Constitutional Law

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Constitutional Law

• Chapter 11
• Constitutional and Civil Rights in the Workplace

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Objectives

• Students will understand how police officers are
  entitled to 1st, 4th, 5th, and 14th amendment
  protection in the Police Workplace
• Procedural process used in Police Disciplinary
  Actions
• Employment Discrimination based in race, color,
  religion, gender, or national origin
• Equal protection in the workplace

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Introduction

• The courts have long struggled with the level
  of constitutional protection in government
  workplaces. Back as far as 1892 it was decided
  that police officers had no constitutional rights
  within the workplace. Today this has changed
  somewhat and police officers have some protection
  because the constitution binds the actions of any
  police supervisor. This chapter will examine
  constitutional and civil rights in the workplace

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Hypothetical Story

• Larry Lovermore finds out he is one of 2
  finalists for a sergeants position
• As a joke he e-mails a young female trainee and
  says, Now that I am about to be promoted to
  Sergeant will you sleep with me?
• She complains and a supervisor searches
  Lovermores locker and finds sex magazines

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Story Continued

• Lovermore is removed from the candidate list and
  suspended for 2 weeks w/o pay and is told he has
  to attend a 2 week mandatory course on sexual
  harassment
• Lovermore felt his constitutional rights were
  violated and sent a letter to the Chief and the
  local TV station criticizing the Chiefs running
  of the department
• The Chief sent Lovermore a short e-mail and said
  Youre Fired!

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Story Continued

• Lovermore files a suit against the Police Chief
  and the Department under Section 42 USC
  subsection 1983.
• He alleges he was terminated for exercising his
  right to free speech, that his 4th amendment was
  violated due to searching of his locker, and that
  removal of his name from the candidate list, his
  suspension, and termination w/o a hearing were a
  denial of his due process guaranteed by the 14th
  amendment
• Do he have a case?

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1st Amendment Protection in the Workplace

• The Constitution says we can speak out against
  our government without fear of retaliation
• Had Larry Lovermore been a private citizen he
  could have written a letter to the newspaper and
  the 1st amendment would have protected him
• Freedom of speech does not exist to the same
  degree in government workplaces

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Why Government Employees have less 1st Amendment
Protection

• Government agencies are charged with certain
  responsibilities and hire employees to carry out
  the mission of the department
• If an employees speech becomes disruptive then
  the employer can take action to maintain
  workplace efficiency

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When An Officer is Entitled to 1st Amendment
Protection

• If the speech addresses a matter of public
  concern
• If the officers interest in speaking out as a
  citizen outweighs the departments interest as an
  employer in suppressing speech to promote
  workplace efficiency

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Speech Related Matters that Concern the Public

• Class to decide if these are matters of public
  concern
• Officer Lovermore tells the newspaper that the
  Chief is stealing?
• Only if he has proof and can show it other wise
  the Chief can fire the officer for disruptive
  speech
• Officer Lovermore knows for a fact the mayor and
  the chief are taking bribes for fixing DUI
  tickets?
• Officer Lovermore complains about a stupid policy
  regarding cleaning his patrol vehicle before he
  goes home

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More Matters of Public Concern

• Officer Lovermore tells the chief that several
  fellow officers are doing weed while on duty and
  off duty? The Chief fires Lovermore.
• Officer Lovermore reports the Chief having an
  affair with his secretary?
• He has proof because the secretary tells the
  officer she is afraid to get out of the
  relationship
• Officer Lovermore knows 3 officers are stealing
  public property?

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Other things the Ct Considers as Far As matter of
Public Concern

• A matter of public concern must be beyond the
  officers personal interests
• Complaining about
• Work assignments
• Personnel Actions
• Promotions
• Internal Grievances
• Are not protected areas of concern

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Matters of Public Concern Cont..

• Anything to do with reporting
• Officer Corruption
• Whistleblowers violations
• Public Trust Issues
• Are all protected forms of free speech

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Speech that Is Only for the Employees Interest

• This type of speech is not protected
• Example Officer Lovermore is passed over for
  promotion and the writes a letter to city council
  listing a quantity of grievances by him and his
  fellow officers. He gets fired for sending the
  letter to council and sues.
• The suit would be dismissed because Lovermores
  real interest is to cause disruption in the
  department because he was passed over for
  promotion

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Balancing Test

• Matters of Public Concern are balanced by looking
  at 2 things
• The employees interest in speaking out
• The adverse effects of the speech on workplace
  efficiency

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Balancing Test Continued

• The court usually dismisses a 1983 action if they
  find
• The officer was careless in investigating the
  facts before making the charges
• The officer acted as a spokesman for the
  department w/o authority
• There was a violation of confidential policies
  within the department
• The speech impaired the working relationship
  between the officer and his supervisor

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Balancing Test Cont..

