”5 Apart from potential civil liability or workers’ compensation, other related costs arise from the use of department equipment, vehicles, and fuel. Concerning overtime, agency leaders must be sure to calculate officers’ work hours cumulatively so as not to run afoul of the Fair Labor Standards Act.
Departmental policies also should take into account officer fatigue by establishing rest periods following a paid detail and limiting the total time an officer can work in a week in a detail capacity. The NOPD Reform Plan would institute a 6-hour rest period following a detail and limit the total time an officer can work in a week in any capacity to 76 hours. The Portland, Oregon, Police Bureau limits all employment to 60 hours and details to 20 hours a week.
As emphasized in both the DOJ and the BGR reports, the best paid police detail policies include
- centralized control and administration of all or most aspects of details;
- appropriate limitations on the types of businesses and events that can hire officers for details, as conflicts of interest must be avoided;
- eligibility requirements for officers seeking to work details;
- limitations on work hours;
- a process for fairly assigning work, ensuring proper staffing of details;
- a fee policy that compensates officers on a standardized basis and covers related departmental costs;
- monitoring and supervision of details (which may vary, based on the size of the event); and
- a written agreement between the department and the entity for which the services are to be performed.
An agency may also find it appropriate for its policies to impose jurisdictional limits (such as limiting details solely to the agency’s sworn jurisdiction) and prohibit law enforcement officers or departmental employees from forming any business that receives compensation from or offers services for details. A law enforcement executive might design a policy to restrict the ability of high-ranking officers to work details, perhaps limiting their roles to supervisory ones and, even then, only in circumstances where the detail will comprise a large number of officers.
Finally, law enforcement agencies that institute a paid police detail system should consider banning details that detract from the status of the officer or the agency or pose a conflict of interest. In this regard, agencies should consider banning details related to private parties, gambling activities, displaying pornographic material, establishments whose principal business is derived from the sale of alcohol, employers under departmental investigation, and events sponsored by persons with felony records. The BGR report points out that bans on secondary employment as “a process server, repossessor, debt collector, bail bondsman, independent contractor of police services, or at a credit agency or towing company” should be considered.6
In conclusion, paid police details are quickly supplanting traditional police secondary employment. Local governments must be aware of and adapt to the change because, in the event of a civil lawsuit arising from a paid police detail, police agencies and their local governing bodies will not avoid liability and will be held accountable. As such, the best way to prepare for any legal challenge is to now ensure that police agencies have policies and procedures in place that can withstand not only legal but, just as importantly, public scrutiny. ■
1See, for example, Law Enforcement Officers’ Bill of Rights, MD Public Safety Code Ann. §3-103(b).
2Lovelace v. Anderson, 366 MD. 690, 785 A.2d 726 (2001).
3United States Department of Justice, Civil Rights Division, Investigation of the New Orleans Police Department (March 16, 2011), 69, http://www.justice.gov/crt/about/spl/nopd_report.pdf (accessed January 17, 2012)
4Bureau of Governmental Research, Moonlighting: An Overview of Policies Governing Paid Police Details (August 2011), 1, http://www.bgr.org/files/reports/BGR--Police_Details.pdf (accessed January 17, 2012).
Please cite as:
John F. Breads, "Is The Devil in Paid Police Details?" Chief’s Counsel, The Police Chief 79 (April 2012): 1213.