Michael Kelly 2016 (2).png

Managing your risk by Michael Kelly

NCACC Risk Management Director Michael Kelly writes a regular column on risk management for CountyLines. With more than 41 years of risk management/ insurance experience, he holds the CPCU - Chartered Property & Casualty Underwriter, ARM-P - Associate in Risk Management for Public Entities, CRM - Certified Risk Manager, ARe - Associate in Reinsurance and CIC - Certified Insurance Counselor Professional Designations. He can be reached at michael.kelly@ncacc.org or (919) 719-1124.  For archives of this column click here.

View All Posts

Dec 15

Developing a moonlighting policy for law enforcement

Posted on December 15, 2015 at 10:13 AM by Todd McGee

Moonlighting is a term generally used to refer to holding a second job outside of normal working hours. Such practice is fairly common within law enforcement ranks. As a county risk manager, recognizing the issues associated with this exposure is critically important. Developing and following a comprehensive moonlighting policy, established in concert with the blessing of your Sheriff, is another example of doing the work on the front end.

It is not my intention to be critical of the deputies – but more importantly to highlight some of the major hurdles in addressing this risk. The goal should be to have a possible solution for this multifaceted exposure before - rather than after - a serious loss occurs.

Moonlighting of county law enforcement staff typically follows three general scenarios: 
  1. One-off, small events – such as a law enforcement presence for crowd control at a private affair
  2. Reoccurring special duty – such as teaching self-defense at a community college
  3. Non-law enforcement based secondary employment – such as working at a convenience store
An off-duty, moonlighting deputy who is injured while working in a non-county secondary job is a real possibility. While it is most important to take care of the injured deputy, the situation can be greatly complicated if an agreement outlining who is responsible for what is not in place up front.

It is generally agreed that, if a deputy is put in the position to exercise their duties as a peace officer – such as having to restrain/arrest an individual disrupting a private affair - once they go into “law enforcement mode” they are on the clock of the county and under control of the county sheriff. However, other scenarios are less clear.

What if the officer is injured during the course and scope of their secondary job, such as turning an ankle walking through a parking lot to get to a High School Football game, where they have been “hired” by the school, primarily for providing a law enforcement presence? Would this be considered a workers’ compensation claim of the county? What if, while teaching a self-defense class, a student participant is thrown to the mat by the off-duty law enforcement officer serving as the class instructor and the participant is severely injured? Would this be considered law enforcement legal liability on the part of the county? 

A review of the NCACC Risk Pools law enforcement-related claims – both workers’ compensation and legal liability losses – has shown that having a moonlighting HR policy, customized and approved by the Sheriff at the individual county level, can go a long way in determining how to best take care of injured parties – be it the off-duty deputy or a member of the public.

In these kinds of occurrences, an HR moonlighting policy that is clear in its intent is extremely helpful. It is surprising how often the potential ramifications are overlooked when the expected delegation of responsibilities are not addressed until after the loss occurs. Establishing up front who is going to be responsible for what is the best course of action and defines both the hiring outside party as well as the participants’ original intent. 

At present, there is not a “standard” in actual practice among the sheriffs in the State. The challenge is to develop a policy that works, that is only as detailed as needed, and of course that has the approval of the sheriff. One size truly does not fit all circumstances – and a customized approach formulated for the specifics at hand is the best solution. 

At its recent planning retreat, the Risk Management Pools’ Board of Trustees opted to approve the development of a project to address this issue. Similar to the Human Resources Legal Helpline, which was rolled out at the beginning of this year, the Risk Pools have contracted additional HR legal resources to allow Risk Pool members access to legal help for the development of a county-specific law enforcement moonlighting policy.

This new project’s initial moonlighting HR policy template has already been developed. Starting from this basic outline, the future plan is to allow Risk Pool Members to discuss their specific circumstances with our already established HR legal counsel and implement their own customized, law enforcement moonlighting HR policy, at no additional initial cost to the county risk pool members. 

At present, a budget is being finalized for this project with specifics to follow after formal approval of same at the December meeting of the Risk Management Pools’ Board of Trustees. More details are to follow, but I wanted to make our membership aware of this anticipated future additional risk management service and our expected rollout target date of Jan. 1, 2016. We expect this to be a welcomed new service that continues to underscore the additional value in being a member of the NCACC Governmental Risk Pools.