Monthly Law Journal Article: Regulation of an Employee's Off-Duty Activities. Part Four– Sexual Conduct, 2008 (3) AELE Mo. L. J. 201.
     On remand from the Court of Appeals, the Merit Systems Protection Board finds that the FBI had the authority to investigate and discipline a special agent and that there is a nexus between some of the charged conduct and the efficiency of the service. There was a reasonable possibility that the agent's actions of videotaping his sexual encounters with three women without their consent, two of whom worked for the FBI, negatively impacted the agency's ability to perform its responsibilities and violated an internal regulation. Doe v. Dept. of Justice, #CH-0752-04-0620 -M-1, 2010 MSPB 16, 2010 MSPB Lexis 241 (MSPB 2010), on remand from #2008-3139, 565 F.3d 1375 (Fed. Cir. 2009).
     In an appeal where an FBI agent was fired for videotaping sexual encounters with women without their consent, a federal appeals court remanded the case to the Merit Systems Protection Board for further adjudication. One judge wrote that he would have reversed the Board outright on the ground that the agency failed to establish a nexus between the charged conduct and the efficiency of the service. The majority held that the Board failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the "efficiency of the service." The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty. Doe v. DoJ, #2008-3139, 2009 U.S. App. Lexis 10031 (Fed. Cir.).
     Federal court rejects the suit of a fire captain who was demoted for maintaining a sexual relationship with a subordinate and untruthfulness. "...courts have historically recognized that rights of intimate association and marriage are not absolute, and may appropriately give way in the government employment context where the exercise of the right creates unreasonable interference or impediment to the effective functioning of the public office." Starling v. Bd. of Co. Cmsnrs., #08-80008, 2009 U.S. Dist. Lexis 7030 (S.D. Fla.).
     Pennsylvania appellate court overturns an arbitration award reinstating a worker who "repeatedly and egregiously sexually harassed [a coworker] by engaging in behavior that ... [was] lewd, lascivious and extraordinarily perverse." "If forced to honor the arbitration award, [management] will not be complying with Title VII ... which requires that an employer impose appropriate discipline for proven cases of sexual harassment in order to ensure a safe work environment free of sexual harassment." Phila. Housing Auth. v. AFSCME C-33, L-934, #2405 C.D. 2004, 2008 Pa. Comm. Lexis 417.
     Tenth Circuit upholds a private oral reprimand for a police officer, who, while off-duty, had sex with another officer, while attending a training session out of town which was paid for in part by her employer. "We think it reasonable for the police department to privately admonish [appellant's] personal conduct consistent with its code of conduct when the department believes it will further internal discipline or the public's respect for its police officers and the department they represent." Seegmiller v. Laverkin City, #07-4096 2008 U.S. App. Lexis 12417 (10th Cir.).
     Arbitrator concludes that management had just cause to terminate a police officer for sexually abusing a minor that was arrested for DUI. The fondling of a fifteen-year-old handcuffed intoxicated female is an extremely serious offense; progressive discipline is not warranted in an extremely serious incident. City of Fort Worth and Individual Grievant, 124 LA (BNA) 1412, AAA Case #70-390-00310-07 (Moore, 2008).
     Ninth Circuit affirms the dismissal of a civil rights suit brought by a police officer who was terminated for participating in a sexually explicit website with his wife., Whether his actions were related to his employment or not, management could discipline him without violating his First Amendment or privacy rights. Dible v. City of Chandler, #05-16577, 2007 U.S. App. Lexis 21181 (9th Cir.).
