Eric W. Miller, Inspector General Agency for Health Care Administration [email protected] • Introduction of Attendees • Office Conduct Advisory Video • Pre-test • Compelled Statements • Workplace Searches • Special Situations • Vehicle Tracking • Key Loggers • Special Provisions for Public Employees • Extended Statute of Limitations • Forfeiture of Retirement Benefits • Ethics Commission Fines 1. Name 2. Agency 3. Special Skills 4. What you want to learn about today
These materials are not intended to provide legal advice about any particular situation.
The law can have important impacts on you and your agency. If you have any questions or doubts in a particular situation, consult your agency attorney or supervisor.
4 Federal Supreme Court of the United States United States Courts of Appeals (11th Cir.) United States District Courts (N., S., & M. Districts of Fla) Specialized tribunals (e.g, Bd. Contract Appeals, Comp. Gen.)
State Supreme Court of Florida District Courts of Appeals (5) Circuit Courts (20) County Courts Specialized tribunals (e.g, Div. Admin. Hearings (DOAH))
5 Federal Constitution of the United States (1787) United States Code (statutes) Code of Federal Regulations (rules) State Constitution of the State of Florida (1968) Florida Statutes Florida Administrative Code Local County and Municipal Ordinances
6 Would you agree with these statements?
An effective investigation may stop improper conduct and prevent future harm to the organization and its employees. Failure to stop improper conduct can result in the employer being liable for negligent retention and negligent supervision, among other legal claims.
An effective investigation provides a sound foundation for taking disciplinary action, if necessary. An effective investigation also shows the complaining person that you take his or her concerns seriously, which may lessen the likelihood that he or she will file a charge with an external enforcement body, the EEOC, or some other regulatory entity.
An effective investigation also shows external monitors, such as regulatory agencies and stakeholders, that the organization is serious about preventing and correcting misconduct.
An effective investigation allows an employer to avoid or minimize liability for some types of employee misconduct, even if the alleged misconduct actually happened. It can also avoid the disruption in the workplace caused by litigation.
Why we investigate.
Employers have a legal duty to investigate allegations of certain types of misconduct, including but not limited to harassment and discrimination based on federal or state protected characteristics, and violations of certain state and federal statutes. Enforcement agencies have set strong expectations on ethical grounds for organizations to investigate suspected misconduct, even where there are no legal duties.
The element(s) that must be present for the Fourth Amendment to be implicated in a search is/are: a. Government participation b. Standing c. Reasonable expectation of privacy d. A&C e. A, B, and C
The dominant case that courts reference related to workplace searches of public employees is: a. Garrity v. New Jersey b. Katz v. United States c. O’Connor v. Ortega d. Connick v. Myers
The 5th Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. a. True b. False
As the law stands now in Florida, a mobile tracking order is not required to surveil an employee’s travels through the use of a GPS device if the device is installed wherein trespass would not be implicated. a. True b. False
Fourth Amendment considerations are heightened in the video surveillance of an employee subjected to a/an ______investigation. a. administrative b. criminal c. discrimination d. nonfeasance
A public employee convicted of commercial bribery in connection with his/her public employment shall be required to forfeit their retirement benefits. a. True b. False Dram Shop recordings may prove useful in misconduct cases emanating from activity at a:
1. Bar 2. Courthouse 3. Jail 4. Financial Institution 5. Penn State Locker Room Violations of Florida’s ethics laws are not punishable as criminal acts. a. True b. false
1. An individual would have the lowest expectation of privacy in the following situation: a) Their unattended personal car is parked in their home’s driveway b) Their unattended personal car is parked in a public parking lot c) Their unattended state/corporate car is parked in the parking lot where they work. d) Their unattended state/corporate car is parked at a friend’s apartment complex.
The Supreme Court recently held that a government employer ______read through an employee's personal text messages on a government-issued device if they suspect workplace rules are being violated. a) may b) may not
What are some of the rights employers have?
What are some of the rights employees have?
Right to establish rules of conduct (within contractual parameters) Right to establish wages (again, within contractual or career service parameters) Right to evaluate employees’ work Right to exercise overall discretion over entire plan or operations and budget Employers’ Rights & Responsibilities
Employers have a legal right and duty to investigate allegations of certain types of misconduct, including but not limited to harassment and discrimination based on federal or state protected characteristics, and violations of certain state and federal statutes.
