Privacy Issues in the Workplace

prejudicial to good order, cohabitation of two police officers, or proscribing a superior officer from sharing an apartment with one of lower rank.” 523

Perez v. City of Roseville A City discharged a former probationary police officer after an internal affairs investigation determined that she had had an off-duty sexual relationship with a fellow officer. The investigation found no evidence of on-duty sexual contact between the officers. Although the investigation found a number of calls or texts between the officers while one or both were on duty, which “potentially” violated Department policy, the Police Chief testified that the calls and texts were not enough to warrant termination. The Ninth Circuit in an opinion authored by Judge Stephen Reinhardt prior to his death found terminating a police officer for engaging in an off-duty, extramarital affair with a co-worker could violate the officer’s right to privacy under the U.S. Constitution. Such termination was said to violate the “constitutional guarantees of privacy and free association” unless the department can demonstrate that “such conduct negatively affects on-the-job performance or violates a constitutional permissible, narrowly tailored regulation.” 524 On May 21, 2019, the Ninth Circuit filed a new opinion and a dissenting opinion, and the opinion and concurring opinion in Perez filed on February 9, 2018 were withdrawn. The Ninth Circuit, in an opinion authored by Judge Sandra Ikuta and Judge A. Wallace Tashima, held that a police department is not “constitutionally prohibited from considering an officer’s off-duty sexual relationship in making a decision to terminate her, when there is specific evidence that the officer engaged in on-the-job conduct in connection with that relationship that violated departmental policy.” NOTE : The majority opinion in Perez in 2018 was authored by Judge Reinhardt before his death and accordingly a different judge (Ikuta) was substituted in for the opinion issued in 2019. Montana District Judge Donald Molloy, part of the original majority opinion in 2018 wrote a strongly worded dissenting opinion in 2019. The 2018 opinion has been withdrawn and cannot be relied upon, and the new opinion shows why public agency managers must carefully analyze whether an employee’s off-duty conduct impacts the workplace before discipline based on off-duty conduct. This case outlines the circumstances when a public safety employee may lawfully consider its employee’s off-duty sexual relations.

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