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Back to Archives | Back to June 2007 Contents 

Minimizing Risk by Defining Off-Duty Police Misconduct

By Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan

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hen a professional sports team fails to make the playoffs year in and year out, sports pundits talk about their losing “locker room culture.” Generally, in the sports environment this losing culture reflects a mindset of players in pursuit of individual statistics, a lack of coaching leadership, and an absence of organization-wide personal accountability requirements. A new coach must root out this culture in order to turn things around. But changing a culture that has been in place for years takes time and planning if subordinates are to buy into it. From a risk management perspective in police administration, a positive cultural change is worth the effort.

Instilling a culture of integrity in policing demands that an agency strive for a level of professionalism that demonstrates department-wide accountability through a written, comprehensive plan. This comprehensive plan must incorporate clearly written rules and regulations; a zealous implementation of these rules; and strict, swift, and uniform sanctions for any violations. At the very least, policy makers must draft a unique template of accountability for their own agencies, in order to avoid the costs of extended litigation, either from citizens or subordinates.


Off-Duty Conduct

Internal litigation and the costs associated with officer off-duty misconduct are not as easily manageable. For decades, police chiefs, arbitrators, and judges have had to wrestle with the disciplinary issues associated with off-duty misconduct. Generally, misconduct is considered to be an employee’s noncompliance with the rules and regulations of the agency. Clearly, all off-duty illegal behavior committed by sworn personnel is unethical, but not all off-duty unethical behavior is illegal. An officer’s termination for off-duty misconduct subjects an agency to the possibility of negative media coverage; long-term litigation costs; and allegations of corruption, mismanagement, agency cover-up, or administrative incompetence. A failure to educate subordinates regarding the agency’s expectations of off-duty conduct could be defined as a neglect of duty on the part of the police administration.

Regulating off-duty officer behavior will always be a legal challenge, as there is a very fine line between balancing the organization’s right not to employ an unethical officer versus the officer’s right to off-duty privacy. The scales of justice dictate that courts weigh the differing interests of the parties before them and derive a fair and just resolution that benefits the majority’s interests. Philosophically speaking, the majority’s interest in policing must belong to the community the agency serves, not to the organization, individual officers, or the police union. A police agency that drafts and adheres to its own template of accountability demonstrates to its citizens, its employees, and the courts its commitment to provide professional police services by maintaining a level of integrity both professionally and personally.

Labor law, not unlike criminal law, seeks to define employee behavior that violates the rules and regulations of an organization. Mission statements, codes of ethics, and oaths of office provide all employees and policy makers with guidelines for an agency’s expectations for both on- and off-duty behavior. Yet without clear and concise definitions of an agency’s expectations, employees may never truly associate their own immoral off-duty behavior as noncompliant with an agency’s expectations.


Conduct Unbecoming an Officer

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Conduct unbecoming an officer is a charge used in policing to discipline officers for behavior that violates an agency’s policies and expectations. The officer’s perceived deviant behavior usually does not fit perfectly into an agency’s rules and regulations, so administrators charge the offending officer with conduct unbecoming. It is used as a catch-all charge. Yet defining conduct unbecoming requires an approach similar to U.S. Supreme Court Justice Potter Stewart’s attempt to define pornography in 1964—we’ll know it when we see it.

One of the earliest Supreme Court cases that wrestled with this issue was Parker, Warden, et al. v. Levy.1 In Parker, Dr. Levy was an Army captain who spoke out publicly against the Vietnam War. He urged African-American enlisted men to disobey orders to go to Vietnam and was successfully court-martialed on a variety of violations, the most serious charge being conduct unbecoming an officer and a gentleman.

The Supreme Court’s majority opinion was that the military is a “specialized society separate from civilian society” with its own rules and a need for a higher standard of accountability. The Court quoted a previous case in saying, “. . . the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . ,”2 suggesting that military personnel may have to sacrifice certain individual rights in order to accomplish the organization’s mission. Soldiers should reasonably expect to be reprimanded or punished for engaging in unethical behavior while statutes, rules, and regulations are not only to punish, “but also to foster an orderly and dutiful fighting force.”

The point is that soldiers, much like police officers, should know right from wrong and must live their lives, both professional and personal, in accordance with the higher standards and expectations of their agency. It is an honor and privilege to be employed as a soldier or police officer, and attached to that honor come certain unwritten expectations and a sacrifice of individual rights.


