Public safety moonlighting rules

October 24, 2017

 

Moonlighting, or working a second job after normal business hours or your regular shift, is a longstanding tradition in this country, whether from a desk job or the factory line, including those working as municipal police and firefighting officials.

 

About half of all American workers moonlight at some point in their lives, according to analysts, with work patterns helping with the government’s ability to track job and wage growth, which are leading economic indicators.

 

According to the federal Bureau of Labor Statistics, in 2013, the latest year with trackable figures, 6.8 million workers in the United States held more than one job. Twenty years before, in 1993, the figure was 7.5 million, although the total number of workers holding a job was lower by 15.9 million. The number of those holding multiple jobs among all employed workers rose from 6.2 percent in 1994, to a high of 6.8 percent in the summer of 1995. It has declined steadily since then, and is now a total of 5 percent of the workforce.

 

“Multiple jobholding is important from a macroeconomic perspective because moonlighting adds millions of jobs to the economy,” the Bureau of Labor Statistics reported. “At the individual level, moonlighting serves both economic and noneconomic purposes. In May 2004, most workers who were holding more than one job reported doing so in order to earn extra money (38.1 percent), to meet expenses, or to pay off debt (25.6 percent).”

 

They noted that as credit loosened during the expansion in that decade, there were fewer people seeking second jobs; as the Great Recession encroached, more individuals sought second, or more, jobs. “Previous research has attempted to correlate moonlighting with the different phases of the business cycle.”

 

It also revealed that many 21st century moonlighters did not fit any specific reliable category, and there is no definitive moonlighter. A significant portion own their own business. Statistics indicate that men who moonlight are more often married, but women who do are more often single, divorced or widowed. 

 

According to the Bureau of Labor Statistics, the occupation with the highest rate of moonlighting outside their own field is firefighter, with 28 percent of them working another job at any one time. Those working in sales, small business owners, nurses, and mechanics also have a high rate of working an extra job, according to the federal government.

Public safety officers – which encompasses a community’s police officers and firefighters, who can often work a few 10-, 12- or even 24-hour shifts at a time, and then often have several days off,  have traditionally picked up extra shifts, or worked other jobs outside of their police or fire departments. Today, with more legal gray boundaries as to their responsibilities when they’re off-duty and an increasingly litigious public, some police departments are saying “no” to certain types of outside work, or are placing constraints as to what kinds of outside employment their officers can pick up when they’re not on the clock.

 

There are numerous reports of police officers around the country who have worked in construction trade jobs, landscaping or snow removal, in teaching, sales, and in particular, for private security firms, even at times wearing their public police uniforms while at their security job. Some large city departments have not only permitted it, such as Los Angeles and New York City, but encouraged it. But in an era of questionable police and off-duty police shootings, increasingly, many local departments are saying, yes, it’s OK to work a second job, with the chief’s prior approval, but no way can they work that security detail. And in most situations, officers can never wear their department uniforms, carry their department-issued weapon, or use their department vehicle when they’re working for someone outside of their regular job. 

 

As there is no law, either federal or state, which provides oversight on the issue of whether public safety officers can work outside jobs and in what kinds of employment nor specific guidance to a department chief, it is up to individual departments to set their own policies and enforce those policies themselves. The Michigan Commission on Law Enforcement Standards, also known as Public Act 203 of 1965, has seen frequent amendments and updating, provides for law enforcement standards, training, disbursements for allocations to local agencies, and if local officers can be employed as private college security officers – which is permitted under specific rules – but does not comment on other private law enforcement work. 

 

Seth Stoughton, assistant professor of law at the University of South Carolina, believes it is imperative that local police departments set written criteria for off-duty police work. He knows from what he speaks, and writes, about – for five years, he was a city cop in Tallahassee, Florida, “and I worked a number of private jobs in uniform, too – in security, at bars, nightclubs, local bookstores, and any number of festivals and fairs that were downtown.

 

“I think it raises some fairly questionable concerns,” he said, which he acknowledged he is more sympathetic to now than when he was doing it, “because if there are weaknesses in the system, it can undermine good policing.

 

“Philosophically, do we want public police officers working for private employers?” Stoughton asked. “Do we want private employees to buy, or at least rent, police officers? If we view policing as a public good, where we think it’s something that can and should be allocated for the public good, the employment of off-duty officers changes that dynamics.”