     MSPB concludes that the Justice Dept. established a nexus between the efficiency of the service and a FBI Agent's videotaping of his sexual activities with three women without their consent. Doe v. Dept. of Justice, #CH-0752-04-0620-I-2, 2006 MSPB 246 (2006). [2006 FP Nov]
     North Carolina court strikes down an anti-cohabitation law challenged by a sheriff's dispatcher who was fired for living with her boyfriend. Hobbs v. Pender County, (N.C. Super. 2006). {N/R}
     Arbitrator reinstates a sheriff's deputy who had sex with a citizen in his patrol car. The officer admitted the conduct and he had a long and impressive performance record. County of Shasta Sheriff's Dept. and Deputy Sheriff's Assn., 120 LA (BNA) 377, CSMCS Case #ARB-03-2020 (Pool, 2004). [2005 FP Mar]
     Arbitrator reinstates a sheriff's deputy who had sex with a citizen in his patrol car. The officer admitted the conduct and he had a long and impressive performance record. County of Shasta Sheriff's Dept. and Deputy Sheriff's Assn., 120 LA (BNA) 377, CSMCS Case No. ARB-03-2020 (Pool, 2004). [2005 FP Feb]
      Arbitrator upholds the termination of an officer who lied about having sex in a police car while on duty. City of Cuyahoga Falls, Ohio and Fraternal Order of Police, FMCS #010302/007108-6, 116 LA (BNA) 545 (2001). [2002 FP Mar]
     Arbitrator upholds the firing of a Florida deputy sheriff who solicited an act of prostitution. Termination was not inconsistent with the penalties given others for similar offenses. Broward Co Sheriff's Office and Federation of Public Employees, 115 LA (BNA) 708 (Richard, 2001). [2001 FP 84]
     Federal appeals court upholds the punishment of a senior officer for “conduct unbecoming” with a junior officer. The fellow officer was under his direct command and the relationship was obvious to coworkers and enlisted personnel. U.S. v. Rogers, #99-0838, 54 MJ 244, 2000 CAAF Lexis 1200 (CAAF 2000). [2001 FP 5]
     Arbitrator conditionally overturns the termination of an Air Force firefighter, who was charged criminally and confessed to having sex with a minor in a public toilet. The award is subject to a reinstated security clearance. Hill Air Force Base and AFGE L-1592, FMCS Case #00/07189, 114 LA (BNA) 1670 (Staudohar, 2000). [2001 FP 6]
     DEA agent was properly terminated for maintaining a sexual relationship with a criminal informant. Rackers v. DoJ, #CH-0752-97-0218-I-1, 79 M.S.P.R. 262, 1998 MSPB Lexis 870 (1998). {N/R}
     Federal appeals court affirms termination of postal employee who took nude photos of a prostitute in a federal postal facility, then sold them to an adult magazine. Uske v. U.S. Postal Service, 56 F.3d 1375 (Fed.Cir. 1995). [1996 FP 54]
     Texas police officer was unfairly denied a promotion because he was sexually active with the wife of another officer. The chief failed to prove the sexual liaison had a detrimental effect on department morale or affected the officer's on-the-job performance. City of Sherman v. Henry, 910 S.W.2d 542 (Tex.App. 1995).
     Arbitrator reduces punishment of trooper from termination to reinstatement without back pay, for engaging in a sexual relationship with an Explorer Scout while on and off duty, and falsely reported he was assisting a motorist during one of these times. Evidence that trooper was a sex addict could not mitigate his punishment. Punishment was reduced because management erroneously believed the offenses started before the scout's 18th birthday. Wash. St. Patrol and W.S.P. Troopers Assn, 2 (9) Pub.Sfty.Lab. News 9 (Lankford, 1994). {N/R}
     Federal appeals court upholds termination of police officer for lying to superiors concerning his sexual relationship with a former officer. Sweeney v. City of Ladue, 25 F.3d 702, 1994 U.S. App. Lexis 13215, 64 FEP Cases (BNA) 1633 (8th Cir. 1994). [1994 FP 149]
     Storing obscene images and video games in a government-owned computer warranted a 35-day disciplinary suspension and reassignment. Morrison v. N.A.S.A., #CH0752940362-I-1, 65 M.S.P.R. 348, 1994 MSPB Lexis 1642. [1995 FP 36-7]
     Arbitrator annuls the termination of a male police officer who, in violation of the chief's order, continued to see a woman who had complained that the officer sexually harassed her. Toronto, Ohio (City of) and F.O.P. L-1, 102 LA (BNA) 645 (Duff, 1994). [1994 FP 165- 6]
