Law enforcement personnel are held to
personal standards higher than other members of our
communities. Conduct unbecoming has been a
common and historical charge used in controlling and
censuring police officers and other public employees,
for both on and off duty actions. The “Police Officer’s
Code of Ethics,” written back in the 1950s, has a
provision that is routinely referenced in training as well
as court decisions that promises, under oath: “I will
keep my personal life unsullied as an example to all.”
Court decisions regarding public employee
misconduct involving conduct unbecoming commonly
requires that the act of misconduct have a nexus or
connection to the employee’s job performance or
ability to perform or have an adverse affect on the
agency’s “morale,” “operations,” or “efficiency.” Historically, law enforcement
employees have been held to this higher standard of conduct, both on and off
the job. This heightened standard of conduct also
applies to other public employees. Employees of
private entities however, are rarely held to this
heightened standard of conduct, specifically when the
conduct at issue occurred outside work hours.
While public agencies have the ability to restrict some
off-duty conduct, the agency cannot abuse this
authority and must articulate a reasonable rationale
for its determination that the conduct of the employee
adversely affected the employee’s ability to perform or
impacted his or her fitness for public employment.
The agency must establish how the conduct of the
employee affected the operation, efficiency and/or
morale of the agency. These are the important and
significant hurdles or hoops stemming from the many
court decisions involving “conduct unbecoming an
employee” that an agency must jump over or through
when imposing discipline.
A recent case exemplifies these concepts. Beecham
v. Henderson County *i,
involved an office romance
issue. The Plaintiff, who was a deputy clerk for the
Circuit Court and an at will employee, became
involved in an intimate relationship including
engagement with a local practicing attorney. The
county terminated the plaintiff for engaging in
an “adulterous affair.” The District Court granted the
County’s Motion to Dismiss. The Appeals Court,
however, affirmed the District Court’s dismissal for
other reasons. The attorney was still married to his
wife although separated from her. His wife was
employed as a Clerk and Master in another court on
the same floor of the courthouse as the Plaintiff. What
is not in the case summary is whether the Plaintiff
was ever advised of the workplace problems her
relationship was causing and given some opportunity
to resolve the issue (this would have been a
reasonable supervisory approach before initiating
discipline). The appeals court found that the “Plaintiff’s
claim cannot prevail upon the application of rational-
basis review to the employment action taken by her
employer... Henderson County Courthouse officials,
deciding that it was unacceptably disruptive to the
workplace for a woman employed in the office on one
of the county’s courts to be openly and ‘deeply
involved in a romantic relationship’ with a man still
married to a woman employed in the other county
court down the hall, acted upon a ‘plausible policy
reason’... A rational basis for the decision is therefore
evident.”
It’s important to include a definition of conduct
unbecoming in your manual, employee handbook, or
other document provided to or accessible to all
employees. A court accepted definition that covers all
of the essential points is “Conduct unbecoming is any
conduct which adversely affects the morale,
operations, or efficiency of the department or any
conduct which has a tendency to adversely affect,
lower, or destroy public respect and confidence in the
department, or any officer or employee. Conduct
unbecoming also includes any conduct which brings
the department or any officer or employee into
disrepute or brings discredit upon the department, or
any officer or employee. Officers and employees shall
conduct themselves at all times, both on and off duty,
in such a manner so as to reflect most favorably upon
the department.”
A new trend in this area of conduct unbecoming an
officer involves sex and the internet. There have been
numerous cases over the past decade involving
police employees engaging in sexual activities with
connections to the Internet and involve videotaping
these activities. When these off-duty activities are
exposed to the agency and/or public, a reasonable
public agency must investigate the circumstances to
determine whether intervention and/or discipline is
warranted.
A case in point *ii involved
three deputies and their wives
engaging in explicit group sex porno tapes which were
offered for sale on the internet from a site sponsored
by one of the wives. The conduct was brought to the
attention of the Sheriff’s Office by an anonymous
caller. The deputies attempted to have their faces
obscured, but this was not always effective. What is
particularly interesting in this case was the apparent
conflict between the original IA investigator, her
supervisors, the hearing panel, Florida POST and the
Sheriff as to whether the conduct was a violation of the
agency’s standards and it’s reliance on the Code of
Ethics. Also disputed was whether the deputies
violated the agency’s rule of obtaining prior approval
for off-duty work. The Sheriff was adamant on all
grounds that these acts were misconduct and his
position was supported by the Federal District Court
and the United States Court of Appeal for the 11th
Circuit.
The Court reported, “Additionally, the PBCSO required
its employees to adhere to its adopted Code of Ethics,
which mandated that employees must keep their
private lives "unsullied as an example to all." The
obvious purpose of the prior-approval regulation was
to prevent damage to public confidence in the PBCSO
by employees' off-duty employment, and the ethical
rule similarly required employees to conduct their
private or off-duty lives so as not to place the PBCSO
in disregard... Although "[a] government employee
does not relinquish all First Amendment rights
otherwise enjoyed by citizens just by reason of his or
her employment," nonetheless "a governmental
employer may impose certain restraints on the
speech of its employees, restraints that would be
unconstitutional if applied to the general public."
The United States Supreme Court has also rendered
a decision in a similar case involving a San Diego
police officer *iii. The
officer was selling videotapes of
himself masturbating in a police uniform on EBay;
however, the uniform did not have the markings of the
San Diego Police Department. These types of
products are restricted to a separate site of EBay.
