Court of Appeal Approves Public Employee Termination for Posting Craigslist Sex Ad While Off-Duty

May 9, 2011

In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty.

The ad neither identified the school nor that he was a teacher.  Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad.

In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category."

The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct. 

The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety.

PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.

For more information about this case or about other labor and employment matters, contact Jesse Lad or Matthew Lewis at 800.464.3559.

Contact

Jesse Lad
Senior Associate
E-mail
510.808.2000

Jesse Lad works on the defense of cases involving labor and employment issues, including claims of harassment, discrimination, retaliation, wage and hour matters, and wrongful discharge. In addition, he advises public sector clients regarding a wide variety of labor and employment matters arising under federal and state law, including sexual harassment, discrimination, medical leave rights, labor relations, collective bargaining, discipline and employee privacy issues. Jesse serves as lead employment law advice counsel and chief labor negotiator for a number of cities and special districts in Northern California and regularly represents public agencies in arbitrations and administration hearings.

Matthew C. Lewis
Associate
E-mail
510.808.2000

Matthew (Matt) Lewis represents public agency and nonprofit clients in labor and employment matters. He works with cities and special districts across California on matters ranging from defending against claims of discrimination and harassment to providing advice regarding agency obligations under labor contracts.