• The speech undermined the authority of superiors
• The speech caused internal controversy and morale
  problems
• The speech eroded public confidence in the
  department and tarnished its image

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4th Amendment Protection in the Workplace

• Lovermores 2nd complaint of an illegal search of
  his locker will be dismissed
• Employers have the right to search for evidence
  if a government employee is suspected of illegal
  misconduct and no search warrant or probable
  cause is required
• This applies to offices, desks, file cabinets,

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4th Amendment Protection Cont

• Even personal belongings such as a pocketbook can
  be searched if there is reasonable suspicion that
  the search will produce evidence of work related
  misconduct

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4th Amend Drug Test of Government Employees

• Many police departments have drug testing
  programs
• Prospective officers can be tested as a
  pre-screening process prior to hire
• Permanently employed officers can be tested as
  part of a systematic drug screening program

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4th Amendment Drug Screens

• Officers can be tested if there is suspicion that
  the officer is using drugs
• There must be particularized reasonable suspicion
• More than a rumor or a hunch
• Excessive absences
• Physical or mental impairments
• Unusual behavior mood swings
• Financial difficulties

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5th Amendment Protection Against
Self-Incrimination During Internal Investigations

• Police officers have the same rights as any
  citizen when giving statements to an internal
  investigations officer that may use the
  statements to prosecute the officer
• These statements cannot be compelled
• Example Tell me everything you know about this
  or I am going to ask the chief to fire you for
  failing to cooperate with an investigation

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5th Amend Cont..

• In Garrity v New Jersey a police officer was
  questioned about fixing tickets and told to
  cooperate or be fired. He confessed and was
  later prosecuted.
• The court overturned the confession because it
  was coerced when the officer was informed he
  would be fired if he failed to cooperate with the
  investigation.

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5th Continued

• Once an Officer is granted immunity and makes a
  statement using a Garrity Waiver the evidence
  can be used to fire the officer but it cannot be
  used to prosecute him/her
• There are times when departments have so much
  evidence that a Garrity Waiver is not
  necessary. They will just prosecute the officer
  for breaking the law

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14th Amendment

• Police officers have a high degree of personal
  liberty but they also have certain restrictions
  both on and off the job
• They must be citizens if the US in most cases
• They have to reside in the political subdivision
  in which they are employed
• They can be prohibited from having secondary
  employment
• Can be prohibited from smoking in the workplace

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14th Cont..

• Can be required to conduct their private lives so
  as to not bring harm to the reputation of the
  department
• Extramarital affairs not allowed
• The officers off-duty sexual misconduct must be
  legitimate
• Example The Chief is fired for having an affair
  that is on the front page of the newspaper
• Extramarital affairs with other officers are
  prohibited

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Procedural Due Process in Disciplinary Actions

• Officer Lovermore filed a 1983 action because he
  had not been given any kind of hearing before the
  chief fired him
• The 14th Amendment required a hearing before the
  government can deprive a person of liberty or
  property
• To have a property interest you must have a
  contract and you cannot be a probationary employee

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14th Cont..

• Lovermore would have had a property interest in
  the job and would be entitled to a hearing before
  he was fired
• Lovermore would not have been entitled to a
  hearing regarding the suspension or the fact that
  his name was removed from the promotion list
• Lovermore never had a property right in the
  promotion

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Hearing Rights

• Officers have the right to
• Notice of the charges
• A hearing before an impartial decision-maker
• Opportunity to challenge the evidence
• Opportunity to tell his/her version and put up
  witnesses

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Employee Termination Rights

• Employers can make a pre-determination to release
  an employee based to the seriousness of the
  charges such as officers who murder, commit
  sexual assault, or pose a threat to others
• They can be terminated without a hearing

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Liberty Interests

• All employees have a right to a liberty interest
  including probation employees
• They have a liberty interest in their ability to
  take advantage of future employment opportunities
• They have a right to thwart off unfounded
  stigmatizing charges
• Officers are entitled to a name clearing
  hearing to protect his/her liberty interest

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Employment Discrimination

• Employers cannot discriminate based on race,
  color, gender, religion, or national origin
• Guaranteed by Title VII of the 1964 Equal
  Opportunities Act
• There are 3 types of Tile VII suits
• Disparate treatment discrimination
• Disparate Impact Discrimination
• Workplace Sexual Harassment

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Disparate Treatment Discrimination

• Disparate Treatment Discrimination-Occurs when
  one person is treated less favorably in the
  workplace than others because of race, color,
  religion, gender, or national origin
• Example Giving the secretary that is not so
  appealing all the tough assignments and giving
  the pretty one less work but bigger pay raises

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Disparate Impact Discrimination

• Occurs when a police department uses a selection
  criteria that disproportionately eliminates
  members of a protected class without being valid
  predictors of knowledge, skill, or traits to do a
  job.
• An unfair practical or written test would be a
  good example

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Workplace Sexual Harassment

• Means you cannot withhold a benefit or take
  adverse action against an employee because they
  will not succumb to unwanted sexual advances
• Title VII protects all persons whether male or
  female, heterosexual and homosexual from
  harassment based on sex
• You cannot create a hostile workplace environment
  that will be intimidating, abusive, or offensive

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Workplace Harassment Cont..

• You cannot insult, ridicule, or intimidate anyone
  in the workplace because of their religion, race,
  color, sex, or national origin
• Example-Racial slurs used common place in the
  department would be a basis for a 1983 action

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Equal Protection in the Workplace

• Race conscious hiring of minorities to eradicate
  the past discrimination of departments is ok
• The Affirmative Program used to accomplish this
  must be flexible and must end once equal
  opportunity is achieved
• Affirmative action programs may not
• Take jobs from existing employees and give them
  to minorities
• Foreclose all advancement opportunities of
  non-minorities
• Authorize hiring or promotion of unqualified
  minorities

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The End