 

On average, a police officer working in a suburban Michigan department earns anywhere from the mid-$30,000’s a year to he $55,000 - $60,000 annual salary range, said Bob Stevenson, executive director of the Michigan Association of Chiefs of Police and a former chief of the Livonia Police Department. He said in order for a department to be accredited by the Michigan Association of Chiefs, the issue of extra duty employment, or secondary employment, “must be an area they have a policy for.” Stevenson said there are no statistics for how many police officers work a second job, or in what industries.

 

The Michigan Association of Chiefs of Police works for the improvement of criminal justice and to advance the science and art of police administration and crime prevention, and the technical practices and to promote their use in police work, along with as acting as a lobbying organization to seek legislation to benefit the citizens of the state or law enforcement, as well as to encourage the adherence of all police officers to high professional standards of conduct.

There is also the Michigan Sheriffs’ Association, which “permits the 83 Michigan sheriff’s offices to have a single voice in meeting the needs of policing at the county level,” said Blaine Koops, executive director, as they work towards improved, professional standards to better serve and protect the citizenry. They also provide educational programming in trends of law enforcement, support effective law enforcement coverage of traffic and safety, assist administratively with correctional facilities, and act as a lobbyist to support appropriate law enforcement legislation.

 

Police work isn’t a normal nine-to-five career, Stevenson pointed out. “Typically, police work is an 80-hour job over a two-week period, or 84 hours if they’re on 24-hour shifts. Some departments can work straight for several weeks, and then have extended leave of several days off,” he said, which can allow for alternative employment opportunities.

 

Around the state, he said, some officers do work in private security, as school private security officers, at concerts and sporting events, providing security at shopping malls at peak times of the year, and even at houses of worship. “It depends on the department if you can wear your uniform, use the department car and weapon,” Stevenson said. “It depends totally on the department’s policy.” He noted that other officers work in construction trade jobs. “I had an officer one time refinishing floors. As long as it’s not illegal, immoral, or won’t bring discredit upon the department, it’s OK.”

 

The blurring of what is illegal, immoral or of what could bring discredit to a department has become more subjective over time, noted David Peck of the Police Policy Studies Council, who sees the hiring of off-duty police as private security officers as creating legal exposure for businesses and organizations, as well as for their departments.

 

“Security officers must understand the potential issues that can arise when they also hold police powers,” Peck said. “Whether a police officer acts under ‘color of state law’ does not depend on whether the officer is on duty at the time of an incident. Off-duty police officers who either purport to exercise official authority or who exercise actual police authority may be acting under color of state law. If there is a significant relationship between an off-duty officer’s conduct and his or her duties as a police officer, then the officer will be found to have acted under color of law.”

 

“Color of law,” according to U.S law, refers to an appearance of legal power that permits an officer to act, but which may in actuality operate in violation of law. According to the FBI, just because something is done with the color of law doesn’t mean the action is lawful, and when police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating the situation. In situations when an off-duty officer is involved, the “color of law” refers to an act committed by a public official under the appearance of authority – even if they are working for the benefit of another person.

 

It sets up the ultimate “gray” zone of the law.

 

“Whether a police officer acts under color of state law does not depend on whether he or she is on duty,” Peck said. And, “not every off-duty police officer will be considered as acting under color of law simply because he or she is serving in a security position. For example, the courts ruled that a part-time campus security officer who was also a part-time police officer did not act under color of state law in requesting students to appear at a college administrative hearing – it was clear he acted in his capacity as a campus security officer. 

 

“Similarly, an off-duty deputy working security at a racetrack was found not to have been acting under color of state law when he ejected a patron on instructions from the racetrack owner, because he was simply following the owner’s directive, not making an independent judgement as a police officer,” Peck continued. 

 

Rather, the situation for off-duty officers working security gets confusing when there is an injury or a shooting by the security officer who then acts as an off-duty officer, or  a shoplifter is arrested by the security officer – is the individual acting as an off-duty police officer or a security officer? Does the security officer even have the right to shoot? 

University of Missouri-St. Louis criminology professor David Klinger said, “If you’re a police officer, and you see something that is either illegal or could be illegal, you have lawful authority to make an inquiry.” He said that increasingly, federal law encourages the behavior. In 2004, Congress passed the Law Enforcement Officer Safety Act, which permitted police to carry concealed firearms, whether they are on or off-duty, anywhere in the country. It was passed as a post-9/11 anti-terror measure, Klinger explained, over the objections of several national police organizations, who warned that the law would be putting more guns on the streets. 

