Constitutional authority to regulate off-duty relationships: recent court decisions.

In recent years, a number of court cases have involved law enforcement employees who have faced departmental actions due to charges of nepotism or improper off-duty sexual activity. These employees have challenged departmental actions based on these charges on the grounds that the department is violating their First Amendment freedom of association. This article reviews two court decisions involving antinepotism rules and three cases involving the authority to regulate off-duty sexual activity. The article concludes with a discussion of departmental prerogatives to conduct internal investigations of alleged sexual misconduct.

General Principles

The Supreme Court recognizes that an individual has a fundamental liberty interest in being free to enter into certain intimate or private relationships. First Amendment freedom of association "protects those relationships, including family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life."(1) However, freedom of association is not an absolute right.

As a sovereign, the government faces many hurdles in restricting an individual's freedom of association. In its capacity as an employer, however, the government has far broader powers. As an employer, the government's interest in "achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest...to a significant one."(2) That is why it is not necessarily unconstitutional for the government to restrict an employee's First Amendment rights when it is acting as an employer.

When government actions are challenged by employees, the courts generally apply one of three standards of review. The most burdensome standard of review is called "strict scrutiny." This standard requires that the government prove that there are compelling reasons for the action taken. An intermediate standard of review is a balancing test where the interests of the individual are measured against the interests of the government. A third standard of review, called the "rational basis" test, is considerably more deferential to the governmental employer and merely requires that the government show that a legitimate rational objective existed for the action taken. The court determines which of these standards of review will apply based on the constitutional importance of the employee's rights implicated by the government action.

Antinepotism Rules

Public employers, concerned with public perception, may conclude that allowing two spouses to work together will give the appearance of favoritism or corruption and decide on the imposition of antinepotism rules. Two cases recently examined First Amendment challenges to antinepotism rules. The first case entails the demotion of an employee. The second case discusses the loss of employment by one spouse.

The case of McCabe v. Sharrett(3) involved the police chief's secretary. Following her marriage to a police officer in the same department, she was transferred to a clerical position that involved less responsibility and more menial tasks. The chief explained that the transfer was prompted by a fear that the secretary's marriage "would undermine her loyalty to him and her ability to maintain the confidentiality of his office."(4) The secretary sued, asserting a violation of her right to freedom of association guaranteed by the First Amendment.

In ruling in favor of the chief, the United States Court of Appeals for the Eleventh Circuit began its analysis by setting forth a three-part test that requires that employees demonstrate that 1) the asserted right is protected by the Constitution; 2) the employees suffered an adverse employment action because they exercised the asserted right; and 3) the adverse employment action was taken in such a way as to infringe the constitutionally protected right. The court applied this test and found that the plaintiff met the first two requirements - her right of intimate association was protected by the First Amendment, and she suffered an adverse employment action because of her marriage.

In regard to the application of the third prong of the test, the court failed to endorse a single analytic scheme and instead proposed three approaches for determining whether the secretary's transfer impermissibly infringed upon her fundamental right to marry. The first approach balanced the employee's interest, as a citizen, against the state's interest, as an employer, in promoting efficiency.

The court found that the employer's interest weighed more heavily when the challenged employment action closely served the interest of workplace efficiency. The court noted that the secretary had access to confidential material, such as internal affairs files, and that spouses tend to possess a higher degree of loyalty to their marital partners than to their supervisors and often discuss workplace matters with each other. based on these facts, the court decided that the police chief's concerns about confidentiality were objectively reasonable and that the secretary's transfer was necessary to preserve the confidentiality of the office.

