LEGAL & LEGISLATIVE UPDATE

Court Reinstates Officer Who Made Sex Videos

A City of San Diego police officer who was fired for offering home-made, sexually explicit videos for sale on an online auction site sued the department, city, and his supervisors under 42 USC § 1983 for violation of his civil rights. In Roe v. City of San Diego (2004) 356 F.3d 1108, the Ninth Circuit Court of Appeals held the officer's off-duty, non-work-related "expressive" conduct was protected by the First Amendment because the videos did not involve the officer's employment or employer. The trial court ruling upholding termination was reversed because the court had failed to balance "the free speech interests in Roe's expressive activity . . . against the Department's interest 'in promoting the efficiency of the public services it performs through its employees.'"

Speech - meaning any form of expression - by a public employee is protected by the First Amendment where the speech does not involve matters of personal interest to the employee, such as internal grievances, but instead affects "matters of public concern." The Roe decision broadened the category of "matters of public concern" essentially to include any expression by a public employee that does not relate solely to a personal complaint against the employer. An adverse action against the employee may be sustained where the public agency can show the employee's conduct impaired the agency's efficiency or where the agency demonstrates a basis for the adverse action other than the protected conduct.

Court Upholds Judicial Enforcement of SPB Decisions

The Third District Court of Appeal has upheld the right of a correctional officer reinstated by the State Personnel Board to seek a writ of mandate ordering the Department of Corrections (CDC) to return him to work while the CDC pursued an appeal from the decision. The board had ordered the officer reinstated after a hearing, but the CDC refused to reinstate him until it had exhausted its right to judicial review of the board decision.

The court ruled in Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, that the officer's writ petition in the trial court was timely, even though the one-year time period during which the CDC could seek judicial review of the board's decision had not yet expired. The court noted the distinction between finality for enforcement purposes and finality for purposes of appeal. The SPB decision reinstating the employee was final, requiring the officer's immediate reinstatement with back pay and benefits, when the SPB no longer had jurisdiction over the case. This ruling is significant because it reinforces the employee right to immediate compliance by the state with a reinstatement order.

Police Officer Prevails in Defamation Action

In a case affirming the constitutionality of the peace officer defamation statute, a San Diego police officer obtained a $350,000 judgment against a businessman who had filed over 20 complaints against her based on her enforcement of various code violations by the business. The Fourth District Court of Appeal rejected the businessman's argument Civil Code section 47.5 impermissibly discriminates on the basis of content. (Loshonkohl v. Kinder (2003) 109 Cal.App.4th 510.) The court reasoned the statute's requirements that a false complaint be made knowingly, and with "spite, hatred, or ill will," eliminates any possibility the statute would suppress legitimate complaints against officers. The Loshonkohl court adopted the analysis used by the state Supreme Court in People v. Stanistreet (2002) 29 Cal.4th 497 to uphold Penal Code section 148.6 (misdemeanor to file a false report against a peace officer).

Court Rejects Disability Claim by Probationary Correctional Officer

A correctional officer who was rejected on probation after he sustained knee injuries from degenerative joint disease was unable to sustain a claim for disability discrimination under the Fair Employment and Housing Act (FEHA). The court in Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963 also held a disabled civil service employee is not entitled to be reassigned to a different civil service classification without complying with the competitive examination process.

The Third District Court of Appeal determined the officer had failed probation for a non-discriminatory reason: his non-work-related knee injuries disqualified him from employment. The officer had been give an offer of employment conditioned on his successful completion of a physical agility course and he was unable to complete the course after suffering the injuries. Significant about the Hastings case is the court's ruling the officer candidate was not entitled to be placed elsewhere in the civil service system when he had not yet completed any competitive examination process.