Constitutional Protection For Officer’s Affair

You know you’re in for a weighty pronouncement when a court begins its opinion in this fashion: “We are confronted in this case with the ongoing and difficult constitutional question of how much control the government can force individuals to cede over their private lives in exchange for the privilege of serving the public by means of government employment. To be sure, private citizens often must sacrifice some individual freedom as a condition of their employment by the state, but a citizen who works for the government is nonetheless a citizen.

“As a society, we must remain solicitous of the constitutional liberties of public employees, as of any citizens, to the greatest degree possible, and should be careful not to allow the state to use its authority as an employer to encroach excessively or unnecessarily upon the areas of private life, such as family relationships, procreation, and sexual conduct, where an individual’s dignitary interest in autonomy is at its apex. Nor can or should we seek to eliminate the development of ordinary human emotions from the workplace where we spend a good part of our waking hours, unless such development is incompatible with the proper performance of one’s official duties.”

The case involved Janelle Perez, a probationary police officer employed by the Roseville, California Police Department. A few months into her probationary term, Perez and a fellow officer, Officer Shad Begley, began a romantic relationship. Begley had been with the Department for over seven years. Both Perez and Begley were separated from, although still married to, other individuals.

Begley’s wife Leah filed a citizen complaint in which she alleged that Perez and her husband were having an affair and that they were engaging in inappropriate sexual conduct while on duty. This letter prompted the Department to initiate an Internal Affairs investigation that culminated with the termination of Perez. Begley received a written reprimand.

Perez sued, alleging her termination violated her rights to privacy and freedom of association and her right to due process, as well as sex discrimination under Title VII and state law. The key issue for the federal Ninth Circuit Court of Appeals was whether the affair had any constitutional protection.

The Court began by citing its prior opinion in a case known as Thorne v. City of El Segundo, which considered the disqualification of an applicant for having an affair. In Thorne, the Court held that “in the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant’s on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant’s protected constitutional interests and cannot be upheld under any level of scrutiny.”

Perez’s case, the Court held, “is controlled by Thorne. As in that case, the defendants here failed to introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance. To the contrary, as Bergstrom concluded in his report, there is no evidence that any inappropriate behavior occurred while the officers were on duty, and it is undisputed that Perez’s productivity was average to above-average. Nor is there any contention that Perez’s sexual conduct violated any narrowly drawn, constitutionally permissible regulation.”

The Court recognized that, since Thorne, at least two other federal courts of appeal have adopted rules “that appear to be in some tension with our case. We reject the approach taken by those courts for the following reasons. First, our binding precedent in Thorne compels us to do so. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Under our precedent, the Department must do more than cite a broad, standardless rule against ‘conduct unbecoming an officer.’

“In addition, the other courts fail to appreciate the impact of Lawrence v. Texas on the jurisprudence of the constitutional right to sexual autonomy. Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. This protection extends to intimate choices by unmarried as well as married persons.

Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has traditionally viewed a particular practice, such as extramarital sex, as immoral. Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.”

Perez v. City of Roseville, 2018 WL 797453 (9th Cir. 2018).