Principles for Public Safety Employment

incidental effect on the right to marry did not subject the policy to the “strict scrutiny” standard, the Court found that the Department had a legitimate interest in regulating the behavior of its sworn officers to minimize conflicts of interest and protect the credibility and integrity of the Department. The Court pointed to other law enforcement antifraternization policies which had been similarly upheld as constitutional. The Court also disputed Deputy Bautista's claim that his association with the prostitute did not compromise the Department’s interests in minimizing conflicts of interest or preserving its integrity and credibility. Deputy Bautista asserted that his involvement with the prostitute had been instrumental in her abandonment of the profession and her recovery from heroin addiction. In finding that there was sufficient evidence of harm to the Department and ultimately upholding his termination, the Court quoted testimony elicited during the underlying hearing that Deputy Bautista’s conduct had embarrassed the Department and undermined its reputation with the public and other agencies. 230 vii. Speech and Union Activity Issues Public safety employers should take extraordinary care when disciplining employees for actions that were undertaken arguably in the context of speech on a matter of public concern, or in the furtherance of union activities. In determining whether a public employee’s speech is protected from adverse employment action by the First Amendment, courts inquire as to: (1) whether the employee spoke on a matter of public concern; (2) whether the employee spoke as a private citizen or as a public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. 231 In Ellins v. City of Sierra Madre , the Ninth Circuit held that a jury could reasonably find that a union president’s leadership of a no-confidence vote regarding the chief of police was speech as a private citizen rather than as a public employee, and therefore protected by the First Amendment. The court stated that “given the inherent institutional conflict of interest between an employer and its employees’ union, we conclude that a police officer does not act in furtherance of his public duties when speaking as a representative of the police union.” The Ellins court also held that the no-confidence vote may have been a matter of public concern. Relying on existing precedent, the court distinguished between individual grievances, which are not matters of public concern, and collective personnel grievances, which may be. The Ninth Circuit Court of Appeals, ruling en banc in Dahlia v. Rodriguez, held that an officer’s disclosure of alleged officer misconduct was protected by the First Amendment and that terminating an officer for that disclosure was therefore retaliation prohibited by the Constitution. 232 Officer Dahlia, an employee of the Burbank Police Department, disclosed alleged use of abusive interrogation tactics by other BPD employees to the Los Angeles Sheriff’s Department during his off duty time. The Ninth Circuit expressly held that this speech was protected by the First Amendment), and overruled Huppert v. City of Pittsburg , (which held that because reporting misconduct by fellow officers is a core professional duty of California peace officers, such speech was not protected by the First Amendment . The Court reasoned that

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