Enforcement agencies and the courts have set high expectations on ethical grounds for organizations to investigate suspected internal misconduct. Early History of Employment Investigations Vatican Investigations Law Master-Servant:- The Ordinance of Labourers (1349), Statute of Labourers (1351, amended 1562) made the employment contract different from all others and prohibited any attempt on the part of workers to bargain collectively. England’s Investigation into Child Labor Railroad Police 1892: a Massachusetts Court upheld the firing of a police officer for violating a statute barring political affiliations, holding that he had no constitutional right to be a police officer, and, therefore, must be bound by the conditions of his contract. The Inquisition was first established in Germany, extended to Spain in 1232, and became a general institution in 1233. The Dominicans were recruited by Conrad of Marburg, Germany to assist in the Inquisition. Later, the Franciscans also were recruited to serve as inquisitors. The inquisitors followed a guide, the Processus inquisitionis (1249).
CIA Cryptograms KUBARK: CIA Headquarters SECRET KUCAGE: CIA Overseas Paramilitary / Propaganda Operations KUCLUB: Office of Communications KUDESK: Counterintelligence department KUDOVE: Office of the director KUFIRE: Intelligence KUGOWN: Propaganda
Issued by the Department of the Army on September 6, 2006.
The largest and most newsworthy section of the document details procedures for the screening and interrogation of POW’s and combatants.
Executive Order 13491, issued by President Barack Obama on January 22, 2009 (two days after Obama's inauguration) revoked Executive Order 13440 of July 20, 2007. It restricted the CIA and other Executive Agencies to proceed with interrogations "strictly in accord with the principles, processes, conditions, and limitations [Army Field Manual 2 22.3] prescribes". To Collectively Bargain (Chapter 447, Florida Statutes) but not to strike To request the presence of a union rep during an investigative interview that the employee “reasonably believes might result in disciplinary action” (if the requestor is a unionized employee). To work in an environment devoid of discrimination and harassment Right to pursue employment in their chosen field (liberty right) Right to continued employment (property right- unless at will) Right to due process if rights are infringed • Personal Privacy • FCRA Protections • Privacy of Educational Records (tuition reimbursement verification) • Medical Record Privacy (other than 440 claims) • Protection Against Libel and Slander • Security of Communications • Federal Wiretap Act • Chapter 934 • ECPA • SCA
Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his Fourth Amendment rights. The Court of Appeals sided with the FBI because there was no physical intrusion into the phone booth itself. But…. “The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." – Justice Stewart Regardless of the location, a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a “reasonable expectation of privacy”. Wiretapping counts as a search (physical intrusion is not necessary).
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Constitution, Amendment V. "The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).
CRIMINAL INVESTIGATIVE STATEMENT Voluntary Statement- Not "coerced“ with threat of job loss No Job Loss Should The Employee Not Provide A Statement Admissible in Criminal Case or Administrative Case If "Voluntary" and "Not Compelled" if statement is offered in custodial setting, must be offered post- Miranda
In 1966, New Jersey police officers were questioned during the course of a state investigation concerning alleged ticket fixing. The officers were ordered to respond (compelled) and their answers were later used to convict them in subsequent criminal prosecutions. The Supreme Court ruled that the use of the officers statements violated their 5th Amendment right. The court ruled that the compelled statements (forced to make under threat of possible forfeiture of job) could not be subsequently used against them in a criminal case.
In 1967, an NYPD police officer (Gardner) that was being questioned about alleged bribery and corruption was discharged (by Chief Broderick) after refusing to sign a waiver of immunity that would have allowed his statements to be used in subsequent criminal prosecution. The court reversed the officer’s discharge. The court ruled that while a law enforcement agency can conduct an administrative investigation, it cannot (during the course of their investigation) compel the officer to waive the immunity under Garrity. Only two people can grant immunity – the assigned prosecutor / or the assigned judge.
