By Karen J. Kruger, Legal Advisor to the Sheriff of Harford County, Maryland; Counsel, Maryland Chiefs of Police Association; and Board Member at Large, IACP Legal Officers’ Section
Investigating and Disciplining Off-Duty Sexual Conduct: Is There a Right to Privacy?
hen Thomas Nixon was an officer with the Houston, Texas, Police Department (HPD), he regularly authored an opinion column, “The Insider,” in his off-duty time for a local publication called 002 Magazine. In his articles, Nixon identified himself as a police officer and wrote about Houston police activities, policies, and his own duties. Nixon neither requested nor received authorization from the HPD to publish his column; thus, when a citizen complained about the unsavory nature of his articles, the chief of police was caught unawares and ordered an investigation.
The HPD’s internal investigation into Nixon’s unauthorized off-duty conduct found that in his articles he had made “caustic, offensive, and disrespectful” statements directed toward citizen groups, especially minorities, women, and the homeless. The HPD terminated Nixon’s employment, finding that his conduct “undermined the efficiency of services provided by the HPD.”1
Nixon sued the HPD, claiming that it had violated his First Amendment rights by firing him for his expressive activities. The federal appellate court analyzed his claims by applying the current federal standard to Nixon’s on-duty as well as off-duty speech.2 The court ruled that neither his on-duty nor his off-duty speech was protected by the First Amendment because, even if his comments were about public concerns, given his column’s content and delivery, “the government’s substantial interests in the efficient provision of government services” outweighed Nixon’s right to free speech.3
Nixon requested that the U.S. Supreme Court review his case, and in May 2008 the Court declined to do so,4 essentially ratifying the decision of the Fifth Circuit Court of Appeals.
Of particular interest in this case is the court’s recognition that the HPD could legitimately regulate Nixon’s off-duty personal activities. The court focused on the fact that Nixon made “comments deriding and insulting the community not as legitimate criticism of police practices but as a direct blow to the relationship with the community HPD serves, and HPD must be able to prohibit such speech if it is to perform its function and maintain its professionalism.”5
Authority to Regulate Off-Duty Conduct
Other courts have recognized that law enforcement agencies must have the power to regulate the off-duty conduct of their officers: “Because police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulation than an ordinary government employer.”6 Forty years ago, in Gardner v. Broderick,7 the Supreme Court approved the idea that law enforcement agencies could legitimately have more stringent conduct rules, including rules regulating off-duty behavior, because a police officer is “directly, immediately and entirely responsible to the city or State which is his employer. . . . He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer.”8 Indeed, the Broderick court recognized that a law enforcement employer may scrutinize both on- and off-duty conduct that demonstrates “an individual’s fitness for public service.”9
Regulation of Off-Duty Sexual Activity
One of the most private off-duty activities of employees is their sexual conduct, a matter that poses regulatory difficulties and yet is an issue that is ripe for potential scandal sufficient to undermine the public trust and even result in liability for an agency.10 Law enforcement managers must be prepared to regulate and punish the sexual misconduct of officers, although this can be difficult and even potentially embarrassing.
Most police agencies have a regulation that specifically prohibits officers from engaging in sexual activity while on duty,11 conduct that is plainly unethical, but regulating off-duty sexual conduct falls into “a much grayer constitutional area.”12 Officers may contend that they have free speech and association rights, as well as a right to privacy, thus inhibiting an agency from taking action in these cases. Yet the rights granted by the First Amendment are not without limits, as shown in the Nixon case, and there is no specific constitutional right to privacy. When an officer’s sexual conduct tends to damage the public’s trust in an agency; wastes agency resources; or undermines the good order, morale, and efficiency of the force, it is unethical and subject to discipline.13
Police chiefs must consider a number of factors when faced with an officer’s sexual misconduct, and some recent cases provide guidance in this area. Many contemporary cases arise in connection with Internet transactions, often implicating First Amendment issues.14
In Thaeter v. Palm Beach County Sheriff’s Office a sheriff terminated the employment of two deputies after discovering that they had engaged in sexually explicit off-duty conduct that was photographed and filmed and made available for pay-per-view on the Internet.15 In addition, the deputies were compensated for their activity and had not obtained the required written approval from the sheriff to engage in off-duty employment. In their lawsuit against the sheriff, the deputies claimed that they had a First Amendment right to act as they had.
