The Processes of Constraint on Ethical Behavior:

The Operation of Codes, Reforms and Corruption in Off-Duty Police Employment

Stephen W.  Wolf

June 1, 2004

w8iz@w8iz.com

This paper is presented in two parts. The reader is likely familiar with issues that surround off-duty work. Nonetheless, the first part provides a summary of the literature discussion on corruption, reform, and scandal. It speaks to constraints provided by policy and ethics that affect off-duty processes. Should change be necessary, this may provide discussion points from which change can occur. The second part describes and contrasts the methods used by 50 mid-sized police agencies in northeast Ohio in causing off-duty work to occur.

This paper does not suggest one process or one method is superior. No judgment is made. It is presented solely to present a basis in both ideas and implementation from which the reader can consider their own operations.

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Introduction

Off-Duty Services

The Need for Off-Duty Services

Law

Practical Sources of Ethics

Corruption

Reform

The Question—Codes and Reform

Conclusion

Bibliography and References

Introduction

A police officer strives to work in an ethical environment (see Figure 1). This environment is constrained on one side by ethical codes and rules that guide the officer in his or her day-to-day work. On the other side are the constraints offered by reforms. These constraints work to keep out the influences of corruption that invite unethical conduct. A better knowledge of the issues of restraints, reforms, and corruption can provide an insight into ethical and unethical conduct. The topic of off-duty police employment is used as a vehicle to examine these issues.

When a family rents a wedding hall to be used for a wedding, they often find that they must hire someone to provide security for the event. That person is often an off-duty police officer who works the extra hours, above and beyond his police function, in return for the payment made by the party center for his time. Off-duty police employment is rich in ethical (and criminal) content. The organizational structure can also play a part in the ethical dilemma.

While the majority of officers who work off-duty do so in an ethical manner, there are ongoing, highly public accounts of how off-duty employment is fraught with ethical and criminal abuse. Officers are found working two functions at the same time. An officer might be scheduled to be working on-duty but also being paid for the same work by an off-duty employer. While on his/her patrol shift he also collects pay for working security at a bowling alley. Officers compete among themselves for off-duty work. This leads to hoarding and secrecy. Secrecy results in an officer’s ability to hide his activities. Secrecy opens the door for unethical and abusive content. Things which motivate an officer’s agency can be different from the things that motivate off-duty employers. Officers are liable to find themselves questioning the basis of their motives as their payment comes not from their agency, but by a third party. Alternatively, the officer can find himself/herself in a position of negotiating a compromise between the different motivators. Bars need customers to make a profit and will specify off-duty police officers turn a blind-eye as they sell liquor to already intoxicated persons. Officers may become too close to outside agencies which are involved in behavior opposed by the officer’s agency. The officer can become involved in the violations for which he was hired to combat. The administrators also face ethical questions in their interface of the structures of the systems for which they are responsible. Administrators don’t recognize unethical conduct as they themselves came from the unethical culture. Organizations come into play as organizational structures work to help or hamper ethical activity. Agencies treat off-duty abuse as "bad apple in a good barrel" while ignoring the structures that allowed the violations.

Officers exploit the systems to hoard work for themselves at the expense of other officers.

2. Conflict of interest/motivation

Officers, paid by third parties, find divergent loyalties and motivations between those of their agency and those brought by their off-duty employer.

Officers become close to the activities which are incongruent with agency goals and may become entangled in that activity. Officers become intimate with the very people against they battle when on-duty.

3. Nonfeasance

Organizational structures which allow violations are not changed to make further violations more difficult

 

The question arises as to whether police officers should work off-duty. Off-duty police officers are useful to businesses, municipalities, and citizens. Businesses employ off-duty police officers in order to maintain order. The need to hire an off-duty police officer comes from a need to protect property or maintain order. A jewelry store that is moving from one location to another may prefer to hire an off-duty officer who would offer real-time theft protection as the goods are moved. A party center may require that wedding parties hire an off-duty officer so that, as the evening wears on, order is maintained.

There are two alternatives to off-duty police employment that businesses face when security is needed. The first alternative involves providing the services themselves. The second is to hire a private security firm. Neither option is attractive. Hiring a security staff for a limited need is cost prohibitive. The other option, hiring from private security firms, often results in inadequately-trained individuals whose actions reflect badly on the business. Hiring off-duty police officers bypasses the above issues. Hiring an off-duty officer results in costs that can easily be passed on to others (requiring the wedding party to pay for the officers) or can be folded into project costs (the cost of the off-duty officer is included in the cost of moving the jewelry store).

