Does a New York city police officer who is hurt while moonlighting as a security guard at a city recreation center get General Municipal Law § 207-c benefits?

Plain-English summary

The City of Auburn paid its police officers, on a moonlighting basis, to serve as security guards at the city's recreation center. The officers were not recruited because they were officers; they took the gig as part of a general off-duty employment opportunity offered to city employees. They received a separate paycheck, were treated as independent contractors with no tax withheld, and still carried their city-issued guns and badges because Auburn required officers to do so off-duty. The corporation counsel asked the AG whether these officers were eligible for GML § 207-c benefits if injured while doing the security work.

The AG said generally no.

GML § 207-c is a robust benefit. Members of a police force in a city under one million are entitled, when injured "in the performance of his duties" or sick "as a result of the performance of his duties," to full salary or wages until disability ceases, plus medical and hospital costs. GML § 208-d authorizes extra employment of up to twenty hours a week with department approval.

The Court of Appeals in In re Balcerak v. Nassau County tightened the eligibility test in 1999. § 207-c benefits were "meant to fulfill a narrow and important purpose": compensating specified municipal employees for injuries from "special work related to the nature of heightened risks and duties," tied to "the criminal justice process, including investigations, presentencing, criminal supervision, treatment and other preventative corrective services." That's the test that controls coverage.

Applying Balcerak, the Appellate Divisions had denied benefits for things like correction officers pinned by a sliding door (In re Schafer v. Reilly) or injured by walking into a television (Schafer again) or dispensing soap (In re Sills v. Livingston). These weren't heightened-risk police duties; they were workplace incidents.

The AG drew the parallel to security work. A police officer providing security at a city recreation center is protecting the city as operator of that facility, not preserving the peace or protecting lives and property as a police officer. People v. Peters describes the police role in terms of those public-safety functions; protecting the city's interest in its recreation facility is different. The fact that security guards at the recreation center don't have to be police officers further confirms the distinction. So does the payment structure (independent contractor with no tax withheld), which signals that the city itself treats the security gig as separate from the police role.

The AG hadn't said anything new. Op. Att'y Gen. (Inf.) No. 81-52 had reached the same conclusion for an off-duty officer providing security for a private employer who leased city property. § 207-c didn't apply to security guard work even when the venue was city-owned property.

The exception. A police officer doesn't shed his peace officer duties when off-duty. Auburn officers were required to carry their guns and badges. If, while staffing security at the recreation center, an officer encounters someone subject to arrest under warrant and is injured arresting that person, that's police duty, and § 207-c might attach. The 81-52 opinion had hypothesized exactly that. In re DeBoer v. Hynes had recognized coverage for an off-duty officer injured making an arrest.

Pending legislation. Two bills in the 2003 session would have removed the "heightened risk" limitation from § 207-c, expanding coverage to any injury in performance of duties. The AG flagged them but did not analyze what the result would be if they passed.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does GML § 207-c cover for police officers?
A: Full salary or wages plus medical and hospital costs for police officers injured or made sick "in the performance of his duties," for cities of less than one million and other specified municipalities. The Court of Appeals in Balcerak read "performance of his duties" narrowly: heightened-risk work tied to the criminal justice process.

Q: Does GML § 208-d affect this analysis?
A: § 208-d permits members of a city police force to take up to twenty hours a week of extra employment outside regular duties, subject to non-interference, fitness, and department approval. It doesn't extend § 207-c benefits to that extra employment.

Q: When can an off-duty officer doing security work qualify for § 207-c?
A: If injured while performing heightened-risk police duties that arose from the off-duty assignment. The AG's example: an officer who recognizes a wanted person at the security post and is injured arresting them. The DeBoer case recognized coverage for an off-duty arrest injury.

Q: Why did the AG treat the Auburn arrangement as non-police work?
A: Because the officers weren't recruited as officers; the gig was offered to city employees generally. They were paid as independent contractors. The role was protecting the city's interest in its recreation facility, not preserving the peace. The fact that security work at the rec center didn't require police credentials confirmed the distinction.

Q: What happened to the proposed amendments to § 207-c?
A: The AG flagged 2003 N.Y. Senate Bill 3904 and Assembly Bill 4635, which would have removed the heightened-risk limitation. The opinion did not address what would happen if they passed; the analysis was based on the law as it stood.

Background and statutory framework

GML § 207-c covers a defined list of municipal officers, including police officers in cities of less than one million population, sheriffs and deputies, certain detective-investigators, and police of various districts and authorities. Municipal security guards are not in the list.

Balcerak set the modern test: § 207-c benefits are tied to heightened-risk duties in the criminal justice process. That narrows the field considerably from the literal text of "performance of his duties." Schafer and Sills applied Balcerak to specific incidents, denying coverage where the injury was not from heightened-risk work.

The off-duty arrest exception runs through DeBoer v. Hynes and the People v. Peters principle that police duty doesn't end at the duty whistle. When an officer's police authority is engaged during off-duty work, the injury may qualify.

GML § 208-d is the moonlighting statute. It permits up to twenty hours a week of extra employment with department approval, conditioned on the work not interfering with regular duties or impairing fitness for duty.

