Could South Carolina reserve police officers be paid for private off-duty security work under the 1994 amendment?

Plain-English summary

In February 1995, South Carolina's Department of Public Safety asked whether reserve police officers could receive pay for private off-duty jobs after a 1994 amendment to the moonlighting law. Assistant Attorney General Patricia Petway said the amendment placed reserve officers alongside regular law enforcement officers for private off-duty employment and allowed compensation for that work. She drew a clear distinction: the amendment did not authorize police departments to pay people for their service as reserve officers.

Currency note

This opinion was issued in 1995. 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.

Historical summary

Reserve officers and police departments

The amended provision discussed in the letter allowed listed officers to wear uniforms and use weapons and similar equipment on private off-duty jobs with permission from the employing law enforcement agency and governing body. The writer read references to jobs and employment throughout the statute as consistent with compensation for those private services.

Private employers

The letter discussed an arrangement in which a third party paid officers directly or paid the police agency, which then paid them. Its conclusion concerned compensation for private moonlighting under the statutory scheme, not compensation for reserve duty itself.

Common questions

Could reserve officers receive pay for authorized private off-duty jobs? The 1995 opinion said yes, under the amended moonlighting provisions it analyzed.

Did the amendment let departments pay officers for reserve duty? No. The letter distinguished ordinary reserve service from paid private work and said an earlier opinion denying reserve-duty compensation remained in place.

Could officers use official equipment on private jobs without permission? The statutory provision quoted in the letter required permission from the law enforcement agency and its governing body for the described use.

Background and statutory framework

The opinion compared pre-amendment AG opinions with the 1994 addition of reserve officers to § 23-24-10. It treated terms such as private jobs and proposed employment in surrounding sections as evidence that the amended moonlighting scheme contemplated compensation. It superseded a 1984 opinion to the extent that opinion denied compensated moonlighting, while leaving reserve-duty pay a legislative policy question. The original letter inconsistently numbered the 1994 act in its discussion and conclusion; its analysis concerned the amendment to § 23-24-10.

Citations and references

• § 23-24-10: amended authorization for described private off-duty work.
• Section 23-24-20: reference to proposed employment used in the writer's analysis.
• Bealmer v. Texaco, Incorporated and City of Louisville v. Brown: cited for meanings of moonlighting.
• Gerald v. American Casualty Co. of Reading, Pa. and Perma-Stone Oklahoma City Co. v. Oklahoma Employment Security Comm'n: cited for the meaning of employment.
• Scheff v Township of Maple Shade: cited concerning legislative inaction after an earlier opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-16-1995-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995feb16wengrow.pdf

Original opinion text

T. TRAVIS MEDLOCK
ATTORNEY GENERAL

REMBERT C. DENNIS DUil.DiNO
POSTOFACEDOX 11.549
COWMDIA. S.C. 29211·1.549
TELEPHONE: 803-734-3970
FACSIMILE: 803-253-6283

February 16, 1995

Herny Ray Wengrow, Esquire
Associate General Counsel
South Carolina Department of Public Safety
5410 Broad River Road
Columbia, South Carolina 29210-4026
Re:

Informal Opinion

Dear Mr. Wengrow:
By your letter of January 17, 1995, to Attorney General Condon, you have requested the opinion of this Office as to whether reserve police officers may now be compensated for "moonlighting" for private third party employers under the authority of S.C. Code Ann. § 23-24-10 et seq. (1993 Cum. Supp., as amended by Act No. 411 of 1994). Background This Office has previously addressed the issue of compensation of reserve police officers on several occasions. By an opinion dated February 24, 1984, this Office examined the statutes relative to reserve police officers and concluded that there was no authority to provide compensation to these officers. By an opinion dated November 30, 1984, this Office concluded that there was no authority for reserve policy officers to "moonlight" and be compensated therefor. In 1994, the General Assembly amended the "moonlighting" statute, § 23-24-10, by Act No. 411. That Code section now provides: Uniformed law enforcement officers, as defined in Section 23-6-400(D)(l ), and reserve police officers, as defined

