[ v56 p1097 ]
56 FLRA No. 195
POLICE ASSOCIATION OF THE
DISTRICT OF COLUMBIA
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
UNITED STATES PARK POLICE
NATIONAL CAPITAL REGION
February 14, 2001
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the Union's grievance, finding that the grievant was injured commuting to work rather than while on patrol and that for the purposes of workers compensation, employees commuting to work are not in the performance of their duties. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The United States Park Police (USPP) force provides primary police protection in various areas throughout the Washington, D.C. metropolitan area, including Rock Creek Park and the George Washington Memorial Parkway. The grievant has been employed by the USPP for 27 years and at the time of the events in question, his duty station was the Edgewater Stables in Rock Creek Park, where he was assigned to a training position in the Horse Mounted Unit, Patrol Branch. Award at 5. His normal duty hours on this assignment were 6:00 AM to 2:00 PM.
The grievant lived in Alexandria, Virginia, a close-in suburb of Washington, D.C., and regularly commuted to and from his duty station on bicycle. Id. His regular commute took him through the public streets of Alexandria to the George Washington Memorial Bikeway (Bikeway), up the Bikeway to and across the Memorial Bridge and up Rock Creek Parkway (Parkway) to the Stables where he was assigned. Id. The grievant used a personal bicycle, not one issued by the USPP, when he biked to and from work, and he did not wear his uniform during his commute.
On April 6, 1998 at approximately 5:45 AM, the grievant was riding his bicycle to work on the Bikeway in Alexandria when he fell off his bike and struck the ground, causing severe injuries to his head and back. Id. The accident occurred approximately 200 yards inside Park Service property and was closer to his home than his duty station. Id. at 7. The grievant was discovered by a passerby and after the police were called, was transported to a hospital. The grievant has no memory of the circumstances which led to the accident and there are no known witnesses. Id.
The grievant utilized all of his sick and annual leave during his recovery, as well as leave which was donated to him through the USPP leave sharing program. Subsequently, a request for a Performance of Duty (POD) Determination was filed on his behalf. Id. After the Agency denied the grievant's claim for POD benefits, a grievance was filed on his behalf. Id. at 15. The grievance was denied at each step of the grievance procedure, including at Step 3, where the Agency found that "`the preponderance of the evidence . . . does not support a finding that [the grievant's] injury was a result of him engaging in or carrying out his employment responsibilities' as a USPP officer." Id. Subsequently, the parties proceeded to arbitration.
The parties stipulated to the following issue:
Whether the injuries sustained on April 6, 1998 by [the grievant] were received in the performance of duty under Section 4-613 of the [District of Columbia] Code [ [n1] ] and regulations of the United States Park Police Guideline Manual, CP-2, for Performance of Duty and Administrative Leave (Sick) Determinations, effective January 1, 1986? If so, what shall the remedy be?
Id. at 2.
The Arbitrator noted that the grievant had received all of the earned leave and insurance benefits to which he was entitled and that he had also received additional [ v56 p1098 ] leave through the Agency's leave sharing program. Id. at 19. However, according to the Arbitrator, the key issue was whether the Agency, in addition to those benefits, was responsible for the grievant's medical and leave expenses. Id. In this regard, the Arbitrator noted that the determinative factor was whether the grievant was "in the performance of duty" when he was injured. Id. The Arbitrator further noted that the Union had the burden to prove that the Agency's determination was erroneous. Id.
Addressing the Union's three arguments in support of its claim, the Arbitrator first looked at whether the grievant was injured "in the performance of duty" under Title IV, section 4-613 of the D.C. Code. [n2] He noted that the provision authorizes leave and medical compensation to be paid to USPP officers only for injuries which occur "in the performance of duty" and that under the USPP Guideline Manual, "performance of duty" is defined as "the implementation and/or execution of the duties and responsibilities required by the officer's position." Award at 19. The Arbitrator concluded that the grievant was not "implementing" or "executing" duties and responsibilities required of his position when he was injured on the Bikeway. Id. at 19-20. In reaching this conclusion, the Arbitrator noted that the grievant was a mounted officer rather than a bicycle officer, that he did not patrol on horseback the area where the injury occurred, nor was the area ever patrolled by bicycle, and that he was riding a personal bicycle dressed in civilian clothes without a USPP issued radio. Id. at 20. According to the Arbitrator, "the evidence establishes that [g]rievant was off-duty and commuting to work at the time of the accident and that he was not on duty or patrolling." Id.
