Codes of ethics and officer discipline
A police department’s “code of ethics” usually exists separately from the formalized set of rules and regulations studied in the academy. Oftentimes, the code is imbedded within the department rules, but law enforcement has encountered a shift over the years in which agencies are instituting a distinct code of ethics upon their officers. A code of ethics is generally a broader conceptual statement of expected agency goals and officer conduct. However, running afoul of your department’s ethical code can have as much potential impact upon an officer’s career as a violation of a departmental regulation.
The first awareness I had of a police agency’s code of ethics was twelve years ago. I was a detective for a large department on the East Coast, where posted in each station were laminated wall posters containing the agency core values and ethical creed. Each officer was issued a wallet-sized card with these values printed on the front and back. Among senior officers the response was a mocking disregard, among junior officers, a quiet acceptance. Neither group gave extensive thought to them, merely passing the novelty off as ivory tower police officers imposing a newly learned management principle upon the troops. Admittedly, for me as a cop with a law degree and a practice on the side, no extra attention or deliberation was given to the code of ethics.
Fast forward to the present: I’m now retired, teaching law courses at a local university and representing police officers in disciplinary cases. I am also embracing a whole new regard for that little wallet card I received so many years ago. I no longer accept the premise that a department’s code of ethics is a guideline for officers; that it is, in the words of Shakespeare, “all sound and fury signifying nothing.”
When I’m advising police clients, especially those involved with complaints of off-duty behavior, I inquire into whether the agency has a code of ethics in place. Naturally if there is one in place I want to see a printed copy. If the inquiry yields a response in the affirmative I go on to inquire as to how and where that code of ethics is incorporated into the officer’s formal training. Was it taught at the academy? Were there in-service presentations when the code was introduced? Was the officer made to sign a copy of the code which was then placed in the officer’s personnel folder? If the preceding answers are “yes” it provides documentation of the notice given the officer. It also prevents an attorney from arguing at a disciplinary trial that the officer did not have notice of the provision he is accused of violating. Additionally, it reinforces the department’s commitment to those values which it seeks to enforce. The extent to which an agency’s code of ethics is enforceable against an officer in a disciplinary case needs to be carefully considered, especially in light of a recent federal court case dealing with officer discipline.
The ability of a police department to regulate officers as it sees fit to accomplish agency mission and service goals is rarely assailed in court. Over the years officers have made attempts to persuade courts to relax agency dictates. Legal challenges to grooming standards (hair length, facial hair, tattoos) have been made with the results frequently leaning in the agency’s favor. Even the authority of the U.S. Supreme Court has weighed in on these issues. In Kelley v. Suffolk County Police Department, 425 U.S. 238 (1975), the Court supported a police department’s hair grooming standards contained within the rules and regulations. The Court recognized a municipality’s right to “organizational structure for its police force,” structure which “gives weight to the overall need for discipline, esprit de corps, and uniformity.”
In a footnote to the decision, the Court even gave a nod to the department’s Code of Ethics as an example of those regulations which may “infringe on…freedom of choice in personal matters” but which nonetheless are related to the department’s overall mission and organization. Regulations upon officer conduct when off-duty have been similarly upheld to the extent those regulations did not pry into personal matters. Rules and regulations that forbid officers from frequenting certain establishments within their jurisdiction or from associating with known felons have been upheld based on their relation to the agency maintaining good order and avoiding the appearance of impropriety among its officers.
When the rules and regulations start to invade the personal privacy of an officer, a reviewing court’s scrutiny is magnified. If there is a reasonable relation to the information sought and the government’s interests the inquiry will be upheld. Barring that, a personal inquiry with no bearing on a legitimate government interest would be disallowed.
Two federal district court cases from the mid-eighties highlight the distinction. In Evangelista v. City of Rochester, 580 F.Supp. 1556 (WDNY, 1984), the president of the Rochester Police union sued under 42 U.S.C. §1983, alleging civil rights violation on the part of the City which sought a list from every city employee of all city properties they owned. Due to the disrepair of numerous properties within the city and concerns over urban decay, the city sought the list since its Code of Ethics prevented any city employee from owning property in violation of municipal or state laws.
Ruling against the police union, the district court found the city’s requirement to be within its power. The court’s finding of a “minimal government intrusion for a limited and legitimate purpose” countered union arguments of an unconstitutional invasion of privacy. The City of Rochester Municipal Code of Ethics provision requiring disclosure in support of its efforts to prevent corruption or willful violation of the law by its employees was an example of a rule reasonably related to a specific government purpose.
