On May 21, 2019, the Ninth Circuit Court of Appeals, in Perez v. City of Roseville, 2019 U.S. App. LEXIS 14927 (9th Cir. May 21, 2019) held that the defendants were entitled to qualified immunity on each of the probationary officer’s First Amendment claims because the law was not clearly established that the defendants violated the probationary officer’s constitutional rights. Therefore, the District Court did not err in granting summary judgment in favor of defendants.
This decision substituted the Ninth Circuit’s own February 2018 opinion in Perez v. City of Roseville, 882 F.3d 843 (9th Cir. 2018), which we discussed in Client Alert Vol. 33 No. 4. Judge Stephen Reinhardt, who wrote the February 2018 opinion, passed away shortly after that opinion was issued. In the case covered here in the current Alert, the majority in the May 2019 decision cited Carver v. Lehman in explaining that because the opinion issued by the prior majority was only part way through its finalization process, a replacement judge was drawn, en banc proceedings were suspended, and the new panel had the authority to reconsider and withdraw the opinion filed by the prior panel and to substitute a different opinion. The majority rejected the dissent’s argument that it was improper to substitute a different judge following the post-publication death of the original decision’s author and to change a previously published opinion except as part of an en banc decision. While the dissent considered the prior opinion effectively reversed (in part), the majority considered its process one of “reconsidering and revising an opinion that has not yet mandated.”
Janelle Perez was hired by the City of Roseville (“City”) Police Department (“Department”) as a police officer, subject to a probationary one-year period, as was typical for new hires. Chief Daniel Hahn sent Perez a letter confirming Perez’s hire that stated during her probationary period, Perez could “be released from City services with or without cause at the sole discretion of the City.”
In January 2012, Perez began her probationary one-year term. Perez completed the field training program in her first ten weeks. Soon thereafter, Perez separated from her husband and started dating another Department officer named Shad Begley after he started working the same shift as Perez. Begley separated from his wife soon after he began working that shift. Begley’s wife wrote a citizen’s complaint alleging that Perez and Begley were having an extramarital relationship and that they were engaging in romantic relations while on duty. Begley’s wife also alleged that Begley and Perez contacted each other by phone and text numerous times while on duty.
Chief Hahn received the complaint in June 2012. He ordered Lieutenant Troy Bergstrom to conduct an internal affairs investigation into the matter, in accordance with Department policy pertaining to responding to citizen complaints. During the investigation, Begley, Perez, and their spouses were interviewed. Lieutenant Bergstrom also reviewed phone and text logs. Bergstrom did not find that Perez and Begley engaged in sex while on duty, but did find that they made personal phone calls to each other and exchanged texts multiple times while on duty. Some of the calls occurred while Perez was responding to calls for help. Both Perez and Begley admitted to sending personal texts to each other while on duty. Bergstrom prepared a detailed report and provided this to Captain Stefan Moore. Captain Moore asked Lieutenant Cal Walstad, Perez and Begley’s supervisor, to review Bergstrom’s report and make a recommendation.
Lieutenant Walstad concluded that Perez violated the “[u]nsatisfactory work performance” standard set forth in Section 340.3.5(c) of the Department policy manual because her personal calls impacted her ability to perform her duties. Perez had talked on the phone to Begley while in transit responding to dispatch calls, after arriving on the scene of a disturbance, and also before reporting to headquarters to clear a call.
Walstad also concluded that Perez had violated the manual’s Section 340.3.5(aa) by engaging in conduct “which any employee knows or reasonably should know is unbecoming a member of the Department or which is contrary to good order, efficiency or morale, or which tends to reflect unfavorably upon the Department or its members.” Walstad referred to Perez’s relationship with Begley as “secret” in nature and unprofessional, and that it failed to meet the “high standards of ethical conduct and behavior” required. Walstad also mentioned that both officers were married and “have young children.” Walstad recommended sustaining both disciplinary charges against Perez (Walstad also recommended sustaining both charges against Begley).