The Arbitrator next looked at the Union's claim that the "industrial premises doctrine" ("premises doctrine"), a workers compensation principle, allowed the grievant to recover for his injuries. The Arbitrator summarized this doctrine as standing for the proposition that when an employee is injured while on the employer's premises, that injury is compensable. Id. at 21. Based on the fact that the accident occurred only 200 yards inside National Park property and some five to six miles from the "premises" to which the grievant was assigned, the Arbitrator concluded that the "premises doctrine" did not apply to this dispute. Id.
Finally, the Arbitrator looked at the Union's claim that the law enforcement exception to the "coming and going rule" applied in this case. Id. at 22. He noted while the rule states that generally an employee cannot recover for injuries occurring as a result of the ordinary, non-employment hazards shared by all travelers, the exception does provide for recovery "where a law enforcement officer is injured while traveling in an official agency vehicle or is in uniform and can legitimately be said to be engaged in a law enforcement function (deterrence of criminal activity)." Id. However, the Arbitrator found that the evidence established that the grievant was commuting on his personal bicycle, that he was not in uniform and that he had not displayed any badge or other indicia of a law enforcement officer. Id. Therefore the Arbitrator concluded that the exception did not apply. Id.
The Arbitrator further concluded that while it was clear that the grievant had suffered real, debilitating injuries, it was also clear that the grievant was "injured commuting to work - not patrolling - and that the basic legal principle that employees commuting to work are not in the performance of their duties for purposes of workers compensation" applied to this case. Id. He therefore denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Unions contends that the award is contrary to law because: (1) it does not properly interpret the "premises doctrine" as it is applied in workers compensation authority, and (2) it does not properly interpret the "police exception" to the "coming and going rule" as it is applied in workers compensation authority. The Union also contends that the Arbitrator failed to conform [ v56 p1099 ] to law when he failed to apply the doctrine of procedural due process to the grievant's case.
First, the Union maintains that the Arbitrator's determination that "[t]he [Union's] reliance on the `industrial premises doctrine' contained in workers compensation authority [was] misplaced[,]" is contrary to law because such determination does not comport with the existing precedent in the area of workers compensation law for the District of Columbia. Exceptions at 4. The Union argues that the "premises doctrine" is more expansive than the definition given it by the Arbitrator and that based on the facts of the case, the grievant would fall within the doctrine for the purpose of receiving POD benefits under section 4-613 of the D.C. Code and 5 U.S.C. § 6324. [n3] Id. at 5. It argues, citing Larson's Workers Compensation Law, § 4-3 (1998), that the "premises doctrine" should be defined as follows:
[a]s to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensable, subject to several exceptions.
Exceptions at 6.
The Union claims that several factors show that the grievant is entitled to recover under this expanded definition. First, the Union states that the grievant was carrying his weapon, police identification and a cellular phone. Id. at 13. Second, it states that the grievant was under a special duty to act 24 hours a day when on Park Service property. [n4] Id. at 12. Third, the Union states that the grievant was on property normally patrolled and controlled by the Agency and that he was actually patrolling at the time. Id. at 10. Finally, the Union states that the Agency was getting a "special benefit" from the grievant when he commuted via the Bikeway because he provided extra police coverage. Id. at 16-17. Accordingly, the Union argues that the expanded "premises doctrine" applies and that the grievant is entitled to POD benefits.
The second contrary to law argument made by the Union is that the award did not properly interpret the "police exception" to the "coming and going rule" as it is applied in workers compensation authority. Id. at 18. The Union argues that certain case law from jurisdictions other than the District of Columbia was looked at by the Arbitrator but was "not appropriately considered." Id. According to the Union, it is appropriate to consider case law from other jurisdictions which also apply their workers compensation laws liberally. Id. The two jurisdictions that the Union argues should be considered are Florida and California. In this regard, the Union cites Sweat v. Allen, 200 So. 348 (Fla. 1941) (Sweat) and Metropolitan Dade County v. Nieves, 440 So.2d 434 (Dist. Ct. App. 1983) for the proposition that police officers such as the grievant should be treated differently under the "coming and going" rule because of their obligation to render aid or enforcement whenever a need arises. [n5] Exceptions at 19-20. As such, the Union argues that the grievant falls under the exception as it should have been interpreted by the Arbitrator. Id. at 22.
