No Privacy Rights If Affair Has On-Duty Aspects

Janelle Perez was a probationary police officer for the City of Roseville, California. Perez was given a patrol assignment and a few months into the assignment, she and another officer, Shag Begley, initiated a personal relationship. At the time, Perez and Begley were both separated from, but legally married to other individuals.

On June 6, 2012, Begley’s wife, Leah Begley, filed a citizen complaint alleging that Perez and Begley were having an affair and suggesting that the two engaged in sex on duty. The Police Department’s Internal Affairs unit opened an investigation. After interviewing all concerned a lieutenant concluded that there was no evidence of sexual conduct between Perez and Begley while on duty, but that Perez and Begley “made a number of calls and texts when one or both was on duty” and these communications were “potentially” violations of Police Department policy.

The Department eventually issued a findings memo to each Perez and Begley stating that two alleged policy violations were sustained, concluding that (1) they made personal telephone calls while on duty that interfered with their work performance in violation of the Policy Manual and (2) their personal relationship impacted and reflected unfavorably upon the Department.

Perez and Begley appealed their reprimands and Perez’s appeal meeting with the Police Chief was scheduled to be held on September 4, 2012. At the conclusion of her appeal meeting, the Chief advised Perez she was being released from probation and provided her with a written notice of dismissal, effective September 4, 2012.

Perez then sued the City, contending that her “private sexual activities were protected by the Constitution from unwarranted governmental intrusion,” and “the internal affairs investigation and the manner in which the investigation was conducted violated her constitutional right. The California Court of Appeals disagreed, and dismissed the lawsuit.

Perez relied heavily on one of the seminal cases in the area, Thorne v. City of El Segundo, 726 F.2d 495 (9th Cir. 1983), where the Court held “that the Constitution prohibits unregulated, unrestrained employer inquiries into personal, sexual matters that have no bearing on job performance. In the absence of any showing that a private, off-duty personal relationship has an impact upon an applicant’s on-the-job performance reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant’s protected constitutional interests.”

The Court in Perez’s case found Thorne unhelpful to Perez: “It is uncontroverted that in June 2012, Leah Begley filed a citizen complaint in which she alleged Perez and Begley were having an affair and suggested that Begley and Perez were engaging in romantic interactions while on duty. It is also uncontroverted that after receiving this complaint, the Department initiated an IA investigation into Perez’s and Begley’s conduct.

“The Ninth Circuit’s holding in Thorne does not show that the IA investigation into Perez’s relationship with Begley violated a clearly established constitutional right to privacy and intimate association under the circumstances in which the investigation was conducted. The Ninth Circuit limited its holding in Thorne to circumstances where there was an absence of any showing that the applicant’s private, off-duty personal activities had an impact upon her job performance. Here, the IA investigation into Perez’s conduct resulted from a citizen complaint that suggested Perez was engaged in a personal relationship with Begley while on duty. Therefore, Perez’s alleged right to privacy or intimate association was not clearly established therefore Perez’s privacy claim should be dismissed.”

Perez v. City of Roseville, 2015 WL 3833749 (Cal. App. 2015).