State employees- Using emails for disipline?

[whitewater1914]

I am helping a state of CA peace officer with some legal things and the issue we are trying to address is a state of CA public safety department using emails as a adverse discipline tool. An example would be as simple as an employee said X, Y and Z and it was perfectly legal to say in an email, but the department decided to use it against him.

Any advice, links or language you can please share with me to help this person?

Thanks

[Squatch]

Scour his contract it has to be in there one way or another.

We have security cameras and our contract says they cant be used against us for disciplinary action.

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[eta34]

If it is a state agency, I imagine there is a policy related to electronic communications, including e-mail. In a nutshell, many government agencies use the Lexipol policy system. In their policy, there is no expectation of privacy related to any communications on the department's systems. Also, just because the employee said something legal does not mean it was within policy.

[DoubleA]

If it is a state agency, I imagine there is a policy related to electronic communications, including e-mail. In a nutshell, many government agencies use the Lexipol policy system. In their policy, there is no expectation of privacy related to any communications on the department's systems. Also, just because the employee said something legal does not mean it was within policy.

^^^^ This. I was a network administrator for a state agency. All employees were required to sign documents acknowledging there is no expectation of privacy in any electronic communications on Department systems.


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[SVT-40]

I am helping a state of CA peace officer with some legal things and the issue we are trying to address is a state of CA public safety department using emails as a adverse discipline tool. An example would be as simple as an employee said X, Y and Z and it was perfectly legal to say in an email, but the department decided to use it against him.

Any advice, links or language you can please share with me to help this person?

Thanks

Being "legal" and outside of policy are two different things. Many things are "legal" however can also be outside of policy.

The agency rules and policies should be very clear and unambiguous as to what constitutes a policy violation.

Any communications on a agencies device, can be reviewed by the agency for rules or policy violations.

Without knowing what exactly was said on the emails makes it really difficult to judge.

Any public employee should be very careful when using ANY agency communication device to send other than official communications.

[P5Ret]

Being "legal" and outside of policy are two different things. Many things are "legal" however can also be outside of policy.

The agency rules and policies should be very clear and unambiguous as to what constitutes a policy violation.

Any communications on a agencies device, can be reviewed by the agency for rules or policy violations.

Without knowing what exactly was said on the emails makes it really difficult to judge.

Any public employee should be very careful when using ANY agency communication device to send other than official communications.

I'll go a step further and say a personal device on their Wi-Fi system is risky.

[1911-CV]

Check out....

IANAL. This is not legal advice.

I think there was a case in City of Rialto (maybe) where texts on a city supplied device were used against an officer. I seem to recall it was appealed a couple of times and the officer lost.

[non sequitur]

SCOTUS opinion:

https://www.supremecourt.gov/opinions/09pdf/08-1332.pdf

http://www.jones-mayer.com/news/2010/06/18/employee-e-mails-cell-phones-text-messages-search-reasonable/

[vino68]

IANAL. This is not legal advice.

I think there was a case in City of Rialto (maybe) where texts on a city supplied device were used against an officer. I seem to recall it was appealed a couple of times and the officer lost.

I seem to recall this, what 15 years ago. I think it involved a Blackberry and Blackberry Enterprise server.

[SharedShots]

PM'd you. Time is of the essence if this has not yet gone to AA. The best outcome possible needs to take place right before or at the AA hearing but before arguments, not in some appeal.

This is not legal advice (same applies to my PM). The POBR has a lot to do with this and so does who is providing evidence and who is interpreting it.

[SharedShots]

^^^^ This. I was a network administrator for a state agency. All employees were required to sign documents acknowledging there is no expectation of privacy in any electronic communications on Department systems.


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Attorneys do not give up client/attorney confidentiality nor do the clients when using state telecommunications services. There are many parts to this and if the person receiving the communication was not a state employee they are not bound by policies unless they were made aware of them and also agreed to them.

Having some experience in this area and not to be inferred as legal advice, many state IP and IT policies are flawed to the point they are unenforceable. Often, the agency will engage IT personnel to provide evidence and support arguments and in so doing violate the POBR and collective bargaining agreements. IT policies are trumped by collective bargaining agreement unless they are in violation of law.

Many cases prosecuted by the agencies are lost because non-sworn staff were used to collect and process evidence to be used against sworn staff in an AA proceeding; they violate the POBR because they aren't aware of it and the same applies to collective bargaining agreements. A typical case might involve some form of communication that was official in nature but then included casual discussion and because of politics or PC that other part of the commo is used to create the initial allegations and subsequent RFAA. Far too often the sworn staff think they know the law and go it alone and that is a losing proposition because simple things like discovery doesn't take place or is glossed over. Then as the AA hearing the ALJ just watches as the sworn staff go down the tubes. Sometimes there is luck and the ALJ will proactively "help" but not always and not usually.

How do you know if things are going to get real ugly? They use an attorney instead of an ERO or similar. When the agency or department uses an ERO or similar and the sworn staff show up with a lawyer it's often a walk. In the reverse, the RFAA is sustained and then its hoping for good on appeal. This happens at the local/municipal agencies too.

Not legal advice, just experience.

[whitewater1914]

Thanks for the feedback so far. What the issue here is basic, normal and acceptable emails by the employee. But a lawyer for the agency took them and twisted the detailed (lied) and make them a discipline issue. Im wondering if the innocent employee has some sort of defense against a lawyer just twisting the truth and saying youre bad now because I say so.

[SharedShots]

Often things are not what they seem. Some lawyer didn't just create something from thin air, someone had to prepare the allegation. That is the person who works for someone in admin (or maybe admin itself), usually the hiring authority and therein rests the problem. Going after the lawyer is the last thing they should do.

Tacit approval can be a defense; the agency knew of something and didn't pursue any correction over a period of time and then decided because of some other motive to enforce a policy. This is where discovery comes into play and expect the lawyer to play hardball which is why the target needs a lawyer.

Counsel them to hire an attorney right away, hiring one for the appeal isn't the way to go. What happens before the hearing is as or more important than what happens after closing arguments.

Good luck.

[yzErnie]

I am helping a state of CA peace officer with some legal things and the issue we are trying to address is a state of CA public safety department using emails as a adverse discipline tool. An example would be as simple as an employee said X, Y and Z and it was perfectly legal to say in an email, but the department decided to use it against him.

Any advice, links or language you can please share with me to help this person?

Thanks

The irony of you posting for advise in the LEO forum after talking as much trash against LEOs as you recently have is mind boggling. The epitome of arrogance.

[whitewater1914]

Are you a/his union rep?

No I am not.