The second approach focused on "a public employee's right to harbor certain political beliefs and on how exercising that right affects the performance of governmental functions by affecting employee loyalty."(5) Under this analysis, the court found that the secretary's intimate affiliation with a police officer employed by the same department categorically disqualified her from effective performance of her job in the same manner that a political affiliation might disqualify her. Even in applying a strict scrutiny analysis, the court found that transferring the secretary because of her marriage was "necessary to serve the compelling interest of preserving the effective functioning of the...police chief's office."(6)

Because all three possibilities came to the same result, the court did not decide which one was most appropriate. It did, however, affirm summary judgment for the police chief, holding that any constitutional burden was justified by the government's interest in "promoting the efficiency of the public services it performs through its employees"(7) regardless of which analysis applied. The McCabe court has determined that intimate association, though protected, may be the basis for job demotion, transfer, or reassignment if that relationship is deemed harmful to the inner workings of the department, in this case, the chief's office.

In Parks v. City of Warner Robins,(8) the U.S. Court of Appeals for the Eleventh Circuit applied the rational basis test in determining whether the city's antinepotism policy permissibly infringed upon an employee's First Amendment association rights. This case was brought by two officers who had joined the Warner Robins Police Department within 2 weeks of each other. One eventually became a sergeant in the Special Investigative Unit, and the other a captain in the Criminal Investigative Unit. Their subsequent engagement created a problem under the city's antinepotism ordinance, which prohibits municipal employees in supervisory positions from working in the same department. The couple was informed by their chief that if they got married, the less senior of the two would have to leave the force.

The wedding was postponed, and the couple sued the city under 42 U.S.C. Section 1983 on the grounds that the antinepotism policy denies the fundamental right to marry protected by the due process clause of the 14th Amendment, infringes upon the right of intimate association implicit in the First Amendment, and violates the equal protection clause of the 14th Amendment because it has a disparate impact on women.

The court reasoned that while there is a fundamental right to marry protected by the due process clause, the test for any regulation of that right depends on whether it significantly interferes with the decision to marry. The court found that the city's no-spouse policy did not substantially interfere with the right to marry because the terminated spouse still could work in another department or outside the municipal government.

While the policy may place increased economic burdens on certain city employees who wish to marry each other, the policy does not forbid them from marrying. Since the policy does not directly and substantially interfere with the fundamental right to marry, it is subject to rational basis scrutiny rather than strict scrutiny. Therefore the policy did not violate the Due Process Clause because it is rationally related to a legitimate government interest.(9)

The court cited a number of interests advanced by the city in support of the policy, including: 1) avoiding conflicts of interest between work-related and family-related obligations; 2) reducing favoritism or even the appearance of favoritism; and 3) preventing family conflicts from affecting the workplace.(10) The court found that alleviating supervisors from having to decide whether to exercise their discretionary power to hire, assign, promote, discipline, or fire their relatives is rationally related to the practical, utilitarian goals advanced by the city. Thus, the policy was valid under the due process clause. The court also found that the policy did not infringe upon the plaintiffs' First Amendment right of intimate association because the policy neither ordered individuals to marry nor directly interfered with the right to marry.

Finally, the court rejected the equal protection claim that the antinepotism policy had a disparate impact on women. Pointing out that proof of discriminatory intent is necessary for an equal protection claim, the court observed that disparate impact "is insufficient to prove discriminatory intent,"(11) which was not shown to be the basis for the city's policy.

Regulating Off-duty Sexual Activity

In Briggs v. North Muskegon Police Department,(12) a federal district court held that the dismissal of a married police officer for living with another man's wife was a violation of the officer's privacy and associational rights. The court concluded that the police department did not have a legitimate interest in the sexual activities of its officers unless the activities affected job performance.

However, other courts have found that off-duty sexual activity can affect job performance. In Oliverson v. West Valley City,(13) a married city police officer allegedly had sexual relations with women other than his wife. The relations included sexual intercourse and sodomy. The officer alleged that the sexual acts were consensual, performed in private, non-prostitutional and noncommercial, and heterosexual. The female participants were unmarried adults and the conduct occurred during nonduty hours. The officer was suspended for 30 days without pay, and the suspension was noted in his employment file for "violations of the law of the state of Utah" and "commission of any crime relating to public morals and decency or other laws involving moral turpitude." The officer sued the city for violating his First Amendment right of association and challenged the constitutionality of the Utah adultery statute.

