By Bulzomi, Michael J.
The FBI Law Enforcement Bulletin , Vol. 68, No. 4
In recent years, a number of court cases have involved law enforcement employees who have faced departmental actions due to charges of nepotism or improper off-duty sexual activity. These employees have challenged departmental actions based on these charges on the grounds that the department is violating their First Amendment freedom of association. This article reviews two court decisions involving antinepotism rules and three cases involving the authority to regulate off-duty sexual activity. The article concludes with a discussion of departmental prerogatives to conduct internal investigations of alleged sexual misconduct.
The Supreme Court recognizes that an individual has a fundamental liberty interest in being free to enter into certain intimate or private relationships. First Amendment freedom of association "protects those relationships, including family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life."(1) However, freedom of association is not an absolute right.
As a sovereign, the government faces many hurdles in restricting an individual's freedom of association. In its capacity as an employer, however, the government has far broader powers. As an employer, the government's interest in "achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest...to a significant one."(2) That is why it is not necessarily unconstitutional for the government to restrict an employee's First Amendment rights when it is acting as an employer.
When government actions are challenged by employees, the courts generally apply one of three standards of review. The most burdensome standard of review is called "strict scrutiny." This standard requires that the government prove that there are compelling reasons for the action taken. An intermediate standard of review is a balancing test where the interests of the individual are measured against the interests of the government. A third standard of review, called the "rational basis" test, is considerably more deferential to the governmental employer and merely requires that the government show that a legitimate rational objective existed for the action taken. The court determines which of these standards of review will apply based on the constitutional importance of the employee's rights implicated by the government action.
Public employers, concerned with public perception, may conclude that allowing two spouses to work together will give the appearance of favoritism or corruption and decide on the imposition of antinepotism rules. Two cases recently examined First Amendment challenges to antinepotism rules. The first case entails the demotion of an employee. The second case discusses the loss of employment by one spouse.
The case of McCabe v. Sharrett(3) involved the police chief's secretary. Following her marriage to a police officer in the same department, she was transferred to a clerical position that involved less responsibility and more menial tasks. The chief explained that the transfer was prompted by a fear that the secretary's marriage "would undermine her loyalty to him and her ability to maintain the confidentiality of his office."(4) The secretary sued, asserting a violation of her right to freedom of association guaranteed by the First Amendment.
In ruling in favor of the chief, the United States Court of Appeals for the Eleventh Circuit began its analysis by setting forth a three-part test that requires that employees demonstrate that 1) the asserted right is protected by the Constitution; 2) the employees suffered an adverse employment action because they exercised the asserted right; and 3) the adverse employment action was taken in such a way as to infringe the constitutionally protected right. …