The final argument made by the Union is that the Arbitrator failed to conform to law when he failed to apply the doctrine of procedural due process to the grievant's case. Id. The Union argues that it raised this issue at the arbitration hearing and that the Arbitrator noted in his award that the Union had done so. Id. at 22-23.
With respect to the merits of the procedural due process issue, the Union claims that the Agency decision makers incorrectly believed that general workers compensation rules and guidelines did not apply to their POD determinations when dealing with Title IV officers and therefore failed to apply this authority. Id. at 28. As such, the Union asserts that the grievant was not afforded the procedural due process rights granted to [ v56 p1100 ] him by the courts, [n6] and therefore, was erroneously deprived of his right to POD benefits. Id. at 23-24.
B. Agency's Opposition
The Agency contends that the Union's exceptions do not demonstrate that the award is deficient. Opposition at 1. Rather, the Agency contends that the Arbitrator properly determined, based on the stipulated issue, that the injuries sustained by the grievant were not received in the performance of duty as required in order to receive benefits under section 4-613 of the D.C. Code or 5 U.S.C. § 6324. Id. at 1-2.
The Agency contends that in order to recover POD benefits, the injury must have resulted from the "performance of duty." Id. at 3. Further, it contends that under section 4-613(b), that determination is made pursuant to regulations prescribed by the Secretary of the Interior for the USPP. Id. The Agency asserts that under these regulations, POD is defined as "implementation and/or execution of the duties and responsibilities required by the officer's position," and that the officer's injury must occur as a result of the performance of these duties. Id. (emphasis added in exceptions). Therefore, the Agency argues the definition of POD is determined by USPP regulations rather than by common law, and the Arbitrator was correct in finding that the grievant was not in the performance of duty because he was not implementing or executing the duties of his position at the time of his injury. Id. at 5
The Agency also argues the Arbitrator correctly concluded that the "premises doctrine" does not apply in this case. Id. It contends that the Arbitrator appropriately determined that the accident did not happen on the premises of the grievant's duty station and also correctly determined that under workers compensation decisions of the Employees' Compensation Appeals Board (ECAB), the "premises doctrine" is narrower than suggested by the Union. Id. at 6. The Agency asserts that the definition of the doctrine used by the Arbitrator, which was derived from Charles E. Taylor, 38 E.C.A.B. 851, 852-53 (1987) (Taylor), is correct. Opposition at 5-6. Based on this definition, the Agency argues that the Arbitrator correctly concluded that the Union's argument "did not overcome the basic fact that [the grievant] was injured while commuting to work on a public bikeway, not patrolling, and the basic legal principle that employees are commuting to work are not in the performance of their duties." Id.
The Agency also argues, citing the Arbitrator's award and Taylor, 32 E.C.A.B. at 852-53, that under the "premises doctrine," the area where the injury occurred must be so interrelated with the employing establishment that it can be treated as though it was the actual premises of the employing establishment. Opposition at 7. As such, the Agency contends that the Arbitrator logically reasoned that "the `premises', as applied to the facts of this case, does not include the `entire general Metropolitan Washington National Parkway Service property area under the jurisdiction of the USPP' as argued by the [U]nion." Id. Therefore, according to the Agency, the Arbitrator reasonably concluded that the "premises doctrine" did not apply.
The Agency also contends that the Union's claim, that the grievant was on patrol at the time of his injury and that he had a duty to take law enforcement action at that time, is incorrect. First, as to the Union's claim that the grievant was on patrol, the Agency argues that it is clear that the grievant was not formally assigned to patrol on a bicycle, that his duty station was the Edgewater Stables and that he was not engaged in any law enforcement activities at the time of his injury. Id. at 9-12. Therefore, according to the Agency, the "premises doctrine" does not apply. Second, in regard to the Union's claim that the grievant was under a special duty, the Agency argues that in order to be entitled to workers compensation, "[the grievant] must have been actually carrying out or executing the duties of his position at the time of his injury or, if off-duty, observing an incident requiring and actually taking police action. [The grievant] was doing neither at the time of his injury." Id. at 16.
The Agency next argues that the grievant was not deprived of procedural due process when he was denied POD benefits. Id. at 20. According to the Agency, the Union is arguing that due process was not provided to the grievant because the officials evaluating the grievant's POD claim were not familiar with workers compensation laws. Id. at 20-21. In response, the Agency first argues that it properly denied the grievant's POD claim and considered the relevant information. Id. at 22. The Agency also argues that the first time the Union raised this issue, including its Jones and Matthews argument, was in its exceptions. Id. at 27. Therefore, contends the Agency, the Authority should not consider this exception because it was not raised at the arbitration hearing. Id. However, if the Authority should decide to consider the exception, the Agency asserts that the specific factors which need to be present for a due process [ v56 p1101 ] violation to be found are not present in the grievant's case. Id.
