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Moonlighting (Secondary Employment)

     Monthly Law Journal Article: Regulation of an Employee's Off-Duty Activities. Part One - Secondary Employment (Moonlighting), 2007 (12) AELE Mo. L. J. 201.
     Monthly Law Journal Article: 
Regulation of an Employee's Off-Duty Activities Part Two - Secondary Employment (Moonlighting) - Special Issues, 2008 (1) AELE Mo. L. J. 201.

     An intermediate Illinois appeals court upheld the decisions of a Sheriff's Merit Board terminating or suspending seven correctional officers for prohibited moonlighting. They each had engaged in unauthorized work as security guards in businesses engaged in the sale of alcohol. These actions violated departmental general orders and regulations and the plaintiffs failed to seek permission through submitting a request form. Further, one made false statements and another violated a rule requiring him to report, within a year, an accusation that he had assaulted a business patron and stolen from him. The court reduced penalties against two officers, however, as disproportionate. Roman v. Cook County Sheriff's Merit Board, #1-12-3308, 2014 IL App (1st) 123308, 2014 Ill. App. Lexis 554.
     Affirming a lower court holding, the Third Circuit upholds a New Jersey law banning state troopers from engaging in the practice of law. State Troopers Non-Commissioned Officers Assn. v. State of New Jersey, #09-3296, 2010 U.S. App. Lexis 22735 (Unpub. 3rd Cir.).
     Arbitrator finds that management unfairly denied an officer the right to work secondary employment while he was on FMLA leave due to the birth of a child. The city had no policy against moonlighting while taking family leave. City of Warrensville Heights and Ohio PBA, 126 LA (BNA) 1313, FMCS Case #09/54968 (Lalka, 2009).
     Federal court concludes that off-duty state troopers lack a constitutional right to practice law. State Troopers Non-Commissioned Officers Assn. v.  State of New Jersey, #3:08-cv-5326, 2009 U.S. Dist. Lexis 58492, 29 IER Cases (BNA) 703 (D.N.J.).
     Eleventh Circuit upholds the firing of three Florida deputy sheriffs for engaging in sexually explicit conduct, available for "pay-per-view" on the Internet, and without obtaining approval for off-duty employment. Thaeter v. Palm Beach County Sheriff's Office, #03-13177, 2006 U.S. App. Lexis 13308 (11th Cir. 2006). [2006 FP Aug]
     Arbitrator holds that a state agency had just cause to discipline an employee for violating a prohibition on outside employment. However, the suspension was reduced from 10 to 3 days, because a former supervisor had given him permission to do moonlighting in the past, and this contributed to employee's conduct. State of Ohio Bur. of Workers Comp. and Ohio Civil Serv. Employees Assn. AFSCME L-11, 119 LA (BNA) 1121 (Murphy, 2004). {N/R}
     Arbitrator overturns a chief's ban on outside employment as a private investigator. Previously, the grievant had been allowed to perform that work and the bargaining agreement contained a past practice clause. City of Columbus and FOP L-9, FMCS Case #01/07379, 116 LA (BNA) 1672 (Duff, 2002). [2002 FP Sep]
     Third Circuit affirms injunction against a police chief who required subordinates to obtain his approval before appearing as an expert witness in civil or criminal cases, even if uncompensated. Swartzwelder v. McNeilly, #01-1085, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002). [2002 FP Sep]
     Illinois appellate court affirms the suspension of a police officer for a year who failed to inform his superiors about criminal activity of an alderman, who was his client in his off-duty private law practice. Police general order 89-8 specifically prohibits engaging in secondary employment which "would result at any time in a conflict of interest" and prevents police officers who are attorneys from representing individuals who are targets of criminal investigations. Holden v. Police Bd. of Chicago, #1-00-1117, 2001 Ill. App. Lexis 618. {N/R}
     Appellate court sustains a 12-month suspension of a police officer who refused to answer pertinent questions because they were learned in his capacity as a private attorney. Public employees are not free to accept outside work that conflicts with their occupational obligations. Holden v. Police Bd. of Chicago, #1-00-1117, 55 N.E.2d 67, 2001 Ill. App. Lexis 618. [2001 FP 170]
     A deputy sheriff who worked as a private security officer for a residential community, could be fired from his security job for leaving the property, though it was at sheriff's request. Thompson v. Cherokee Water Co., 6 S.W.3d 343, 1999 Tex. App. Lexis 8292. {N/R)
     Appellate court sustains an arbitration award of lost wages from outside employment where the denial of off-duty employment for disciplinary reasons was overturned. Leis v. L-100 Teamsters, #C-981011, 1999 Ohio App. Lexis 4982, 162 LRRM (BNA) 3084. [2000 FP 42]
     Police chief could regulate off-duty employment and the rules did not require prior approval by the County Council. Howard Co. Police Ofcrs. Assn. v. Howard Co., #98-1236, 126 Md. App. 319, 728 A.2d 795, 1999 Md. App. Lexis 93. [1999 FP 134]
