Firing Cop for Off-Duty Romance Unconstitutional, Court Says(1)

By Lawrence E. Dubé

A police officer can proceed to trial on her claim a California police department violated her constitutional right to privacy by firing her for having an off-duty affair with a fellow officer.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit stood by the court’s 1983 ruling that a public employer can’t take adverse action on the basis of an employee’s private sexual conduct unless it demonstrates that the conduct affected the worker’s job performance.

The decision is an important affirmation of the off-duty rights of employees—"rights that are daily being eroded by employers and state actors,” Richard Paul Fisher of Goyette & Associates Inc. said in a statement to Bloomberg Law. Fisher argued the case for former officer Janelle Perez, who was still on probation at the time of her firing.

The ruling highlights a disagreement among the Ninth, Fifth, and Tenth federal circuits. The Tenth Circuit held in 2008 that a police officer couldn’t show his firing was unconstitutional because he couldn’t identify any “fundamental liberty interest” in engaging in private consensual sex, and the Fifth Circuit held in 2017 that a Louisiana sheriff could fire two deputies for participating in wife-swapping activity that the sheriff considered a threat to his department’s reputation.

The issue of off-duty sexual relationships hasn’t reached the U.S. Supreme Court yet, but the continuing debate in the federal circuits suggests the justices may take up the issue when a suitable case reaches them.

Officer Claims Firing for Off-Duty Conduct

The city of Roseville, Calif., launched an investigation of Janelle Perez and Officer Shad Begley after Begley’s wife told the police department the two officers were engaging in inappropriate sexual conduct while on duty. An investigation failed to substantiate the accusation of on-duty misconduct, but Begley and Perez were reprimanded for their off-duty relationship, and Perez was eventually discharged, supposedly for unsatisfactory performance of her job duties.

Judge Stephen Reinhardt said in his decision that the police department gave shifting explanations for firing Perez, while the former officer produced evidence that department officials had voiced their personal disapproval of the affair between Begley and Perez, both of whom were married but separated from their spouses. Perez presented enough evidence to merit a trial on her claims that she was really fired because of her employer’s disagreement with her private, off-duty sexual conduct, the appeals court said.

The Ninth Circuit said a lower court erred in summarily dismissing Perez’s lawsuit against the city and police officials, and it remanded the case for a trial on her claims under the Constitution.

Judges A. Wallace Tashima and Donald W. Molloy joined in the decision to remand the case.

Attorneys for the city didn’t immediately respond to a request for comment on the decision.

Goyette & Associates Inc. in Gold River, Calif., represented Janelle Perez. Best Best & Krieger LLP in Sacramento, Calif., represented the City of Roseville, Calif.

The case is Perez v. City of Roseville , 9th Cir., No. 15-16430, 2/9/18 .

To contact the reporter on this story: Lawrence E. Dubé in Washington, D.C. at ldube@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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