In August 2012, Captain Moore informed Perez of the findings sustaining the charges against her for “Conduct Unbecoming” and “Unsatisfactory Work Performance.” The next day, the Department sent Begley’s wife a letter informing her of the completed inquiry’s results sustaining these charges. Although Captain Moore recommended terminating Perez’s employment, Chief Hahn believed a written reprimand would suffice. Captain Moore issued a written reprimand to Perez that described the grounds for the two violations in late August 2012. The reprimand pointed to personal phone calls Perez made while on duty ranging from eight to nineteen minutes, and reflected unfavorably on the Department. The reprimand stated that such further conduct could result in possible termination. Perez appealed her reprimand, yet continued her relationship with Begley in secret while awaiting an administrative hearing scheduled for early September 2012.
During this post-investigation pre-administrative hearing time period, Chief Hahn learned of negative comments from multiple different sources, from both officers and citizens, regarding Perez’s job performance. Chief Hahn also recalled issues of concern from Perez’ background investigation report regarding her relationship with female officers at her old department. According to Chief Hahn’s testimony, these “new issues of concern” prompted him to release Perez from probation. Chief Hahn stated that Perez’s affair with Begley while both were married at the time played no role in his decision to fire her. Perez was terminated at the conclusion of the September 2012 administrative hearing pertaining to her written reprimand. Her written notice of release from service did not give reasons for her termination; it simply stated that probationary officers could be released without cause.
After her termination, Perez sued the City, the Department, Chief Hahn, Captain Moore, and Lieutenant Walstad (the latter three collectively, “individual defendants”) under 42 U.S.C. section 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty without due process of law in violation of the Fourteenth Amendment. The District Court granted summary judgment in favor of the defendants on all claims. Perez appealed the District Court’s summary judgment in favor of the individual defendants.
The Ninth Circuit Court of Appeals first addressed whether the defendants were entitled to summary judgment on Perez’s Section 1983 claim that defendants terminated her based on her extramarital relationship with Begley, violating her constitutional right to privacy and intimate association.
The Court explained that under the doctrine of qualified immunity, courts may not award damages against a government official in his personal capacity unless (1) the official violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct. Lane v. Franks, 573 U.S. 228, 243 (2014). For this doctrine, courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). In addressing the “clearly established” prong of the qualified immunity test, courts “do not require a case directly on point for a right to be clearly established, [but] existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Significantly, the Supreme Court has “repeatedly told courts — and the Ninth Circuit in particular — not to define clearly established law at a high level of generality.” Id. (quoting City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015)). The clearly established law at issue “must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The contours of a right must be ‘sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’ Kisela, 138 S. Ct. at 1153. In short, the doctrine is broad; it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ Pauly, 137 S. Ct. at 551.” (internal citations omitted.)
Perez argued that the Ninth Circuit’s decision in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983) met the “clearly established” criteria of the second prong of the qualified immunity test. The Ninth Circuit here explained that Thorne held that a police department may not make employment decisions based on sexual activities that are wholly irrelevant to a police department’s legitimate concerns about the employee’s work performance. However, Thorne did not preclude consideration of relationships that occurred on duty, or relationships among officers that were ongoing and affected on-the-job performance or other legitimate interests of the Department, such as community reputation and morale. Id. at 469, 471. Nor did it deal with probationary officers. Moreover, Thorne involved wholly past sexual relations with no relevance to on-the-job performance. The Court noted Perez was, at the time of the disciplinary charges, currently involved in a relationship with Begley, and made personal communications with him while on duty driving her police vehicle and responding to calls for service. Therefore, the Ninth Circuit held, Thorne “[did] not put beyond debate the question whether a police department can fire a probationary officer who is engaged in an ongoing relationship with another married officer and routinely makes personal calls and texts to that officer while she is supposed to be responding to calls for help, giving rise to legitimate concerns regarding efficiency, morale, and public perception.”