The court dismissed their suit, finding that their speech activities were not protected by the First Amendment as they did not involve matters of public concern and, moreover, that the activities could have negatively affected the efficiency and reputation of the sheriff’s office in the public eye. The court noted the importance of the sheriff’s office’s code of ethics, which included the commitment that “I will keep my private life unsullied as an example to all.”16
The Internet was also involved in Dible v. City of Chandler, a case in which an officer maintained a Web site featuring sexually explicit photographs and videos of his wife, himself, and another woman.17 He promoted his Web site at “bar meets” and lied to investigators when under investigation. The media reported stories about the Web site, identifying the individual as a Chandler police officer.
After the police department terminated the officer’s employment for bringing discredit on the agency and for lying, the officer sued, claiming that the City had violated his First Amendment rights. He also claimed that his privacy rights were violated, a claim that the court found particularly puzzling since he had chosen to post his sexually explicit videos on the Internet. The court ruled in favor of the police department and the City, finding that “[i]t would not seem to require an astute moral philosopher or brilliant social scientist to discern the fact that Ronald Dible’s activities, when known to the public, would be ‘detrimental to the mission and functions of the employer.’”18
In another case, a San Diego officer offered for sale on eBay videos of himself stripping off his police uniform and engaging in sexual acts, outside the workplace and while off duty. The U.S. Supreme Court determined that the department did not violate the officer’s free speech rights in terminating his employment. The Court recognized that the officer’s “expression” did not qualify as related to any matter of public concern, that the department had substantial and legitimate reasons for regulating this conduct, and that his public sexual activities brought the department’s mission and the professionalism of its officers into serious disrepute.19
An agency can and must regulate sexual conduct that is less public than that displayed on the Internet but still compromises the agency’s mission. In Marcum v. McWhorter, a federal court found that a deputy sheriff’s adulterous relationship was not constitutionally protected and thus upheld the sheriff’s firing of the deputy.20 Similarly, when a department terminated an officer for an act of adultery in a public park while off duty, a court approved the action, finding that such acts could diminish the agency’s ability to provide effective law enforcement services.21
Yet there are cases that show that police officers generally do have some sort of right of privacy in their private sexual relations, even though courts have not applied the same constitutional standard of review to cases with similar facts. For instance, in Thorne v. City of El Segundo, the reviewing court held that a police department violated a job applicant’s right to privacy by investigating her private, off-duty sexual affair with a police officer.22 In a Michigan case, Briggs v. N. Muskegon Police Dept. held that a police department violated an officer’s privacy rights when it investigated his off-duty, adulterous affair even though it had not affected his job performance.23
A Constitutional Right to Sexual Privacy?
In Sylvester v. Fogley, the U.S. Court of Appeals for the Eighth Circuit ruled that an Arkansas State Police (ASP) investigator did not have a constitutional right to privacy in his sexual relationship with a crime victim that he had begun during the course of the underlying criminal investigation.24
The Sylvester court noted that there is no right of privacy in the text of the Constitution and indeed that “‘[o]bscure’ might best describe the right of privacy.”25 More specifically, the court held that “no court has held that a police officer has a fundamental privacy right that precludes a police department from investigating a citizen’s complaint that the officer had sexual relations with a crime victim during the course of the investigation involving that victim.”26 This court also made astute observations about the need for a police force to maintain the public’s respect and trust and concluded that “[j]ustice cannot be achieved when state agents place their personal interests above the public’s trust.”27
One of the reasons that the Circuit Court had little difficulty dismissing Sylvester’s claims was that the ASP had “limited its investigation to conduct that could interfere with Sylvester’s work performance and that could negatively impact the ASP’s mission of providing essential governmental services.”28 Thus, it is apparent that an agency must be able to establish a rational connection between its investigation into an officer’s off-duty sexual conduct and the promotion of public safety and public trust. Often this connection is related to the standards and expectations of the individual community.
