Reprimand For Having An Affair Does Not Amount To Due Process Violation

Sharon Johnson worked as a police officer for the City of LaVerkin, Utah. In March 2003, she separated from her husband and initiated divorce proceedings. Mr. Johnson reacted by threatening to kill himself and to kill Ms. Johnson, and violated the terms of the protective order she had obtained.

While her divorce proceedings were pending, the City sent Ms. Johnson to a training conference to refresh and improve her abilities as a police officer. During the conference, after training sessions had ended for the day, Ms. Johnson had a brief affair with an officer from another department who was attending the conference.

Johnson’s estranged husband somehow learned of the affair, and falsely reported to her supervisors that Ms. Johnson had been raped while attending the conference. Mr. Johnson subsequently changed his account, and made a second false allegation that Ms. Johnson and the Police Chief had engaged in a sexual relationship.

The City Council voted to place Ms. Johnson and the Police Chief on administrative leave while it independently investigated the allegations. Subsequently, Mr. Johnson recanted his new story, and the City Manager concluded the matter by giving Ms. Johnson an oral reprimand for (1) allowing her personal life to interfere with her duties as an officer by having sexual relations with another officer while attending a training session out of town for which she was paid in part by the City; and (2) for failing to avoid the appearance of impropriety.

Johnson, who eventually resigned her job, sued the City contending that the issuance of the reprimand violated her due process “liberty” interest. A federal appeals court dismissed Johnson’s lawsuit.

The Court began by stating that there were two strands of the “substantive due process” issues Johnson raised – one strand protecting an individual’s fundamental liberty interest, while the other protected against the exercise of governmental power that shocks the conscience of the Court. The Court observed that “by satisfying either the ‘fundamental right’ or the ‘shocks the conscience’ standards, a plaintiff states a valid due process claim under the Fourteenth Amendment.”

The Court found that Johnson’s contentions did not rise to the level of implicating a liberty right. The Court reasoned that “Johnson asserts the City violated her fundamental liberty interest ‘to engage in a private act of consensual sex.’ While she asserts a broad right to sexual freedom, a more precise view of her complaint is that the Police Department reprimand was based on her off-duty conduct with a fellow officer at a training conference paid for in part and supported by the Department.

“Ms. Johnson fails to show that this right thus asserted is objectively, deeply rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. While claiming a fundamental constitutional right, Ms. Johnson points to no historical antecedents to establish her claim. Ms. Johnson has therefore failed to carry her burden of proving the liberty interest she seeks is so fundamental that it must be protected through due process analysis.”

Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008).

This article appears in the August 2008 issue