Allowing off-duty employment is good for the municipality itself. The municipality cannot provide services to individual businesses. It cannot pay out of the city coffers for officers to work in a profit-making environment. Requiring police officers (paid by tax funds) to provide services for a party room hosting a wedding would be an improper use of taxpayer funds. The city provides police services and employs enough police officers to cover the day-to-day operational needs. There are not enough on-duty officers to cover the special needs of schools, businesses, and private citizens and still allow them to fulfill their primary, tax-supported mission.

The city can deny or allow off-duty employment. Off-duty employment covers a police-related need with a police employee. That employee is skilled. He or she brings knowledge in the form of familiarity with codes and ordinances, methods of prosecution, and skills in citizen-police relations. Off-duty officers recognize and react to police-related matters prior to the problem obtaining attention by on-duty officers. Officers are technicians who are highly-skilled at the rules and procedures of a complicated process.

The officers benefit from off-duty employment through the additional money they earn. The municipality benefits as those officer’s salaries are supplemented resulting in better motivation. A bountiful array of off-duty jobs secures an officer to a position. There are fewer reasons to take his or her police skills to seek a better opportunity in another location. Keeping the officer negates the need to test, hire, and train another employee.

Law

There is extensive case law which answers many questions regarding the provision of off-duty police employment. Police officers are citizens who have due process protections. Regulations limiting what an officer does must serve a governmental interest. For example, liberty and property concepts of the Fourteenth Amendment give police officers the right to follow a chosen profession free from unreasonable government interference. An agency can expect to have a difficult time justifying a position where it completely prohibits off-duty employment.

The Fair Labor Standards Act works to prohibit agencies from denying overtime for extra duties within the agencies own bailiwick. An agency cannot pay straight-time for off-duty employment at, for example, the agency’s own golf course. Although apparently clear, questions can arise involving, for instance, a police officer working for a private contractor on a state-funded job.

Officers are required to be on-duty and ready to respond to crime twenty-four hours a day, seven days a week. Police officers who, during the course of their off-duty employment, must step in and enforce the law are then considered on-duty. Arguments suggesting that it is the off-duty employer, not the agency, who bears responsibility should action be taken or if an officer is injured are normally found in error. The agency is found to bear responsibility.

Police work exhibits characteristics that define it as a profession. Typical among these features are extensive training, a significant intellectual component, the provision of a valuable service, certification, formation of societies, and autonomy. Professional allegiances then apply to police work; the profession sets rules of conduct that become over-reaching. These rules trump the rules held both by the officer and the rules held by the officer’s agency. These rules are exhibited through regulation, laws, and codes (see Figure 2).

Regulations are statements of morality expressed as a rule. This form of ethical code is prevalent at the agency/organizational level. Figure 3 documents a rules-based code. Figure 4 suggests another form in which the ethics—the rules—are packaged allowing them to be documented, drilled, carried on small cards, and in other ways reinforced to the members of the agency.

The International Association of Chiefs of Police has put together both a model policy and they provide their membership with a Concepts and Issue Paper which deals with writing policy on off-duty employment. These papers examine off-duty employment as a subset of general secondary employment. The model policy puts limits on the type and form of employment. It recognizes the benefits of off-duty work while establishing significant controls on its implementation. While controls are in place in the establishment of the process, little attention is paid to how the process actually works. There are no provisions to suggest better or worse methods in order to insure an ethical end product.

Charter codes are often derived from the Model City Charter published by the National Civic League (2003). The model suggests two entries. The first deals with conflict of interest and the second with a Board of Ethics utilized to make, judge, and enforce ethical decisions. Other agencies codify their ethics into administrative or criminal codes. An example of a codified structure appears in Figure 5. Codifications are often administrative and have little force outside of providing a means for investigation of violations.

The national organization of police officers, the Fraternal Order of Police (FOP), has no formal ethical code. The national FOP represents itself as a union with the primary goal of insuring worker protections through political action. The International Associations of Chiefs of Police, does have an ethical code. Although it is now buried behind more active issues, it becomes the subject of discussion at various intervals. This code is shown in Figure 6.