 

However, for citizens, it can offer a conundrum, because when officers are working second jobs in a form of law enforcement, such as security, for which they’ve gotten approval from their department, they typically wear their police uniform. “This means that individuals perceive these cops as being on duty even though they are working private jobs,” Klinger said. As far as criminal liability, “the color of law,” regarding the nature of the officer’s off-duty might be considered by police, prosecutors, or courts, but ultimately, the law on deadly force “says you’re allowed to shoot when your life is in jeopardy,” Klinger pointed out. Then, whether the officer was on-duty or off-duty, the question will likely be was color of law respected in a fair and judicious manner, with the department having to own it either way if it’s a bad shooting.

 

“As deputies, my officers are encouraged to always be prepared to protect, to have your weapon on you at all times,” said Oakland County Sheriff Michael Bouchard. “If you’re working security and you use your weapon – where is the liability? That’s why we don’t want them doing the job.”

 

If an officer shoots and kills someone while stopping them on the street while they’re “off-duty,” but working in private security, where does the responsibility lie? If someone is employed full time as a police officer, they carry their police powers with them 24 hours a day in their jurisdiction, whether they’re on the job or not, which includes the power to arrest, use force and the power to shoot.

To University of South Carolina’s Stoughton, there can be more subtle conflict of interest situations which can arise. He makes the case of two local bars, one which has hired off-duty cops; the other, which hasn’t. The bar with the off-duty cops, he said, will likely have less of a police paper trail, because if there are issues at the bar, the private officer will handle it quietly, and unless it’s a substantial situation, will not call in local police. The other bar, on the other hand, will have no choice but to call for police support any time a situation arises. 

 

“So that bar will have a substantial record, and it may come back up when it’s liquor license renewal time, and one could lose its license while the other doesn’t,” Stoughton said. “Also, are the officers who are dispatched, and the officers working the bar, going to handle the situations the same way? If I’m working for the bar, I’m going to take the interests of the bar owner into context. If I’m dispatched, my business is the law. Whenever we’re paid by someone, they have the potential to influence our decisions.”

 

West Bloomfield Township Police Chief Mike Patton said an incident three years ago at a West Bloomfield jewelry store, where an off-duty officer was working security when an armed robbery occurred at the store, forced the department to change their policy to allow no conflict of interest and no security work in the township, “because they have law enforcement authority in West Bloomfield even when they’re off-duty. My law enforcement authority is pretty much tethered to my jurisdiction – to the boundaries of West Bloomfield, so you could have some conflicts of interest.”

 

In the instance with the jewelry store robbery, there luckily wasn’t a physical intervention of force, “but there could have been,” Patton said, “so if the arresting officer was involved, are you detaining the criminals as security or as part of the government? We looked at it as, who has liability?”

 

Patton said the township’s department has a policy where any outside employment must be pre-approved by the chief of police; it cannot impede with an officer’s regular work hours, and cannot bring any disrepute or impair the activities of the department. The only security work is when some officers are assigned, within the department, to some extra duty hours at the high school.

 

“They can’t work at any jewelry stores, banks, or as security at any offices in West Bloomfield,” he said. “But if it’s just sitting watching monitors (as a security officer), that would be OK.”

 

He does not permit any township resources or equipment, such as weapons or vehicles, to be used in any off-duty employment. “If someone were approved for some kind of a job with a firearm, they would need to obtain a CPL (concealed pistol license), and carry their own firearm, bullets and other equipment,” Patton said. “But to the best of my knowledge, no one is working in any kind of capacity (currently) where they are needing that. Generally, we have enough overtime available here – making enough money is up to you.”

Bouchard said the sheriff’s department has a policy that is “basically, first and foremost, prohibits anything that uses police power, with acceptable exceptions. You cannot utilize your police powers, like you can’t be a security guard, nor can it be a business that we regulate or oversee. So, if you run a gun shop outside of Oakland County, that could be OK.” But definitely not within the borders of Oakland County, as sheriff’s deputies oversee all county gun shops, and there could potentially be interaction.

 

Bouchard said any second jobs for deputies must be on file as a request to the command staff of the office of the sheriff, must meet their criteria, and must be approved. “It’s a case-by-case review,” he said.

 

He said of those who do hold extra jobs, “some people are artists, some do physical fitness training, some guys do construction jobs, trades, drywall,” he said.

 

He explained the rationale for permitting the jobs that are clearly not a conflict, versus those that could potentially be incompatible.

 

“If you’re hanging drywall, and the lady across the street gets robbed, we want you to run across the street and protect her. That’s always your job,” Bouchard said. He noted that if someone were working at a nightclub and someone were robbed, who would the deputy be loyal to first? “That’s the conflict.”

