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August 11, 2010
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

Posing, performing, and conduct unbecoming

Jessie Lunderby, 21, was fired by the Washington County (Ark.) Sheriff's Office following her nude appearance on Playboy.com as the "Cybergirl of the Week"

To pose or not to pose? That is the question. With all due respect to Shakespeare and the conflicted soliloquy of Hamlet (Act 3, scene 1), I could not help but wonder whether the same weighing of options occurred in the mind of Jessie Lunderby prior to her nude Playboy poses and subsequent posting on the Internet. A recent news report indicated Lunderby was fired from her job as an Arkansas corrections officer. Washington County (Ark.) Sheriff Tim Helder took the expected step when he handed Lunderby her termination notice. It appears that Lunderby isn’t too concerned about the passing of her law enforcement career and is presently more focused on her burgeoning modeling career. Her case, however, brings several employment-related issues into sharp focus and the considerations that go into terminating a public employee for off-duty behavior, particularly as it relates to behavior on the Internet.

Before we proceed with the Lunderby case — and others instructive to the topic — let’s consider a few basic do’s and don’ts...

Do:

Maintain a web presence — Facebook, a Blog, Twitter — but be responsible and aware what you post is not necessarily private
Limit those who have access to your online profile
Create Firewalls and other protections to your computer and personal web pages
Utilize the internet for networking, training and other positive interactions among fellow law enforcement professionals
Check to see if your agency has a policy on online communications for officers

Don’t:

Write about, criticize or offer your opinion about work, co-workers or ongoing investigations/cases/arrests
Post potentially embarrassing photos of yourself or co-workers, especially when in uniform or involving department equipment or vehicles
Post photographs of crime scenes
Identify yourself as a police officer or the department you work for
Assume anything you post will never be found by others in the vast internet universe

Precedents in the Buff
Lunderby is not the first officer to pose in the nude, nor will she likely be the last. As a matter of fact, her nude photographs are tame when compared to the conduct of other officers caught on tape or in revealing photographs. As always what is left in the aftermath of the initial exposure when it is brought to public attention is the action to be taken by the officer’s agency. Is it protected speech under the First Amendment? Does the employee have a right to pursue these activities on their own time without regard to department regulations? Certainly when the story first broke, Sheriff Helder knew he had a decision to make and that his decision would be national news. Based on prior case law and similar incidents of officers shedding their clothes, Helder made the right decision.

Past history in the New York City Police Department reveals two such cases involving female police officers. The first, Cibella Borges, posed nude for a men’s magazine several months prior to her appointment as a police officer while she was a civilian employee for the NYPD. Once the issue hit the newsstands someone recognized her as the woman identified as “Nina” in the nude photo spread. From there, the story took off.

Despite the fact that at the time Borges posed she was not yet a police officer, and neither her real name nor her occupation were disclosed in the photo spread, she was fired from the NYPD. The police commissioner was outraged and the union was silent. Borges sued to get her job back and was reinstated with back pay. The basis of her reinstatement rested largely on the fact she posed prior to her appointment as a police officer.

Several years after Borges won her job back another officer, Carol Shaya, a young blonde officer stationed at a Bronx precinct, appeared in Playboy posing in a generic police uniform. Shaya was identified as a police officer and posed while a sworn officer employed by the NYPD. Then-Commissioner Bill Bratton eventually fired Shaya when stories of city cops posing nude seemed to become an epidemic within his agency. A male officer had announced he was planning on posing nude in Playgirl. After a departmental hearing, Shaya was dismissed for using her position as a police officer for personal gain.

Unbecoming 2.0
These NYPD cases occurred at a time when the Internet as we know it was either non-existent or in its infancy, a home computer was a luxury, and laptops cost a fortune. Now in the age of Twitter, Facebook, instant mobile cell phone connectivity, and texting, a cop can have his or her actions in the street broadcast worldwide by the end of a shift. There have been a number of well-publicized cases across the country in the last few years which do not bode well for those ecdysiast members of the force who plan to drop their gun belts and strut their stuff.

