Police Secondary Employment: Part II

Note: Part I of this series, which describes the problems and the costs of secondary employment, can be found here.

PART II: THE SOLUTION

By the time December 2005 rolled around, Robert McNeilly knew that he was about to lose his job. Mr. McNeilly had been Pittsburgh's Chief of Police for nearly a decade, but the political winds had finally changed. His old patron, Mayor Tom Murphy, had decided not to seek a fourth term in office, and the mayoral election had been won by Mr. Murphy's longtime rival, Bob O'Connor. Although Mayor-elect O'Connor had indicated, prior to November's general election, that Chief McNeily might be permitted to remain in his post, nobody really believed that. The two men came from different political camps and had experienced trouble working with one another in the past. Instead, Mr. O'Connor would become Pittsburgh's new mayor on Tuesday, 03 January 2006, and it was common knowledge that Mr. McNeilly would be asked to relinquish the helm of the police department shortly thereafter.

Despite his imminent departure, Chief McNeilly had a few items of unfinished business that he wished to accomplish before he became unemployed. Among these items was a plan for the police department to assume control of all "secondary employment" by Pittsburgh's police officers. "Secondary employment" is the department's official terminology for the side jobs that city police officers engage in, providing security for private employers during their off-duty hours. In what was perhaps a bare-faced effort to make his secondary employment policies more difficult for the next mayoral administration to abandon, Chief McNeilly took the step of publicly describing his plans to reporters in mid-December of 2005.

At that point, Chief McNeilly had been pilot-testing his secondary employment ideas for nearly seven months, putting his plan into effect whenever off-duty officers were needed for "… anything requiring special-event, traffic-obstruction or block-party permits". These policies involved two big changes from the way that secondary employment had been handled previously.

First, private employers were required hire off-duty police officers by contacting and going through the Pittsburgh Police Department itself. This was a fundamental change from the past. Prior to this pilot program, these employers would either contact a qualified police officer directly, or would work through a small number of private contracting firms – most of which were owned and operated by a select group of police officers themselves – which recruited other police officers to fill the security needs of their private clients. By having the department take over the role of assigning officers to these secondary employment jobs, McNeilly's plan would essentially force these contracting firms out of business.

On one hand, this move would make the secondary employment process more fair for all police officers, since they would no longer have to rely on personal connections with the operators of these contracting firms to secure an off-duty job. On the other hand, the officers who ran these firms were decidedly not happy about things. One of them, Officer Daniel Novak, would eventually file a lawsuit in Federal court in an unsuccessful attempt to put a halt to Chief McNeilly's secondary employment policies.

It should also be noted that, by taking over the scheduling and billing arrangements for secondary employment, the city was also putting itself into the role handling the officers' off-duty payroll. All wages earned through secondary employment would be paid out via the officers' regular city-issued paychecks, all amounts would be recorded, and all necessary taxes would be withheld. "Under the table" employment – of the sort that played a role in the case of Deven Werling – would become a thing of the past, thus sparing city police officers from the temptation of violating our laws against tax evasion.

The second big change that was brought about by the McNeilly effort was the addition of a "cost recovery" fee that the city would collect from secondary employers. The idea here was for the city to collect a small amount of money from each employer to (finally!) recoup some of the financial costs that these secondary employment details inflict upon city taxpayers. Similar cost recovery plans are a common feature in many police departments, including ones right here in Allegheny County. The County Police, for example, charge secondary employers a whopping 22 percent cost recovery fee for any secondary employment by their officers. Since – as we saw in Part I of this series – these costs to the taxpayer can be rather sizable, and since the City of Pittsburgh had placed itself under Act 47 bankruptcy protection, Chief McNeilly's ideas appear to be a rather sensible attempt to bring in some much-needed revenue and make the secondary employers pay their fair share.

As noted above, these policy changes were not exactly welcomed by the everyone at the Police Department. At the time that Chief McNeilly discussed them with the press in December 2005, Ofc. Novak's Federal lawsuit – filed on 28 June 2005 – was already six months old. The case had been put on hold by the court until February so that everyone could wait and see what the newly elected mayor might decide to do with the secondary employment program. If Mayor-elect O'Connor decided to terminate the program, then there would no longer be any need for the case to proceed.

For its part, the incoming O'Conner administration didn't sound overly enthusiastic about these policies. The Post-Gazette's article about the program noted the following:

Indeed, Mayor-elect O'Connor could opt to do away with Chief McNeilly's plan.

"Bob has a number of questions about the proposal and he'd have to discuss it with the leadership [of the Police Bureau] and the officers," said Dick Skrinjar, Mr. O'Connor's spokesman.