     Civil Service Commission rejects 15-day suspension recommendation and fires bailiff who allegedly masturbated in front of a court reporter and repeatedly had sex with a court reporter in the courthouse. Bowling v. Los Ang. Co. Civil Serv. Cmsn., L.A. Co. Super. Ct. #BS021433, 106 (16) L.A. Daily Journal 1 (1993). [1993 FP 40]
     SC Supreme Court upholds termination of a married officer who committed adultery with a married woman. Both resided in a small community. Cook v. S.C. Dept. of Hwys., 420 S.E.2d 847 (S.C. 1992). [1993 FP 53]
     Alabama appellate court sustains termination of officer for off-duty "kinky sex," sexually deviant acts with prostitutes, child abuse and gun play. Freeman v. City of Mobile, 590 So.2d 331 (Ala.Civ.App. 1991). [1993 FP 5-6]
     Appellate court upholds conduct unbecoming charge against an off-duty police officer who photographed a nude model and who improperly accessed criminal justice records to verify her age. City of Mobile v. Trott, 596 So.2d 921 (Ala. Civ.App. (1991). [1993 FP 21]
     Police officer who allowed 14-year-old runaway girl to live with him was ground for termination, without proof of sexual intercourse. McHenry v. City of East St. Louis, 569 N.E.2d 259 (Ill.App. 1991). [1992 FP 69]
     Sergeant guilty of engaging in sexual intercourse while on duty; civil service commission had authority to increase the punishment imposed by the chief. Tovery v. City of Jacksonville, 808 S.W.2d 740 (Ark. 1991). [1992 FP 85]
     Termination of a police officer was appropriate for off-duty sexual assault. Hall v. Del Castillo, 571 N.Y.S.2d 771 (A.D. 1991). [1992 FP 116]
     N.Y. appellate court sustains the termination of a police officer who consorted with prostitutes, even though there was no payment of monies for sexual services. Ruiz v. Brown, 579 N.Y.S.2d 47 (1992). {N/R}
     Alabama appellate court sustains termination of officer for off-duty "kinky sex," sexually deviant acts with prostitutes, child abuse and gun play. Freeman v. City of Mobile, 590 So.2d 331 (Ala.Civ.App. 1991). [1993 FP 5-6]
     Off-duty officer who solicited an oral sex act at a massage parlor and later urinated on a table full of food was guilty of conduct that warranted his termination. Boyce v. Ward, 551 N.Y.S.2d 7 (A.D. 1990).
     Federal merit board reinstates employee fired for statutory rape; the crime had no connection with his official duties. Moten v. United States, docket #PH-7528810230 (M.S.P.B. 11/6/89).
     Appellate court sets aside discipline for "public fornication." Although act occurred on a public beach, it was after midnight, and parties were in an unlighted area. U.S. v. Carr, 28 M.J. 661 (N/MC-CMR 1989).
     Masturbating in a public restroom furnished grounds to terminate a peace officer. Ramirez v. Calif. St. Personnel Bd., 204 Cal.App.3d 288, 251 Cal.Rptr. 9 (1988).
     Sexual intercourse with 15-year-old explorer scout was unlawful; officer's termination did not violate his rights of privacy or freedom of intimate association. Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987).
     Termination appropriate penalty for exposing himself, fondling women employees, and requiring female subordinate to perform oral sex acts on him while in his office. Oare v. Coughlin, 520 N.Y.S.2d 658 (A.D. 1987).
     Mentally disturbed police officer was entitled to disability pension despite his conviction for sexually assaulting his teenaged daughter. T.N.M. v. Police & Firemen's Ret. Sys., 527 A.2d 883, 218 N.J. Super. 274 (1987).
     Off-duty sex offense warrants termination of public employee; arrest for public masturbation brought discredit to public agency. Rocek v. Dept. of Public Instit., 225 Neb. 247, 404 N.W.2d 414 (1987).
     Light penalty of civil service board reversed; court orders termination of officer for on-duty sex and drinking incident. Police Cmsnr. of Boston v. Civil Service Cmsn., 22 Mass App. 364, 494 N.E.2d 27 (1986).
     Right of privacy does not include on-duty sexual contacts with prostitutes. Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736 (9th Cir. 1986).
     Deputy suspended for giving photos of "sex party" to TV station with intent to embarrass his chief deputy. City and County of San Francisco Sheriff's Dept. v. McMurtry, (March, 1986). FP #137:1
     Termination of firefighter upheld, following "disgusting" treatment of prisoner who engaged in oral sex acts. Watson v. City of Gatlinburg, 699 S.W.2d 171 (Tenn. App. 1985).
