AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Disciplinary Offenses/Punishment - Sexual Misconduct
Monthly Law
Journal Article: Regulation
of an Employee's Off-Duty Activities. Part Four– Sexual Conduct, 2008 (3)
AELE Mo. L. J. 201.
A sheriff’s department
terminated two deputies for violating the Sheriff’s Code of Conduct when they
moved in with each other’s wife and family before getting divorced from their
current wives and disobeyed a directive from the sheriff to cease living with a
woman not his spouse. The trial court upheld these discharges, finding them
supported by the rational grounds of preserving a cohesive law enforcement
agency and upholding the public trust and reputation of the department. The
Code, as written or unenforced, was not unconstitutionally vague. A federal
appeals court upheld this result, finding no reversible error. It also rejected
the argument that recent U.S. Supreme Court decisions upholding same-sex
marriages had created “rights” based on relationships that “mock marriage.” Coker,
v. Whittington, #16-30679, 2017 U.S. App. Lexis 8989 (5th Cir.).
An officer arrested for soliciting a prostitute
under a sting operation pled no contest to criminal charges, receiving a fine
and probation. He entered into a settlement agreement to resolve disciplinary
charges against him, under which he would serve a 30 day suspension, and waive
his administrative appeal rights. His lawyer later sent the police chief a
letter stating that the settlement was null and void. This repudiation of the
settlement justified the department's decision to proceed with the officer's
termination. Ferguson v. City of Cathedral City, #E051039, 2011 Cal. App. Lexis
978 (4th Dist.).
Rejecting a freedom of association argument, the
11th Circuit dismisses the suit of a demoted firefighter who had an
extramarital affair with one of his subordinates. The relationship between
supervisors and subordinates is critical to the effective functioning of the
fire department. Starling v. Bd. of Co. Cmsnrs., #09-11168, 2010 U.S. App.
Lexis 7091 (11th Cir.).
On remand from the Court of Appeals, the Merit
Systems Protection Board finds that the FBI had the authority to investigate
and discipline a special agent and that there is a nexus between some of the
charged conduct and the efficiency of the service. There was a reasonable
possibility that the agent's actions of videotaping his sexual encounters with
three women without their consent, two of whom worked for the FBI, negatively
impacted the agency's ability to perform its responsibilities and violated an
internal regulation. Doe v. Dept. of Justice, #CH-0752-04-0620 -M-1, 2010 MSPB
16, 2010 MSPB Lexis 241 (MSPB 2010), on remand from #2008-3139, 565 F.3d 1375
(Fed. Cir. 2009).
In an appeal where an FBI agent was fired for
videotaping sexual encounters with women without their consent, a federal
appeals court remanded the case to the Merit Systems Protection Board for
further adjudication. One judge wrote that he would have reversed the Board
outright on the ground that the agency failed to establish a nexus between the
charged conduct and the efficiency of the service. The majority held that the
Board failed to articulate a meaningful standard as to when private dishonesty
rises to the level of misconduct that adversely affects the "efficiency of
the service." The articulation of a meaningful standard is necessary
particularly in light of the apparent conflict between the FBI’s policy on
investigating personal relationships and its policies requiring their agents to
act with integrity and honesty. Doe v. DoJ, #2008-3139, 2009 U.S. App. Lexis
10031 (Fed. Cir.).
Federal court rejects the suit of a fire captain
who was demoted for maintaining a sexual relationship with a subordinate and
untruthfulness. "...courts have historically recognized that rights of
intimate association and marriage are not absolute, and may appropriately give
way in the government employment context where the exercise of the right
creates unreasonable interference or impediment to the effective functioning of
the public office." Starling v. Bd. of Co. Cmsnrs., #08-80008, 2009 U.S.
Dist. Lexis 7030 (S.D. Fla.).