Despite having its enemies and an unclear level of support from the mayor-elect, the secondary employment policy did enjoy a certain degree of backing. During the six-month pilot program, which covered only a limited portion of secondary employment details, the city had brought in $95,000 in cost recovery fees. Those revenues were very important to a city in financial distress, and the Chief's innovations were welcomed by Pittsburgh's Act 47 financial overseers. The plan also helped address a 2004 lawsuit filed by the American Civil Liberties Union, which claimed that, "… the city discriminated in how it tried to recover costs for hiring city employees for special events", such as war-protest marches. By charging everybody for these costs, the city could argue that it was applying these fees fairly and was not discriminating against anyone.

According to the Post-Gazette's reporting at the time, even some police officers – including at least one officer who handled the contracting arrangements for other police officers – were not violently opposed to Chief McNeilly's proposals:

Several officers currently or previously involved in managing details declined to comment. But one who did talk, Sgt. John Fisher, said he had "mixed feelings" about the city's plans. He declined to be more specific. According to a tentative schedule, the Police Bureau will take over Sgt. Fisher's detail March 1.

Sgt. Fisher manages officers working security inside PNC Park and Heinz Field. He declined to say how much he earns by organizing the details, but said it wouldn't be "the end of the world" to lose that work.

On board with the chief's policy is the Fraternal Order of Police, which represents the 418 officers -- nearly half the force -- authorized to work details. No one tracks how many officers manage off-duty work.

Admittedly, these were not ringing endorsements of the secondary employment policy, but they also suggested a willingness to let things proceed. And as far as the Fraternal Order of Police (FOP) was concerned, Chief McNeilly's plans presented some strong potential benefits for the bulk of their membership. The plan would allow all qualified police officers to stay informed about what sorts of off-duty employment opportunities were available, and allow them to take on these jobs without having to endure the messy internal politics of contracting with one of their fellow police officers. The McNeilly plan would also allow the union to negotiate the required wage levels of officers working secondary employment, and thus give the FOP even more control over this lucrative practice. And finally, since the officers' off-duty wages would be coming via their city paychecks, it would be impossible for any of them to evade payment of their required union dues.

Regardless of what the FOP was saying to the press at that time, however, the secondary employment policy was already running into trouble. On 15 December, just days after Chief McNeilly's plan had been reported by the press, City Council was getting ready to vote on a key element of it. At stake was the contract to purchase a $31,000 computer system which would handle all requests for secondary employment made by private employers, advertise the availability of these jobs on the police department's intranet, and allow officers to sign up for these gigs as they saw fit. After lobbying by former FOP president Eugene Grattan, City Council voted against the purchase request, and the secondary employment program appeared to be doomed. It's perhaps worth noting here that there was only one single vote in favor of purchasing this computer system, made by current mayoral candidate William Peduto.

But in the wake of this vote, things started to get a bit ugly at the FOP. As an anonymous commenter described in response to an earlier post:

Council originally voted against it because the former FOP president, Gratton [sic], a friend of Denny Regan and Frank Rende did an end run - council [then] remembered that Gratton was no longer the FOP pres. and changed their vote when the new FOP pres. [Michael Havens] told them he supported it.

Sure enough, just five days later and after what the Post-Gazette described as an "ironing out" of any differences with the FOP, City Council reversed its earlier decision and agreed to purchase the new computer system. It's perhaps worth noting here that there was only one member of council who failed to vote in favor of the purchase at this point, namely blog-wizard and strong supporter of Interim Mayor Luke "Handcuffs" Ravenstahl, City Councilmember Jim Motznik. Despite this lone dissenting voice of "The Gas Thief", things were definitely looking up for the secondary employment program. But there was still a new mayoral administration on the horizon.

On 28 December 2005, just days before Mayor-elect O'Conner was due to be sworn in, Police Chief McNeily was informally told that he was being fired. After a nearly a decade as Police Chief, and with some observers expressing sorrow about his departure, Chief McNeilly left the Pittsburgh Police Department on Friday the 13th, January 2006. He would be replaced, a few weeks later and amid a certain amount of controversy, by Mayor O'Connor's choice for Police Chief, Dominic Costa.

Unlike his predecessor, Chief Costa did not enjoy very positive reviews by those who pay attention to city government. His appointment was widely regarded to be something of a disappointment, and there were significant questions about the quality of his decision-making. But for our present purposes, the real question was whether he would go along with former Chief McNeilly's plans to implement the secondary employment policy.