When discussing corruption, we find the devil is in the details as a scale appears to judge a corrupt act. On one side of the scale the acceptance of a free cup of coffee is not judged (by most) as a corrupt act. At the other end, the payoff to ignore the dealing of drugs is a seriously corrupt act. "At either end of the scale the answer is clear to grown-ups. In the middle, reasonable adults can and do disagree" (Klocars 1983: 335). We see officers work in areas where some (corruptive) actions are used as a tool in a day-to-day police work. Police officers regularly tell versions of the facts that create an environment in which a suspect would find it easier to admit to guilt. Police officers become the criminal’s friend and confidant. They suggest, and often lie, about facts to illicit admissions of guilt. Some suggest that this is corrupt; others, including the profession and the Supreme Court, firmly state no corruption exists. Lies are corrupt; deception is not. The medical field provides a good deal of discussion on how to deceive rather than lie (see Newton 1998, Collins 1997, Bok 1997a, Skolnick and Leo 2001). The application of the same principles can be applied to public sphere.

There are two categories of corruption (Sherman 1974). Constant factors are those which facilitate corruption. The extent of the corruption is then determined by variable factors. Constant factors include the illegitimate use of discretion, low managerial visibility, low public visibility (allowing acts to occur in secret), peer group secrecy, managerial secrecy (managers come from the ranks), status problems (such as low pay), and associations with lawbreakers. Variable factors include community structure that encompasses the police-community conflict, organizational characteristics such as the appearance of leadership, legal opportunities to become corrupt (such as the quantity of vice), corruption controls that are or are not in place or non-existent, social organizations that support corruption, and moral cynicism that stems from the working conditions. While a police officer accepting a bribe is obviously corrupt, where are the police officer’s supervisors who oversee this action? On this department, where was the administration and did they have a duty to both train against and discipline this conduct? What happens to this criminal who offered the bribe? Although the officer is corrupt, corruptive influences can be seen beyond the officer.

The off-duty police function puts officers in harm’s way, both ethically and criminally. Officers work on the "invitational edge of corruption" (Manning and Redlinger 1977: 354). It is in the best interest of the criminal element to gain control over law enforcement. It is worth investing their dollars in the corruption of those that oppose them. Temptation and ability to participate in what others enjoy (seemingly freely) often overcome an officer. An off-duty job can place officers in contacts that lead to relationships that might not otherwise have happened. Some, although it might be argued are benign to an agency, are affective as a married male officer takes up with another woman when working off-duty at a bar. Suppressed markets offer a serious challenge to a police officer as he or she deals with drugs, pornography, prostitution, gambling, alcohol, etc.

A value might be ethical or not depending on where and how it applies. We want the officer to be loyal. Loyalty is an important value. However, when values are applied inappropriately, or outside their ethical constraints, they can become perverted and corrupt. Loyalty is a cherished virtue. If loyalty is extended to the officers friends above the organization, that loyalty then works to establish a code of silence. Loyalty becomes perverted and works to defeat ethical conduct. For a concept to be a value, it must have intrinsic value. It must also have ethical value.

Should the compensation for the work done not be adequate, officers move to other means to make up the shortfall. Inadequate pay can lead to corruption. The officer has accepted a heavy obligation and expects to be fairly compensated. The officer loses the esteem commercial opportunities present. Salaries are fixed. Gary Wamsely gives us his suggestion for a public service creed. In an un-reviewed article, he attempts to formulate a summary of principles. In that creed he speaks of public interest, selfless service, and the challenge of discovering the public good. In that creed, he also directly addresses compensation when he states:

I have chosen my occupation and role, and made my commitment for many reasons but among the more important is a desire to serve my fellow citizens. That desire may or may not have always been my primary motivation but for most people like me it generally comes to outweigh others, and I try to sustain it despite a myriad of pressures and diversion. My choice of occupation commitment does not mean I forfeit the ambition to provide my family with the same things most Americans want. Nor do I consider my choices to be superior in any way to those who have chosen to pursue wealth or other goals, for they may also serve society in their own less direct way. My choice to place public service first is simply a reflection of my personal priorities (2000, p. 3).

Two methodologies to reform exist. In the first, corruption was thought to be a case of bad apples. Remove the bad apples and the barrel is restored. This monolithic culture, fed by supervisors who come from the same culture, is challenged by newer policies that see corruption as something more complicated. We must correct the employee. We must correct the employer. We must promote integrity. We correct the employee most efficiently by tight supervision and discipline. We correct the agency by holding it accountable as well.