Pennsylvania appellate court overturns an
arbitration award reinstating a worker who "repeatedly and egregiously
sexually harassed [a coworker] by engaging in behavior that ... [was] lewd,
lascivious and extraordinarily perverse." "If forced to honor the
arbitration award, [management] will not be complying with Title VII ... which
requires that an employer impose appropriate discipline for proven cases of
sexual harassment in order to ensure a safe work environment free of sexual
harassment." Phila. Housing Auth. v. AFSCME C-33, L-934, #2405 C.D. 2004,
2008 Pa. Comm. Lexis 417.
Tenth Circuit upholds a private oral reprimand
for a police officer, who, while off-duty, had sex with another officer, while
attending a training session out of town which was paid for in part by her
employer. "We think it reasonable for the police department to privately
admonish [appellant's] personal conduct consistent with its code of conduct
when the department believes it will further internal discipline or the
public's respect for its police officers and the department they
represent." Seegmiller v. Laverkin City, #07-4096 2008 U.S. App. Lexis 12417
(10th Cir.).
Arbitrator concludes that management had just
cause to terminate a police officer for sexually abusing a minor that was
arrested for DUI. The fondling of a fifteen-year-old handcuffed intoxicated
female is an extremely serious offense; progressive discipline is not warranted
in an extremely serious incident. City of Fort Worth and Individual Grievant,
124 LA (BNA) 1412, AAA Case #70-390-00310-07 (Moore, 2008).
Ninth Circuit affirms the dismissal of a civil
rights suit brought by a police officer who was terminated for participating in
a sexually explicit website with his wife., Whether his actions were related to
his employment or not, management could discipline him without violating his
First Amendment or privacy rights. Dible v. City of Chandler, #05-16577, 2007
U.S. App. Lexis 21181 (9th Cir.).
MSPB concludes that the Justice Dept. established
a nexus between the efficiency of the service and a FBI Agent's videotaping of
his sexual activities with three women without their consent. Doe v. Dept. of
Justice, #CH-0752-04-0620-I-2, 2006 MSPB 246 (2006). [2006 FP Nov]
North Carolina court strikes down an
anti-cohabitation law challenged by a sheriff's dispatcher who was fired for
living with her boyfriend. Hobbs v. Pender County, (N.C. Super. 2006). {N/R}
Arbitrator reinstates a sheriff's deputy who had
sex with a citizen in his patrol car. The officer admitted the conduct and he
had a long and impressive performance record. County of Shasta Sheriff's Dept.
and Deputy Sheriff's Assn., 120 LA (BNA) 377, CSMCS Case #ARB-03-2020 (Pool,
2004). [2005 FP Mar]
Arbitrator reinstates a sheriff's deputy who had
sex with a citizen in his patrol car. The officer admitted the conduct and he
had a long and impressive performance record. County of Shasta Sheriff's Dept.
and Deputy Sheriff's Assn., 120 LA (BNA) 377, CSMCS Case No. ARB-03-2020 (Pool,
2004). [2005 FP Feb]
Arbitrator upholds the termination of an officer
who lied about having sex in a police car while on duty. City of Cuyahoga
Falls, Ohio and Fraternal Order of Police, FMCS #010302/007108-6, 116 LA (BNA)
545 (2001). [2002 FP Mar]
Arbitrator upholds the firing of a Florida deputy
sheriff who solicited an act of prostitution. Termination was not inconsistent
with the penalties given others for similar offenses. Broward Co Sheriff's
Office and Federation of Public Employees, 115 LA (BNA) 708 (Richard, 2001).