The answer to this question seems to be a bit confusing. The general answer seems to be, "yes". Chief Costa had, as some kind of unspecified plan, a desire to have the city take over the scheduling and staffing of all secondary employment. But he wasn't willing to go along with former-Chief McNeilly's aggressive timeline in taking over any new secondary employment details, at least not those outside of the ones that were already put under city control during Mr. McNeilly's pilot program. For instance, the McNeilly plan was for the city to take over the off-duty work at Heinz Field and PNC Park by 01 March 2006. But Chief Costa wanted to spend some time understanding the policy and negotiating with the FOP before taking this step. In a deposition filed as part of the lawsuit brought against the city by police officer Daniel Novak (discussed above), Chief Costa had this to say about how he initially approached the secondary employment policy:

Basically what happened was when they changed the order [on secondary employment], I had just taken office, and the order came out of Commander McNeilly. … I went back to the old rule. I'm trying to tell you. When it came out, the new one, and I rescinded it, I just put everything back in place until we were done negotiating and figure out what's – you know.

While Chief Costa may have rescinded the rule about taking over any additional secondary employment details, there seemed to be some confusion within the rank and file about who was supposed to be handling off-duty work assignments. During the pilot program, Chief McNeilly had created something known as the "Special Events Office", which managed the computer system and handled secondary employment for the rest of the police department. This office continued to operate under Chief Costa, and was still charged with handling the same kinds of details that they had managed under the pilot program. But many officers were under the impression that all secondary employment either was or would soon be handled by the Special Events Office. This is clear from Chief Costa's testimony later in his deposition:

For whatever they're looking for [in the way of secondary employment], they will come in [to the Special Events Office]. They have been directed – most officers right now are directing people to come through the Special Events Office. I know when someone asks me for a detail, regardless of what it is, I send them to the Special Events Office. … I think officers are doing it, because they know that [the secondary employment policy] is up in the air. They're not really sure. So they just doing it that way to be on the safe side. … There is no order saying that you have to [go through the Special Events Office], because, again, it's in negotiations on how it's to be done. Some people are just referring [other police officers to the Special Events Office], because I guess they feel that that's the right thing to do.

With so much contrary direction going on, even from the Chief of Police himself, it seems very understandable that few people really understood what role this new office was playing in the department's secondary employment policy. Its future was also pretty unclear.

Back in the newly-elected Mayor Bob O'Connor's office, other things were happening with the secondary employment policy. A source whom I shall refer to as "Ganymede" claims that Dennis Regan, then the mayor's Chief of Intergovernmental Cooperation, was lobbying hard to kill the program. But the economics on this issue were fairly clear, secondary employment was costing the city money, and the city needed the funds that the cost recovery fee would bring in. By March 2006 Mayor O'Connor gave his blessing to continue the program, and (in all likelihood) to take it beyond where it was during the pilot program.

Chief Costa – presumably with Mayor O'Connor's blessing – certainly seemed to be ready, at some unspecified point in the future, to place all secondary employment under city control. He was specifically interested in taking control of the stadium details, but he saw some value in going slowly in taking this step. He was concerned with ensuring that the officers who were assigned to work these details were intimately familiar with how things worked inside of these venues. Here's how he described it in his deposition:

… so far I haven't gotten to the second phase of what I want to do, which is move into the bigger stadiums [sic] and auditoriums [sic], because I think it's important that if you have an arena – when I say "arena", I mean Mellon Arena, the ballpark, Heinz Field, those bigger arenas that have concerts and things like that – that you have officers who are familiar with the interior workings of the complex. Because if you need to get people out, you need familiarization with those types of things for the safety of the general public. That's why I didn't want to step on that yet – or to go into that area yet is a better choice of words, step into that area yet, because I needed to know more about the internal workings and why they need those.

Chief Costa may have been justifiably concerned with these kinds of public safety issues, but he also had a new problem on his hands. In March 2006, the FOP elected themselves a new president, retired Sergeant James J. Malloy. Mr. Malloy apparently did not agree with his predecessor's stance on secondary employment. The FOP filed a grievance against the policy that very month, on behalf of the officers who function as off-duty security contractors.

The grievance didn't get very far. According to Ganymede, the grievance went before an arbitrator a few months later. By early August, the arbitrator had ruled in the city's favor, giving it, "… the right to manage all details and charge whatever rates it chose". At that point, the city's plan was to begin to implement the full secondary employment policy for all off-duty work, starting at some point towards the end of the summer of 2006. Police officers were informed about these changes during their roll calls beginning on 18 August 2006. Letters were drafted and sent to an unspecified number of the larger secondary employers, and it really looked like the full McNeilly plan was going to happen.

But, of course, a tragedy was about to derail things. Mayor O'Connor entered the hospital, his health worsened, and things such as this internal police policy no longer seemed very important to anyone. Soon, the mayor would pass away, and a new mayor would take office. As far as the secondary employment policy was concerned, things were about to take a decidedly different course.

Part I of this series, which described the costs associated with police secondary employment, was posted yesterday. Part III, which will appear tomorrow, will examine the cost recovery plan's fate under Interim Mayor Luke Ravenstahl's administration.