You are the chief of police for a Town (Town) which has a population of less than 2000. The police force consists of seven part-time reserve officers, all of whom have either full-time jobs or other commitments which make them unavailable during the week. You work an eight-hour shift each day, Monday through Friday, and you vary your hours from day to day for tactical reasons. On occasion, private businesses doing work or organizations sponsoring functions in the Town seek a police officer to work a private detail, usually directing traffic or providing security. You often are the only police officer available to work these details. On the occasions when you work a private detail, the private business or organization is billed by the town for your services, and the town then pays you pursuant to the provisions of G.L. c. 44, § 53C. You are paid at the same rate a reserve police officer would be paid for working a private detail. When you work a detail it is done outside of your normal shift. In the event that police business arises while you are working a detail you do one of two things: you either request that the police department for one of the neighboring towns or the state police cover the matter, or you make an arrangement with the entity for which you are working the detail which permits you to leave if you are needed elsewhere. In the event you are required to leave, and if your leaving creates a hazard such as a traffic hazard, the work crew must stop the work until you return.
Does G.L. c. 268A permit you, as chief of police, to be paid for working private details?
Yes, subject to the following restrictions.
As police chief for the Town, you are a municipal employee and, therefore, are subject to the provisions of G.L. c. 268A, the conflict of interest law. The sections of the law that are applicable to your question are §§ 3 and 23.
Section 3(b) prohibits a municipal employee, otherwise than as provided by law for the proper discharge of official duties, from directly or indirectly receiving anything of substantial value for himself for or because of any official act or acts within his official responsibility performed or to be performed by him. In previous opinions, the Commission has held that a fire or police chief may not be paid for performing private detail work. See e.g. EC-COI-85-65; 85-64.[1] The opinions were based on the fact that fire and police chiefs' responsibilities require them to be on call twenty-four hours a day and include ultimate supervisory authority over subordinate officers who are working private details. Thus paying them for working details was tantamount to paying them for performing supervisory work which was already required of them by their jobs. Another factor in the Commission's prior decisions was the fact that the police and fire forces were of sufficient size that other officers were always available to work the details.
Your situation is distinguishable from those previously addressed by the Commission in that you are the only full-time officer on the force and, therefore, the only one who is available at times to work details. Thus the flexibility that is possible with a larger police force is not possible in your situation. In addition, when you are the only police officer available to work details, you are not performing acts which are the subject of your official responsibility since you are not supervising any subordinate officers. The Commission has the responsibility of interpreting the conflict of interest law, and in doing so it is required to give it a workable meaning. See EC-COI-84-98; 83-114. Bearing this requirement in mind, the Commission concludes that you may be paid for working private details provided that all of the following requirements are met:
- You may only work a private detail when no other Town reserve officer, officer in a neighboring, community, state police officer or constable is available to work the available detail.
- You must have made a good faith effort to determine that none of these officers is available for the detail.
- You must continue to be paid at the same hourly rate as the reserve officers, and you must continue to be paid pursuant to the provisions of G.L. c. 44, § 53C.
- You may not be paid for working any private detail when any of the reserve officers are also working details because at those times you would also be performing your supervisory function as chief of police.
To reach a different conclusion and prohibit you altogether from being paid for working details would be unreasonable. It would effectively prevent events which are required to have police details from being held, such as events which have been issued permits by the Town's licensing board conditioned on the presence of a police detail. It would also result in delaying the work of various utility and road repair companies because no one would be available to provide traffic control.
You should also be aware of the provisions of § 23 of the law which are applicable to all state, county and municipal employees.[2] Section 23 prohibits a municipal employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. It also prohibits the employee from, by his conduct, giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties. In this regard you should be careful that you do not orchestrate your police force's duty assignments so that you are the only one available to per-form detail work. Nor should you arrange your own work hours expressly for the purpose of making your-self available to work details. You should also be careful that your official actions are not influenced by the fact that you may also have a non-official working relationship with the people for whom you perform detail work.[3]
End Of Decision