Citations and references

Statutes:

• General Municipal Law § 207-c (injury benefits)
• General Municipal Law § 208-d (extra employment)

Cases:

• In re Balcerak v. Nassau County, 94 N.Y.2d 253 (1999)
• In re Schafer v. Reilly, 302 A.D.2d 394 (2d Dep't 2003)
• In re Sills v. Livingston, 294 A.D.2d 922 (4th Dep't 2002)
• People v. Peters, 18 N.Y.2d 238 (1966), aff'd sub nom. Sibron v. New York, 392 U.S. 40 (1968)
• In re DeBoer v. Hynes, 287 A.D.2d 626 (2d Dep't 2001)

Prior AG opinion:

• Op. Att'y Gen. (Inf.) No. 81-52

Pending legislation referenced:

• New York Senate Bill 3904 (2003)
• New York Assembly Bill 4635 (2003)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-11_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW §§ 207-c, 208-d.

Eligibility of off-duty police officers injured while working security for city-owned recreation center for General Municipal Law § 207-c benefits.

October 21, 2003

Thomas G. Leone, Esq.
Corporation Counsel
City of Auburn
Memorial City Hall
24 South Street
Auburn, New York 13021-3832

Informal Opinion
No. 2003-11

Dear Mr. Leone:

You have requested an opinion as to whether off-duty police officers who work as security officers for a recreation center owned and operated by the City are eligible for benefits pursuant to General Municipal Law § 207-c if they are injured while performing their security work. For the reasons discussed below, we are of the opinion that they generally are not.

You have explained that the police officers who provide security at the recreation center were not recruited for the security work because they were police officers, but instead responded to an opportunity for off-duty employment offered generally to City employees. You have indicated that the police officers are paid as independent contractors, with a check separate from the paycheck they receive as police officers. You further stated that City police officers are required to carry their city-issued guns and their police badges while off-duty, and, as a result of this policy, the police officers have their firearms and their badges with them while providing security at the City recreation center.

Analysis

Pursuant to General Municipal Law § 207-c, any member of a police force of any . . . city of less than one million population . . . who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.

Gen. Mun. Law § 207-c(1). City police officers are authorized to accept employment in addition to their police work, Gen. Mun. Law § 208-d, and the question you pose concerns whether the benefits provided under section 207-c are available for injury sustained during such extra employment.

We previously concluded that an off-duty city police officer would not be eligible for section 207-c benefits if he was injured while providing security for a private employer who leased city property. Op. Att'y Gen. (Inf.) No. 81-52. We so concluded because, while section 207-c provides benefits to a police officer who is injured or becomes sick as a result of "the performance of his duties," a police officer working as a security guard for a private employer would not be "'performing the duties' of a police officer." Id. Similarly, under the facts you have described, we are of the opinion that the police officers hired as security guards for the City recreation center are generally not performing police duties that would make them eligible for section 207-c benefits.

The Court of Appeals has indicated that section 207-c benefits are available for injuries or illnesses incurred only while performing certain police duties. In In re Balcerak v. Nassau County, 94 N.Y.2d 253 (1999), the Court concluded that section 207-c authorizes the provision of benefits only in a narrow set of circumstances:

It is evident that General Municipal Law § 207-c benefits were meant to fulfill a narrow and important purpose. The goal is to compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties. These functions are keyed to "the criminal justice process, including investigations, presentencing, criminal supervision, treatment and other preventative corrective services."

Id. at 258 (emphasis added) (citation omitted). Applying the Court's analysis, state appellate courts have upheld determinations by lower courts that individuals listed in section 207-c were not eligible for section 207-c benefits because their injuries were not incurred "in the performance of special work related to the nature of heightened risks and duties." See, e.g., In re Schafer v. Reilly, 302 A.D.2d 394 (2d Dep't 2003); In re Sills v. Livingston, 294 A.D.2d 922 (4th Dep't 2002). We believe that a police officer providing security in the circumstances you describe would generally not be performing the duties required of him by virtue of his employment as a City police officer, let alone be performing the "special work related to the heightened risks and duties" that would qualify him for section 207-c benefits.

As security guards, off-duty police officers have responsibilities different from those they shoulder when they serve the City in their capacity as police officers. As security guards, their responsibility is to protect the interests of the City as operator of the municipal recreation center. These responsibilities are very different from those imposed while on duty as police officers, which include preserving the peace and protecting the lives and property of citizens. See People v. Peters, 18 N.Y.2d 238 (1966), aff'd sub nom. Sibron v. New York, 392 U.S. 40 (1968). This distinction is confirmed by the fact, as you indicated, that security officers for the City's recreation center need not also be police officers.

Our conclusion that the police officer working as a security guard is serving in a different capacity in that role as opposed to his police officer role is further supported by the method of payment for his services in either role. As a police officer, he receives a regular paycheck, with income tax withheld; as a security guard, he submits a claim to the City for payment, whereupon he receives a check for the time he worked, with no tax withheld.

We recognize that a police officer does not set aside his responsibility to preserve the peace and to protect lives and property while he is off-duty. See People v. Peters, 18 N.Y.2d 238, 243 (1966). Further, you have indicated that City police officers are required to carry their firearms and badges while off-duty. For these reasons, we can envision a circumstance where a police officer could be eligible for section 207-c benefits for an injury incurred while on duty as a security officer. See Op. Att'y Gen. (Inf.) No. 81-52; cf. In re DeBoer v. Hynes, 287 A.D.2d 626 (2d Dep't 2001) (police officer eligible for section 207-c benefits for injuries incurred while making off-duty arrest). Such coverage would, however, be as a result of the performance of his police duties while off-duty as a police officer, and not because he fulfilled his responsibilities to the City as operator of the recreation center while he was on duty as a security guard.

We are of the opinion, therefore, that a police officer who incurs an injury or illness while the police officer is working as a security guard to protect the interests of the City as operator of the recreation center will not be eligible for section 207-c benefits unless he is injured as a result of performing his "heightened risk" police duties.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions