Perez v. City of Roseville | When Police Officers Date Fellow Officers

Generally, dating someone you work with is not a good idea.  If things don’t work out, it makes the work atmosphere awkward.  When a relationship occurs between employees of different ranks, it can create problematic dynamics leading to harassment or hostile work environment claims (with claims brought by one of the involved employees or by others who perceive they are not receiving preferential treatment).  Perhaps for this reason, some employers have anti-fraternization rules, discouraging or prohibiting relationships among employees.  If the rule is narrowly tailored, it may be enforceable and constitutional.

In the case of Perez v. City of Roseville, a probationary police officer was discharged by the City of Roseville after an internal affairs investigation into her romantic relationship with a fellow officer.  (The IA investigation was initiated by the fellow officer’s wife.)  The Internal Affairs investigation found that the relationship was conducted off-duty although some texts and phone calls occurred while on duty.  Both officers Perez and Begley were married but separated from their spouses.  The Department concluded the conduct of both officers constituted “unsatisfactory work performance” and “conduct unbecoming.”  Roseville did not have an anti-fraternizing rule but instead relied on general performance standards.  Two supervisors who reviewed the IA report found officer Perez should be released from the Department.  Later comments made by these supervisors indicated they disapproved of Perez’s extramarital conduct.

While not discussed by the Court, readers may be wondering why the female officer was terminated whereas the male officer apparently was not. There are several possible reasons for this apparent discrepancy.  Perez brought the lawsuit, not Begley, so the case on appeal is limited to discussing whether the adverse action taken against Perez was appropriate.  Officer Begley may well have received the same discipline.  The more likely scenario is that Officer Begley had already passed the probationary time period and was a permanent civil service, entitled to more due process protections and procedures.  Generally, a government employee still on probation can be discharged for any reason, so long as it is not unlawful (i.e. discriminatory).  On the other hand, good cause is required to discharge a permanent civil service employee.

Perez brought suit under section 1983, claiming that her termination violated her rights to privacy and intimate association because it was impermissibly based on her private off-duty sexual contact.  The district court granted the City’s motion for summary judgment on grounds of qualified immunity, holding the City would reasonably believe termination was lawful.

On appeal, the Ninth Circuit considered whether the City’s dismissal of Perez was based on legitimate reasons or pretextual reasons that impermissibly violated her right to privacy.  The Court found that a police department can only take disciplinary action against an officer for private off-duty sexual involvement with another officer if it impacts her job performance or if there is a narrowly tailored regulation in place prohibiting such conduct.  The Ninth Circuit concluded that an issue of fact existed as to whether Perez was fired, at least in part, because of her extramarital affair.  The Ninth Circuit also held that any reasonable official would have been on notice that the City’s termination of Perez was unconstitutional (if motivated by the private relationship, as alleged by Perez) and thus denied qualified immunity on the privacy issue.  The Court remanded the case to the district court on Perez’s privacy claim based on disputes of fact.  The Court upheld the district court’s decision granting qualified immunity on due process because the due process rights for a probationary employee in this situation were not clearly established at the time.  The Court also upheld the lower court’s decision granting summary judgment on the gender discrimination issue because her termination appeared to have been based on the City’s disapproval of her extra-marital affair, rather than gender discrimination.   If the termination was based on moral grounds, it would not be unlawful discrimination.

The takeaway from this decision is that police departments and other agencies may take disciplinary action against police officers for personal conduct if it interferes with their job performance or violates narrowly drafted regulations of the Department.  However, if the adverse action appears to be motivated by discriminatory or otherwise unlawful or unconstitutional reasons, rather than an objective effect on the employee’s job duties, the courts will not allow it. Agencies must be conscientious of the privacy rights of employees and only investigate personal relationships when there appears to be a direct conflict with the employee’s job duties.

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