The city contended that the officer's conduct, which became public, severely damaged public confidence in the police department. It should be noted that the females involved were all members of the West Valley City Police Explorer Post sponsored by the city to aid the development of young people.

The Oliverson court held that adultery was neither a fundamental right nor implicit in the concept of ordered liberty, and refused to strike down Utah's statute criminalizing adultery. The city's motion for summary judgment was granted. Thus, a police officer's extramarital affair was not protected where the state had a law criminalizing adultery and the intimate relationship affected the public's perception of the department.

The public's perception of a police department is not the only factor in determining the ability of a department to regulate an officer's off-duty activities. The next case involves internal issues not known by the public and conduct that did not violate a state law.

In Henery v. City of Sherman,(14) a City of Sherman police officer became involved in an extramarital relationship with a city dispatcher. The dispatcher was the wife of a sergeant in the same department. The adulterous officer had recently ranked first on a city civil service list, making him eligible for promotion to a sergeant's position, which had come open. Shortly thereafter, a sign appeared on a department bulletin board and in the departmental mailboxes of most police officers that stated: "If you can't trust another officer with your wife, how can you trust him with your life?"(15) Before making the promotion decision, the chief ordered an investigation into the validity of rumors regarding the officer's relationship with the wife of another officer.

After confirming the existence of the affair, the chief decided to pass over the officer and award the promotion to an officer who had scored lower on the promotional exam. The chief cited the affair as the sole reason for passing over the officer, claiming that "the officer would not command respect and trust from rank-and-file officers" and that promoting him would "adversely affect the efficiency and morale of the department."(16) The officer appealed the decision to the Firemen and Police Officers' Civil Service Commission of the City of Sherman.

At the hearing, the chief admitted that the officer was very qualified for the sergeant's position. The chief acknowledged he had never before passed over a candidate for promotion based on infidelity and that there was no written rule in the department's manual or in state law authorizing him to deny the promotion due to the affair. The chief, however, believed that the affair would have affected the officer's ability to lead in the department and would have been disruptive.

As evidence that the affair was disruptive, the chief pointed to the rumors and innuendo among officers, the sign posted on the bulletin board, and the emotional distress suffered by the husband of the woman involved. The chief also commented on the importance of trust that officers must have in one another in order to serve the public. He went on to say that this trust no longer existed between this officer and other officers of the department. The commission upheld the denial of the promotion.

The officer then appealed the commission's decision. The case eventually came before the Texas Supreme Court, which held that the officer's private, adulterous sexual conduct was not protected by the Federal or Texas Constitutions. The U.S. Supreme Court denied the appeal.(17)

Departmental Prerogative to Investigate

The cases discussed thus far all have involved intimate associations that actually existed. The next case examines the extent of potential liability if the alleged intimate association being investigated is found not to have occurred. In that regard, the U.S. Court of Appeals for the Sixth Circuit held that a clearly established constitutional right was not violated when a police department conducted an investigation into the marital sexual relations of a police officer accused of sexual harassment.

In Hughes v. City of North Olmsted,(18) a police officer and his wife brought a Section 1983 action against the city and various police officers, alleging that an investigation violated their constitutional rights to privacy and freedom of association. The department had conducted an internal affairs investigation as a result of the following allegations: 1) that the officer had sexually harassed co-workers; 2) that he had dated a gang member's mother; and 3) that he had bragged to women while on duty that he maintained an open marriage and a "swinging" lifestyle.

During the investigation, the officer was interviewed and informed of his departmental rights. The officer denied all of the allegations and gave permission for his spouse to be interviewed concerning them.

Based on the investigation, the department concluded that the allegations of sexual harassment and improper conduct were unsubstantiated. Thus, the department's files concerning the investigation were destroyed. Defendants moved for summary judgment, and the district court granted summary judgment to the city but denied summary judgment to the individual defendants.

