Thursday, February 22, 2018

9th Circuit Rules Police Officer Cannot be Fired for Extramarital Affair

It’s generally difficult for employers to identify the right decision when two employees engage in an inappropriate relationship and others complain about it. How much, if at all, should it matter to a public employer whether employees engage in relationships which many may find to be immoral? Take for instance, a situation where two police officers, married to other spouses, engage in an extramarital relationship that includes using their work phones for calls and sending numerous personal texts back and forth to each other. What if the relationship becomes so obvious that others in the department as well as the spouse of one of the officer’s spouses complain?

This is what happened in a case out of California where the federal Court of Appeals there held that the plaintiff was entitled to the opportunity to prove at trial that her termination violated her constitutional rights.

The plaintiff, Janelle Perez, worked for the Roseville police department for approximately six months. At some point shortly after her hire, she began a romantic relationship with another officer who was not probationary. Both were married to other spouses at the time (although both claimed to be separated from their spouses). The other officer’s wife filed a citizen complaint in which she alleged that Perez and her husband were having an affair and that they were engaging in inappropriate sexual conduct while on duty. This letter prompted the Department to initiate an investigation.

The results of the investigation revealed that while no evidence existed that the two officers were engaging in sexual activities while on duty, there were frequent calls and texts between the two while one or both were at work. The investigator sustained charges of “Conduct Unbecoming” and “Unsatisfactory Work Performance”, with at least one of Perez’s supervisors later admitting that he morally disapproved of the relationship.

It was downhill after that for Officer Perez. Prior to the time of the complaint from the wife of the other officer, Perez had received good evaluations. Afterwards, the complaints started rolling in. She was alleged to have been rude and inappropriate to members of the public and difficult to work with by female members of the department. She was ultimately discharged.

The plaintiff claimed that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. The court, in finding that the case should go to trial, held that the constitutional guarantees of privacy and free association prohibit the state from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. The Constitution is violated when a public employee is terminated (a) at least in part on the basis of (b) protected conduct, such as her private, off-duty sexual activities.

Employers should take note that it is important to always focus these types of investigations on whether the alleged activity disrupts workplace operations or diminishes the trust and respect of the community. At least one supervisor in this case acknowledged that his personal morals may have affected his analysis of the information. This can never be a factor in decision making in these types of cases. A no dating or anti-fraternization policy may assist in keeping these difficult situations out of the workplace or at least provide a policy (which must be uniformly enforced) on which to take action against the employees.