Privacy Issues in the Workplace

inconsistent, incompatible, in conflict with, or inimical to his or her duties…or with the duties, functions, or responsibilities of his or her appointing power or the agency.” “Each appointing power may determine…those outside activities which…are inconsistent with, incompatible to, or in conflict with their duties as local agency officers or employees.”

Incompatibility may be found in the following circumstances, but is not limited to these circumstances:

 employee uses local agency time, facilities, property, or influence for private gain;  employee accepts or receives compensation for performing the duties required by his or her position other than from the local agency;  employee performs an act which may later be subject to direct or indirect control, inspection, review, audit, or enforcement of another officer or employee of the local agency; or  the outside employment involves time demands that would render performance of the duties of the normal position less efficient. 599

A local agency may adopt rules specifying prohibited activities. In Long Beach Police Officer Ass’n. v. City of Long Beach , 600 the California Supreme Court upheld a local agency rule which prohibited police officers from engaging in outside employment which involved serving civil process or assisting in civil cases. The court held that under Section 1126, the specification of activities which “may be prohibited” was intended to guide rather than confine the local agency’s exercise of its authority. Thus, a city is entitled to proscribe incompatible employment even though it is not specifically delineated in the statute. Local agencies should be aware of Penal Code section 70 which specifically authorizes peace officers to be employed as security guards or patrolmen while off duty. It also permits peace officers to perform peace officer functions concurrent with the off-duty position, provided they wear their police uniform, the employer has approved the off-duty position, and the peace officer follows the agency employer's rules and regulations. Although agencies may still deny off-duty security guard work on the basis of Government Code section 1126 or for other business-related reasons, recent amendments to Penal Code section 70 require the local agency to provide those reasons in writing to the peace officer. Employers should note the requirement to provide those reasons in writing to the peace officer. Employers should note that the requirement to provide written reasons for denial applies to any off-duty work, not just security guard work. 601

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 171