     On-duty sexual misconduct justified termination of firefighter. Foust v. City of Greensboro, 266 S.E.2d 835 (N.C. App. 1980). See also Washington v. Civil Serv. Cmsn., 496 N.E.2d 1109 (Ill.App. 1986).
     Police Dept. could not terminate female officer because she posed in the nude for obscene magazines before she was hired. Borges v. McGuire, 107 A.D.2d 492, 487 N.Y.S.2d 737, 1985 N.Y. App. Div. Lexis 49770.
     Supreme Court denies review in off-duty sex case; Texas suspension upheld; contrary Michigan case in doubt. Briggs v. No. Muskegon Police Dept., 563 F.Supp. 585 (W.D. Mich. 1983).
     Supreme Court refuses review of suspension of police officers of opposite sex because they spent several nights together; punishment O.K. even though department did not prove the affair adversely affected performance on the job. Shago v. Spradlin, 701 F.2d 470 (5th Cir. 1983); cert. den. with dissenting opin. sub nom Whisenhut v. Spradlin, 104 S.Ct. 404 (1983). See also, "The Constitutional Right to Privacy and Regulations Affecting the Sexual Activity of law Enforcement Employees," by D.S. Schofield, FBI Academy, in the FBI Law Enf. Bulletin, Oct. 1982, Pp. 24-31. Also note that prior to the Supreme Court's action a federal court in Michigan found that the termination of a married police officer for cohabitating with a married woman not his wife violated the office's associational and privacy rights protected by the Constitution. Briggs v. No. Muskegon Police Dept., 563 F.Supp. 585 (W.D. Mich. 1983).
     Federal court sustains the termination of a police officer for an act of adultery in a public park while off-duty. There could be no tolerance for activities which could jeopardize the department's effectiveness, even though the conduct was not illegal. Faust v. Police Civ. Serv. Cmsn., 563 F.Supp. 585 (W.D. Mich. 1983). {N/R}
     Private, off-duty relationships with opposite sex are constitutionally protected and disciplinary action and resignation must be annulled. Swope v. Bratton, 541 F.Supp. 99 (W.D. Ark. 1982).
     Adultery could be punished by termination in a state that makes the act a criminal offense. Suddarth v. Slane, 539 F.Supp. 612 (W.D. Va. 1982).
     Termination appropriate for CHiP who forced himself on teenage girls and refused to answer questions. Fout v. Calif. St. Personnel Bd., 186 Cal.Rptr. 452 (App. 1982).
     Pennsylvania Supreme Court affirms termination of officer for sexual improprieties involving co-workers. Fabio v. Civil Serv. Cmsn. of Phila., 414 A.2d 82 (Pa. 1980).
     Highway patrolman's conduct at “drag queen” (transvestite) party and untruthfulness, justified his termination. Warren v. State Personnel Board, 156 Cal.Rptr. 351 (App. 1979).
     Off-duty public lewdness justified termination of employee for conduct unbecoming and immoral behavior. Corle v. City of Oil City, 405 A.2d 1104 (Pa. Cmwlth. 1979).
     Off-duty presence in an “after hours” club and promiscuous relations with known prostitutes constitutes “conduct becoming” an officer; dismissal affirmed. Richter v. Civil Service Cmsn. of Phila., 387 A.2d 131 (Pa. Cmwlth. 1978).
     Officer, convicted of indecent liberties with minors, could not be terminated; punishment excessive under circumstances. Chaleff v. Codd, 407 N.Y.S.2d 159 (A.D. 1978).
     Extramarital relationship between police employees justifies dismissal. Lee v. Provo City Civil Serv. Cmsn., 582 P.2d 485 (Utah 1978).
     Officer's procurement of “sex pad” was unbecoming conduct; dismissal affirmed by appellate court. Oswald v. City of Allentown, 388 A.2d 1128 (Pa. Cmwlth. 1978).
     Federal court upholds constitutionality of police rule banning adulterous conduct, but rule which prohibits private conduct which could bring department into disrepute could violate first amendment. Wilson v. Swing, 463 F.Supp. 555 (M.D.N.C. 1978).
     Texas and Georgia courts split on termination of police officers for extra-marital affairs. Nixon v. City of Houston, 560 S.W.2d 447 (Tex. Civ. 1977); Smith v. Pierce, 446 F.Supp. 828 (M.D. Ga. 1977).