Disciplinary and Harassment Investigations

that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD). When Quon and others exceeded their monthly character limits for several months running, OPD's chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon's and another employee's August and September 2002 text messages, it was discovered that many of Quon's messages were not work related, and some were sexually explicit. The police chief referred the matter to OPD's internal affairs division. The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules. Consequently, Quon filed suit.The Court found that the search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for noninvestigatory or administrative purposes. Specifically, the Chief ordered the search in order to determine whether the character limit on the City's contract was sufficient to meet the City's needs. The City had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses. On the other hand, the City had to determine whether it was paying for extensive personal communications.. The scope of the City's search was also reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use. Although it may have been reasonable for the City to review transcripts of all the months in which Quon exceeded his character allotment, the City only reviewed the messages for two months. The investigation was also limited to the review of a redacted transcript covering only messages Quon sent while on duty. City of San Jose v. Superior Court (Smith): 93 Writings Concerning Public Business Are Public Records – Even if They Are Sent, Received, or Stored on an Employee’s Personal Email, Phone, or Computer In a 2017 decision, the California Supreme Court held that communications by a city employee concerning public business on a personal account, such as email, phone or computer, may be subject to disclosure under the California Public Records Act (PRA). In 2009, Ted Smith presented the City of San Jose with a PRA request for communications regarding a development project for the City. Specifically, Smith sought voicemails, emails or texts sent or received on personal electronic devices used by the mayor, city council members, and staff. The City agreed to produce records stored on its servers and those transmitted to or from private devices using City accounts but did not produce

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 55