Can a moonlighting officer's widow get survivor benefits?
At the time of his death, Sergeant Ruben Orozco was working an extra-duty assignment at a football game at the University of Texas at El Paso.
The Texas Supreme Court has held that a deputy sheriff who was killed in an accident while driving his marked patrol vehicle home from an extra-duty assignment was acting within the course and scope of employment because he was engaged in a law enforcement activity.
The accident
Ruben Orozco, a sergeant with the El Paso County Sheriff’s Department, was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car windshield. At the time of his death, Orozco was assigned to a patrol division and was a leader on the department’s crisis negotiation team. He was assigned a marked patrol car as a take-home vehicle due to his rank and work on the crisis team.
On the night of the accident, Orozco was not scheduled to work for the sheriff’s department but was instead working an extra-duty assignment at a football game at the University of Texas at El Paso (UTEP). In the El Paso County Sheriff’s Policy Manual, “extra-duty employment” is defined as “secondary employment in which the actual or potential use of law enforcement powers is anticipated.” “Outside employment” is defined as another type of secondary employment “in which the use of law enforcement powers is not anticipated.”
In order to participate in either type of secondary employment, the employee had to obtain approval from the sheriff through the chain of command. When participating in extra-duty employment, employees were required to “operate under all applicable policies and procedures of the Department.” The employees could use department vehicles only for extra-duty employment, and only if the employee had obtained approval from the division commander.
Since the job at UTEP was an extra-duty assignment that might require the use of law-enforcement powers, Orozco wore his uniform, badge, and gun to the game, and drove his patrol car. After the job, he drove his patrol car home and informed the sheriff’s office that he was available to respond to emergencies during that commute home, which is when the freak accident occurred.
Prior litigation
Mary Orozco, the wife and beneficiary of Sergeant Orozco, filed a workers’ compensation claim with the County of El Paso, which was self-insured under the Texas Workers’ Compensation Act. The county denied the claim on the premise that Sergeant Orozco was not within the course and scope of his employment at the time of his death.
Mary Orozco sought to have her case resolved in a contested case hearing in front of an administrative law judge. The hearing officer ruled in Mary’s favor, and the county appealed. A three-member appeals panel reviewed the appeal and concluded that the Sergeant was not in the course and scope of employment at the time of his death and that his widow was not entitled to benefits, reversing the hearing officer’s decision.
She then sought judicial review of the appeals panel’s decision to deny her benefits. Each party filed a motion for summary judgment in the trial court, with each summary judgment focusing on whether Sergeant Orozco was acting within the scope and course of his duties at the sheriff’s department. The trial court granted the motion of the widow and judged in her favor. The county appealed, arguing again that Sergeant Orozco’s death was not compensable because his activity at the time of death was not in the course and scope of his job at the sheriff’s department. The court of appeals found in favor of the county and ruled that the widow got no compensation.
Texas Supreme Court
In front of the Texas Supreme Court, Mary Orozco argued that the patrol car was in the service of the county’s official business at the time of the accident, and her husband was performing law-enforcement duties for the sheriff’s department and county during his travel home from the extra-duty assignment.
The county responded with the argument that at the time of the accident, Orozco was off duty, not being paid by the county, and not engaged in any specific law-enforcement activity. The county also argued that he was merely returning home from extra-duty employment, concluding that he remained off duty because that travel was outside the course and scope of his employment.
The Texas Supreme Court noted that it had recently observed that the determining factor of whether an officer is within the scope and course of employment is not whether he or she is on or off duty. A police officer is required to spring into action at a moment’s notice, even if they are not on duty, which makes them a unique type of employee. The Court stated that the important conduct here is not Orozco’s activities or conduct at the UTEP game, but rather the use of the patrol car for travel from that approved employment to his home.
As a general rule, travel to and from work does not originate in the employer’s business and, in some instances, is excluded from the course and scope of employment by statute. The Court analyzed the record and testimony and concluded that Orozco’s “use” of the vehicle was authorized and not purely personal.
Further, the statutory test asked whether the activity that produced the injury was related to, originated in, and furthered the business affairs of the employee. Patrolling the roads of El Paso is a significant part of the work of the department; thus, driving a marked patrol car on those streets relates to the work or profession of an employee of the El Paso County Sheriffs Office and furthers the work of the sheriff in preserving the peace.
The statutory definition of “course and scope of employment” excludes two specific instances of travel: 1) the coming and going rule and 2) the dual purpose rule. The record made it clear that Orozco was available for calls during his drive home. Thus, the court concluded that the authorized operation of the patrol car to and from the approved extra-duty assignment was a law-enforcement activity similar to his on-duty work for El Paso County. So, his death occurred during the course and scope of his employment, and his wife is entitled to the workers’ compensation benefits.
The case is Orozco v. Cty. of El Paso, 63 Tex. Sup. Ct. J. 607 (2020).
Editors Note: There is no doubt that this case has been watched closely by cities, counties, and law enforcement officers across the state of Texas, and perhaps across the whole country. By opening up liability to a time when officers aren’t technically working, this case could affect the long-standing practice of off-duty officers providing security at sporting and other community events. The key issue in this case is whether driving home was “within the course and scope of employment.” Although a commute does not normally fit within that constraint, a sheriff’s deputy is an exception. When individuals see a police car driving around the streets of a community, it provokes a feeling of safety and security and may help to mitigate crime and other wrongdoing. Here, even though the sheriff was not on duty, he had made himself available for emergency calls during his commute home, and he was helping to keep the peace in El Paso. After 15 years of litigation, Orozco’s widow will finally receive survivor benefits.
Related: