04/25/2006

Denver: City can be liable for off-duty officers

Karen E. Crummy Denver Post Staff Writer

Copyright 2006 The Denver Post
All Rights Reserved 

Denver police officers may rack up extra cash working off- duty jobs, but it's taxpayers who pick up the tab when something goes wrong.

From 2001 to 2005, workers' compensation payments to police officers cost the city $12.6 million. City officials acknowledge they aren't sure how much of that money went to officers who were hurt working off duty.

The potential cost to taxpayers doesn't stop there. If an off- duty officer injures or kills a civilian, the city may be liable for millions.

Unlike Denver firefighters or sheriff's deputies working off- duty jobs, police officers are considered to be on duty 24 hours a day, seven days a week. Therefore, even when they are not officially on the city clock, officers collect workers' compensation if hurt while exerting their "police authority."

The chances of something going wrong rise when officers are fatigued, experts say. In Denver, a number of officers are putting in hundreds, and in some cases more than 1,000, off-duty hours a year, according to a review of department records.

Those chances climb even higher when officers work in bars and nightclubs.

"The presence of alcohol often leads to a higher propensity for violence and an increased risk for altercations," said Michael Scott, a former police chief who is now a professor specializing in police matters at the University of Wisconsin Law School. "A municipality accepts certain risks by allowing officers to work extra hours, and in certain places."

The city is self-insured, so judgments, settlements and workers' compensation claims are paid out of the general fund.

From 2003 through 2005, the city paid out $4.2 million for accidents, settlements and litigation concerning the Denver Police Department. Just as in the case of workers' compensation claims, city officials have never undertaken a study of the cost of liability payments arising from off-duty work. How much the payments have cost taxpayers is unknown.

City Attorney Cole Finegan, however, said claims are handled on a case-by-case basis.

"For each workers' comp claim, there is an adjuster assigned to determine if it's legitimate," he said.

City Council members and community leaders have called for a review of the system at least twice in the past few years. The first case was after the 1996 shooting death of Jeff Truax by two off-duty police officers working at a nightclub. His family sued the city and was awarded $500,000 by a jury, eventually settling for half of that to avoid an appeal.

The issue came up again last year when Denver Detective Donald Young was killed and Detective Jack Bishop was injured while working security at a party at the Salon Ocampo social hall. Young's family will receive monthly payments that will total $1.4 million over the next 40 years.

But a full review of the system has never been carried out.

"I've been saying that we really need to look at this, but no one ever wants to because it's a political hot potato," City Councilwoman Elbra Wedgeworth said. "When we're talking about city budgets and shortfalls, we need to discuss our assets and liabilities, including this issue."

Mike Mosco, head of the Denver police union, said employers that hire off-duty officers must sign contracts accepting liability if the officer suffers an injury that isn't related to police action.

"If you slip and fall walking across the bar, the city isn't responsible. But if an officer takes official action, the city is always responsible," he said.

Denver police officers are permitted to work off-duty but are not supposed to work more than 64 hours a week. That time includes regular shifts, overtime and off-duty hours. Denver Police Chief Gerald Whitman, however, can make exceptions for officers to work a total of 72 hours a week.

After department-administered overtime, the biggest employers of off-duty officers are bars, clubs and other sites that serve liquor. While a few cities, such as Atlanta and Boston, allow police officers to work at liquor establishments, many other large cities - Los Angeles, New York, Chicago and Seattle - do not.

Some cities don't like the image associated with police working in bars; others see a potential conflict of interest because officers may be torn between enforcing the law and looking the other way for their private employer. Still others worry about an increase in injuries working in that kind of environment.

Curt Sims, owner of Beyond Nightclub in Denver, said he likes to use police officers because they are a deterrent and are able to discreetly handle problem situations by calling the department directly.

"Could I do without them? Yes, but I don't want to," he said.

Some Denver city officials have questioned whether there are officers hurt while working off duty who file claims saying they were injured on the job.

Overall, the city paid out $49 million in employee workers' compensation claims from 2001 through 2005. One-quarter of that - $12.6 million - was for the Denver Police Department. The top claims were for strains, slips and falls, according to city records.

Those claims include more than $42,000 paid to an officer who was working off duty doing traffic control for a private contractor when her car was hit by a drunken driver. Her case is still open.

The city does not track the number of claims filed for injuries occurring off duty during police actions.

Because of their 24/7 on-duty status, police officers who are injured off duty are treated differently than other city employees, including sheriff's deputies.

Denver Deputy George Gatchis was off duty in November 2004 when he tried to save a baby by running into a burning home in Aurora. Because he wasn't on duty at the time, his workers' compensation claim was denied. Friends and co- workers with the police and firefighters union raised money to pay his medical bills.

Long hours working overtime and off-duty jobs are also sometimes considered a liability risk.

Bryan Vila, a former police officer and professor who wrote the book "Tired Cops: The Importance of Managing Police Fatigue," said officers' schedules are often inconsistent and overwhelming. Long days that often start early, end late and vary from one day to another can cause poor decisionmaking and hand-eye coordination problems.

"It's a health and safety issue for the officers and others," Vila said. "The risk has to be managed effectively or else there can be an increase in injuries and workers' compensation claims."

Cities do have other choices, said Scott, the Wisconsin professor. Some cities run off-duty police work entirely through the department, including payment, and charge a fee to private employers that is payable to the municipality. Those fees help offset injury and death benefits, he said.

"The smart way to approach it would be to build in a fee with the cost of hiring off-duty officers," he said.

Former City Councilman Ed Thomas proposed in 1998 requiring officers or their off-duty employers to buy insurance that would assume some liability, much like malpractice insurance for doctors and lawyers. The proposal created a political nightmare for City Council members, who chose not to adopt such a plan.

Staff writer Karen E. Crummy can be reached at 303-820-1594 or kcrummy@denverpost.com

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