Can be either voluntarily provided or a compelled statement Threat of job loss based only upon refusal to answer questions may be communicated only after being advised that results won’t be used in a criminal case—and then, only specific, narrowly focused, job-related questions are permitted Statements so compelled are not admissible in criminal case (except for charges related to perjury) but are admissible in administrative case No Miranda warnings required. Typical Administrative Statement Procedure (Questioning By Agency Representatives) Advise that statement is administrative. Advise work-related nature of investigation. Advise he/she must answer questions, if you intend to compel answers. (If compelling) Advise refusal can subject employee to dismissal. (If compelling) Advise responses or evidence derived from the statement cannot be used in subsequent criminal proceeding, EXCEPT CRIMINAL PROCEEDINGS ASSOCIATED WITH PERJURY. If you do NOT intend to compel answers, advise that any responses to questions are strictly voluntary and that there will be no sanction or adverse effect should the employee choose not to answer.
Real World Example
Sarasota Herald Tribune June 15, 1978 Lee County Sheriff’s Office and IRS Agents develop informant in investigation of Cablevision installer who was allegedly involved in the sale of cocaine hydrochloride Informant tells agents of “Coastguardsmen” who diverted bales of marijuana from seized vessel in 1978 Informant recalls going to Coastguardsman’s home to retrieve 1 bale Uniform descriptions don’t match. USCG recommends referral to DEP/OIG
An employee can be ordered to cooperate in an internal administrative investigation and answer questions specifically, directly and narrowly related to the employee’s official conduct.
Statements made pursuant to an order to cooperate in an internal administrative investigation and evidence that is derived from the statements cannot be used against the employee in any subsequent criminal proceeding (except a prosecution for perjury).
An employee may not refuse to answer specific, direct, and narrow job-related questions as long as the employing agency does not compel a waiver of constitutional rights. Meaning that if an agency advises the employee that his/her answers cannot be used against him/her in a criminal proceeding, the employee can be required to answer job- related questions, or suffer the administrative consequences.
An employee can be disciplined or fired for refusing to cooperate and provide statements in an internal administrative investigation after a Garrity advisory has been made.
An employee has no right to lie should he/she choose to provide a statement (more on this later). This is a good time to talk about the impact criminal misconduct may have upon a public employee
Statute of Limitations- Section 775.15, Florida Statutes And there’s more: Applicable Offenses:
The committing, aiding, or abetting of an embezzlement of public funds;
2. The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer;
3. Bribery in connection with the employment of a public officer or employee;
4. Any felony specified in Chapter 838, except ss. 838.15 and 838.16; (commercial bribery)
5. The committing of an impeachable offense;
6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position; or
7. The committing on or after October 1, 2008, of any felony defined in s. 800.04 against a victim younger than 16 years of age, or any felony defined in chapter 794 against a victim younger than 18 years of age, by a public officer or employee through the use or attempted use of power, rights, privileges, duties, or position of his or her public office or employment position. What are an employee’s rights when being questioned by his employer? (112.532, FS) Weingarten was decided under the National Labor Relations Act. NLRB v. Weingarten, 95 S.Ct. 959, (975) The Supreme Court in Weingarten believed that a trained representative could assist in the determination of facts. Non-union employees are not entitled to representation in an administrative internal investigation. In Florida, the right to have a representative is covered under Florida Statutes (examples:112.532 and 120.62). No 6th Amendment right to legal counsel during ADMIN investigation. 6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. You have no right to compel the employee to stay while you interview him or her in an administrative investigation. (In a criminal investigation you may also have this right— the employee may be in your custody as an arrestee).
In an ADMIN setting , if he or she wishes to leave, document the intent, telling the employee that by leaving (s)he will be considered to have failed to cooperate fully, as required by agency policy.
Holding the employee against his/her will might subject you to liability for false imprisonment or a similar tort.
Speaking of liability… No Right to Lie Two 1998 cases from the United States Supreme Court make it clear that once a public employee is granted immunity by compelling the employee to respond to questions in an administrative interview, the employee must tell the truth or face exposure to further discipline or criminal charges (for perjury). (Do all agencies take sworn statements under Chapter 117?)
LaChance v. Erickson involved the questioning of federal employees. In each of the cases consolidated in this appeal, the employees made false statements to agency investigators with respect to their alleged misconduct. The employees were subsequently disciplined for the underlying charges and the charge of giving the false statements. The employees challenged the use of their false statements to support additional disciplinary charges. In rejecting the claims of the employees, the United States Supreme Court citing Bryson v. U.S., 396 U.S. 64 (1969), asserted “Our legal system provides methods for challenging the Government’s right to ask questions— lying is not one of them. A citizen may decline to answer a Government question, or can answer it honestly, but cannot with impunity knowingly and willfully answer it with a falsehood.” The court concluded that if the Government’s questions would have exposed the employees to criminal prosecution, they could have asserted their Fifth Amendment privilege. However, they had no right to give false statements regarding their conduct in the internal investigation.
Similarly, a week later, the United States Supreme Court decided in Brogan v. United States 522 U.S. 398 (1998) that an “exculpatory no” in response to Government questioning would not be protected where the “no” is false. In this case, James Brogan, a union official was charged criminally with making a false statement to government officials under 18 U.S.C. § 1001. “If answering an agency’s investigatory question could expose an employee to a criminal prosecution, he may exercise his Fifth Amendment right to remain silent. See Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Ward, 448 U.S. 242, 248 (1980). It may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (discussing the “prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify”). But there is nothing inherently irrational about such an investigative posture. See Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961). For these reasons, we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.” Kansas v. Ventris: United States Supreme Court examined whether or not a statement obtained by law enforcement in violation of the Sixth Amendment right to counsel could be used against the defendant for impeachment purposes when the defendant took the stand and denied that he committed the crime. The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.” The U.S. Supreme Court concluded that Ventris’s statement, taken in violation of the Sixth Amendment, could be used against him for impeachment of his testimony denying his role in the crime.
Workplace Searches
• Government conduct - the 4th Amendment does not apply to private actors. See, Burdeau v. McDowell, 256 U.S. 465, 475 (1921) - evidence illegally obtained by private parties and turned over to police is not a 4th Amendment violation.
• Standing - to say that a party lacks fourth amendment standing is to say that his/her reasonable expectation of privacy has not been infringed. 4th Amendment rights are personal. There must be a sufficient nexus between the area or item subjected to the search/seizure and the person claiming a constitutional violation. See, Rakas v. Illinois, 439 U.S. 128, 138-39 (1978) – mere passengers in a vehicle have no standing to contest the legality of a search of the vehicle.
• Reasonable Expectation of Privacy (REP) – must exist in the area or item subjected to the search or seizure. The individual must exhibit a subjective expectation of privacy in the item or area and that expectation of privacy must be objectively reasonable to society as a whole. See, Katz v. United States, 389 U.S. 347 (1967)- indicating that a two part analysis governs whether an expectation of privacy exists ie., there must be a subjective REP exhibited, and it must be objectively reasonable to society.
• If any one of the three above are absent, the 4th Amendment is simply not implicated.
O’Connor v. Ortega, 480 U.S. 709 (1987) THE Workplace Search Case
In O’Connor v. Ortega, a California physician who worked in a state hospital was suspected of various acts of misconduct, including theft of hospital property and sexual harassment.
The executive director of the hospital suspended the physicians pending completion of an investigation into the alleged misconduct. As part of that investigation, the executive director and other management officials entered the physician’s office and searched his file cabinets and desk. Certain materials found in that search were used in the subsequent administrative proceeding to remove the physician.
The physician maintained that the search of his office by hospital officials violated the Fourth Amendment’s prohibition against unreasonable searches. The Court, in a 5-4 ruling, held that searches of government offices by government employers are subject to Fourth Amendment constraints.
The Court first held that the physician had a reasonable expectations of privacy in his office, including his desk and file cabinets. The Court then considered the standard for judging whether a search of the physician’s office was reasonable, holding that “the invasion of the employee’s legitimate expectations of privacy” must be balanced against “the government’s need for supervision, control, and the efficient operation of the workplace.”
The Court held that the reasonableness of a search had to be determined on a case-by-case basis. In the O’Connor case, the Court declined to rule on whether the search of the physician’s office had been reasonable because there were unresolved issues of fact. Justice O’Connor authored the majority opinion.
EPILOGUE: This case went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s, and the Ninth Circuit denied Ortega's superiors their appeal. After the state paid his claim, amounting to over $700,000 with interest, Dr. Ortega was sued by one of his former attorneys for unpaid bills. The two settled the claim in arbitration, but after Ortega refused to comply, the attorney sued him and won an adjustment to the arbitration award.