Risk Management and Off-Duty Misconduct

Managing risk in a police department includes minimizing officer misconduct that results in a loss of manpower hours, litigation costs, settlement payouts, and jury awards. For every police misconduct case found in written treatises, one can conclude that hours of internal investigations, paperwork, disciplinary hearings, and court appearances resulted in an appellate body reviewing that officer’s alleged misconduct. It does not matter to this discussion whether the officer or the agency prevailed. The fact is that one off-duty misconduct case can cost taxpayers thousands of dollars that could have been better used. Proactive police supervision is managing risk.

The following examples of conduct unbecoming are not cited in order to imply they are the law of the land and must be followed; rather, they are cited as examples of what agencies have had to address regarding legal off-duty behavior by employees that was deemed unethical and resulted in litigation. The profile for off-duty conduct unbecoming cases is simple:

1. Alleged misconduct occurs while an officer is off duty.
2 The alleged misconduct is reported by a citizen, the media, or a fellow officer.
3. The allegation results in an internal investigation.
4. Charges are filed based on the chief’s opinion that the behavior violated the organization’s rules.
5. A disciplinary hearing results in the officer’s discipline: days off without pay, reduction in rank, or termination.
6. A lawsuit is filed by the officer alleging a property loss resulting from the penalty for off-duty legal behavior.

Granted, not all officers terminated for off-duty misconduct file lawsuits. Of those that do file a suit and lose, not all appeal that ruling, and not all of these appeals make it to written treatises. But generally, the cases documented show that an agency can prevail if it can prove that there exists a nexus between legal off-duty misconduct and the officer’s job performance and/or how it might affect the public’s trust in the agency itself.


Unbecoming Off-Duty Demeanor

Research of misconduct cases provides a seemingly endless list of scenarios that proved costly from a litigation standpoint, whether the department won or lost. For example, an appeals court upheld the suspension of an off-duty supervisor charged with conduct unbecoming an officer for using profanity and fighting with teenagers.3 A state supreme court upheld the termination of an off-duty officer who verbally abused gays and created a disturbance.4 A federal court upheld the 30-day suspension of an officer for his off-duty rude remarks to bank employees.5 In these cases, the organization succeeded in demonstrating how employees’ misconduct undermined the agency’s mission statement.

In contrast, an appellate court overturned the termination of an assistant chief, charged with conduct unbecoming, for allegations that he associated with a known drug addict.6 In another case, an arbitrator dismissed conduct unbecoming charges, ruling that in order for an employer to prevail in implementing an antifraternization policy, it must be in writing and disseminated throughout the agency.7 A state supreme court ruled that an officer who exposed himself to other officers as part of fraternal banter was not guilty of unbecoming conduct within its definition.8

Without a written template of accountability, plaintiffs’ attorneys can successfully persuade civil juries that chiefs abused their authority by acting in an arbitrary manner; such decisions result in costly judgments against departments. In labor law cases such as these, jurors must see a written plan, uniformly implemented, that demonstrates a chief’s commitment to organizational accountability.


Off-Duty Deviant Sexual Behavior

The issue of sex and police has often resulted in internal litigation. Interestingly, police agencies often have a written policy that specifically prohibits officers from engaging in sex on duty—even though common sense would dictate that while on duty, police officers would restrain their sexual urges along with any other activities that waste taxpayer dollars. Sanctions for on-duty sex violations are generally a straightforward disciplinary matter, but disciplining officers for off-duty sexual behavior is a much grayer constitutional area.

Courts have struggled to balance an organization’s public image and its need to foster an orderly and dutiful force with an officer’s individual right to privacy while off duty. Over the years, costly litigation has still not provided clear-cut guidelines for agencies to follow.

For example, one court upheld an officer’s three-day suspension for engaging in a “whipped cream race” with other officers while off duty, licking whipped cream off of a dancer’s torso.9 A federal court upheld the termination of an officer for an act of adultery in a public park while off duty, because such acts could jeopardize a department’s effectiveness.10 The U.S. Supreme Court declined to hear the appeal of an officer who was denied promotion because of his affair with the spouse of a fellow officer.11

Discipline was appropriate where there existed a nexus between the diminished effectiveness of an organization’s service and an officer’s videotaping his sexual activities with three women without their consent.12 Appellate courts have sustained the termination of officers for off-duty “kinky sex” with prostitutes,13 for consorting with prostitutes even though there was no payment of monies for sexual services,14 and for being at an after-hours club, engaging in promiscuous relations with known prostitutes.15 In these cases, the agencies successfully argued there was a rational basis between the proscribed conduct and the discipline meted out. As long as police have a valid “state objective” (i.e., the need to foster a professional force through accountability and maintenance of public image), reasonable disciplinary measures can be used to seek officer compliance in off-duty privacy situations.