The Agency also argues that the grievant was not deprived of procedural due process because the Arbitrator failed to make a decision as to whether or not the Agency afforded the grievant his due process rights. Id. The Agency contends that "there is no doubt that the [A]rbitrator considered and ruled on the issues raised by the [U]nion, which it erroneously characterized as `procedural due process'." Id. at 25-26.
IV. Analysis and Conclusions
A. The Award Is Not Contrary To Law, Rule Or Regulation
1. Standard of Review
The Authority's role in reviewing arbitration awards depends upon the nature of the appealing party's exceptions. United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994) (Customs Serv.). Where a party's exception challenges an award's consistency with law, the Authority reviews the question of law raised by the exception and the arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Serv., 43 F.3d at 686-87). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
2. The Arbitrator's finding that the "premises doctrine" is not applicable is not contrary to law
The Union contends that the "premises doctrine," a workers compensation concept, applies to this case and allows the grievant to recover POD benefits. The general rule is that an employee cannot recover for injuries incurred while coming and going to work unless the injuries occur in the performance of duty. See William L. McKenney, 31 E.C.A.B. 861, 864 (1980) (McKenney). It is evident from the award that the grievant was not in the performance of duty at the time of his injury. The Arbitrator found that at the time of his injury, the grievant was commuting to work on a personally owned bicycle as he had been doing for several years for the purpose of getting exercise; [n7] was dressed in civilian clothing and did not have his USPP issued radio, although, he did have his gun, handcuffs and police identification with him; and was approximately five or six miles away from his duty station, the Edgewater stables. Award at 20. Moreover, the Arbitrator found that this area was not one the grievant had patrolled as a horse mounted officer and that the area in question is never patrolled by the Bicycle Patrol Unit. Id. These factual findings by the Arbitrator, to which we defer, support the Arbitrator's legal conclusion that the grievant, on the morning of April 6, 1998, was commuting to work, rather than performing his official duties and therefore was not in the performance of duty.
However, under workers compensation law, if an employee was on his or her employing agency's property at the time an injury occurred, the employee can still recover benefits. This is referred to as the "premises" exception, or "premises" doctrine. The key aspect of the analysis in determining if the exception applies, is whether the employee was on the "premises" of the employer at the time the injury occurred. See e.g., Taylor, 38 E.C.A.B. 851. [n8]
In defining the term "premises," the ECAB has stated that "[t]he `premises' of the employer, as that term is used in workmen's compensation law, are not necessarily coterminous with the property owned by the employer; they may be broader or narrower and are dependent more on the relationship of the property to the employment than on the status or extent of the legal title." McKenney, 31 E.C.A.B. at 864 (citing Wilmar Lewis Prescott, 22 E.C.A.B. 318). The Board has further stated:
[t]he term "premises" as it is generally used in workmen's compensation law, is not synonymous with "property." The former does not depend on ownership, nor is it necessarily coextensive with the latter. In some cases "premises" may include all the "property" owned by the employer; in other cases even though the employer does not have [ v56 p1102 ] ownership and control of the place where the injury occurred the place is nevertheless considered part of the "premises".
Id. (citing Alvina B. Pillar, 7 E.C.A.B. 444, 445). Generally what the Board has required is a showing that the area where the injury occurred is used exclusively or principally by employees of the employing establishment for the convenience of the employer. See e.g., McKenney, 31 E.C.A.B. at 864; Taylor, 38 E.C.A.B. at 852.
Here, the Arbitrator found that while the grievant was on National Park Service property, though just barely, he was five to six miles from his duty station. Award at 7. In addition, the Arbitrator found that this area of the Parkway is open for use by the general public and is not maintained exclusively for use by USPP employees. As the Arbitrator noted, the Board has previously held that "[t]he federal government cannot be expected to assume responsibility for every injury to its employees as they cross federal property on their way to and from work." Award at 21, citing McKenney, 38 E.C.A.B. at 853. Based on this case law and the Arbitrator's factual findings noted above, we find that the Arbitrator did not err in concluding that the "premises doctrine" does not apply to the grievant's case.