Justice Sandra Day O’Connor:
• Although all nine justices agreed that public employees had Fourth Amendment protections during administrative searches in the workplace, and that routine work-related intrusions as discussed at oral argument did not constitute a violation, they differed as to whether Ortega's rights had been breached by the search. The five-justice majority believed it could not determine the purpose of the intrusion into Ortega's office and so remanded the case to the district court to do so. "In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.”
Symantec Discovery Accelerator NeedleFinder Clearwell Email Server-Based Programmed (rule-based) Duplications and Diversions
Holding: The search of a police officer’s text messages sent over a government pager to private parties was reasonable, and therefore the officer’s Fourth Amendment rights were not violated. Surveillance In Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court ruled that the rights guaranteed by the text of the Fourth Amendment apply equally in state courts via the Fourteenth Amendment, which guarantees to the citizen of every state the right to due process and equal protection of the laws.
• No expectation of privacy is maintained for property and personal effects held open to the public. Things visible in "plain view" for a person of ordinary and unenhanced vision are entitled to no expectation of privacy and thus no Fourth Amendment protection. • Items seen only through enhanced surveillance, such as through high- powered or telescopic lenses, may be subject to the strictures of the Fourth Amendment. • Public records, published phone numbers, and other matters readily accessible to the general public enjoy no expectation of privacy. After receiving information that University of Alaska box office manager Lindalee Cowles was stealing cash from ticket sales, the University police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft. The question in this case was whether the videotape was obtained in violation of Cowles's constitutional rights and therefore should have been suppressed. Court answered in the negative. Dram Shop Tapes A covert surveillance case from the 9th Circuit Court of Appeals establishes the important distinction between administrative and criminal investigations. In Taketa, a DEA agent reported to her supervisor that another agent, Taketa, had shown her how to turn an authorized pen register into an unauthorized wiretap to record conversations. Agent Taketa shared an office at McCarran Airport in Las Vegas with Thomas O’Brien of the Nevada Bureau of Investigation. O’Brien was also involved in the illegal wiretapping. The DEA began an internal investigation and entered the airport office using a key from headquarters. The investigators examined the feasibility of putting in a covert camera the next time the Taketa sought authorization for a pen-register. In its review of this first entry, the court applied the standards announced in O’Connor v, Ortega in holding that the first entry was reasonable.
Taketa later sought such an authorization for a pen register and the investigators returned to the airport office. Unable to find the audio recording equipment, the investigators had to force open O’Brien’s door with a plastic card to gain entry. The investigators found the recording device. They then placed a covert camera in the office. This investigation led to the arrests of Taketa and O’Brien. In its review of the covert surveillance, the court held that the video evidence had to be suppressed. In so holding, the court determined that since O’Brien’s office had been locked, investigators should have obtained a warrant before entering. In addition the court concluded that once the investigation changed from an internal investigation to a criminal investigation, the standards from O’Connor v. Ortega no longer applied, rather the more stringent standards of probable cause and a search warrant were required.
Identify and document the business reasons for having surveillance cameras. Legitimate reasons include health, safety, theft prevention, workplace productivity, and security. Give advance notice (via policy, orientation or email) to employees of the possibility of cameras and give reasons for using them. Remember to advise new employees in advance of their employment if possible. Each employer should explain which areas of the workplace their employees should not expect to be private. Adopt a written policy reserving the right to monitor the workplace with visible and hidden cameras. The policy should reserve the right to use hidden cameras on the premises when the employer reasonably suspects health, safety or company policy violations. For unionized labor forces, ensure that camera use has been addressed as part of the collective bargaining process. Although you need not reveal exact camera location and times of use, you should discuss the general use and need for surveillance The surveillance of Ronald McCullers GPS Surveillance For Global Positioning System (GPS) is a worldwide radio-navigation system initially formed from the constellation of 24 satellites and their ground stations. The Global Positioning System is mainly funded and controlled by the U.S Department of Defense (DOD). The system was initially implemented in 1973 for the operation of U. S. military assets. But today, there are more commercial users of GPS across the whole world. The civilian users are allowed to use the Standard Positioning Service without any kind of charge or restrictions. Military has moved to the GPS Next Generation Operational Control System (OCX).
• In a recent case United States v. Cuevas-Perez, 2011 WL 1585072 (C.A. 7 (Ill.)), the Seventh Circuit Court of Appeals considered whether the warrantless installation of a GPS device which allowed "real time" tracking of a suspect vehicle for approximately 60 hours while it traveled from Arizona to Illinois violated the Fourth Amendment.