The Ninth Circuit also pointed to subsequent cases that suggested police departments may appropriately consider on-the-job sexual relations that impact job performance and are not purely private, as the Department did with Perez here. Fugate v. Phx. Civil Serv. Bd. held that Thorne’s protections did not extend “to sexual behavior that is not purely private, that compromises a police officer’s performance, and that threatens to undermine a police department’s internal morale and community reputation.” 791 F.2d 736, 741 (9th Cir. 1986). The Ninth Circuit’s decision in Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987) also permitted consideration of some off-duty sexual conduct, the Court noted. The Court thus concluded that these precedents were not so clear that every reasonable official would understand that terminating Perez because of her ongoing extramarital relationship with Begley violated her constitutional right to privacy, given the evidence that the relationship caused Perez to engage in inappropriate personal cell phone use while on the job in violation of departmental policy.
The Court next considered whether defendants were entitled to summary judgment on Perez’s Section 1983 claim that defendants violated her constitutional right to due process by failing to give her an adequate opportunity to refute the charges made against her and clear her name before she was terminated. The Ninth Circuit explained that when a public employee is terminated for reasons serious enough to stigmatize the person such that the person cannot take advantage of other job opportunities, and the public employer publicizes those stigmatizing charges (relevant here when Captain Moore sent a letter reporting the charges to Begley’s wife after the internal affairs investigation was concluded), the employee’s liberty interest under the Constitution is implicated and she must be given an opportunity to refute the charges. Tibbetts v. Kulongoski, 567 F.3d 529, 536 (9th Cir. 2009). The Court further explained that in order to establish that “the charge is made in connection with termination of employment,” a plaintiff must establish a “temporal nexus between the employer’s statements and the termination,” Campanelli v. Bockrath, 100 F.3d 1476, 1483 (9th Cir. 1996).
The Ninth Circuit explained that in Tibbetts, the Court had held that it was not clearly established that a government official’s stigmatizing statement made nineteen days after the plaintiff’s termination would satisfy the temporal nexus test, and therefore the Court had concluded that the defendant was entitled to qualified immunity for failure to provide a name-clearing hearing. The Court observed that Perez raised Captain Moore’s letter in August 2012 to Begley’s wife reporting the charges and her termination in early September 2012 in connection with her argument that she was entitled to a name-clearing hearing where she could refute the charges. However, the time period between these two events was nineteen days – the same number of days as in Tibbetts. Thus, Perez failed to show that it was clearly established that such hypothetically stigmatizing charges were made in connection with her termination. Bound by Tibbetts, the Court thus concluded it was not clearly established that defendants were required to provide Perez with a name-clearing hearing, and defendants were therefore entitled to qualified immunity.
The Ninth Circuit Court of Appeals affirmed.
HOW THIS AFFECTS YOUR AGENCY
This decision emphasizes the connection between the termination of the officer and the officer’s work performance. Reviewing precedent, the Ninth Circuit also stated that “rather than delineate any bright line rule regarding the scope of Thorne‘s protections,” the Ninth Circuit has “carefully refrained” from deciding the precise limits of the right of privacy in sexual activities recognized in Thorne. Agencies should take note of these Ninth Circuit cases and weigh the balance between employee performance and personal privacy concerns for guidance on internal policies and disciplinary matters. It is also important to note that the Court based its decision on the fact that the law was not clearly established that the defendants’ actions would violate Perez’s constitutional rights. As such, it is critical that law enforcement officials stay informed of new case law decisions in this, and all areas of the law in order to ensure that their actions are permissible.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 558 F.3d 869 (9th Cir. 2009)
 Section 340.3.5(c) of the Department policy manual describes “[u]nsatisfactory work performance including, but not limited to, failure, incompetence, inefficiency or delay in performing and/or carrying out proper orders, work assignments or instructions of supervisors without a reasonable and bona fide excuse.”
 Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998) (per curiam) (internal quotation marks omitted).