     Ohio appeals court holds a city responsible for compensating an off-duty officer who was injured while arresting a shoplifter, even though the claimant was not in uniform, was paid as a part-time security guard, the outside employment activity was not approved, and the city required moonlighting officers or their employers to carry their own insurance. Cooper v, Dayton, 696 N.E.2d 640, 120 Ohio App.3d 34, 1997 Ohio App. Lexis 2495; cert. den., 1997 Ohio Lexis 2848. [1999 FP 110]
     Police chief lacked a legitimate interest in preventing a police officer from conducting a concealed weapon handgun safety course for the public while off-duty. Police chief was not entitled to qualified immunity for violating the officer's First Amendment rights. Edwards v. Goldsboro, 178 F.3d 231, 15 IER Cases (BNA) 333, 1999 U.S. App. Lexis 9088 (4th Cir.). {N/R}
     Appellate court invalidates a police department rule that had not been adopted by the County Council. FOP L-35 v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996). {N/R}
     Officer was required to grieve and seek arbitration when his request for off-duty employment was denied. The bargaining agreement provided a remedy (arbitration) and the dispute could not be litigated in court. McKenna v. No. Strabane Twp., 700 A.2d 577 (Pa. Cmwlth. 1997). {N/R}
     Arbitrator upholds chief's ban on the practice of criminal law by police officers; the possibility of a conflict was real, and the prohibition was a reasonable restraint. Moreover, the failure to promote the grievant because he was a lawyer did not violate the bargaining agreement, which allowed the “rule of three.” Harper Woods (City of) and Police Ofcrs. Lab. Council, FMCS #96-16880-3 (Chiesa 1997). {FP Doc. #5650} [1997 FP 168-9]
     Appellate court annuls chief's order disallowing officer to moonlight as punishment for violating rules on secondary employment. Frat. Ord. of Police v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996). [1997 FP 89-90]
     Illinois appellate court upholds termination of police officer for soliciting private security business; officer had prior disciplinary problems. Eaton v. Bd. of Fire & Pol. Cmsnrs, Hoffman Estates, #1-95-3064, Unreported case {Publishers ref. # 5645}. [1997 FP 40]
     Off duty officers could not use city vehicles while working at their secondary employment positions. Morton v. Bell, 452 S.E.2d 103 (Ga. 1995). [1996 FP 7]
     City was obligated to pay officers for private, off-duty work details, even though contractor failed to pay the city for their work. The arbitrator noted the duty involved traffic control at a construction site, which benefited the town. Winthrop and IBPO L-397, LAIG #5006 (Higgins 1994); 3 (9) Pub.Sfty.Lab. News (LRIS) 9. {N/R}
     Appellate court upholds termination of officer who continued his outside employment in violation of a direct prohibition imposed because of his excessive use of sick leave. Lugo v. City of Newburgh, 618 N.Y.S.2d 420 (A.D. 1994). [1995 FP 138]
     N.Y. state statute regulating police secondary employment preempted conflicting local regulations. Syracuse P.B.A. v. Young, 593 N.Y.S.2d 718 (Sup. 1993). [1993 FP 153]
     N.Y. state statute on off-duty employment did not completely preempt a police chief from regulating moonlighting police officers. Syracuse PBA v. Young, #92-4396, 156 Misc.2d 513, 593 N.Y.S.2d 718, 1992 N.Y. Misc. Lexis 605 (1992). {N/R}
     Divided Kentucky appellate court holds that a Police chief can prohibit outside employment that might cause a conflict of interest or lower the public's image of officers. A governmental agency may lawfully require moonlighting officers "to provide insurance and indemnity for benefit" of the primary entity. Prior approval provision was struck down because there were no standards or appellate procedures. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. Lexis 194. {N/R}
     City could not forbid its police officers from working secondary jobs as deputy sheriffs, without negotiating the new restriction with the union. AFSCME Local 2413 v. Town of St. Johnsbury, #89-40, 12 NPER VT-21060, 7 (3) Labor Lawyer (ABA) 663 (1990).
     Indiana Supreme Court upholds police rule prohibiting secondary employment where alcoholic beverages are sold and consumed. Fraternal Order of Police Lodge 73 v. City of Evansville, 559 N.E.2d 607 (Ind. 1990).
     Federal court upholds police regulation forbidding officers the right to have secondary employment as private investigators. Decker v. City of Hampton, 741 F.Supp. 1223 (E.D. Va. 1990).
     Federal appeals court upholds rule requiring employees to first obtain written permission to engage in secondary occupations; rule even lawfully prohibits unpaid volunteer work in the public interest. A government agency does not violate the Due Process rights of its employees by failing to provide them with any internal interpretations management has constructed on employment-related regulations. Williams v. Internal Revenue Service, 919 F.2d 745 (D.C. Cir. 1990).
     Termination appropriate penalty for corrections officer who moonlighted without permission at a bodega, then lied about the whereabouts of his weapon. Ryant v. Cmsnr., Dept. of Correction, 552 N.Y.S.2d 29 (A.D. 1990).
     Rule regulating secondary employment must be strictly construed before disciplinary action is imposed. Ambiguities will be resolved in favor of employee. Post v. Sioux City Civil Serv. Cmsn., 445 N.W.2d 425 (Iowa App. 1989).
     City could not require off-duty police officers who also worked security jobs to obtain indemnity agreements from their secondary employers for their actions as police officers. Bowman v. Twp. of Pennsauken, 709 F.Supp. 1329 (D.N.J. 1989).
     Michigan appellate court upholds a police department regulation against any outside employment as a private investigator. The court also upheld a requirement that all secondary employment receive prior approval. The court also recognized the potential problems which could arise when a supervisor and subordinates work as partners in a private business. Allison v. City of Southfield, 432 N.W.2d 369 (Mich. App. 1988).
     State statute prohibiting public employees from accepting off-duty employment that conflicts with their public duties did not restrict employer from adding further restrictions. Long Beach Police Officers Assn. v. City of Long Beach, 250 Cal.Rptr. 869, 759 P. 2 504 (1988).
     Federal court allows civil rights suit for interfering with a police officer's secondary employment; political motivation alleged. McNamara v. City of Chicago, 700 F.Supp. 917 (N. D. Ill. 1988).
     Sheriff's prohibition against off-duty employment as security officers is upheld by appellate court. Dake v. Bowen, 521 N.Y.S.2d 345 (A.D. 1987).
     Appellate court upholds dismissal of officer for violating agency's regulations on outside employment. Andrejco v. Penna. Public Utility Cmsn., 531 A.2d 115 (Pa. Cmwlth. 1987). See also: Williams v. City of Pittsburgh, 531 A.2d 42 (Pa. Cmwlth. 1987).
     City must pay death benefits to moonlighting police officer killed by robbery suspect, even though officer was being paid by motel. City of Phoenix v. Industrial Cmsn. of Arizona, 742 P.2d 825 (Ariz. App. 1987).
     Police chief could limit outside employment of subordinate police officers who sought private employment as security guards, to work within that city. Willful disobedience grounds for discharge. Martin v. Mathys, 501 N.E.2d 286, 149 Ill.App.3d 800 (1986).
     Louisiana appellate court invalidates requirements that secondary employers assume tort liability and responsibility for off-duty injuries to police officers. Benelli v. City of New Orleans, 478 So.2d 1370 (La. App. 1985).
     Civil service authority lacked authority to regulate outside employment; board exceeded its statutory authority. Schalz v. McHenry Co. Sheriff's Dept. Merit Cmsn., 482 N.E.2d 127 (Ill.App. 1985).
     Appellate court affirms termination for engaging in outside employment without chief's prior approval. Kell v. Sayad, 670 S.W.2d 82 (Mo.App. 1984).
     Appellate court upholds suspension of off-duty cops who ran “XXX” rated video tape store. Heise v. Gates, 197 Cal.Rptr. 404 (App. 1984).
     Officer's misconduct in wife's private business furnished a sufficient basis for his termination from police dept. Richardson v. City of Omaha, 333 N.W.2d 656 (Neb. 1983).
     City could require its full-time captain to quit his long-term part-time job with sister city. Phillips v. Hall, 447 N.E.2d 418 (Ill.App. 1983).
     City could ban all secondary employment or prohibit a police officer from operating a truth deception testing agency. Borlin v. Civil Serv. Cmsn. of Council Bluffs, 338 N.W.2d 146 (Iowa 1983).
     Operation of outside business could justify termination for unbecoming conduct. Danner v. Bristol Twp. Civil Serv. Cmsn., 440 A.2d 702 (Pa. Cmwlth. 1982).
     Appellate court affirms dismissal of police legal advisor for refusing to divulge information about his private client. Titus v. Los Angeles Co. Civil Serv. Cmsn., 181 Cal.Rptr. 699 (App. 1982).
     Department could forbid part-time officers from working for other departments. Roper v. Borough of Versailles, 436 A.2d 1058 (Pa. Cmwlth. 1981).
     "Moonlighting" without written permission is punishable; possible conflict of interest justifies dismissal. Weisenritter v. Bd. of Fire and Police Cmsnrs. of Burbank, 385 N.E.2d 336 (Ill.App. 1978).
     Off-duty employment -- who is liable for injuries? Court finds city, not secondary employer responsible for benefits. City of Monessen v. Workmens" Compensation Appeal Board, 387 A.2d 1000 (Pa. Cmwlth. 1978).
     Missouri court of appeals sidesteps merits of claim relating to moonlighting; declaratory judgment action inappropriate. Milberg v. Sanders, 524 S.W.2d 441 (Mo.App. 1975); See also: Chigaros v. Murphy, 327 N.E.2d 12 (Ill.App. 1975).
     A police agency has the authority to regulate the off-duty employment of its officers: Cox v. McNamara, 8 Ore.App. 242, 493 P.2d 54, cert. denied 409 U.S. 882 (1972); Flood v. Kennedy, 12 N.Y.2d 345, 190 N.E.2d 13, 239 N.Y.S.2d 665 (1963); Hofbauer v. Bd. of Police Cmsnrs., 133 N.J.L. 293, 44 A.2d 80 (1945). {N/R}

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