Scandal opens the door to the possibility of reform. It can be argued that little will occur without scandal. Without scandal, all that happens to correct behavior is that the bad apple will be removed from what is believed to be an otherwise good barrel. Scandal can allow reform that will have a genuine effect. Scandal breaches the secret. It lays bare information otherwise held hidden. Scandal defeats a resistance to control. Scandal provides effective punishment where otherwise such punishment would be ineffective.

Reform can have unintended consequences. Reform itself is not free of ethical complications as civil liberties are lost in the new controls. Public perception suffers with the reformed. Officer resentment may occur. Officers, now deprived of a standard of living, may become more corrupt.

A central tenet to correcting the agency must lie in the officer being responsible not only to his or her own ethical conduct, but for the conduct of the organization as a whole. The officer cannot sit quietly while corruption goes on around him. Yet our ethical codes proclaim only the need for the officer to act ethically. They do not suggest that the officer is also corrupt by maintaining silence in the face of corruption. The need for whistle-blowing is missing in ethical codes.

Reform can be compartmentalized. Packages such as "civilian review boards", "community policing", or "consent decrees" provide pre-defined change. Models such as administrative orthodoxy (which tightens Weberian controls) are instituted as a package.

Most police officers are neither immoral, unethical, nor are they criminals. Something, somehow comes together to allow the far majority of police officers to ethically and morally complete their day of work. It is possible that ethical codes impress upon them the need to live up to the expectations of the public. It is also possible that some organizations, through luck or through some better selection process, found themselves with only ethical officers. It is also possible, and probably more likely, that some organizations are reformed and structured in such a way as to create an ethical environment that foments ethical behavior.

This is not addressed. Are there organizational differences that would allow an officer a better chance at maintaining ethical behavior? Answers to this question may lead to the identification of processes—ways of implementing a goal that is different in one organization than it is in another. Processes may lead to other structures yet untried that may prove valuable to maintenance of the ethical organization.

Police agencies, at this point, have not studied the way in which off-duty police work is provisioned. It is a minority of off-duty police employment that comes to scandal and subsequent reform. Police organizations that ethically provide services may have put into place ethical structures that cause the needed moral environment that foments ethical conduct.

I asked questions of 50 similar sized agencies belonging to the Cuyahoga County Association of Chiefs of Police that would allow investigation as to how (a variety) of departments use codes and reforms to provision ethical behavior in off-duty police employment. The questions relate to:

1. Reforms (how work is provisioned);

2. The existence of codes; and

3. What changes would those in charge like to see occur.

 

The Cuyahoga County Police Chief’s Association was formed in 1926 to allow agencies in the metropolitan Cleveland, Ohio area the opportunity to improve the delivery of criminal justice in their agencies. Over time the communities changed as much as the profession, but the organization continues to provide opportunities for networking, advancing the profession, and keeping the members informed of new ideas. It was through this agency that a survey of 50 similarly-sized member departments was undertaken to determine the issues that surrounded off-duty employment.

Issues

In the provision of off-duty work, the issues facing the departments were not solely those surrounding ethics or the restraint from illegal behavior. To be sure, the need for constraint provided the impetus to address the topic as an administrative concern. It was found that other activities must be undertaken.

The work must be done properly. The officers must be constrained against illegal and unethical behavior. Impugning on this task are other concerns. Concerns about where the officers are allowed to work within the city must be addressed. Universally, officers are prohibited from working at locations, such as strip bars, where their presence may sully the image of the department and the city. In badly paid departments, the decision to allow officers to work outside the city has been made to allow a better rate of pay that enhances the value of the underpaid position. Constraints about where they can work outside the city then becomes an issue. Other concerns revolve around officers who work in non-police jobs such as teaching. Of great concern are the problems faced when an officer is injured on the off-duty job. Some agencies maintain that the Ohio Worker’s Compensation issues lie with the off-duty employer and emphasize this through contracts signed by both the department and the off-duty employer. Others maintain that Ohio Worker’s Compensation will revert to the police department as the officer is working under color of his/her office; there is no way to break the causal connection between the police officer and the employer. The Ohio Bureau of Worker’s Compensation offers little assistance to the departments as the legalities of a situation depend on the situation itself. The last issue is fairness in the division of labor. Methods must be in place to insure that each officer has an opportunity to participate. An unfair system injects arguments that draw attention away from matters more important to the proper implementation of an off-duty system. The system must be fair.

Off-duty work is implemented in one of two ways. In one way the officers control the work. A job comes into a department and is either assigned or finds its way to an officer who then sees it is accomplished. In all cases, work entering the department is analyzed and approved by administrative staff. Once that is accomplished, the work is no longer in the direct purview of the administration.