An eBay Case

Recently, the U.S. Supreme Court had to wrestle with the balance between discipline and off-duty privacy. An officer offered police equipment and uniforms for sale on the Internet auction site eBay, and in the adults-only section, he advertised a video of himself stripping off a nondescript police uniform and sexually stimulating himself.

An undercover internal-affairs investigator subsequently ordered one of the officer’s custom videos. In the video, wearing a nondescript police uniform, the officer pretended to revoke a traffic ticket and stimulated himself. The department disciplined the officer for conduct unbecoming along with other charges and eventually terminated him after he continued to offer the adult tapes for sale when ordered not to do so.

The officer’s lawyers sued his department alleging that his off-duty video sales were protected under his First Amendment right to free speech and was unrelated to his police work. The lower court upheld his termination. The Court of Appeals reversed it, however, ruling that the officer’s off-duty speech was protected using a four-part test. The court decided that his off-duty behavior (1) had nothing to do with an internal workplace grievance, (2) took place while away from his employer’s premises, (3) was unrelated to his employment, and (4) had no effect on the mission and purpose of the employer or had any adverse impact on the agency. The agency appealed.16

The Supreme Court reversed the Court of Appeals ruling, stating that the officer’s speech did not fall under the protected category of being a matter of public concern. His production and sales activities did nothing to inform the public about the functioning, or dysfunction, of his agency. His expression was “widely broadcast, linked to his official status as a police officer, . . . designed to exploit his employer’s image[, and] . . .detrimental to the mission and functions of the employer.” His termination was upheld.17

Clearly this was a complex issue, or else the Supreme Court would have refused to hear the case. The facts of this case might lead reasonable police minds to agree that such off-duty officer behavior would warrant severe discipline, in some form. However, the purpose of this discussion is not to judge the officer’s behavior or the agency’s discipline; rather, the focus here is to emphasize the exorbitant litigation costs, manpower hours, and years spent proving that the agency was right. From such a perspective, the victory in this case appears empty: the agency won in court but at a high price to the taxpayers and the municipality.


Risk, Retaliation, and Abuse of Authority

A review of federal case law specifically addressing improprieties of chiefs and policy makers illustrates best that abuse of power can also prove costly, in terms of both finances and morale.

In one case, while a veteran officer’s divorce was pending, an 18-year-old woman moved in with him, and he was terminated for conduct unbecoming an officer.18 The officer successfully sued the department for violation of his First Amendment right to privacy and association. The court took exception to the fact that the investigation had no written guidelines and was not defined under any current policy. What the department defined as an “act of moral turpitude” was not in any written policy and in fact largely depended upon the personal standards of the particular police commissioner at the time.

The court wrestled with the First Amendment right to association and stressed that a department cannot violate an employee’s zone of privacy in its attempt to regulate legal off-duty behavior of its employees in the furtherance of its own missions. The court acknowledged that some areas of personal sexual activity that may impact the officer’s job performance could be considered, but a nexus between misconduct and job performance must be well documented and clearly evident.

A similar case dealt with a decorated veteran sergeant with an exemplary record. His divorce was pending, and his living arrangement with a single woman became the focus of an internal investigation after the chief reportedly received anonymous complaints from the community.19 The investigation resulted in the sergeant’s suspension, demotion, and eventual resignation.

In finding the chief, the city, and city board members liable for the deprivation of the sergeant’s constitutionally protected rights to privacy and association, the court discussed the same zone of privacy and the need to establish a nexus between legal off-duty behavior and job performance. However, rather than basing its decision on the absence of standards of investigation or the lack of written policies, in this case the court found the chief’s motivations to be purely malicious and vindictive.

Through discovery it was revealed that the chief held a personal grudge against the sergeant and was determined to destroy his career. Apparently the two men had had unresolved conflicts years earlier, and neither held the values of the other in high regard. In addition, the court learned that prior to the chief’s appointment, the sergeant openly supported one of the other applicants for the open position.