Apparently, another member of the Police Department
observed and recognized the officer. The Police
Department terminated the officer, but the disciplinary
action was overturned by the 9th Circuit, citing First
Amendment protections of the officer. This was
subsequently reversed by the U.S. Supreme Court.
Another recent case established that even federal law
enforcement agencies are not immune to this type of
conduct. *iv The case
involved FBI agent who was
videotaping himself and three females, two were
employees of the FBI, engaging in sex. One of the
incidents was filmed with the consent of the female
partner, but others involving her were not
consensual. “The agency in this case argued that the
appellant’s conduct was so egregious that nexus [or
connection with his employment] must be presumed,
and that, even if such a presumption does not arise in
this case, nexus nevertheless has been shown by
preponderant evidence. We need not consider the first
of these two arguments. Even if nexus may not be
presumed in this case, we find that the agency has
shown, by preponderant evidence, a nexus [or
connection] between the appellant’s conduct and the
efficiency of the service... In the absence of the kind of
presumed nexus mentioned above, an agency may
establish nexus by showing that the employee’s
conduct (1) affected the employee’s or his coworkers’
job performance, (2) affected management’s trust and
confidence in the employee’s job performance, or (3)
interfered with or adversely affected the agency’s
mission... The record shows that the appellant’s
failure to live up to these standards caused the ASAIC
and others in the agency to lose confidence in the
appellant’s honesty and integrity, to question his
judgment, and to have “much less confidence in his
abilities to perform... any job... It also shows that the
two FBI employees the appellant taped became
aware of the videotapes, that information and rumors
regarding the taping spread throughout the division,
that the information and rumors were upsetting to both
of the employees, that it interfered with their ability to
concentrate on their work, and that the ASAIC
accordingly needed to spend time counseling them
and making sure that they and other employees
concentrated on their work rather than on the gossip
and rumors related to the videotaping.”
Another case provides an example of the significance
of the “Code of Ethics” or other such value statement
on law enforcement employee conduct. *v This case
involved an officer who had been involved in two
domestic incidents. One of these domestic incidents
occurred in 1998 while the other had occurred in
2002. The officer had been a police officer since 1989
and was hired by his current agency in 1996. When he
joined the second agency he signed an “oath of office”
which consisted of the Police Officers Code of Ethics
and Canon of Ethics, as well. In 2003, the officer was
involved in an altercation with a sergeant who had
been his personal friend for the past 18 years. The
sergeant informed the agency of the prior domestic
violence incidents. The officer was charged with both
incidents. The first was beyond the 3 year statute of
limitations. However, the State contended that the
officer was bound by a state statute which extended
the limit to 10 years for “public officers.” The court
found that a police officer was “considered on duty 24
hours a day.” Since it was concluded that the officer
was “on-duty 24 hours a day, the “public official” extension of the statute of
limitations applied to officers who were off-duty at the time of the incident
giving rise to the discipline. What the court found
specifically important was that the officer signed these
oaths and codes. What is not necessarily answered is
whether signature is essential. Would the fact that
these were used in some form of swearing in
ceremony or were embodied in a manual which the
officer acknowledged receiving be sufficient?
Unfortunately, these are not isolated examples of
conduct being engaged in by law enforcement and
other public employees. These cases and police
practices do not direct nor encourage public agencies
to intrude into the personal lives of public employees.
But when these types of incidents do come to the
attention of the agency and the conduct has a potential
affect on the employee’s performance or the operation
of the agency, they should be investigated. Agencies
are now accessing personal websites, such a
MySpace.com, when undertaking background
investigations of applicants. This has revealed some
conduct that can reasonably be foreseen to predict
subsequent behavior on the part of the potential
employee. The outcome of the investigation will
determine what, if anything, should be done by the
agency.
Action steps:
- Include the “Police Officer’s Code of Ethics” or
similar agency value/conduct statement in your
agency’s written manual, personnel handbook,
employee orientation training, and, if done, any hiring
ceremony
- Have each employee sign acknowledgment of
receipt and understanding of these standards of
conduct.
- Include these concepts during basic, in-service
and supervisory training.
- When your investigation concerning allegations of
this type is sustained, ensure that the charges are
fully described to include the “nexus” of the act of
misconduct with the employee’s ability to perform and,
if warranted, how that act of misconduct has the
potential to adversely affect the morale, operations or
efficiency of your agency.
- Beecham v. Henderson County, 422 F.3d 372 (6th
Cir
2005). back
- Thaeter v. Palm Beach County Sheriff’s Office, et
al., 449 F.3d 1342 (11th Cir. 2006).back
- City of San Diego v. Roe, 543 U.S. 77 (2004) (per
curiam).back
- John Doe v. Department of Justice, United States
of America Merit Systems Protection
Board, 2006 MSPB 246, Docket No. CH-0752-04-
0620-I-2, August, 2006.back
- State of Washington v. Cook, 125 Wn. App. 709;
106 P.3d 251 (Wash. App. Ct. 2005).back
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Details & Ordering
Contents:
- What Is A Complaint?
- Acceptance of the Complaint
- Investigative Responsibility
- Preparing to conduct the investigation
- Interviews
- Evidence Use and Control
- Domestic Violence
- Sexual Harassment Investigations
- Critical Incidents - Special Considerations
- Emergency Provisions
- Report Format
- Adjudication
- Corrective Actions
- Records
- Quality Control
- Quantitative Analysis
- Use of Force Reports
- Early Identification System
- Beyond training - the trainer’s role during
administrative investigations
- The Liability Shield: From Policy to Internal
Affairs
- External Review
- Report and Form Samples
Details & Ordering
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