[2001 FP 84]
Federal appeals court upholds the punishment of a
senior officer for “conduct unbecoming” with a junior officer. The fellow
officer was under his direct command and the relationship was obvious to
coworkers and enlisted personnel. U.S. v. Rogers, #99-0838, 54 MJ 244, 2000
CAAF Lexis 1200 (CAAF 2000). [2001 FP 5]
Arbitrator conditionally overturns the
termination of an Air Force firefighter, who was charged criminally and
confessed to having sex with a minor in a public toilet. The award is subject
to a reinstated security clearance. Hill Air Force Base and AFGE L-1592, FMCS
Case #00/07189, 114 LA (BNA) 1670 (Staudohar, 2000). [2001 FP 6]
DEA agent was properly terminated for maintaining
a sexual relationship with a criminal informant. Rackers v. DoJ,
#CH-0752-97-0218-I-1, 79 M.S.P.R. 262, 1998 MSPB Lexis 870 (1998). {N/R}
Federal appeals court affirms termination of
postal employee who took nude photos of a prostitute in a federal postal
facility, then sold them to an adult magazine. Uske v. U.S. Postal Service, 56
F.3d 1375 (Fed.Cir. 1995). [1996 FP 54]
Texas police officer was unfairly denied a
promotion because he was sexually active with the wife of another officer. The
chief failed to prove the sexual liaison had a detrimental effect on department
morale or affected the officer's on-the-job performance. City of Sherman v. Henry,
910 S.W.2d 542 (Tex.App. 1995).
Arbitrator reduces punishment of trooper from
termination to reinstatement without back pay, for engaging in a sexual
relationship with an Explorer Scout while on and off duty, and falsely reported
he was assisting a motorist during one of these times. Evidence that trooper
was a sex addict could not mitigate his punishment. Punishment was reduced
because management erroneously believed the offenses started before the scout's
18th birthday. Wash. St. Patrol and W.S.P. Troopers Assn, 2 (9) Pub.Sfty.Lab.
News 9 (Lankford, 1994). {N/R}
Federal appeals court upholds termination of
police officer for lying to superiors concerning his sexual relationship with a
former officer. Sweeney v. City of Ladue, 25 F.3d 702, 1994 U.S. App. Lexis
13215, 64 FEP Cases (BNA) 1633 (8th Cir. 1994). [1994 FP 149]
Storing obscene images and video games in a
government-owned computer warranted a 35-day disciplinary suspension and
reassignment. Morrison v. N.A.S.A., #CH0752940362-I-1, 65 M.S.P.R. 348, 1994
MSPB Lexis 1642. [1995 FP 36-7]
Arbitrator annuls the termination of a male
police officer who, in violation of the chief's order, continued to see a woman
who had complained that the officer sexually harassed her. Toronto, Ohio (City
of) and F.O.P. L-1, 102 LA (BNA) 645 (Duff, 1994). [1994 FP 165- 6]
Civil Service Commission rejects 15-day
suspension recommendation and fires bailiff who allegedly masturbated in front
of a court reporter and repeatedly had sex with a court reporter in the
courthouse. Bowling v. Los Ang. Co. Civil Serv. Cmsn., L.A. Co. Super. Ct.
#BS021433, 106 (16) L.A. Daily Journal 1 (1993). [1993 FP 40]
SC Supreme Court upholds termination of a married
officer who committed adultery with a married woman. Both resided in a small
community. Cook v. S.C. Dept. of Hwys., 420 S.E.2d 847 (S.C. 1992). [1993 FP
53]
Alabama appellate court sustains termination of
officer for off-duty "kinky sex," sexually deviant acts with
prostitutes, child abuse and gun play. Freeman v. City of Mobile, 590 So.2d 331
(Ala.Civ.App. 1991). [1993 FP 5-6]
Appellate court upholds conduct unbecoming charge
against an off-duty police officer who photographed a nude model and who
improperly accessed criminal justice records to verify her age. City of Mobile
v. Trott, 596 So.2d 921 (Ala. Civ.App. (1991). [1993 FP 21]
Police officer who allowed 14-year-old runaway
girl to live with him was ground for termination, without proof of sexual
intercourse. McHenry v. City of East St. Louis, 569 N.E.2d 259 (Ill.App. 1991).