To make matters worse, the court noted that one of the chief’s lieutenants investigating the case was married but not yet divorced and was openly dating another woman. The lieutenant received only a written reprimand in his file for this infraction. Needless to say, the court ruled that the sergeant’s attorney fees and costs of litigation were to be paid by the city and its taxpayers. The officer was reinstated to his sergeant’s rank and was awarded full back pay, and the matter was expunged from his personnel file.

Defense allegations of administrative retaliation occasionally surface in police disciplinary matters, and when they are proven, the morale of a department’s members suffers greatly. In a recent case, officers who unsuccessfully challenged their municipalities’ residency requirement in court were terminated shortly thereafter.20 They sued their department for retaliation. The appellate court noted that after investigating 25 city employees for violating the residency requirement, the city terminated only five officers—all of whom were parties to the residency lawsuit.

The court found that the city halfheartedly attempted to collect residency data from all city employees, and no employee was ever previously disciplined or terminated for violating the policy. Additional evidence suggested that other city employees who violated the policy, some of whom were police officers that did not partake in the prior lawsuit, were not disciplined. For these reasons, the court allowed the retaliation lawsuit to proceed to trial, and the community’s taxpayers picked up the tab. This case illustrates that selective discipline, as well as policies that are poorly written or poorly executed, can result in costly internal litigation that can easily be avoided.


Drafting a Template of Accountability

To reinforce an agency’s culture of integrity and to provide for a long-term foundation of professionalism, a chief must first develop a written strategy to convince subordinates of the necessity of such a culture. When developing a template of accountability, police executives should be mindful that catchphrases can be unpopular with current employees. For example, employees most likely will resent a template title of “creating a culture of integrity” because it presupposes that one does not already exist, or never existed, in their agency. The objective in developing the template of accountability is getting all employees to buy into the strategy, not to offend current hardworking employees.

A critical element for the accountability template is appropriate training.21 A specific training program on accountability, ethics, and integrity should be a part of every department’s educational plan, and an ethics component should be a part of every training module. An ethics discussion can easily be integrated into training on topics such as evidence handling, interviewing, use of force, report writing, testifying, and a host of other subjects.

When designing specific ethics and integrity training programs, chiefs should remember that programs must incorporate both individual and team accountability concepts. Training using scenarios, case law, and arbitration awards can provide clear examples to employees and can illustrate the meaning of the IACP code of ethics and oath of honor as well as the agency’s mission and value statements.22 The ethics accountability training must be provided on an annual basis and must be updated regularly as policing continues to evolve. Case law examples and zone-of-privacy issues in the law will change just as the technology used by departments changes.

For years, police ethicists have espoused the need for ethical behavior to start at the top. Such a mandate dictates that a chief’s actions minimize internal litigation, which is a cancer on an organization. As shown, retaliatory discipline, zone-of-privacy cases, and disciplinary sanctions for off-duty behavior with no nexus to job performance are costly, in terms of both finances and morale. Perceptions of favoritism, nepotism, or discipline with malice will only repel subordinates from any administrative attempts to instill accountability and will empower plaintiff attorneys to sue the department.


IACP Model Policies

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There is no need to reinvent the wheel when researching and writing a template of accountability. IACP model policies regarding employee misconduct and a Police Chief article on shared responsibility are the best starting points.23 Plaintiffs’ attorneys will have no legal recourse when one cites these well-conceived authorities as a resource, during deposition or trial testimony.

The concept of shared responsibility dictates that each member of an agency has a duty to report and prevent colleague misconduct, including off-duty misconduct. Off-duty misbehavior reflects poorly on the entire agency’s public image when reported in the media and diminishes the public’s trust in the agency. Drafting concise policies that address conduct unbecoming an officer and organizational expectations of off-duty behavior is the first step in the accountability template.

Educating officers on the content of department policies and the organization’s expectations behind these policies is critical. Discussing the off-duty problems for which others have been disciplined can only benefit an agency and can supply a chief with an ample due-process defense in civil court. Failing to educate officers on the organization’s definition of off-duty misconduct leaves the door open for juries to answer for themselves the meaning behind the policy and its implementation. When chiefs testify that their training methods highlight the department’s own examples of off-duty violations and the resulting discipline, coupled with case law and arbitration examples, it demonstrates a written plan of commitment to agency-wide accountability. Professional police organizations must zealously police themselves, and a written philosophy of proactive prevention, ingrained in an agency’s members, is a proactive defense.


