Pittsburgh Law Department memo supports fee for using off-duty police

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A memorandum released Monday by Pittsburgh's Law Department counters criticism that a city fee charged to employers for the private use of off-duty police was not properly implemented, but observers say problems remain despite the legal analysis.

A separate opinion concerning a fund that is supposed to be tapped by the Pittsburgh Bureau of Police only for narcotics investigations -- but was used for a variety of questionable expenses including Gatorade, a car wash and personal debt reduction training -- recommends relaxing the rules governing its use.

Both memos went to Public Safety Director Michael Huss and addressed issues raised last month by the Pittsburgh Post-Gazette.

In the case of the cost recovery fee, some questioned whether the add-on -- which brought almost $800,000 into city coffers last year -- was properly legislated.

The $3.85-per-officer-per-hour fee charged to various businesses that hire moonlighting officers was enacted in 2007 to ensure that taxpayers weren't footing the indirect costs of officers' off-duty work. It was written into police policy, but never formally into the city code.

The one-page memo, written by assistant city solicitor Brendan Delaney, cites a section of the city code that authorizes directors of city departments to create a fee schedule "for any other services furnished by any department for the benefit of any private individual or entity."

Mr. Huss said that while he understands the Law Department has provided him with the legal underpinnings to impose the fee, he believes city council still must formally approve it.

"Council needs to act on this one way or the other. They need to set up a trust fund, and they need to legislate a fee," Mr. Huss said.

Legislation to codify the fee and set up a trust fund to collect it is on hold.

Ira Weiss, a longtime municipal attorney who has served as solicitor for Allegheny County, among other entities, said he believes council approval is a necessary step regardless of whether Mr. Huss has the legal right to implement the fee.

"It seems to me that city council has to, at minimum, adopt an ordinance at least explaining how the fee is calculated, referencing this section saying the public safety director can assess and collect it," Mr. Weiss said.

Councilman Patrick Dowd was dismissive of the memo and questioned more generally the ability of officers to moonlight.

"What we are doing in putting those officers out there on secondary duty is, in effect, we're privatizing or leasing their services," Mr. Dowd said. "We're taking a little bit of money for their work. Council actually has to say, 'We authorize that action.' Council has not authorized that action."

Mr. Dowd said he recently told Mr. Huss that the city should cease all police moonlighting until council and the administration come to an agreement.

"The reality is there's no supervision, and if there's no supervision, then we have problems," Mr. Dowd said.

Mr. Huss said putting an immediate stop to secondary employment would be the easy way to handle a complicated issue but not a prudent one.

"I don't think we can wholesale cancel secondary employment without jeopardizing the safety of our residents," Mr. Huss said, citing as an example a utility company that might need an officer to direct traffic at a construction site.

The second memo concerns the Confiscated Narcotics Proceeds Imprest Fund, which was created by council in 1987 for police use and maintains a balance of $30,000. It is meant to receive money the city gets when the police bureau participates with federal law enforcement in drug investigations that lead to asset forfeitures.

Although federal rules say the money must be spent on law enforcement, the original city resolution is narrower and limits the fund's use to "any and all expenses associated with investigations of narcotics violations."

The police bureau has not followed the rules. A March 13 Post-Gazette story detailed questionable expenditures, including nearly $10,000 spent on Gatorade to hydrate officers working the G-20 Summit in 2009.

The Law Department's Mr. Delaney reiterated in his memo that the fund was locally restricted to use for narcotics investigations, although such use is not mandated by federal law.

Mr. Delaney recommended that the city amend its ordinance to make it consistent with federal law and allow for broader law enforcement expenses.

"People in the police bureau actually believed they had the ability to utilize it for any type of police work. I'm not going to criticize every purchase they made or what they did," Mr. Huss said. "I'm just saying that thing needs tightened up."

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Jonathan D. Silver: jsilver@post-gazette.com or 412-263-1962. Liz Navratil: lnavratil@post-gazette.com, 412-263-1438 or on Twitter @liznavratil.


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