On appeal, the defendants argued that the district court erred in finding that they were not entitled to qualified immunity. They claimed that they were entitled to qualified immunity because they did not violate a clearly established constitutional right. The court advised that qualified immunity provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."(19) "Whether an official may prevail in [a] qualified immunity defense, depends upon the objective reasonableness of [the] conduct as measured by reference to clearly established law."(20)

The court found that the individual defendants should have been granted qualified immunity because there was no evidence that the internal police investigation of the sexual harassment charges violated a clearly established constitutional right. The court noted that the Supreme Court has not definitively answered the question of whether the Constitution prohibits a state or its actors from regulating the private, consensual sexual behavior of adults, even though constitutionally guaranteed rights of free association and privacy have been found in several provisions of the Constitution.(21)

The court concluded that the police department did not have a legitimate interest in the sexual activities of its officers unless the activities affected job performance. However, due to the accusations against the officer, the department's investigation was reasonable. The court noted that the department would have been derelict in its duties and possibly could have violated federal law had it ignored the claims of sexual misconduct against the officer.(22) Under the circumstances, the questions posed by the department in its investigation were justified because they concerned the sexual harassment allegations. Also, the conduct being investigated in this case had the potential to severely affect job performance. Additionally, the court advised that it did not condone the questioning of the officer's wife about the status of her marital relationship but concluded that reasonable people in the investigator's position would not have known that they were intruding on a privacy or associational right. Therefore, the Sixth Circuit reversed the district court's decision as to the individual defendants.

Police agencies are expected to investigate allegations of employee wrongdoing. In fact, in many instances they are required to do so. The First Amendment is not an impediment to conducting reasonable investigations into an officer's intimate affairs when managers reasonably believe the officer's relationship adversely affects departmental interests as discussed in the above case.

Conclusion

Law enforcement organizations may have the constitutional authority to regulate employees' off-duty associational activities including off-duty sexual conduct when it involves a supervisory/subordinate relationship and associations that impact adversely on employees' ability to do their jobs or otherwise materially impairs the effectiveness and efficiency of the police department. All personal decisions affecting associational freedom should be carefully tied to such demonstrably legitimate law enforcement interests. Other relevant factors in determining if a particular association can be constitutionally regulated are:

1) employee morale;

2) the need for personal loyalty between officers and/or supervisors;

3) officer integrity;

4) potential conflict of interest in operational matters;

5) the potential for favoritism in supervision and management;

6) the need to minimize corruptive influences; and

7) the need for public trust.

In view of the complexities of First Amendment law, it is recommended that a departmental legal advisor be consulted before any actions are taken that may implicate an employee's First Amendment rights.

Endnotes

1 See Board of Dirs. V. Rotary Club, 481 U.S. 537 (1987) at 545.

2 See Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 116 S. Ct. at 2348 (citing Waters, 511 U.S. at 675).

3 12 F.3d 1558 (11th Cir. 1994).

4 Id. at 1560.

5 Id. at 1567.

6 Id. at 1572.

7 Id.

8 43 F.3d 609 (11th Cir. 1995).

9 Id. at 615.

10 Id.

11 Id. at 617.

12 563 F. Supp. 585 (W.D. Mich. 1983), aff'd, 746 F.2d 1475 (6th Cir. 1984)

13 875 F. Supp. 1465 (D. Utah 1995).

14 928 S.W.2d 464 (Sup. Ct. Texas), cert denied, 17 S. Ct. 1098 (1997).

15 Id. at 465.

16 Ibid.

17 Henery v. City of Sherman, 117 S. Ct. 1098 (1997).

18 93 F.3d 238 (6th Cir. 1996).

19 Id. at 240.

20 Id. at 239.

21 Id. at 241-42.

22 Id. (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 72-73 (1986)).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.