Perceptions of a Chief’s Integrity

For subordinates to buy into a culture of ethics and integrity, employees and their unions must trust in the chief’s own integrity as well as that of the agency’s internal-affairs division. (The popular-entertainment media have often portrayed internal-affairs investigators as administrative dupes out to burn good cops. Citizens who serve on juries have been exposed to this backward mentality for years by watching movies and television shows.) Prepared with written guidelines for internal-affairs investigations, chiefs can successfully defend their disciplinary decisions and the agency itself if they have demanded consistently that internal investigations be conducted fairly, without personal bias, and with a sense of balance between individual privacy and organizational compliance. When officers perceive that they are treated fairly in disciplinary matters, internal distrust is minimized, and the organization benefits as a whole.


Focus on the Team

A chief must set team goals focused on reducing litigation costs by minimizing both employee and citizen lawsuits. If chiefs can demonstrate tangible savings to their city administration as part of their efforts to reduce litigation costs, those savings can be reallocated toward more critical agency needs. This is the core foundation for the employee “buy-in” strategy. By educating the rank and file of the organizational benefits of litigation reduction, police administrators can motivate and encourage officers to police each other on matters of ethics, both on and off duty. This requires not only the perception but the reality that the administration provides complete support to whistle-blowers.

Coaches are replaced for their failure to change a losing culture; similarly, chiefs have been replaced for their inability to achieve organizational accountability. In today’s litigious society, a chief’s job description also entails minimizing an agency’s liability, internally as well as externally. By educating employees on the organizational expectations of their off-duty behavior, the chief can provide officers with a winning plan that benefits all interested parties.■


Notes:
1Parker, Warden, et al. v. Levy, 417 U.S. 731 (1974).
2Ibid., quoting Burns v. Wilson, 346 U.S. 137, 140 (1953).
3Eilers v. Civil Service Commission, 544 N.W. 2d 463 (Iowa App. 1995).
4Green v. City of Sioux Falls, 607 N.W. 2d 43, S.D. Lexis 30 (2000).
5Harper v. Crockett, 868 F. Supp. 1557 (E.D. Ark. 1994).
6Flosi v. Board of Fire and Police Commissioners of Rock Falls, 582 N.E. 2d 185 (Ill. App. 1991).
7Monterey County and Individual Grievant, CSMCS No. ARB-01-0050, 117 LA (BNA) 897 (2002).
8Pa. St. Police v. Pa. St. Troopers (Betancourt) 656 A.2d 83, 540 Pa. 66 (1995).
9Shankle v. Bell, U.S. District Court for the Western District of Penn., No. 2:04cv1885 (2006).
10Faust v. Police Civ. Serv. Commission, 347 A.2d 765 (1983).
11Henry v. City of Sherman, 117 S.Ct. 1098 (1997).
12Doe v. Department of Justice, #CH-0752-04-0620-I-2, 2006 MSPB (2006).
13Freeman v. City of Mobile, 590 So.2d 331 (Ala. Civ. App. 1991).
14Ruiz v. Brown, 579 N.Y.S. 2d 47 (1992).
15Richter v. Civil Service Commission of Philadelphia, 387 A.2d 131 (1978).
16Roe v. City of San Diego, 356 F.3d 1108 (2004).
17City of San Diego v. John Roe, 543 U.S. 77 (2004), no. 03-1669.
18Shuman v. City of Philadelphia, 470 F. Supp. 449 (1979).
19Swope v. Bratton, 541 F. Supp. 99 (1982).
20Phyllis Hill, et al. v. City of Scranton, et al., 2005 U.S. App. LEXIS 10709.
21See Tag Gleason, “Ethics Training for Police,” The Police Chief 73 (November 2006): 58–61.
22See International Association of Chiefs of Police, “Achieving and Maintaining High Ethical Standards: IACP’s Four Universal Ethics Documents,” The Police Chief 69 (October 2002): 64–70.
23See International Association of Chiefs of Police, National Law Enforcement Policy Center Model Policy: Standards of Conduct, October 1998, www.theiacp.org/profassist/ethics/model_policy.htm, April 18, 2007; and Patricia A. Robinson, “Shared Responsibility: The Next Step in Professional Ethics,” The Police Chief 71 (August 2004): 76–81.


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From The Police Chief, vol. 74, no. 6, June 2007. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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