[1992 FP 69]
Sergeant guilty of engaging in sexual intercourse
while on duty; civil service commission had authority to increase the
punishment imposed by the chief. Tovery v. City of Jacksonville, 808 S.W.2d 740
(Ark. 1991). [1992 FP 85]
Termination of a police officer was appropriate
for off-duty sexual assault. Hall v. Del Castillo, 571 N.Y.S.2d 771 (A.D.
1991). [1992 FP 116]
N.Y. appellate court sustains the termination of
a police officer who consorted with prostitutes, even though there was no
payment of monies for sexual services. Ruiz v. Brown, 579 N.Y.S.2d 47 (1992).
{N/R}
Alabama appellate court sustains termination of
officer for off-duty "kinky sex," sexually deviant acts with prostitutes,
child abuse and gun play. Freeman v. City of Mobile, 590 So.2d 331
(Ala.Civ.App. 1991). [1993 FP 5-6]
Off-duty officer who solicited an oral sex act at
a massage parlor and later urinated on a table full of food was guilty of
conduct that warranted his termination. Boyce v. Ward, 551 N.Y.S.2d 7 (A.D.
1990).
Federal merit board reinstates employee fired for
statutory rape; the crime had no connection with his official duties. Moten v.
United States, docket #PH-7528810230 (M.S.P.B. 11/6/89).
Appellate court sets aside discipline for
"public fornication." Although act occurred on a public beach, it was
after midnight, and parties were in an unlighted area. U.S. v. Carr, 28 M.J.
661 (N/MC-CMR 1989).
Masturbating in a public restroom furnished
grounds to terminate a peace officer. Ramirez v. Calif. St. Personnel Bd., 204
Cal.App.3d 288, 251 Cal.Rptr. 9 (1988).
Sexual intercourse with 15-year-old explorer
scout was unlawful; officer's termination did not violate his rights of privacy
or freedom of intimate association. Fleisher v. City of Signal Hill, 829 F.2d
1491 (9th Cir. 1987).
Termination appropriate penalty for exposing
himself, fondling women employees, and requiring female subordinate to perform
oral sex acts on him while in his office. Oare v. Coughlin, 520 N.Y.S.2d 658
(A.D. 1987).
Mentally disturbed police officer was entitled to
disability pension despite his conviction for sexually assaulting his teenaged
daughter. T.N.M. v. Police & Firemen's Ret. Sys., 527 A.2d 883, 218 N.J.
Super. 274 (1987).
Off-duty sex offense warrants termination of
public employee; arrest for public masturbation brought discredit to public
agency. Rocek v. Dept. of Public Instit., 225 Neb. 247, 404 N.W.2d 414 (1987).
Light penalty of civil service board reversed;
court orders termination of officer for on-duty sex and drinking incident.
Police Cmsnr. of Boston v. Civil Service Cmsn., 22 Mass App. 364, 494 N.E.2d 27
(1986).
Right of privacy does not include on-duty sexual
contacts with prostitutes. Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736 (9th
Cir. 1986).
Deputy suspended for giving photos of "sex
party" to TV station with intent to embarrass his chief deputy. City and
County of San Francisco Sheriff's Dept. v. McMurtry, (March, 1986). FP #137:1
Termination of firefighter upheld, following
"disgusting" treatment of prisoner who engaged in oral sex acts.
Watson v. City of Gatlinburg, 699 S.W.2d 171 (Tenn. App. 1985).
On-duty sexual misconduct justified termination
of firefighter. Foust v. City of Greensboro, 266 S.E.2d 835 (N.C. App. 1980).
See also Washington v. Civil Serv. Cmsn., 496 N.E.2d 1109 (Ill.App. 1986).
Police Dept. could not terminate female officer
because she posed in the nude for obscene magazines before she was hired.
Borges v. McGuire, 107 A.D.2d 492, 487 N.Y.S.2d 737, 1985 N.Y. App. Div. Lexis
49770.