3. The Arbitrator's finding that the "police exception" to the "coming and going rule" does not apply to the grievant's claim is not contrary to law
The Union also contends that the "police exception" to the "coming and going rule" should allow the grievant to recover POD benefits and that the Arbitrator erred in finding that it did not. Exceptions at 18. The Union asserts that other jurisdictions which interpret their workers compensation laws liberally have adopted this exception, and that by not applying this exception to the grievant's case, the Arbitrator acted contrary to law. Id.
As discussed previously, for an employee to be covered under workers compensation laws, the injury must have occurred in the course of employment or in the performance of duty. As a corollary to this, it has also been stated that "[t]he general rule, often referred to as the `going and coming' rule, is that injuries sustained away from the employer's premises, en route to or from work, do not occur in the course of employment." Vieira v. D.C. Dep't of Employment Serv., 721 A.2d 579, 582-83 (D.C. 1998) (Vieira) (citing Grayson v. D.C. Dep't of Employment Serv., 516 A.2d 909, 911 (D.C. 1986)) (referencing 1 Larson, The Law of Workmen's Compensation § 15.00). There are several exceptions to this general rule. [n9] One such exception is the "law enforcement" or "police officer's" exception. This exception has not been addressed in the body of District of Columbia Workers Compensation law. However, the Union argues that while the exception has not been applied in the District of Columbia, "it is reasonable to apply the limited case law from other jurisdictions to interpret the application of this acknowledged exception to Title IV covered officers." [n10] Exceptions at 18. Specifically, the Union asserts that the Arbitrator and the Authority should apply Florida and California case law that has recognized this exception.
We do not find the Union's arguments persuasive. First, we note that the Florida cases relied on by the Union are no longer good law even in that state, having been overruled legislatively. See City of Ft. Lauderdale v. Abrams, 561 So.2d 1294, 1295 (Fla. 1st Dist. Ct. App. 1990) (intent of Fla. Stat. Tit. XXXI, § 440.091 was to abolish blanket law enforcement exception created in Sweat). Second, even assuming for the sake of argument that California workers compensation case law might be applicable in the District of Columbia, the cases cited by the Union would not support its claims in this exception. Smith v. Workmen's Comp. App. Bd., 447 P.2d 365 (Cal. 1968), does not involve the "police officer's exception" at all, but rather involves a different exception, the "required vehicle exception." Although Garzoli v. Workmen's Comp. App. Bd., 467 P.2d 833 (Cal. 1970) (Garzoli), does involve the "police officer's exception," that case is factually distinguishable from the grievant's situation.
Specifically, in Garzoli, the court relied on the fact that while commuting, the officer was required to wear his official uniform, to carry his firearm and to travel conspicuously on the public streets. In contrast, the Arbitrator in the instant case found as a matter of fact that the grievant was not required to carry his firearm or wear his uniform to and from work. The only requirement placed on the grievant relating to his commute was that he was considered to be on duty 24 hours a day. However, the Garzoli court specifically found that such a requirement, standing alone, is not enough to create an [ v56 p1103 ] exception to the "going and coming rule." Accordingly, Garzoli, even if it were to be adopted by the D.C. Courts, would not require the Arbitrator to award the grievant POD benefits.
As the Union has not put forth any other arguments or pointed to any other precedent that would require the Arbitrator to recognize and apply the "police officer's exception" to the grievant's case, we conclude that this exception provides no basis for finding the award deficient.
B. The Arbitrator did not exceed his authority by failing to reach the procedural due process issue as raised by the Union
We construe the Union's final exception, asserting that the Arbitrator failed to address its claim that the grievant was denied due process, as contending that the Arbitrator exceeded his authority. See AFGE, Local 1917, Nat'l Immigration & Naturalization Council, 56 FLRA 521, 525 (2000).
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997).
The parties stipulated to the issue to be placed in front of the Arbitrator. The issue as presented to the Arbitrator stated:
Whether the injuries sustained on April 6, 1998 by [the grievant] were received in the performance of duty under Section 4-613 of the D.C. Code and regulations of the United States Park Police Guideline Manual, CP-2, for Performance of Duty and Administrative Leave (Sick) Determinations, effective January 1, 1986? If so, what shall the remedy be?
Award at 2. The issue of procedural due process is not mentioned anywhere within the overall issue presented to the Arbitrator. Furthermore, the Arbitrator directly answered the issue as it was presented him. As such, the Union has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny the Union's exception.
The Union's exceptions are denied.
