LACP.org
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Secondary Employment of Off-Duty Peace Officers
As Private Investigators: Nationwide Comparative
Practice and Ethical Considerations
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Arthur A. Jones, J.D., Dr.jur.
Robin Wiseman, J.D., Dr.h.c.

International Human Rights Law and Policy
c/o Los Angeles Community Policing
email to: Arthur@lacp.org

February 10, 2003

To:the Los Angeles Board of Police Commissioners
..........Rick J. Caruso, President

..........Los Angeles Police Chief William J. Bratton

..........Los Angeles Police Protective League
..........Mr. Robert Baker, President
..........Ms. Mitzi Grasso, Vice-President

Announcement of Research Project

Secondary Employment of Off-Duty Peace Officers
As Private Investigators: Nationwide Comparative
Practice and Ethical Considerations

Gentlemen,

In our continuing series of research and publication projects dealing primarily with community policing and social aspects of law enforcement, we are commencing work on a research and publications project that we are convinced will be of benefit to police and laypersons alike.

The secondary employment of off-duty sworn peace officers as private investigators, both armed and unarmed, is rapidly becoming the subject of much public debate. Modern concepts of law enforcement frequently tend to blur the lines between police work and active community support. Sworn officers are asked to expand their jobs to include community teamwork in investigating and solving crimes. They are also preparing for sweeping changes in technique to comply with the rapid deployment requirements of Homeland Security.

At the same time, closer familiarity between individual police officers and neighborhood residents is changing public perceptions of the roles and duties of police officers. If it is known locally that a popular and highly respected officer works while off-duty for a licensed investigator service, then the personal services -and expectations-- of that officer may grow in demand.

On the other hand, the American public has recently become more sensitized to the subject of professional ethics and conflicts of interest by the deluge of cases of corporate wrongdoing, breaches of ethics by accounting firms, and self-serving corruption on the part of chief executive, operating and financial officers of U.S. corporations.

Police forces are not, nor should they be, exempt from public discussion of any and all aspects of secondary employment that reasonably raise questions of ethics, propriety, or conflicts of interest. The sole requirement should be that the public debate on this topic should be objective, factual, complete and impersonal. We are also aware that it is vastly more difficult to shed light on a subject than to shed heat.

The research will be sub-divided into three main areas:

1. Police Department Policies Compared and Contrasted;
2. Legal Issues Arising from Secondary Employment;
3. Professional Organizations of Police and of Private Investigators: Internal Regulations Governing Professional Ethics and Conflicts of Interest.

1. Police Department Policies Compared and Contrasted

In the course of our research, we will solicit or invite policy statements, as well as statistical data, from a broad selection of police forces throughout the country. Some of them will be chosen for their innovative or thoughtful approach to the issues involved. Others will be approached for their unique or extensive experience in the realm of police officers with secondary employment as private investigators.

Of the ten city and county police departments we have thus far interviewed, eight disapprove vehemently of sworn officers "moonlighting" as P.I.s, and specifically forbid their officers to engage in such profitable employment. Three of them cite the inherent danger of "appearances of impropriety" in disallowing the practice altogether. On the other hand, we take note of the position shared by many associations of private investigators, that private investigators can often accomplish better results when working as P.I.s than when working as police detectives, and that the real beneficiary of their secondary employment is the public as a whole. We conclude from that initial response that it will indeed be necessary to establish a broad and objective database in our comparative approach.

Obviously, police departments vary considerably in their policy approaches to the questions raised herein, both as to quantity of detectives accepting secondary employment, if any, and as to the amount of impact the off-duty work may have on police deployment, availability, overtime, and types of crimes and torts most frequently investigated by off-duty police officers.

We have also raised these questions with a number of leading university criminology departments throughout the U.S. Their shared research and parallel studies will be of enormous value to our own efforts.

We will approach police executives responsible for training and education development of their respective departments, as well as those persons responsible for maintaining high levels of professional ethics among sworn officers. For that purpose, a copy of this announcement is being sent to LAPD Assistant Chief George Gascon and we invite his initial thoughts and suggestions.