• Court concluded that there was simply no constitutionally relevant difference between devices which simply record and store information for later retrieval and GPS units which furnish real time data. In fact, the Seventh Circuit indicated that GPS units which record and store historical data are less akin to the publicly exposed data on which permissible Fourth Amendment GPS tracking is based. Id. at 3. In referencing an earlier Seventh Circuit case the Court stated "GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking" See., United States v. Garcia, 474 F.3d 944 (7th Cir. 2007) • In United States v. Smith, 387 Fed.Appx. 918, 2010 WL 2825488 (C.A. 11 (Fla.)), a DEA Task-Force Officer, without the benefit of a warrant attached a GPS unit to a marijuana trafficker’s Cadillac Escalade. The Court found that the GPS was installed in a public place and held that Smith lacked any reasonable expectation of privacy in the exterior of his vehicle. Id. at 921. The Court indicated that without any legitimate expectations of privacy there were no 4th Amendment issues. See, United States v. Barton, 698 F.Supp.2d 1303 (N.D. Fla. 2010) – “there is no 4th Amendment violation for using a tracking device as a substitute for visual surveillance”. In the 11th Circuit warrantless installation of GPS devices does not impede on any reasonable expectations of privacy, thus no Fourth Amendment concerns exist.
Saturday Travel Saturday Night Travel Sunday Travel
Search Allowances Privacy Concerns Retention of Evidence Introduction of Evidence in Other Forums
Keylogging
Jurisdictions at Odds Over Privacy Concerns
Keystroke logging (or “keylogging”) is the noting (or logging) of the keys struck on a computer keyboard. Typically, this is done secretly, so the keyboard user is unaware his activities are being monitored.
Several cases throughout the country have examined an employer’s use of keylogging. Recently, the Criminal Court of the City of New York held in New York v. Klapper that an employer who installed keylogging software on office computers and subsequently monitored an employee's e-mail activity did not, absent some showing of contrary e-mail protections or acceptable use policies, access a computer “without authorization” in violation of New York law. In contrast to the strong language from New York, the U.S. District Court for the Northern District of California ruled in Brahmana v. Lembo that a plaintiff could proceed to trial in his case alleging his employer committed an impermissible “interception” under the Electronic Communications Privacy Act (ECPA) by using keylogging to discover the password to his personal e-mail account, and using the logged password, accessed his personal e-mail. [Update]
Another California District Court found in United States v. Ropp that because the keylogger recorded the keystroke information in transit between the keyboard and the CPU, the system transmitting the information did not affect interstate commerce as is required by the ECPA. Further complicating the issue, a federal court in Ohio questioned Ropp, suggesting in Porter v. Havlicek that it read the statute too narrowly by requiring the communication to be traveling in interstate commerce as opposed to merely “affecting interstate commerce.”
Because of the numerous issues arising from the use of electronic communications, and the varying court opinions on these questions, IG’s would do well to re-examine their use of keystroke monitoring or logging technology on a regular basis. Here’s the logger
Florida supreme court invalidates order by chief that a subordinate submit to a polygraph exam. Farmer v. City of Ft. Lauderdale, 427 So.2d 187 (Fla. 1983). Pre- employment polygraph is not affected by the FSC’s decision in Farmer v. Ft. Lauderdale; see Drayton v. City of St. Petersburg, 477 F.Supp. 846 (M.D. Fla.), a race discrimination suit which upheld the test in a suit by African-American applicants.
The right to a "name-clearing hearing" has been held to stem from an individual's "liberty interest" as protected by the fourteenth amendment. As in instances where a property interest is at stake, a governmental employer may not engage in actions that results in the deprivation of a protected liberty interest without due process of law.
It is critical at the outset to recognize that a liberty interest exists regardless of whether the employee is terminable at-will or has a property interest in continued employment. In the context of public employment, liberty interest has been held to protect, to a limited extent, an employee's good name and reputation. Damage to one's reputation alone is generally not enough to implicate the liberty interest. Paul v. Davis, 424 U.S. 693 (1975). However, if other employment opportunities are foreclosed because false information is created and distributed by the governmental employer, than the employee's liberty interest is implicated.
