Probationary Release of Police Officer for Off-Duty Extramarital Relationship Which Did Not Impact Job Performance Is Unconstitutional

Category: Client Update
Date: Mar 7, 2018 02:45 PM

Public employers may not take adverse action against an employee due to the employee’s constitutionally- protected off-duty conduct, unless the conduct negatively impacts job performance or violates a valid, narrowly implemented regulation.  The U.S. Court of Appeals for the Ninth Circuit reached this decision after the City of Roseville Police Department (“Department”) released a probationary police officer because of her off-duty romantic relationship with another officer. The Ninth Circuit elaborated on its earlier decision in Thorne v. City of El Segundo, noting, “the Constitution is violated when a public employee is terminated …at least in part on the basis of …protected conduct, such as her private, off-duty sexual activity.”

Internal Affairs (IA) Investigation and Release from Probation

Officer Perez had been a probationary police officer with the Department for several months when she and Officer Begley began a romantic relationship.  Both officers were separated, though not divorced from other individuals, and both had small children.  Begley’s wife alleged in a complaint she filed with the Department that Perez and Begley were having an affair and engaging in sexual conduct while on duty. 

The Department’s investigation found that while there was no evidence of on-duty sexual contact between Perez and Begley, the officers did call or text each other a number of times when one or both were on duty and that their communications “potentially” violated Department policy.  The officer who reviewed the IA results and recommended discipline indicated in a memorandum that “[b]oth officers are married and have young children.” The memorandum also criticized Perez’s relationship with Begley as “unprofessional,” and noted it “reflect[ed] unfavorably upon the Roseville Police Department and its members.”  Ultimately, Captain Moore and Lieutenant Walstad found that the officers’ conduct violated Department policies prohibiting “Unsatisfactory Work Performance” and “Conduct Unbecoming.” Walstad later admitted that he disapproved of the extramarital sexual conduct on moral grounds, and the court found that Moore had made comments that could indicate to a jury that he also disapproved for similar reasons. 

The Department issued written reprimands that sustained the charges of unsatisfactory work performance and conduct unbecoming against both Perez and Begley.  Perez appealed her reprimand. 

After the reprimand and prior to Perez’ appeal hearing, the Department identified additional concerns with Perez’ work performance.  The Department allegedly received complaints that Perez was not getting along with three other female officers, which Perez disputed. A citizen also complained that Perez was rude and insensitive during a domestic violence call, but the citizen did not pursue the complaint. There was also evidence of a disagreement between Perez and a sergeant regarding the interpretation of the Department’s shift trade policy.  Perez asserted that the policy was being applied to her unfairly, and the sergeant reported to his superiors that Perez seemed angry and agitated.  The Department asked the sergeant with to memorialize his conversation with Perez.

At the conclusion of her appeal of Perez’ reprimand, the Police Chief informed Perez that she was being released from probation. The Chief also provided Perez a written notice, that had been prepared prior to the appeal hearing, stating she was being released from probation.  When Perez requested the reason for her release, the Chief declined to elaborate.

Soon after her release from probation, the Department issued Perez a second written reprimand.  The second written reprimand reversed the Department’s findings of unsatisfactory work performance and conduct unbecoming as stated on the first reprimand and instead charged Perez with violation of the Department’s “Use of Personal Communication Devices” policy.  Perez did not appeal because she had been informed she had no appeal right.

Constitutional Rights to Privacy and Intimate Association

Perez then sued the Department and some of her superiors, alleging that her release from probation violated her constitutionally protected rights to privacy and intimate association, among other claims.  The trial court granted summary judgment for the Department and Perez appealed.  On appeal, the Ninth Circuit agreed with Perez that the case should proceed to a jury, and reversed the trial court’s summary judgment for the Department.

In reaching its decision, the Ninth Circuit reiterated its 1983 decision in Thorne v. City of El Segundo in which found that public employees enjoy a constitutionally protected right to privacy and intimate association:

“…a department can violate its employee’s rights to privacy and intimate association either by impermissibly investigating their private sexual conduct or by taking adverse employment action on the basis of such private conduct.”

On the question whether the Department impermissibly released Perez from probation based upon her constitutionally protected off-duty conduct, the court found there was a factual question for the jury to decide as to whether the Department released Perez “in part” because of her privacy and intimate association rights to have an off-duty sexual relationship. Specifically, three Department representatives gave inconsistent statements about the role Perez’ relationship played in the decision to release her.  All three indicated at one point in the case that the off-duty relationship was “part of” the Department’s decision.

The court also found that there were factual disputes on whether the Department’s three post-release reasons for releasing Perez were pretextual:

her conduct during her response to a domestic violence call; 

her work relationships with female officers; and

her belief that the shift trade policy was unfairly applied.  

The court found that the Department only identified these reasons after the on-duty sexual conduct allegations were unsubstantiated. The court found the fact that the Department never investigated any of those three reasons also indicated an intent to mask the Department’s unlawful motives.  Moreover, the circumstantial evidence indicated that the three reasons were not true, and were identified very soon after the IA allegations were determined to be unsubstantiated.  Adding to the court’s concern about possible pretext was that Perez had received positive performance evaluations during the six months prior to the unsubstantiated allegations about on-duty sexual conduct.

The Department’s shifting charges for the reprimand further supported the court’s concern about pretext: the Department initially asserted conduct unbecoming and unsatisfactory work performance, but rescinded those charges after Perez’ release from probation and based the reprimand on Perez’ allegedly improper use of her personal communication device. 

Finally, the Ninth Circuit noted that while it was appropriate for the Department to investigate allegations whether Perez had engaged in on-duty sexual relations with Begley, the Department’s decision to release her based on her off-duty relationship with Begley that had no impact on her work and was clearly unlawful.  The court found that Perez’ constitutionally protected rights were “clearly established” in the Thorne case, which meant that the individual defendants were not entitled to qualified immunity.

Perez v. City of Roseville, et al. (9th Cir. 2/9/2018) 2018 WL 797453. 


Public employers must consider whether off-duty conduct has any negative impact on the public employee’s on-duty performance prior to taking any adverse action against the employee.  An employee’s off-duty sexual conduct that has no impact on the job is a constitutionally-protected liberty interest regardless of whether that conduct is extramarital or between persons of the same sex.  LCW’s attorneys are well versed in the legal standards that apply to disciplinary measures taken against police officers and other public employees. Agencies are encouraged to consult with counsel early in the process of investigating potential misconduct by employees in order to avoid violating employee rights.

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