 

“Any time you go any where, you carry your police powers – if you’re shopping at the mall and you thwart something, if it’s life and limb, you’re sworn to uphold. It’s no different than any other first responders,” said Troy Police Captain Frank Nastasi. “Even though you’re not being paid for 24 hours (of work), you’re representing the department 24 hours. Officers will report any incident where it would adversely reflect upon the department. It’s like a code of ethics – if there’s something, we need to know.”

 

Nastasi said that doesn’t mean a Troy officer can’t hold a second job, but they can’t be in uniform representing themselves as a police officer, nor anything else that could be a conflict with their duties as an officer, and can’t carry their department weapon. “We have rules and regulations for off-duty employment as well as outside work applications through the city administration.” He said officers can’t do any work like bill collectors, processors, bail bondsmen, or work in the medical marijuana industry.

 

Bloomfield Township Police Chief Scott McCanham said their department also has a policy permitting off-duty work with the permission of the chief – “but you can’t be employed as a bartender or anything involved with alcohol, including as a bouncer or as security at a bar. No one could work any other law enforcement or security jobs,” he said. “We also have rules as to the hours they work, which includes nothing on the days of their shifts, and we work 12-hour shifts. It severely limits it on days we work.”

 

McCanham said Bloomfield Township officers typically work three days in a row as well as every other weekend, working seven days in a 14-day pay cycle. He said an average salary for officers with four years of experience is about $70,000.

 

He said currently about 25 percent of the 90 employees in the department have submitted requests for secondary jobs for the year. “We do approve a fair amount of teaching, because of the amount of specialties we do, like expert witnesses, including at Oakland Academy. I teach there, for example,” he said of the police academy. 

 

Many other second jobs are “typical blue collar,” he said, in landscaping, construction or clerking in retail stores.

 

“At none of these jobs could they have their weapons or wear their uniforms. They cannot wear their uniforms in any other capacity or gainful employment other than as a Bloomfield Township officer,” McCanham emphasized.

 

Rochester Police Chief Steve Schettenhelm takes it a step further – Rochester police officers are permitted also to hold second jobs with permission from the chief, but in addition to not being around alcohol or security, “They are not permitted to be around various other establishments, including ones with precious metals, pawn shops, casinos, any place known criminals or police sources are known to congregate,” he said. “They cannot convert or use their police powers. Police officers cannot accept jobs as guards, store detectives, or any other job that converts their police powers. They can’t act as any kind of police officer.”

According to Schettenhelm, who said the city’s policy was established about 10 years ago, an officer could have a weapon on them at another job – it just can’t be their department weapon, and would need to be their own private, and privately licensed, weapon. “The person hiring them would have to understand they are hiring a private citizen with this knowledge, training and experience – but who doesn’t have the police powers like at the police department.”

 

Private investigative work by police officers is a topic that Peter Psarouthakis, owner of EWI & Associates in Chelsea, is particularly passionate about. Psarouthakis, the former president of the Michigan Council of Professional Investigators, said that in Michigan, professional investigators are licensed and governed by legislation.

 

“It’s not ethical, and it’s a total conflict of interest for police officers” to work as professional investigators as a second job while still an officer, he said. He worked to lobby against allowing them to be permitted to work as investigators as second jobs when Public Act 285 of 1965 (Michigan Commission on Law Enforcement Standards Act) was being updated in 1998. 

 

“We believe police officers shouldn’t be licensed as professional investigators if they are actively working in law enforcement,” Psarouthakis said. “If they’re retired, or leave the field, that’s different. We get a lot of people who were formerly in law enforcement. But when we were working with the legislature to update our licensing act, to have members of law enforcement who are active to not be allowed to moonlight, it did not occur because the police unions showed up and fought it hard.”

 

He said the problem is that there are instances of law enforcement officers utilizing information that they could only have gotten by accessing as members of law enforcement – “that no one else has, and is restricted under the law to only law enforcement. Also, some members of law enforcement are required to carry their badges on them at all times – are they investigators or law enforcement when they’re out there conducting interviews for their clients? There are lots of similarities between the work of investigators and law enforcement.”

 

In Royal Oak, that isn’t a problem, as chief Corey O’Donohue said that in addition to security work, he prohibits professional investigating work, working with any business with a Michigan Liquor Commission License, and “nothing specifically prohibits working with medical marijuana, but I have language that prohibits it, and I would not permit an officer to be involved,” he said. 

