Principles for Public Safety Employment

H. P RIVACY R ESTRICTIONS ON I NVESTIGATIONS The POBR and FBOR set forth other protections for officers and firefighters regarding workplace searches, financial disclosure, lie detector tests, and political activity. In Bernhard v. City of Ontario 166 , the Ninth Circuit held that secret videotaping of a locker room clearly violates employees’ Fourth Amendment right to be free of unreasonable searches. There were no signs in the locker room, or anywhere else in the building, announcing that the locker room was subject to video, audio, or photographic surveillance. The employees were never informed by management, either orally or in writing, that they might be subject to such surveillance. They engaged in private activities in the locker room, such as changing clothes, using the bathroom, and showering. The court found that the employees’ expectation of privacy in the locker room was therefore reasonable. This right to privacy was sufficiently well established by the time that it occurred that no reasonable officer would have believed that the search was constitutional. City of Ontario v. Quon 167 , addressed employers’ rights to search text messages on employer provided cell phones. The United States Supreme Court unanimously found that the City of Ontario’s search of its employee text messages on a City provided pager was reasonable and did not violate the employee’s Fourth Amendment Rights. The City of Ontario contracted with Arch Wireless to provide alphanumeric text messaging pagers to members of the Police Department’s Special Weapons and Tactics (SWAT) Team. The City intended the pagers to help the SWAT employees mobilize and respond to emergency situations. The Arch Wireless network and equipment transmitted and archived messages received and sent by the employees on Arch Wireless pagers. The text messages did not pass through the City's computers, and thus, the City did not have access to the content of the messages. Under the City’s contract, each pager was allotted a limited number of characters per month. The City was billed overage charges for each pager that exceeded the monthly allotted character amount. While the City did not have a written policy concerning the use of text-messaging pagers, it did have a general “Computer Usage, Internet and E-mail Policy” (“the policy”) that put all employees on notice that City-owned computers and equipment were to be used solely for City related business. The City told employees in a staff meeting and in a memorandum that text messages fell within the City's policy as public information and would be subject to auditing. Quon and other officers exceeded their allotted characters for a number of months and were allowed to reimburse the City. Later, the Chief decided to audit the usage to determine if the allotted character under the City’s contract with Arch Wireless was sufficient. The City obtained transcripts directly from Arch Wireless, and determined that the vast majority of Quon’s usage was personal, not City-business. Quon was investigated and disciplined. Sergeant Quon, his wife, and other employees filed a complaint against Arch Wireless alleging violation of the Stored Communication Act, 18 U.S.C. §§ 2701-2711 (1986), and against the City, the Police Department, and the Chief for violation of their right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution, and violation of their privacy rights under Article 1, Section 1 of the California Constitution. The parties filed

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