Last night's Kitchen Table Kibitzing post by paradise50 introduced an interesting question regarding the intersections of free/protected speech and employment (public sector employment in particular). I thought I would add some information to the story based on my experience as a Human Resources professional and previous public sector employee. I am not an attorney, this post is more from an employer policy perspective. In my experience, public sector HR would be consulting with employment law specialists and city council while dealing with this type of situation.
For those who missed the original post, the sequence of the conflict appears to be thus: city councilman investigates public safety pay and pensions, public safety employee (police officer) is unhappy with this development and posts nasty comments on councilman's Facebook page. Councilman tracks back to view police officer's page and finds racist and homophobic posts. Police officer claims posts are not racist or homophobic and are protected speech by a private citizen. Police officer is now suing City of Chico for defamation and slander.
To unpack this and investigate how public service and free speech intersect, please follow me through the orange squiggle rabbit hole. It's a long post, please be warned...
One of the benefits of bureaucracy is that almost everything is in writing somewhere. The very first thing I did after reading paradise50's post was to try and find out if the City of Chico Police Department had a code of conduct and found it here: City of Chico Police Policy Manual
Section 1058.5 Privacy Expectation Employees forfeit any expectation of privacy with regard to anything published or maintained through file-sharing software or any Internet site open to public view (e.g., Facebook, MySpace).
consequently this employee should be aware that he cannot expect a right to privacy for any content on his Facebook page that is publicly visible. It's my understanding that at the time this occurred his Facebook page was publicly visible. I could not find it when searching today.
Section 1058.2 Policy Public employees occupy a trusted position in the community, and thus, their statements have the potential to contravene the policies and performance of this department. Due to the nature of the work and influence associated with the law enforcement profession, it is necessary that employees of this department be subject to certain reasonable limitations on their speech and expression. To achieve its mission and efficiently provide service to the public, the Chico Police Department will carefully balance the individual employee's rights against the Department's needs and interests when exercising a reasonable degree of control over its employees' speech and expression.
Section 1058.4 enumerates Prohibited Speech, Expression and Conduct. I'm going to focus here on prohibited forms of speech, expression or conduct that have an arguable relation to this situation.
1058.4 (b) Speech or expression that, while not made pursuant to an official duty, is significantly linked to, or related to, the Chico Police Department and tends to compromise or damage the mission, function, reputation or professionalism of the Chico Police Department or its employees.
I think its arguable that a police officer posting pictures of a Black president photoshopped as a stereotypical "witch doctor" complete with bone in nose could damage the mission and reputation of the Chico Police Department by impairing its ability to deal with Black residents in a perceived fair and impartial manner. It makes me doubt Chico PD's impartiality and I'm a middle aged white woman.
1058.4 (c) Speech or expression that could reasonably be foreseen as having a negative impact on the credibility of the employee as a witness. For example, posting statements or expressions to a website that glorify or endorse dishonesty, unlawful discrimination or illegal behavior.
I emphasized "unlawful discrimination" because depending on what exactly Officer Boothe posted on his Facebook page (which I was unable to find) he may have been endorsing unlawful discrimination.
1058.4 (e) Speech or expression that is contrary to the canons of the Law Enforcement Code of Ethics as adopted by the Chico Police Department.
First sentence of paragraph two of Chico Police Department Code of Ethics:
I will keep my private life unsullied as an example to all and will behave in a manner that does not bring discredit to me or to my agency.
City of Chico Employee Handbook Section VI Policies & Procedures, Employee Responsibilities:
Expected Conduct All City employees are expected to conduct themselves in a manner which will reflect favorably on the City.
Political Activities
City employees must observe certain restraints regarding their personal political activities. Employees are permitted to participate in political activities except for the following:
1. No on‐duty financial soliciting is allowed.
2. No use of one's official authority to influence nominations or elections is allowed.
City employees may serve in elected non‐partisan offices, serve as officers of a political party, organize political groups, and participate in campaigns. However, all must be done only on their own time. City employees may not use their official job title or position while engaging in such activities and should take extra steps to separate their "work‐life" from their private, "political" life (my emphasis)
I included this, because the officer is defending the content posted on his page as political speech. Not being able to access Officer Boothe's Facebook page I can't judge if he made his political statements while identifying as a sworn police officer, or what additional steps he did or did not take to separate his position as a police officer from his position as a private citizen criticizing an elected official. It certainly seems quite incestuously tangled at this point.
So far, while I believe a reasonable person would consider Officer Boothe's comments and posts offensive and racist (especially the witch doctor one) and a negative reflection on the City of Chico and Chico PD, I'm aware that there is still a gray area open to argument for those who want to plead that even racist and homophobic slurs are protected speech and Officer Boothe is within his rights to voice his opinions. None of what I've listed above specifically states what type of images or speech may be considered racist.
But I'm not done yet.
Let's take a look at the City of Chico Administrative Procedure and Policy Manual. Specifically 13-39 Harassment/Discrimination
II. Policy
The City hereby establishes a zero-tolerance policy of harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation in the workplace. The California Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The City will make reasonable and good-faith efforts to provide an employment and business environment free of harassment, as prohibited by state and federal law.
So here we see that race, color, national origin, ancestry, sexual orientation and gender harassment are prohibited. The policy defines, very clearly, what some specific actions that are considered harassing/discriminatory:
Speech: epithets, derogatory comments or slurs, and lewd propositioning on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. This may include inappropriate sex-oriented comments on appearance, including dress or physical features, or race-oriented stories or jokes. (my bold)
If that witch-doctor Obama isn't a race-oriented joke, I'll eat my hat.
Visual insults: gestures, leering, or display of derogatory posters, cartoons, pictures, or drawings, related to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
Again - if that witch-doctor Obama photo isn't race-oriented...
At the end of this document review, what we have is a list of policies that include expectations for employee conduct on and off the job and on social media as well as examples of employee conduct that would be considered harassment or discrimination if they occurred
between supervisors and employees, between employees, and between employees and non- employees.
or by anyone
who is otherwise authorized to transact business or perform other services on behalf of the City
As I can not seem to find documentation of what Officer Boothe posted on the councilman's Facebook page, I don't know how that fits into the picture. Ignoring that, what we do have is a sworn public safety officer who's behavior seems to violate several employee conduct expectations. A
local news story dated May 7 indicates that the officer was disciplined for his behavior and as a result of that has been denied promotion and special assignments (which according to the
union agreement come with additional pay bonuses) for one year.
Under the California and US Constitution most public employees have a protected property interested in continued paid employment, and the employer cannot deprive them of this without due process. These rights are usually referred to as Skelly rights, which is a whole 'nother diary and a subject that I am not an expert in. However, depending on how City of Chico handled the disciplinary process in this situation, they may or may not be at risk.
If you've stuck with me to the end, I appreciate it. I know this was a longish post, but wanted to try and share what details exist on the employer's side that would have bearing on the disciplinary process. I am not an attorney, nor do I play one on TV. If I was unlucky enough to have this stupidity dropped in my lap I would be consulting with a California public employment law professional in conjunction with city council.
I've used up my laptop battery on this post - but will be checking back to engage if there comments.
** edited title to reflect proper use of possessive in "Officer's"