There has been a very recent decision from the First Circuit Court of Appeal that discusses legal issues that are important to us, but which are not often litigated. The violation of these principles by state managers, however, can bring serious consequences, as demonstrated by the decision in this particular case.

It appears that a senior manager in one of our executive branch departments believed that one of his subordinate employees and that employee's supporting secretary were using state time and state equipment for personal financial gain. The manager's characterization of his belief as to the existence of those facts was that it was a "gut feeling". The employee was assigned an office with a door that the employee was capable of locking, and the secretary had assigned space just outside of the office door of the employee. The senior manager ordered that a search be made of the desk and computers of both the employee and the secretary. What was found was evidence that state time and state equipment were being used for personal financial gain. Both of these employees were fired, and both have filed civil service appeals. The civil service appeals have not yet been heard.

Both employees also filed suit in state civil district court asserting that their constitutional rights to privacy had been infringed by the search, and that they had been damaged. The trial court found that both employees had an expectation of privacy in the desk and computer equipment assigned to them, and that this expectation of privacy has been unreasonably breached as a result of the search. The trial court awarded damages to the supervising employee in the amount of $90,000.00, damages to the secretary in the amount of $60,000.00, attorney fees in the amount of $56,000.00, and "litigation expenses" in the amount of $7,600.00. In a lengthy decision, the Court of Appeal affirmed this award. It is clear that whether or not there is cause for termination is not relevant to the question of whether constitutional rights were violated and damages were incurred.

The concept of a government employee having an expectation of privacy at the work place that is protected by the United States Constitution is one that has been recognized in the past by the United States Supreme Court. The United States Supreme Court has recognized that there is a two pronged analysis for determining whether an employee's constitutional rights to privacy are violated by an administrative search and seizure. First, the court recognized that an employee must have a reasonable expectation of privacy in the area searched or the items seized. Secondly, if a reasonable expectation of privacy is found to exist, the search that is conducted must be reasonable under all circumstances. This standard of reasonableness is applied to the inception of the search, i.e. the cause or reason for the search, and to the extent of the intrusion into that over which the employee had a reasonable expectation of privacy. What is meant by this first standard on inception is that there must be some reasonable grounds to believe that there is wrongdoing on the part of an employee, and something more than a "gut feeling". What is meant by the second standard is that the intrusion into the right of privacy must be as small as possible in order to accomplish the reason for the search.

It is also recognized that an expectation of privacy vesting in the employee can be lowered by a valid policy. What is meant here is that where the policy is reasonably related to a governmental interest, and where it is not unreasonable itself, the policy will be deemed to lower, and perhaps remove, any expectation of privacy the employee may otherwise have. I have often used the word "reasonable", but so do the courts. No one possesses absolute rights that are absolutely inviolate by government action, but any intrusion by the government into a granted right must be fair and reasonable. The concept of fair verses unfair is a concept strongly embedded in an analysis of whether constitutional rights are violated, and is something that most people have a sense about. If the government action does not seem fair, then it may likely be unconstitutional. Probably the best way to demonstrate these principles is to discuss some specific examples that have been addressed by the courts, and to discuss some situations that are of concern to us in state government. We know by now that drug testing of non-safety sensitive and non-security sensitive employees must be based upon individualized suspicion, and this concept is fairly familiar to us. What is a little more tricky are searches and seizures based upon something other than individualized suspicion. Examples follow.

The barn area assigned to a trainer at a race track was searched and contraband was found. There apparently was no individualized suspicion, but the court recognized that there was a lower expectation of privacy in a temporarily assigned barn area to which there was reasonably free access and, also, importantly, that the strong need of the government to maintain the integrity of the horse racing industry out-weighed what expectation of privacy did exist. The analysis here is equally applicable to the search of the bodies and clothing and hand-carried personal items of correctional officers. These hand carried items, and the employees, are about to move into contact with a prison population. Written policy should certainly tell them that they are subjected to such search, such that any expectation of privacy is removed or significantly lowered to conform to that set out in the policy.

There is an interesting case from the Fourth Circuit on the search of desks without individualized suspicion. In that case, it appeared that someone at the Bureau of Vital Statistics in New Orleans had forged a Louisiana birth certificate that was ultimately seized in New York City. The birth certificate could only have been forged by one of approximately forty employees. The government manager made a search of each of the forty work stations and found evidence that ultimately resulted in the termination and criminal conviction of one of those employees. The court assumed without deciding that the employee had a reasonable expectation of privacy in the work place assigned to her, but that such expectation of privacy was overcome by the interests of the government in ensuring that forged birth certificates were not created, and in the reasonableness of the belief that the forged birth certificate could only have come from one of those forty work stations. The court did note that the work stations were not executive branch offices, but were open to co-employees and supervisors such that the expectation of privacy would be deemed to be minimal.