The U.S. Supreme Court in City of San Diego v. Roe, 543 U.S. 77 (2004) sided with the employer in upholding the dismissal of an officer who made a video of himself stripping off a police uniform and masturbating. In overruling the 9th Circuit Court of Appeals, which had in turn overruled the United States District Court for the Southern District of California’s grant of summary judgment to the employer, the Supreme Court held that the San Diego Police Department had “demonstrated legitimate and substantial interests of its own that were compromised by [his] speech.” The Court noted that the offending officer took deliberate steps to tie his explicit videos to his police work, which in turn was injurious to the employer and debased the profession. The conduct also violated SDPD rules and regulations.

What is interesting from the facts of the opinion is that the officer was discovered when a supervisor found police items he was selling online. A web search led to the masturbatory videos. The officer was confronted and told to end his sale of sexually explicit material. The officer removed some items but continued to sell two videos. This disobedience led to the initiation of termination proceedings against the officer. These facts underscore a steady theme through many of these cases — conduct on the part of the officer, which in addition to the sexually explicit videos or nude posing, run afoul of department regulations. While the repeated arguments by the offending officers in these cases is that they enjoy a First Amendment protected right which the employer violated by terminating them, the case law on First Amendment protections as they relate to public employees is not so forgiving.

Higher Standards
In another case of police officer entrepreneurial endeavor the 9th Circuit received a second chance in 2007 after being overturned in 2004 in Roe. Dible v. City of Chandler involved an officer who operated a website “featuring sexually explicit photographs and videos of his wife.” The website was intended to make money, users had to subscribe, and CD-ROMS of the couple having sex could be purchased. Also promoted on the website were “bar-meets” where subscribers and other erstwhile fans could meet the wife. Neither the officer husband nor the wife was identified by their real names, though some people in the community knew who they were and knew the husband’s occupation.

Eventually, the news of the website hit the department rumor mill and upper management became aware of its existence. The officer was summoned to the chief’s office and told to cease all operations. An internal affairs investigation followed. There is no indication that the officer used police equipment, his position as a police officer, or agency identifiers to promote or benefit his online business. However, his face was visible in one photograph available on the website and CD-ROM. As part of the internal investigation investigators requested contracts between the Dibles and the network that maintained their website and inquired into whether they made money from the website. During the course of the investigation the officer, Ronald Dible, “provided several misleading answers.”1

A city Merit Board inquiry eventually recommended termination of the officer. On appeal to the 9th Circuit, the officer argued that his activities must be treated as employee free speech. The 9th Circuit proceeded to carefully explain the parameters of an employee First Amendment claim and the limiting factors on that speech. It is sufficient to state that the court did not find the activities of the officer to be protected speech under any analysis of First Amendment protection. Once again, the effect of the activity on the employer could not be overlooked, especially in light of the nature of the work performed by the employee. Police officers perform a special function within society and are expected to meet higher standards of conduct. The circuit court cited several instances from testimony before the Merit Board wherein officers were ridiculed in public as a result of the news stories surrounding Officer Dible’s actions. Potential recruits to the agency even expressed concern as to whether this was the type of agency which they would want to be affiliated.

The 9th Circuit noted that part of a police officer’s job is “to safeguard the public’s opinion of them.”2 Dible’s conduct was deemed to be vulgar and indecent with no contribution to matters of public concern. There was no message to be conveyed — just “indecent public activity solely for profit.”

A police agency has a right to protect its reputation and to demand the unsullied reputations of its officers. This right, often enforced through a department’s rules and regulations and further enhanced by a code of ethics, is often expressed in “conduct unbecoming” charges. Off-duty conduct will not be protected if the agency can prove a nexus between the offending conduct and the officer’s employment. In Roe, the Supreme Court noted that the officer’s sex videos for sale brought the professionalism of the department’s other officers into “serious disrepute.” The proper analysis when regulating employee free speech is the balancing test announced in Pickering v. Board of Education, 391 U.S. 563 (1968). The test is a balance between the employee speech and the proper functioning of government offices.3

Similar cases post-Roe have upheld officer dismissals. In Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342 (11th Cir., 2006), the 11th Circuit Court of Appeals cited the Pickering balancing factors as well as the department code of ethics in sustaining the termination of two sheriff’s deputies.4 Once again, these officers participated in sexually explicit photographs and videotapes offered for sale on pay-per-view websites. The websites were operated by the wife of a third officer. The deputies requested their faces be obscured due to the nature of their employment as police officers, but despite editing they were able to be identified. Several photographs — along with photos of a Palm Beach County Sheriff’s Office marked police vehicle — were disseminated and posted on several pornographic websites. After a citizen complaint and the launch of an internal affairs investigation, which also focused on the unauthorized outside employment of the deputies, both deputies were terminated. A crucial element of the administrative decision to terminate the deputies was their violation of the Sheriff’s Department Code of Ethics for Public Officers and Employees.