2. Legal Issues Arising From Secondary Employment

Public concerns over secondary employment of officers as private investigators take several forms. First, many police departments consider the extensive and rigorous training essential to detective work to be a public investment. Where a public employer educates its employees in a specialized, unique and difficult profession, it logically and legally expects concentration of efforts, full-time devotion to the department's mission, and a strong sense of loyalty. The taxpayers also consider their sizeable investment in training, salary and benefits to police officers to create certain expectations of results. Any dilution of the expected return on the investment understandably causes frustration and resentment.

We will compare California statutes regarding licensing and conduct of private investigators with those of other states. Initially, it would appear that many states are more restrictive than California in this regard. California Business and Professions Code provisions (see, for example, 7522, 7527.1, and 7539) focus more specifically on licensing requirements of private investigators than on their ethical conduct. In fact, it is left to the discretion of the licensing board whether to include ethical questions on their examinations, or even to give supplementary examinations containing questions on professional ethics. No education or examination action in teaching or testing for ethical understanding is required by the pertinent statute.

Next, members of the public are evidently concerned with the absence of regulation of potential leaks of privileged information gained through the investigative efforts of off-duty police officers serving as private investigators. There is a legitimate question of the ethical position of a P.I. employed by a criminal or civil defense law firm. If the investigator discovers evidence of a criminal offense, he or she may divulge that information to a law enforcement officer or a district attorney. On the other hand, he or she may prefer to remain silent. If the off-duty officer discusses his or her secondary employment with an on-duty detective, which is conceivable, then a criminal or civil defendant's case could be severely prejudiced without that defendant's knowledge.

In a recent line of cases, the California Supreme Court has admonished the offices of district attorneys quite strongly for their occasional eavesdropping on conversations between defendants and their attorneys in criminal cases. According to the Court, that practice not only violates attorney-client privilege: Because it leaks information about the defense strategy to the opposing counsel, it inherently causes prejudice. Hence, in such cases it is not necessary to prove specific prejudice in an individual case, merely the unmistakable eavesdropping. We will research comparative jurisprudence from a number of state and federal appellate courts nationwide.

Similarly, it is not unrealistic to anticipate that criminal defense law firms might join our colloquy, as several have already signaled that off-duty police officers engaging in private detective work inherently raises problems of "leaks" of defense strategy to the prosecution.

For that reason, we will interview a number of defense attorneys and law school professors nationwide to obtain their informed views on this subject. We will also approach the American Civil Liberties Union for their position.

In the course of our research project, one or more inquiries will be directed to the California Attorney General for opinions on the ethical implications of this type of secondary employment, and for possible ruling on the potential of conflicts of interest.

3. Professional Organizations of Police and of Private Investigators: Internal Regulations Governing Professional Ethics and Conflicts of Interest.

No survey or comparative study would be complete without the complete input of all relevant organizations or associations of participants. Therefore, we will invite all such associations to submit their own policies and regulatory safeguards. We will then compare them with those of other organizations, departments and associations nationwide.

We invite the Los Angeles Police Protective League to submit their policy and practice statement regarding off-duty LAPD officers engaging in secondary employment as private detectives, both armed and unarmed. In a time of relatively high crime rates and in view of the present efforts to expand and augment the numbers of available duty officers, it may appear to many that any moonlighting is too much. It also may reasonably appear to concerned citizens that an authorized collective bargaining representative, such as LAPPL, should encourage more overtime on-duty rather than more lucrative pursuits off-duty.

Finally, no law or regulation can be more effective than the will to enforce it thoroughly and consistently. We will therefore compare the track record of major police departments and associations of private investigators in enforcing what should be very high and demanding levels of professional ethics.

Since any study of this magnitude and scope necessarily requires considerable time to complete, we will publish partial or interim results of our research on the website www.LACP.org on a weekly basis, and as portions of the project near completion.

We ask the public to participate in this project with both anecdotal and statistical or legal data. The final report will credit all those contributors and correspondents who wish their names to be included.

Thank you for your kind attention.

Arthur A. Jones, J.D., Dr.jur. Robin Wiseman, J.D., Dr.h.c.

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--- Arthur A. Jones and Robin Wiseman are international human rights lawyers with legal educations in the United States and Europe. They are consultants and authors on international policing, social policy and human rights, and regular contributors to the forum here at LA Community Policing.

For additional information or a complete list of references, contact:

Dr. Arthur Jones

e-mail: Arthur@lacp.org