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Conduct Unbecoming - Sex, videotapes, the Internet and police misconduct

Lou Reiter

Law enforcement personnel are held to personal standards higher than other members of our communities. Conduct unbecoming has been a common and historical charge used in controlling and censuring police officers and other public employees, for both on and off duty actions. The “Police Officer’s Code of Ethics,” written back in the 1950s, has a provision that is routinely referenced in training as well as court decisions that promises, under oath: “I will keep my personal life unsullied as an example to all.” Court decisions regarding public employee misconduct involving conduct unbecoming commonly requires that the act of misconduct have a nexus or connection to the employee’s job performance or ability to perform or have an adverse affect on the agency’s “morale,” “operations,” or “efficiency.”

Historically, law enforcement employees have been held to this higher standard of conduct, both on and off the job. This heightened standard of conduct also applies to other public employees. Employees of private entities however, are rarely held to this heightened standard of conduct, specifically when the conduct at issue occurred outside work hours.

While public agencies have the ability to restrict some off-duty conduct, the agency cannot abuse this authority and must articulate a reasonable rationale for its determination that the conduct of the employee adversely affected the employee’s ability to perform or impacted his or her fitness for public employment. The agency must establish how the conduct of the employee affected the operation, efficiency and/or morale of the agency.

These are the important and significant hurdles or hoops stemming from the many court decisions involving “conduct unbecoming an employee” that an agency must jump over or through when imposing discipline.

A recent case exemplifies these concepts. Beecham v. Henderson County , involved an office romance issue. The Plaintiff, who was a deputy clerk for the Circuit Court and an at will employee, became involved in an intimate relationship including engagement with a local practicing attorney. The county terminated the plaintiff for engaging in an “adulterous affair.” The District Court granted the County’s Motion to Dismiss. The Appeals Court, however, affirmed the District Court’s dismissal for other reasons. The attorney was still married to his wife although separated from her.

His wife was employed as a Clerk and Master in another court on the same floor of the courthouse as the Plaintiff. What is not in the case summary is whether the Plaintiff was ever advised of the workplace problems her relationship was causing and given some opportunity to resolve the issue (this would have been a reasonable supervisory approach before initiating discipline).

The appeals court found that the “Plaintiff’s claim cannot prevail upon the application of rational-basis review to the employment action taken by her employer…Henderson County Courthouse officials, deciding that it was unacceptably disruptive to the workplace for a woman employed in the office on one of the county’s courts to be openly and ‘deeply involved in a romantic relationship’ with a man still married to a woman employed in the other county court down the hall, acted upon a ‘plausible policy reason’…A rational basis for the decision is therefore evident.”

It’s important to include a definition of conduct unbecoming in your manual, employee handbook, or other document provided to or accessible to all employees. A court accepted definition that covers all of the essential points is "Conduct unbecoming is any conduct which adversely affects the morale, operations, or efficiency of the department or any conduct which has a tendency to adversely affect, lower, or destroy public respect and confidence in the department, or any officer or employee.

Conduct unbecoming also includes any conduct which brings the department or any officer or employee into disrepute or brings discredit upon the department, or any officer or employee. Officers and employees shall conduct themselves at all times, both on and off duty, in such a manner so as to reflect most favorably upon the department."

A new trend in this area of conduct unbecoming an officer involves sex and the internet. There have been numerous cases over the past decade involving police employees engaging in sexual activities with connections to the Internet and involve videotaping these activities. When these off-duty activities are exposed to the agency and/or public, a reasonable public agency must investigate the circumstances to determine whether intervention and/or discipline is warranted.

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  • Photo_user_blank_big


    4 months ago


    Great article with useful references to other cases of precedent set. I do ponder, however, what can be done in a different scenario where an officer carries on an adulterous relationship with a civilian married man. Shortly after clear proof of the sexual relations (300 pix & conversations on a spare phone recovered) have indeed occurred in the married man's home, the couple are open about their relationship on social media & married man moved in with the police officer, thus abandoning wife & their shared marital home...., hypothetically, of course. What recourse, if any, would this abandoned wife be able to pursue, for example, serving the officer (also) with Interrogatories? Any suggestions to help aid our investigation would be greatly appreciated.

  • Photo_user_blank_big


    over 3 years ago


    Nice article which shows truly significant and important of court decision. As per your article i thoughts that most of the gov. officer or employee have hiding their intimate relationship, otherwise they will fire or dismiss from their current duty. I know that London escorts have rights which are given by Government.

  • Flaming_eye_max50


    over 3 years ago


    This case is somehow weird from my point of view. It is a violation of privacy and many other things. Even escorts London have their rights and you are telling me that you want to get a cop fired for having an affair with a married attorney. That is simply unconstitutional.

  • Ring_max50


    over 7 years ago


    Excellent article and great read for supervisory personnel.

  • Photo_user_blank_big


    over 7 years ago


    Hello I'm afraid I have a very similar case, I have proof with a survalance camera of a police officer while on duty, came to a residence two towns away from where he works, and had sexual relation with a married woman. He is also married and is part of the reason that the woman he had a sexual relation with is going through a divorce right now. As part of her divorce she is not allowed to have him in the residence until the divorce is finalized, her husband informed internal affairs at the station where the police officer works and he explained that his future ex-wife has a court ordering her not to allow him in the house, so besides the fact that his wife is in violation of a court order the police officer is not respecting the order either.The husband in this case is me! The reason I'm writing is if someone out their can help me in how I should go about pressing charges against this so called cop? I tried the prosecutors office and they told me to back to the police station that he works for and let them know, the only problem I have is that they are a close knit station and they will try to either help him by covering this up. I live in NJ and my e-mail address is and type of information will be very much appreciated if their is any one from NJ who would be interested in this case, please respond thanks.

  • Truck_graphic_-_badge_medium_max50


    over 7 years ago


    Outstanding article. Really enforces the higher standard we abide by.

  • Photo_user_banned_big


    almost 8 years ago


    There should be others held accountable as well. Senators, Judges and etc. Excellent article.

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