Actions ...and Accountability
A final case of note is the litigation involving former Hollywood, Florida police officer Michael Verdugo. A police officer for several years, Verdugo received permission from his agency to appear as a regular on the HGTV cable show Design Star, an interior designer competition. He was granted a leave of absence and appeared on the show. As a result of his appearance on the show, Verdugo was “recognized as an actor in the gay pornographic movie ‘Rope Rituals’.”5 The film contained scenes of sadomasochism, bondage, and masturbation involving Verdugo, using the name “Jeremy Wess,” and another male actor.6 As expected, an internal investigation ensued.

The movie was made prior to Verdugo becoming a police officer. However, when he first applied for employment as an officer with the City of Lauderhill Police Department and subsequently with the City of Hollywood Police Department he never disclosed his prior employment as an actor in the film. The interesting aspect of this case is that Verdugo is an openly gay officer with an otherwise solid career record who has argued that his homosexuality was part of the employer’s consideration in terminating him. The findings of the Federal Mediation and Conciliation Services arbitrator rejected this argument and recognized the evolving nature of socially acceptable standards. The arbitrator wrote, “Some conduct that is regarded as within socially acceptable standards today would have been banned years ago.”

Nonetheless, the decision did address the inherent conflict present between the employer and Verdugo over the film appearance:

“It is his participation that is at issue here, not the Grievant’s gay lifestyle. Clearly, the Grievant had a right to participate in making of the movie. In doing so, however, he must be accountable. He was obliged to report it on the record of his employment history, and thereby allow the City the opportunity to judge if his conduct was consistent with the good moral character standard for Police Officers specified in the statutes. He elected not to make that disclosure. Accordingly, the City had no opportunity to make the assessment that it had the right and duty to make in regard to the Grievant’s character. The Grievant has the right to be gay and to participate in a gay pornographic movie. The City on the other hand has the right to ascertain the moral character of Grievant when he applied for a position as a Police Officer. By failing to disclose his role in the movie the Grievant deprived the City of its right to make that determination.” 7

Verdugo was terminated for violating departmental rules based on his failure to disclose prior employment as an actor in a pornographic film. The FMCS arbitration decision was silent of any First Amendment consideration. It did contain reference to Florida statutes relating to the qualifications of a police candidate and the internal rules and regulations of the Hollywood Police Department. The issue was whether there was just and proper cause to terminate the officer’s employment. The arbitrator found there was and absent any indication the evidence showed otherwise success on appeal would be remote.

While it is true we live in a world where evolving standards of decency are at play, there are still some universal concepts of what is proper within the context of professional employment. Police officers have fought for years to be recognized for the educated and trained professionals they are known to be. Behaviors which demean this professionalism — though perfectly legal and protected by the First Amendment — are subject to different scrutiny when a public employee is involved. The courts have upheld the right of the employer to regulate employee conduct. A standard of reasonableness is applied as long as the employer can argue the conduct impacts the employee’s job performance. As the 9th Circuit pointed out at the close of its opinion in Dible, an officer may “have the constitutional right to run his sex-oriented business, but he has no constitutional right to be a policeman for the City at the same time.” 8

This is a lesson Jessie Lunderby recently learned.


1 Dible v. City of Chandler, 502 F.3d 1040 (9th Cir., 2007)
2 Citing Locurto v. Giuliani, 447 F.3d at 178.
3 The U.S. Supreme Court in Connick v. Myers, 461 U.S. 138 (1983) clarified Pickering by stating that a public employee’s speech is entitled to Pickering balancing only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.”
4 A third deputy who voluntarily resigned his position after the internal affairs investigation was initiated was not part of the lawsuit to be reinstated.
5 In the Matter of Arbitration between Broward County Police Benevolent Association and City of Hollywood, FMCS Case No. 09-56865, p. 11.
6 Id., p. 7.
7 Id., p. 25.
8 The opinion paraphrased a well known line of Justice Oliver Wendell Holmes from McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892).


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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