There are other factors that an agency should consider when evaluating whether an officer’s off-duty sexual conduct merits investigation and regulation: if the conduct is “open and notorious”; if the activity is criminal or near criminal in nature; if the officer commits acts that a community would find deviant or repugnant; whether or not the conduct is truly private and/or occurs only when the officer is off duty; whether the conduct is sufficiently connected to the officer’s duty status as to expose the agency to civil liability; and if the circumstances of the activity call into question the soundness of the officer’s decision-making skills, judgment, credibility, or fitness for public employment.
Investigating the sexual conduct of fellow officers is challenging, embarrassing, and sometimes even shocking. Yet to uphold the professional reputation of police departments and their members and to maintain the public’s confidence and trust in the integrity of its police officers, such investigations must be undertaken, and such damaging sexual conduct must be punished. ■
1Nixon v. City of Houston, et al., 511 F.3d 494 (5th Cir. 2007). Nixon had also violated agency regulations by making unauthorized, critical comments about the HPD while on duty, after an accident that resulted from a high-speed police pursuit.
2See Garcetti v. Ceballos, 547 U.S. 410 (2006).
3Nixon, 511 F.3d at 499.
4Nixon v. City of Houston, et al., 2008 U.S. LEXIS 4489 (May 27, 2008).
5Nixon v. City of Houston, et al., 511 F.3d at 501.
6Tindle v. Caudell, 56 F.3d 966, 971 (8th Cir. 1995); see also Hawkins v. Dept of Public Safety & Correctional Services, 325 Md. 621 (1992) (off-duty correctional officer terminated for outburst in bank); Michigan State Police Troopers Ass’n v. Hough, 872 F.2d 1026 (6th Cir. 1989) (off-duty conduct subject to administrative investigation); Shawgo v. Spradlin, 701 F.2d 470 (5th Cir. 1983) (officers investigated for off-duty dating and cohabitation); and Broderick v. Police Commissioner of Boston, 368 Mass. 33 (1975) (investigation of conduct at off-duty police union conference).
7Gardner v. Broderick, 392 U.S. 273 (1968).
8Id. at 277–78.
9Broderick, 368 Mass. 33, 39; see also John M. Collins, “Questioning Officers about Off-Duty Conduct,” Chief’s Counsel, The Police Chief 62, no. 10 (October 1995): 12–15.
10Thomas J. Martinelli, “Minimizing Risk by Defining Off-Duty Police Misconduct,” The Police Chief 74, no. 6 (June 2007): 42.
11See Fugate v. Phoenix Civil Service Board, 791 F.2d 736 (9th Cir. 1986) (officers terminated for engaging in on-duty sexual activity with prostitutes, paid with public money).
12Martinelli, “Minimizing Risk,” 42.
13Ibid., 40 (“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”).
14See Lou Reiter, “Conduct Unbecoming: Sex, Videotapes, the Internet, and Police Misconduct,” Public Agency Training Council, http://patc.com/weeklyarticles/conduct-unbecoming.shtml (accessed July 29, 2008).
15Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342 (11th Cir. 2006).
16Id. at 1346. The court also quoted Thorne v. City of El Segundo, 726 F.2d 459, 470 n. 10 (9th Cir. 1983): “the state’s interest in regulating the conduct of its employees is perhaps at its greatest where paramilitary organizations, such as a police force, are involved.”
17Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2007).
18Id. at 928, quoting City of San Diego v. Roe, 543 U.S. 77, 80 (2004).
19Roe, 543 U.S. 77.
20Marcum v. McWhorter, 308 F.3d 635 (6th Cir. 2002).
21Faust v. Police Civil Serv. Commission, 347 A.2d 765 (1975).
22Thorne, 726 F.2d 459, 468–71.
23Briggs v. N. Muskegon Police Dept., 563 F. Supp. 585, 590–91 (W.D. Mich. 1983).
24Sylvester v. Fogley, 465 F.3d 851 (8th Cir. 2006). See also Lou Reiter, “Sexual Misconduct by Public Safety Officers Is a Job for Us, Not the Courts,” Public Agency Training Council, http://patc.com/weeklyarticles/job-for-us.shtml (accessed July 29, 2008).
25Sylvester, 465 F.3d at 857.
26Id. at 858; n. 6.
27Id. at 859.
28Id. at 860.