An opposite result is found in Fraternal Order of Police v. City of Philadelphia, 1986 U.S. Dist. LEXIS 24103 (ED Pa., 1986), in which the police commissioner sought to have all officers seeking assignment to a new special investigations unit complete a detailed questionnaire. The problem with the questionnaire was in the personal information it sought from the applicants about their family members and the applicants themselves. Disclosures were sought as to the arrests of family members, their associations, financial records and histories of drug or alcohol abuse. Despite the deference given to police management in its stated purpose for a particular rule, there must be a nexus between the information sought and the state interest sought to be promoted. In the case of the City of Philadelphia, the district court found many of the questions and the information sought as invasive. Although this case did not address a specific municipal code of ethics the stated purpose behind the questionnaire was to inquire into the integrity of officers applying for the new unit.
No one would argue that a profession should have a code of ethics. Nor would there be argument that an individual employed within the profession be bound by it. Attorneys must abide by the Canon of Ethics promulgated by the American Bar Association and those of regional oversight authorities. Doctors are bound by a rigid code of care and fidelity to their patients the neglect of which may result in disciplinary measures. Every profession has some abiding code of ethics. Law enforcement is no different. Many proponents of the ethics curriculum in policing have argued for values-based training in academies.
The discussion of ethics in policing is not new. What is somewhat new is the extent to which this value system is enforced. Consider the facts of Johnson v. Laverkin City, 528 F.3d 762 (10 cir., 2008) published this past June. A married female police officer was disciplined for having an affair with a married officer from another department while attending a training conference. The affair was reported by her estranged husband who went to great lengths – including false accusations of an affair between her and her police chief – to discredit the professional reputation of his spouse. The department’s investigation did not yield any information that she had the affair on job time or that she failed to attend the conference paid for by her department. The evidence seemed to indicate the officers engaged in an after work relationship between two consenting, albeit married adults. Except for the disclosure by her somewhat bitter and potentially unstable husband, there would have been no issue between her and her employer.
What ensued as a result of the husband’s disclosure was an extensive and much publicized investigation into the officer’s conduct. The result for her was dismissal from a prestigious detail within the department and a disciplinary reprimand. Officer Johnson responded with a federal civil rights lawsuit alleging the privacy of her private sexual conduct was violated. The basis of her claim was that the department could not discipline her for private, non-criminal sexual conduct which had no bearing on her job performance. To the contrary, the city argued her conduct did relate to her job since the matter was made public and her authority as an officer had been undermined. Additionally the element of discredit brought upon the department was also a factor in the city’s determination. The federal circuit court agreed and dismissed her lawsuit. The 10th Circuit found it was reasonable to discipline her based on the department’s Code of Conduct. Further, the right she sought to protect was not a fundamental right. Sexual privacy has its limits, which is a discussion for another article. It is sufficient to note that once private activities have any negative impact upon public employment the asserted “privacy” is lost. Citing the Supreme Court in Kelley the 10th Circuit observed: “it is well settled that a police department may, ‘in accordance with its well-established duty to keep peace, [place] demands upon members of the police force…which have no counterpart with respect to the public at large’.”
The saga of Officer Johnson is not unique to police work or any other facet of life. What is unique is the punishment for the conduct of her private life separate from her job. In past reported cases dealing with police officer discipline for off-duty related conduct centering on private relations at least one of several different factors were present. The private sexual conduct of the involved officer either was either criminal, involved domestic abuse, or occurred on job time. A Fulton, Mississippi police officer two months into his job engaged in an extra marital affair. Upon being caught he was discharged from employment. The department stated the reason being violation of its “Standard Operating Procedures and General Rules and Regulations”. The officer sued alleging disparate racial treatment and the alleged violation of the code of ethics as a pretext for his dismissal. This code of ethics was contained within the department’s Regulations. A significant part of the Mississippi federal district court’s decision addressed the officer’s civil rights claim involving his private sexual conduct, right of privacy, and right of association. Once again within a case commenting on this issue the Kelley decision was cited. The Mississippi court case law wherein the right to an extra-marital affair was protected private activity, but it also found cases where the protection gave way to greater interests, such as those of a police employer seeking to maintain discipline and regulate the conduct of its employees. Prevailing state interests in this area trump employee privacy.
Police officers are proud to claim there is no other profession like police work. This is true and you’ll get no argument here: cops are special. But with that comes responsibilities for conduct, on-duty and off, not placed on the average worker. The lens of the microscope under which officers work is intense.
Public scrutiny of the profession has increased. Private, off-duty conduct involving an officer’s personal relationships may come within the scope of a department’s disciplinary process if that conduct violates a stated moral code and the conduct comes to light in a negative was for the officer. The last two officers I represented learned this lesson the hard way. If your agency has a separate code of ethics in place or it is incorporated into your agency’s rules and regulations take a good look at it. Read it and understand that in the absence of a violation of any other rule or regulation ethical conduct violations can have serious consequences.
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