 

He said there are some departments where a spouse owns a business with a liquor license, such as a party store or a restaurant, “ and we do not obviously have any control over that, but the employee can’t work there,” even in their off hours.

 

“Our officers are scheduled for 40 hours a week, and there’s a fair amount of overtime – some like it, and some don’t,” O’Donohue said, noting that some, such as for Arts, Beats & Eats over Labor Day weekend, “everybody has to work.” 

 

In Royal Oak, he said, not a lot of extra work is approved by him, with the most common request currently is for coaching, such as at the high school level, where coaches are compensated. “It just can’t be in conflict with their shifts,” he noted. 

 

One command officer, he said, has a DJ business, “and he does a great job.” 

 

O’Donohue, along with several of the chiefs, said he is noting that there is a generational shift away from moonlighting. “Our younger officers are less interested,” he said. “My first few years, I worked midnights and laid cement during the day.”

Birmingham Police Chief Mark Clemence has noted the difference among millennial officers, as well. “In the old days, everyone had second jobs,” he said. “I had part time jobs for my first 10 years on the job. I worked for schools, in sales jobs, which were more merchandising, and did insurance adjusting work on cars that had been in accidents. We work a lot of weekends, so you have some days in the week free.”

 

Clemence said Birmingham also has a secondary job policy of no security work or anything related to police work, and only with permission of the chief of police, which can depend on their performance on the job. “I don’t want their part time work to have a conflict with their police work,” he said. “I don’t want them working at a bar or being a bouncer at a strip club.”

 

Of Birmingham’s current 32 officers, he said there are only two who are working second jobs, one as a personal trainer, the other as part of a cleaning business.

 

Bloomfield Hills public safety officers are combined police and fire officers, and work 24-hour shifts. “We work police, fire and EMS in 24-hour shifts,” said Det./Lt. Jeff Gormley, who said the department has a policy, with restrictions, for outside work. 

 

“They’re not allowed to have any other law enforcement work, and are greatly limited in their security work,” he said, noting they couldn’t be a bouncer at a bar, but could be a driver for someone to the airport, but never in their uniform or while using a city police vehicle. He said about a third of their officers are currently working second jobs.

 

“We have the right to carry our weapons in our off hours, but our policies dictate what we can carry it for in our off hours,” Gormley said.

Many firefighters not only have second jobs, but “for the majority, this is their second job,” said Jeff Roberts, fire chief of the Wixom Fire Department who is president of the Southeast Michigan Fire Chiefs Association. “They’re trained to state fire standards and national certification of emergency medical technicians (EMT), but their regular jobs are the same as everyone else’s – they’re construction workers, carpenters, CAD (computer-aided design) designers, electricians, nurses, regional managers, work in retail. They all work about 200 hours a month in their firefighting jobs, including required training, but it’s very community-specific.”

 

Bloomfield Township Chief Mike Morin concurred with Roberts. “This is really their second job,” he said. “We don’t govern what they do on their days off, other than union issues.”

 

He said they typically work nine to 10 days a month, in 24-hour shifts, with a 56-hour week typical. “We’ll work three days on, and have four days off,” he said. “It sounds like we get a lot of time off, and we do, but we’re also working at 2 a.m.”

 

“Under our rules and regulations, they’re allowed to work off-duty employment with the approval of the chief,” said Birmigham Fire Department Chief John Connaughton, but they can’t have a conflict of interest with any other fire department. “That means no fire inspecting. You can’t paint the building that you inspected on the job.”

 

He said traditionally many of the firefighters work in construction trades in their off hours, as electricians, carpenters, plumbers and roofers. Originally, that’s where volunteer firefighters came from in the early 1900s, he explained, “and during the day, they would go back to their regular jobs. As fire jobs became organized and paid, many would still moonlight in the trades.”

 

Connaughton said he used to work at Beaumont and St. Joseph Mercy hospitals in the emergency rooms. “I’d start IVs, give medicines, which were some of the same things I would give out in the field to perfect my skills, besides earning money, and I was learning alongside physicians, which symptoms a physician would consider dangerous or serious, and that way I could bring that information back to the paramedics at the house and teach them,” he said. 

 

While both he and Morin said there are less firefighters working outside jobs, with Morin commenting that with many having two incomes coming in, off-duty firefighters are providing child care to their families, many still work trades, nursing and other work that comes in valuable to their work in the field.

 

“It’s a good thing. Often, on a call, it’s a furnace or plumbing issue. There’s a shortage of trades and a shortage of firefighters,” Morin pointed out. “You won’t get an electrician in under six minutes.” ­

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