The second method of implementation involves a centralized control point that filters the job with respect to appropriateness. He or she then makes the work available. This appointed officer acts as a contact to both implement the work and to adjust grievances between off-duty employer and the working officers.

The appointed officer is often a high-ranking member of the department such as a Commander, Captain, or Executive Lieutenant. Given the tedious nature of the task and the need for ongoing conflict resolution, the fact that the job was not staffed or off-loaded to lower levels speaks to its importance. The control officer causes the list to be posted where it is picked either by seniority or on a first-come-first-serve basis. Most agencies have limits on how many hours an officer may work.

Most agencies off-duty processes are ones that have existed over time and have been handed down through generations of officers. Change, when necessary, is incremental rather than encompassing. The cause for change is most often scandal. Most agencies have codified their off-duty process into rules or standard operating procedures. In like manner, ethical codes exist across departments but, although present, are lost in the noise of administrative concern.

In the midst of normalcy some agencies have unique systems. Two do not post work. The work is assigned to a control officer who bears the responsibility of with insuring that the work is done efficiently. The control officer manually assigns the work from a predetermined list of officers who have agreed to accept off-duty jobs. In an attempt to maintain fairness, one agency maintains an appointed committee from various ranks which maintains control of the work. This committee sets rates and sees that posted positions are filled. One agency off-loads the work from their administrative staff by allowing the election of an off-duty work officer from those volunteering for the position. This person then answers to senior staff. As in the appointed positions, all work comes through, problems are resolved, and work is posted by this person. In response, that person is paid fifty cents for each hour worked. Three departments spoke of labor unions that play an active role in controlling off-duty work and impinge on the rights of management’s role in controlling the work.

One agency suggested the importance of having policy in place. Given no policy, arbitration falls on established practice and/or the reasonableness of the requests before it. Given a policy, the agency is on better footing to argue that it, not the employee, controls police power. Police power is a grant to the agency, not the employee. The agency reserves the right to regulate this power. It will do this through policy or through the decision of third party arbitrators. It is much preferred that power be regulated through policy.

Given the opportunity to change, many agencies would prefer to see off-duty employment run through their payroll department and the jobs treated like other overtime. These same people acknowledge that this would raise the cost of off-duty officers above acceptable limits. A few would like to prohibit off-duty employment of their officers in the role of law enforcement. They would like to see the private market step up to fill the positions by other means. Some agencies suggest they do not have the staff or the time to properly oversee off-duty employment.

This survey suggests that those departments who have had to deal with scandal, either public or private, are most lucid in describing the characteristics of commonly found problems. Further, these same departments can articulate many more options regarding problem resolution. No one would invite scandal. But it is scandal that foments discussion. Departments in search of understanding a problem would be well served in contacting other departments who have had scandal, have seen the problem, and seen to its resolution. Regardless of the inquisitor’s opinion of how the scandalized department handled the problem, it is the search for alternatives that should drive inquiry.

The agencies interviewed revealed that some handled off-duty employment with relative ease. Unscathed by scandal or turmoil, they relied on tried practices which guide them through the process. Others were marked by scandal or turmoil. Scandal befell them through public or private situations. Turmoil came from employee action and demands. Either caused the tightening of Weberian controls evidenced through the inclusion of policy and ethical restraints which limit corruptive action. The agencies, when grouped by process, were very similar in the way they allowed off-duty employment and the methods used to constrain improper behavior. The institution of controls was effective in restraining further problems. Once an agency instituted policy, the problems ceased. Given these findings, it is likely that those agencies without policies will eventually find themselves writing them.

Bok, S. (1997a). Lying and Lies to the Sick and Dying. In Ethical Issues in Professional Life (141-150). New York: Oxford University Press.

Bok, S. (1997b). Lies for the Public Good. In Ethical Issues in Professional Life (150-156). New York: Oxford University Press.

Ellin, J. (1997). Special Professional Morality and the Duty of Veracity. In Ethical Issues in Professional Life (130-137). New York: Oxford University Press.

Kleinig, J. (1996). The Ethics of Policing. Cambridge UK: Cambridge University Press.

Klocars, C. B. (1983). Thinking About Police. New York: McGraw-Hill.

The author is a Lieutenant with the North Olmsted, Ohio Police Department.  He has a Bachelor of Arts in Urban Studies (Public Safety Management) and a Masters in Public Administration both from the Levin College of Urban Affairs at the Cleveland State University.