Supreme Court denies review in off-duty sex case;
Texas suspension upheld; contrary Michigan case in doubt. Briggs v. No.
Muskegon Police Dept., 563 F.Supp. 585 (W.D. Mich. 1983).
Supreme Court refuses review of suspension of
police officers of opposite sex because they spent several nights together;
punishment O.K. even though department did not prove the affair adversely
affected performance on the job. Shago v. Spradlin, 701 F.2d 470 (5th Cir.
1983); cert. den. with dissenting opin. sub nom Whisenhut v. Spradlin, 104
S.Ct. 404 (1983). See also, "The Constitutional Right to Privacy and
Regulations Affecting the Sexual Activity of law Enforcement Employees,"
by D.S. Schofield, FBI Academy, in the FBI Law Enf. Bulletin, Oct. 1982, Pp.
24-31. Also note that prior to the Supreme Court's action a federal court in
Michigan found that the termination of a married police officer for cohabitating
with a married woman not his wife violated the office's associational and
privacy rights protected by the Constitution. Briggs v. No. Muskegon Police
Dept., 563 F.Supp. 585 (W.D. Mich. 1983).
Federal court sustains the termination of a
police officer for an act of adultery in a public park while off-duty. There
could be no tolerance for activities which could jeopardize the department's
effectiveness, even though the conduct was not illegal. Faust v. Police Civ.
Serv. Cmsn., 563 F.Supp. 585 (W.D. Mich. 1983). {N/R}
Private, off-duty relationships with opposite sex
are constitutionally protected and disciplinary action and resignation must be
annulled. Swope v. Bratton, 541 F.Supp. 99 (W.D. Ark. 1982).
Adultery could be punished by termination in a
state that makes the act a criminal offense. Suddarth v. Slane, 539 F.Supp. 612
(W.D. Va. 1982).
Termination appropriate for CHiP who forced
himself on teenage girls and refused to answer questions. Fout v. Calif. St.
Personnel Bd., 186 Cal.Rptr. 452 (App. 1982).
Pennsylvania Supreme Court affirms termination of
officer for sexual improprieties involving co-workers. Fabio v. Civil Serv.
Cmsn. of Phila., 414 A.2d 82 (Pa. 1980).
Highway patrolman's conduct at “drag queen”
(transvestite) party and untruthfulness, justified his termination. Warren v.
State Personnel Board, 156 Cal.Rptr. 351 (App. 1979).
Off-duty public lewdness justified termination of
employee for conduct unbecoming and immoral behavior. Corle v. City of Oil
City, 405 A.2d 1104 (Pa. Cmwlth. 1979).
Off-duty presence in an “after hours” club and
promiscuous relations with known prostitutes constitutes “conduct becoming” an
officer; dismissal affirmed. Richter v. Civil Service Cmsn. of Phila., 387 A.2d
131 (Pa. Cmwlth. 1978).
Officer, convicted of indecent liberties with
minors, could not be terminated; punishment excessive under circumstances.
Chaleff v. Codd, 407 N.Y.S.2d 159 (A.D. 1978).
Extramarital relationship between police
employees justifies dismissal. Lee v. Provo City Civil Serv. Cmsn., 582 P.2d
485 (Utah 1978).
Officer's procurement of “sex pad” was unbecoming
conduct; dismissal affirmed by appellate court. Oswald v. City of Allentown,
388 A.2d 1128 (Pa. Cmwlth. 1978).
Federal court upholds constitutionality of police
rule banning adulterous conduct, but rule which prohibits private conduct which
could bring department into disrepute could violate first amendment. Wilson v.
Swing, 463 F.Supp. 555 (M.D.N.C. 1978).
Texas and Georgia courts split on termination of
police officers for extra-marital affairs. Nixon v. City of Houston, 560 S.W.2d
447 (Tex. Civ. 1977); Smith v. Pierce, 446 F.Supp. 828 (M.D. Ga. 1977).
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