Mr. Wengrow
Page 2
February 16, 1995
in Section 23-28-1 O(A), may wear their uniforms and use their weapons and like equipment while performing private jobs in their off duty hours with the permission of the law enforcement agency and governing body by which they are employed. This Office concluded in an opinion dated October 14, 1994, that the amendment did not authorize reserve police officers to be compensated by their police departments for services rendered as reserve police officers. That opinion did not address the issue of compensating reserve police officers who might "moonlight." Discussion "Moonlighting" is defined as an employee working a job "during hours different than those he" ordinarily works in regular employment, Bealmer v. Texaco, Incorporated, 427 F.2d 885 (9th Cir. 1970) 885, 886, fn. 1, or as "the performance of off-duty employment related to a regular on-duty job ... ." City of Louisville v. Brown, 707 S.W.2d 346, 348 (Ky. Ct. App. 1986). The latter decision recognizes that "[M]oonlighting
•.. is a common occurrence among police officers at all levels of police employment." Id. The General Assembly adopted Act No. 529 of 1978, finding "that the mere presence of uniformed police officers performing private jobs during their off duty hours adds substantially to the security of the public in the State and thus extends the benefits of additional police protection at no additional public expense." § 1 of Act No. 529 of 1978. The act, as codified at § 23-24-10 et seq., provided that law enforcement officers could "wear their uniforms and use their weapons and like equipment while performing private jobs in their off duty hours" with appropriate permission; other provisions not relevant herein were also enacted. In 1990, § 23-24-10 was amended by adding a reference to § 23-23-10( d)( 1) to clarify the definition of "law enforcement officer. "1 The 1994 amendment added "reserve police officers, as defined in Section 23-2810(A)" to those law enforcement officials who were authorized to wear their uniforms and use their weapons and like equipment while "moonlighting." It is acknowledged that police officers who are regular, compensated employees receive compensation for "moonlighting." Since reserve police officers seem to have been given the same status as regular law enforcement officers by their inclusion in § 23-24-10, the question remains whether these officers may likewise be compensated for "moonlighting."

1

Section 23-23-10 was repealed in 1993 by Act No. 181; the relevant reference would now be § 23-6-400(0)(1).

Mr. Wengrow
Page 3
February 16, 1995

I
I

Section 23-24-20 refers to the "proposed employment." The phrase "performing private jobs" appears in §§ 23-24-40, 23-24-50, and 23-24-10. "Place of employment" and "type of employment" are phrases found in § 23-24-50. Such terms seem to connote compensated services, as "employment" generally refers to a "job or services or business for another," Gerald v. American Casualty Co. of Reading, Pa., 249 F.Supp. 355, 357 (M.D.N.C. 1966), or services performed for wages or compensation under a contract of hire, Perma-Stone Oklahoma City Co. v. Oklahoma Employment Security Comm'n, 278 P.2d 543 (Okla. 1954). Your request letter indicates that police officers covered by§ 2324-10 et seq. prior to the 1994 amendment commonly "moonlighted" and were paid by the third party employer either directly or by payment to the law enforcement agency which then paid the officer. Considering all of the foregoing, it appears that the intent of the 1994 amendment was to place reserve police officers in the same status as other law enforcement officers with respect to "moonlighting" or employment at private, off-duty jobs. Compensation appears to be a part of the scheme of "moonlighting" and thus would be permitted for reserve police officers who would "moonlight" pursuant to § 23-24-10 et seq. 2 In reaching this conclusion, it is observed that an anomalous result is reached, in that service as a reserve police officer is not compensated, while performing "moonlighting" services may be compensated. The absence of legislative amendment as to the issue of compensation of reserve police officers per se, subsequent to the opinion of this Office dated February 24, 1984, strongly suggests that the views expressed therein were consistent with legislative intent. Scheff v Township of Maple Shade, 149 N.J. Super. 448, 374 A.2d 43 ( 1977). Such determination as to compensation of these officers is a matter of policy to be decided by the General Assembly, however. Conclusion Based on the amendments to § 23-24-10 made by Act No. 441 of 1994, it is the informal opinion of the undersigned attorney that reserve police officers may "moonlight" at private, off-duty jobs in accordance with § 23-24-10 et seq. and be compensated for those services.

2

Because statutory amendments compel a conclusion contrary to that reached in Op. Att'y Gen. dated November 30, 1984, today's opinion is viewed as superseding that opinion to the extent today's opinion is inconsistent with that opinion.

Mr. Wengrow
Page 4
February 16, 1995
With kindest regards, I am
Sincerely,
1

,tJarW:.itL clJ ·f~

Patricia D. Petway
Assistant Attorney General

PDP/an