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June 22, 2007

Questions Surround Moonlighting Deputies

George Wenschhof

The recent action by Frederick County Sheriff Chuck Jenkins to discontinue the practice of deputies using patrol cars and wearing their uniforms while working second jobs may have opened the door for more questions.

Sheriff Jenkins' stated reason for this policy change was the rising costs of gasoline and the extra wear and tear on the uniforms and equipment. At a time when energy-related costs are spiraling, he felt this was the proper thing to do; however, he did not curtail the use of patrol cars by the deputies for travel to and from home - another popular custom.

Sgt. William Folden, who was his opponent in last year's Republican Primary, has expressed disappointment in this change. He points out that many deputies moonlight at security jobs and that this practice has been going on for years.

Some of the employers of the off-duty deputies have also expressed disappointment. They feel that the presence of a patrol car and a deputy in uniform is an added deterrent to crime.

As is the case in most situations like this, when a change is made to a long-standing practice, both sides typically have good points to their position and this one is no different.

In this instance, it would seem the sheriff has the authority to make the changes in policy that he feels are most appropriate. His reasoned decision was an administrative action based on saving taxpayers' money. Gov. Martin O'Malley, also in a cost-saving move, recently cut back on the size of the state vehicle fleet and curbed many state employees from taking state cars home.

This new policy has brought more attention to this moonlighting practice by deputies and, as a result, many are seeking answers to other questions.

A primary question now arising is who is liable for the conduct of the deputy when they are moonlighting for another employer? Does the use of a patrol car and the deputy working in full uniform, including his weapon, imply he is on-duty with the Sheriff's Department?

The examples are numerous and obvious as to the safety these moonlighting deputies provide. However, occasionally, an instance could also be pointed out regarding a worse-case scenario (police brutality, wrongful personal injury, etc.) in this situation. But the answer is unclear as to who, in addition to the deputy sheriff himself, would bear responsibility for the officer's actions - the employer, Frederick County government, or the state government?

What if the deputy sheriff suffered a debilitating injury as a result of his action while working as a security guard for a private employer? Who has the responsibility in regard to the workman's compensation claim?

Another question asks: "Is it a fair labor practice for private sector security companies to have to compete with uniformed deputies with patrol cars for a job providing private security?"

A "Google Search" on the web revealed that the practice of uniformed sheriff deputies moonlighting as security guards happens all across the state and country and has been going on for some time.

Determining the legality and parameters of this practice appears to have been left up to local and state courts to decide; locating a definitive answer for the state of Maryland was impossible.

Interestingly, a summary conclusion from the Missouri Attorney General dated December 21, 1981, stated: "A deputy may not serve as a security guard in his off-duty hours and receive remuneration from a private entity for such service unless his job as a security guard does not encompass any of those duties which he is obligated to perform by virtue of his position as a deputy sheriff."

This opinion was in response to this question: "Is it permissible for a deputy sheriff to serve as a security guard for a person or corporation in his off-duty hours and receive remuneration for such service over and above his salary as a deputy, which is paid by the county?"

It was signed by then Missouri Attorney General John Ashcroft. This opinion pertained to a Missouri state statute at that time.

It would appear that this moonlighting practice in the State of Maryland may need clarification from our attorney general.

At the very least, county sheriff departments across the state, if not already in place, may find it helpful to have a policy pertaining to deputies moonlighting as security guards.

For the benefit of the deputies and the public, permissible actions by sheriff deputies in regard to part-time jobs in the private sector security field should be clearly spelled out. Sheriff Jenkins recent actions are a move in this direction for Frederick County.

Now that this state-wide practice is in the light of day, let's hope further clarification and guidelines are requested from and provided by the Maryland attorney general.

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