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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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