399_C063
SHERIFF’S
OFFICE MAY CONTROL MOONLIGHTING ACTIVITIES
|
Law Enforcement
Liability |
Moonlighting |
|
Free Speech |
|
Editor’s
note: This case reveals the need for
appropriate policies and procedures as a defense to Employment Practices
Liability claims in a law enforcement agency setting.
Three deputy sheriffs and their wives
agreed to participate in pornographic photographs and videotapes that would be
available on the Internet on pay-per-view websites. While the officers
attempted to hide their identities, their posted photographs, along with shots
of the law enforcement agency’s marked patrol car, resulted in an anonymous
complaint from a citizen who recognized them. After an internal investigation,
one officer resigned and two were terminated for violating the agency’s
requirement that they obtain prior written approval from the Sheriff before
“engaging in other employment, occupation, profession or commercial
enterprise.” When the Sheriff refused to reinstate their status as officers,
they sued in federal court based on violation of their First Amendment rights
of free speech and association. The judge dismissed their case and the officers
appealed.
The appellate court determined that the
requirement that officers obtain permission before moonlighting was not a
violation of their First Amendment rights because the approval regulation was
unambiguous and was designed to uphold public confidence in the reputation of
the law enforcement agency they worked for. The court deemed their actions in
participating in the publicly posted sexually explicit materials to be
“detrimental to the mission and functions of their employer.” While the
officers pleaded that their activities did not constitute other employment, the
court noted that they had signed releases allowing the photographer exclusive
rights to their photographs, and that they received financial gains indirectly
through their wives from earnings acquired from the websites. The appellate
court affirmed the lower court’s decision to dismiss the case.
Thaeter
v. Palm Beach County Sheriff’s Office, #03-13177, 449 F.3d 1342, 2006 U.S. App.
Lexis 13308 (11th Cir. 2006)