MCIT provides coverage for the authorized activities of law enforcement personnel when faced with situations where they must act in their official capacity as law enforcement officers. Whether coverage applies when officers are working another job outside of their full-time jobs (“moonlighting”) depends on the activities that created the basis for the claim.
When Coverage Likely Applies
Liability coverage applies when officers are acting within the course and scope of their employment with the member. Coverage generally applies when the member contracts with another party and assigns officers to perform law enforcement activities under the contract.
This work may include activities where officers are assigned by the member to provide services at an event and the member pays the officers. In this situation, the officers are considered as acting within the course and scope of their employment and coverage would apply.
When Coverage Likely Does Not Apply
When an officer elects to moonlight on his or her own time, generally coverage does not apply. In some limited circumstances, however, coverage may apply. For example if the off-duty officer observes and responds to a crime and a claim arises out of that capacity, the officer would likely be covered. Coverage is always determined on a case-by-case basis after reviewing all related facts.
Even when MCIT has determined coverage is appropriate, potentially a plaintiff’s attorney will argue that the officer’s actions while moonlighting were not within the scope of their duties as a law enforcement officer for the member. If successful, the plaintiff would circumvent the tort cap on damages in state claims. This would also preclude defense counsel from arguing immunities.
More important, if the court determines the officer is not working within the scope of his or her duties for the member, the entity has no obligation to defend or indemnify the officer. Likewise, MCIT would be barred from providing coverage. The officer would be responsible for all costs associated with the litigation.
Workers’ Compensation and Moonlighting
Workers’ compensation claims for officers are also determined on a case-by-case basis. MCIT claim representatives gather facts to determine whether the officer was in the course and scope of his or her employment for the member when the injury occurred and whether the injury arose out of the employment.
The decision regarding coverage may turn on whether the officer was acting in the scope of employment for the member, as an independent contractor or as an employee of a private party from whom he or she received payment.
Recent MN Supreme Court Case
Recently the Minnesota Supreme Court decided a case determining whether a municipality had an obligation to defend and indemnify an employee under Minnesota Statutes, Section 466.07 for a lawsuit that arose out of the officer’s off-duty activities. Section 466.07 requires that a municipality defend and indemnify its officers or employees when they act in the performance of the duties of their position; and are not guilty of malfeasance in office, willful neglect of duty or bad faith.
In the case, a St. Paul police officer was working as a private security guard for a homeless shelter. While acting as a security guard, the officer’s duty was to search the bags of shelter clients as they entered to make sure no weapons, alcohol, drugs or other banned items were brought into the facility.
The plaintiff in the case was a shelter resident who was stabbed by another resident with a knife that was brought into the facility during the time that the St. Paul officer was acting as a security guard. However, the stabbing took place after the officer had left the facility and was working his St. Paul police officer job. The police department’s policy required off-duty work be approved by the department, that the officer wear his uniform while working off duty and allowed the use of the officer’s patrol car with prior approval. The department approved the defendant’s work at the shelter, but it was not a party to the contract.
The victim sued the shelter and the officer for negligence in failing to detect the knife. The city determined it did not have a duty to defend and indemnify the officer because he was not working in the performance of his duties as a police officer.
The city’s decision was appealed by writ of certiorari to the Court of Appeals, which reversed the city’s opinion. The Court of Appeals determined that the officer was acting in a dual capacity as a police officer and a private security guard. The case was appealed to the Minnesota Supreme Court.
The Supreme Court determined that the officer was not acting in the performance of the duties of the position because it did not involve the exercise of the officer’s law enforcement authority.
The officer was not involved in law enforcement activity when he allegedly failed to detect the knife. A police officer has no authority to search a person’s belongings at a private facility without probable cause. Here the officer was contracted to perform such a search. The court concluded that the officer was acting in a purely private capacity at the time. With this decision, the city had no obligation to defend and indemnify the officer.
The case discusses the dual capacity doctrine as it relates to police officers and off-duty employment. The facts of each case are highly important.
Moonlighting and Public Funds
Concerns with the use of public funds related to off-duty officers using member-owned vehicles, uniforms or other equipment either reimbursed for or purchased by the member have led many law enforcement departments to review their policies related to moonlighting activities.
Some law enforcement offices prohibit officers from moonlighting. Others have moonlighting policies that restrict the use of member-owned vehicles, equipment or officers from otherwise representing themselves as member law enforcement officers while moonlighting.
Off-duty employment policies should outline the type of activities officers can perform. The policies should also clearly define restrictions including whether private parties are required to contract with the member for services. Other issues that should be addressed in an off-duty employment policy include:
- Supervision of off-duty or extra-duty employment
- Allowing or not allowing members’ uniforms be worn by officers while moonlighting
- Use of duty weapons while moonlighting
- Expectations for responding to other law enforcement activities beyond what is involved in the off-duty activity
- Administering payroll pursuant to whether the officer is working for the member or for a private party
- Ensuring off-duty employment policies do not affect workers’ compensation claims or benefits that are governed by statute
Members should consult with their legal counsel for more information or further assistance regarding law enforcement officer moonlighting issues.