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Harris v. City of Colorado Springs12/30/1993
ficers and street cops would not close their eyes to this type of conduct by a fellow police officer, the Court can hardly expect the Chief to do likewise.
Plaintiffs contend that the court erred as a matter of law in these rulings. We disagree.
While not all off-duty conduct will have a significant effect on a public servant's official duties, off-duty conduct can be the subject of scrutiny. See Brown v. City of North Kansas City, 779 S.W.2d 596 (Mo. App. 1989). Thus, as the court stated in Broderick v. Police Commissioner, 368 Mass. 33, 330 N.E.2d 199 (1975), the phrase "relating to the performance of official duties" implies more than matters taking place on duty; it extends to matters of and concerning an individual's fitness for public service.
The United States Supreme Court articulated the higher standard to which police officers are held as follows: "He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer." Gardner v. Broderick, 392 U.S. 273, 277, 88 S.Ct. 1913, 1917, 20 L. Ed. 2d 1082, 1086 (1968). See also Warrensville Heights v. Jennings, 58 Ohio St. 3d 206, 569 N.E.2d 489 (1991). Any inquiry into private conduct must bear a rational connection to the officer's position as a public servant. See Gardner v. Broderick, supra; Broderick v. Police Commissioner of Boston, supra.
Colorado law supports the proposition that off-duty police officers have an official duty to take police action when necessary. See Conley v. Industrial Commission, 43 Colo. App. 10, 601 P.2d 648 (1979); (although police officer was off-duty, his death arose out of and in the course of his employment because he was killed while directing traffic); People v. Rael, 198 Colo. 225, 597 P.2d 584 (1979) (although police officer was finished working for the night and was out of his jurisdiction, he was engaged in the performance of his duties when shot because he was trying to arrest a criminal ).
Further, the Colorado Springs Police Department's General Order 602, entitled "Off-Duty Enforcement Action," gives off-duty police officers responsibility to take police action on matters that may result in personal injury or extensive damage to property.
Here, the passenger in Harris' car admitted that the two were "horsing around" with an on-duty officer. This behavior included driving at high speeds at night, evading the police, accelerating and making quick lane changes in traffic, and generally demonstrating an intent to disrupt the performance of an on-duty officer's duties. The driving conduct also endangered the lives of Harris and his passenger as well as those of the police officer chasing him and other pedestrians and drivers. Under these circumstances, we agree with the trial court that Harris' conduct during this incident bore heavily and directly on his fitness as a police officer to enforce the traffic laws of Colorado.
We note that plaintiffs' brief also includes a general attack on the propriety of the use of polygraphs as a tool in internal affairs investigations. However, the issue whether polygraphs may be used at all in internal affairs investigations was not before the trial court, and thus, we do not address it here. See Varady v. White, 42 Colo. App. 389, 595 P.2d 272 (1979).
Judgment affirmed.
JUDGE PLANK and JUDGE HUME concur.
Disposition
JUDGMENT AFFIRMED
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