In the First Circuit case that I mentioned at the beginning of this newsletter, the employee occupied an executive office that was not freely accessible to co-employees, and, under such circumstances, the expectation of privacy would be higher than of someone at an open work station. I do not believe that the outcome of this case involving the birth certificate, however, would be any different if the employees' work stations were located behind closed doors.

Another illustrative case that establishes a good principle comes from the Civil Service System for the City of New Orleans and involves the monitoring of telephone conversations. The New Orleans City Police had a policy and practice that was know to all of its employees of recording conversations. The employee in question knew of this policy when he made a telephone call in which certain things sought to be used against him in a disciplinary proceeding were said by him. The employee was said to have consented to the monitoring of this conversation because of this knowledge and his use of the phone. Importantly, however, was the fact that the police department made available to its employees a telephone that was not monitored for the purpose of making personal telephone calls. This, I think, is an important point.

At some of our state hospitals, we search the personal effects and automobiles of employees leaving the grounds at the end of their shifts. There may be a danger point here. That is, what we are seeking to stop is the theft of property from the hospitals. I suspect that it can be shown that there is a history of such theft, i.e. that there is a reasonable belief that thefts occur, and there certainly is an interest in the government in stopping such thefts. The danger point may be the degree of the intrusion that occurs at the point that the automobile is searched. As I mentioned above, such intrusion should be as narrowly drawn as possible in order to achieve the goal of the search. It appears to me that the question that must be answered is whether the same goal might be achieved by searching the personal effects of the employees when they leave the building and before they get to their automobiles. If the answer is yes, then the search of the automobile may be a greater intrusion than necessary and violative of the employee's constitutional right of privacy. We can lower any expectation of privacy the employee may have in the automobile via a policy, but, assuming that the search at the point that the employees leave the building can be reasonably effected, then the policy, itself, may be found to be unreasonable in supporting a greater intrusion into privacy than is necessary. Further, unless there is some viable alternative parking place outside the grounds of the hospital, I do not believe it can be said that the employee has consented to the search of the automobile by bringing the automobile onto the grounds. Such consent constitutes a coerced consent without some viable alternative place to leave the automobile. The ability to leave hand carried effects in a locked automobile in order to avoid them being searched is also appealing. I suggest here that those conducting such searches take a close look at them.

Further in regard to the monitoring of telephone conversations, without the consent of one of the parties to the conversation, such monitoring is prohibited by law. Consent exists where the employee uses a telephone that the employee knows because of established policy or known practice is monitored, but such consent may be deemed coerced where no telephone is provided for personal calls that are not monitored. That is, it is unreasonable to expect that employees need not make personal telephone calls while in the work place, and the governmental related reason for knowing the content of a personal telephone call, as opposed to the fact of the telephone call, is not apparent at all. Where the employer desires to monitor the frequency of personal related telephone calls, the recordation or monitoring of the content of the calls may be risky. It would be my view that if the employer wants to control personal telephone calls, a telephone be set aside for such calls but monitored only in terms of the number of such calls made by each employee. I would like to make one very important point here, however. Simply because an employer may have the authority to monitor and restrict telephone calls does not mean that the employer should. While such monitoring may be done under means that are legal, the employer is going to have to weigh the adverse affect upon the morale of the employees against any problem the employer perceives exists. All power that exists should not necessarily be exercised.

In closing, no invasion of privacy should be accomplished without a clearly stated policy that is made known to every employee. Such invasion should be based upon individualized suspicion or "group suspicion" based upon either past practice of that group or upon current evidence. Both types of suspicion should be capable of being demonstrated with real facts, not hunches. Finally, the search should be the least intrusive as possible in order to meet the goals of the search. Meaningful alternatives to having personal effects searched should be provided if possible. Every manager should work closely with legal counsel prior to effecting a policy and prior to conducting a search.

As this newsletter will likely generate internal discussion involving your attorneys, I want to share some legal citations. See O'Conner vs. Ortega, 107 S. Ct. 1492 (1987); United States vs.Nasser, 476 F. 2nd 1111 (7th Cir., 1973); United States vs. Collins, 349 F. 2nd 863 (2nd Cir., 1965); Pullin vs. Louisiana State Racing Commission,477 So.2nd 683 (La., 1985); State vs. Ziegler,637 So.2nd 109 (La., 1994); R.S. 14:322.1; Kirk vs. State, 526 So.2nd 223 (La., 1988); R.S. 15:1301. The First Circuit case that I referred to at the beginning of the newsletter is not yet final, but was issued June 28, 1996 bearing Docket Number 95/CA/0787 and entitled Varnado, et al. vs. Department of Employment and Training, et al.

Sincerely,

Robert R. Boland, Jr.
General Counsel