Footnote # 1 for 56 FLRA No. 195
§ 4-613. Payment of medical expenses - Active members.
Whenever any member shall become temporarily disabled by injury received or disease contracted in the performance of duty, to such an extent as to require medical or surgical services, other than such as can be rendered by the Mayor, or to require hospital treatment, the expense of such medical or surgical services, or hospital treatment, shall be paid by the District of Columbia; but no such expense shall be paid except upon a certificate of the Mayor setting forth the necessity for such services or treatment and the nature of the injury or disease which rendered the same necessary.
Footnote # 2 for 56 FLRA No. 195
The USPP force is authorized by Title IV, § 4-201 et. seq. of the D.C. Code. The force has the same responsibilities and powers as the Metropolitan Police Department, and its officers are covered by their own retirement and disability rules. See D.C. Code Ann., Tit. IV, § 4-601 et. seq. Police officers falling under the coverage of Title IV of the D.C. Code are specifically exempted from recovering under the Federal Employees' Compensation Act (FECA) by 5 U.S.C. § 8101(E)(iv) in order to prevent double recovery, since they are entitled to benefits under Title IV as noted above. For this reason, USPP officers are covered by the D.C. Code and the regulations promulgated by the Secretary of the Interior under § 4-207 of the D.C. Code.
Footnote # 3 for 56 FLRA No. 195
(a) Sick leave may not be charged to the account of a member of . . . the United States Park Police force . . . for an absence due to injury or illness resulting from the performance of duty.
(b) The determination of whether an injury or illness resulted from the performance of duty shall be made under regulations prescribed by--
. . . .
(2) the Secretary of the Interior for the United States Park Police force. . . .
Footnote # 4 for 56 FLRA No. 195
An officer is always on duty. The fact that an officer may be technically "off duty" shall not relieve him/her of the responsibility for taking reasonable and proper police action in any matter that comes to his/her attention that requires such action, provided it lies within the scope of his/her legal authority.
Footnote # 5 for 56 FLRA No. 195
The Union also cites Smith v. Workmen's Comp. App. Bd., 69 Cal.2d 814 (Cal. 1969), Garzoli v. Workmen's Comp. App. Bd., 467 P.2d 833 (Cal. 1970) and Juna v. New York State Police, 336 N.Y.S.2d 738 (1972) for the proposition that if a police officer is required to act even when he or she is off duty, the "police exception" to the "coming and going rule" should apply.
Footnote # 6 for 56 FLRA No. 195
The Union cites District of Columbia v. Jones, 442 A.2d 512 (D.C.App 1982) and Matthews v. Eldridge, 424 U.S. 319 (1976) as setting forth the factors that need to be considered to determine if a person has been erroneously deprived of a protected interest. Exceptions at 24-25.
Footnote # 7 for 56 FLRA No. 195
Footnote # 8 for 56 FLRA No. 195
As noted above, Title IV police officers such as the grievant are not covered by FECA and come under the coverage of the District of Columbia Office of Employee Appeals and the relevant portions of the D.C. Code. We note that while the Union argues that the premises rule under D.C. law is "broader" and can be interpreted more "liberally" than under Title V, the Union has not cited any authority explaining how the rule is applied more liberally or showing that the grievant would have been entitled to compensation under these assertedly more liberal standards. Further, in its exceptions, the Union acknowledges that "[t]he District of Columbia test is not much different than [the test] . . . offered by the Employees Compensation Appeals Board." Exceptions at 6. We therefore rely on the ECAB's case law as guidance for determining whether or not the grievant's claim fits within the "premises" rule.
Footnote # 9 for 56 FLRA No. 195
Footnote # 10 for 56 FLRA No. 195
Other jurisdictions have considered the "police officer's exception" and have chosen not to adopt it. See e.g., Rogers v. Indus. Comm'n, 574 P.2d 116 (Colo. Ct. App. 1978); McKiernan v. City of New Haven, 199 A.2d 695 (Conn. 1964); Mayor & City Council of Balt. v. Jakelski, 410 A.2d 1116 (Md. Ct. Spec. App. 1980); Baughman v. City of Omaha, 7 N.W.2d 365 (Neb. 1943); Blackley v. City of Niagara Falls, 284 A.D. 51 (N.Y. App. Div. 1954); Simerlink v. Young, 178 N.E.2d 168 (Ohio 1961); Walker v. State Accident Ins. Fund, 558 P.2d 1270 (Or. Ct. App. 1977).