You are the Chief of Police in the Town of Falmouth ("Town"). Three police officers would like to provide private security services to two hotels and a private beach association located in the Town. The private work in question will be provided by the officers outside of the Town's established detail system. The officers would be employed at a rate of between $15 and $22 per hour. Under the Town's detail system, private parties request services from the Police Department and officers are assigned by a rotation system so that all officers have an equal opportunity to work details. You state that some private employers have chosen to hire officers outside of the detail system because they are assured of getting the services of the same officer each time and they need not pay the Town's established detail rate. We note that these officers would not wear police uniforms while engaging in this private work. The officers would assume positions with titles such as "desk clerk" and "security guard."
You have provided us with relevant portions of the Falmouth Police Department Manual which provides the following:
Duty Status - Although officers of the force are assigned specific hours of regular duty, they shall be considered "on duty" at all times for the preservation of the public peace and the protection of life and property, and shall be prepared to take all reasonable police action to accomplish this purpose. All serious matters of public concern shall receive appropriate attention, even though an officer is not on duty at the time.
Can officers in the Falmouth Police Department be hired privately for security related detail work outside of the detail system established by the Town?
Section 23(b)(1) of G.L. c. 268A will prohibit police officers from providing private security services (in Town) outside of the Town's detail system.
The Town's police officers are "municipal employees" for purposes of the conflict of interest law. As such, they are subject to s. 23(b)(1), which prohibits a municipal employee from accepting other employment involving compensation of substantial value, the responsibilities of which are inherently incompatible with the responsibilities of his public office. We have previously held that this provision of G.L. c. 268A seeks to prevent the impairment of a public official's independence of judgment in the performance of his official duties which may result from certain types of private employment. See EC-COI-94-2 (local building inspector may not provide private home inspection services in town by which he is employed because he may encounter situations in the course of his private work where he is legally required to take action as a public official). In 1985, the Commission found a violation of the conflict of interest law where a municipal police lieutenant simultaneously held a private job as an assistant racetrack security chief. The Commission found that where the racetrack relied on municipal police services, the officer's private duties "necessarily impair[ed] the independence of his judgment in the performance of his official duties". In re DiPasquale, 1985 SEC 239; see In re DeLeire, 1985 SEC 236.
In the case of the Town's police officers, pursuant to Department policy, officers are required to take reasonable police action when necessary, even during their off duty hours. It follows that private security employment may impair the independence of an officer's judgment in the performance of his police duties. For example, a situation may arise where a private party employing a police officer to perform private security services desires that the Falmouth police not be involved (because of adverse publicity or otherwise). However, under the Police Department policy concerning preservation of the public peace and protection of property, such a situation may require police action by the officer in question, notwithstanding his off duty status. At that point, the officer would be forced to choose between his public position obligations and the wishes of his private employer. Because an officer cannot anticipate when a situation raising the possibility of divided loyalties may arise, we find that the officers would violate s. 23(b)(1) by accepting private security-related employment in the town in which they are serving as police officers, which is not pursuant to the Town's detail system. See EC-COI-94-2.