In Buxton v. City of Plant City, 871 F.2d 1037 (11th Cir. 1989), the Eleventh Circuit set forth six elements of a violation of a governmental employee's liberty interest. The employee must prove: (1) a false statement; (2) of a stigmatizing nature; (3) attending the public employee's discharge; (4) was made public; (5) by the governmental employer; and (6) without a meaningful opportunity for the employee to have a name-clearing hearing.
Only Obtain the Information if it’s material to your investigation
Obtain informed consent
Searches should be uniformly and consistently applied
Choose least intrusive method to obtain information or conduct surveillance
Develop Minimization Plans (Like a Title 3 Intercept) ◦ Exclude personal communications (Scalia emphasized privacy not solitude) ◦ Exclude privileged communications
The employing agency of any law enforcement officer shall have the option to pay the legal costs and reasonable attorney’s fees for any law enforcement officer in any civil or criminal action commenced against such [LEO] in any court when the action arose out of the performance of his official duties…
111.07 Defense of civil actions against public officers, employees, or agents.— Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of rights secured under the Federal Constitution or laws. Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs. However, any attorney’s fees paid from public funds for any officer, employee, or agent who is found to be personally liable by virtue of acting outside the scope of his or her employment, or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or agent. If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant to this section to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney’s fees.
Suspended Escambia County Commissioner W.D. Childers was sentenced to 60 days in jail for discussing redistricting in a telephone conversation while a fellow commissioner listened on a speaker phone, and for talking with two fellow commissioners about county building projects in front of a staffer. Florida Constitution revised in 1968 o Required a code of ethics for all state employees and non-judicial officers o Prohibited conflict between public duty and private interests be prescribed by law o 1976 the “Sunshine Amendment” was adopted o Provided additional constitutional guarantees concerning ethics in government. o Created independent commission(Commission on Ethics) to investigate complaints o Five of the Commission’s nine members are appointed by the Governor o Two each are appointed by the President of the Senate and Speaker of the House of Representatives o No more than five (5) Commission members may be members of the same political party o None of the Commission members may hold any public employment during their two-year terms of office
The “Code of Ethics for Public Officers and Employees” adopted by the Florida Legislature is found in Chapter 112 of the Florida Statutes o Primary goal to promote public interest and maintain respect of the people for their government o Ensure that public officials conduct themselves independently and impartially o Ensure that public officials are not using their office for personal gain o Avoid creation of unnecessary barriers to public service while maintaining integrity of government ROLE OF THE COMMISSION ON ETHICS o Investigate complaints o Renders advisory opinions to public officials o Prescribes forms for disclosure o Administers the Executive Branch Lobbyist Registration and Reporting Law o Maintains financial disclosure filings of constitutional officers and state officers and employees o Administers automatic fines for public officers and employees who fail to timely file and financial disclosures o May file suit to void contracts, prepares mailing lists of officials subject to disclosure and makes recommendations to disciplinary officials when appropriate Primarily two types of provisions: o Those prohibiting certain actions or conduct o Those requiring certain disclosures be made to public Laws generally apply to all public officers and employees, State and local as well as members of advisory bodies. Principal exclusion is the judiciary – judges fall under jurisdiction of Judicial Qualifications Commission Public Service Commission members and employees are subject to additional ethics standards enforced by the Ethics Commission under Sec 350 of Florida Statutes.
Solicitation and Acceptance of Gifts o Public officers, employees, local government attorneys AND CANDIDATES are prohibited from soliciting or accepting anything of value based on understanding that their vote, official action or judgment would be influenced by such gift [S112.313(2) Fla. Stat.] o Any person required to file financial disclosure Form 1 or Form 6 is prohibited from soliciting any gift from political action committee, lobbyist who has lobbied his/her agency in last 12 months or the partner, firm, employer or principal of such lobbyist Solicitation and Acceptance of Gifts, (continued) o Any person required to file financial disclosure Form 1 or Form 6 is prohibited from accepting any gift worth over $100 from political action committee, lobbyist who has lobbied his/her agency in last 12 months or the partner, firm, employer or principal of such lobbyist o Effective in 2006, no EXECUTIVE BRANCH or legislative lobbyist, or principal shall make indirect or direct expenditure for purpose of lobbying nor no EXECUTIVE BRANCH or legislative official shall accept any expenditure made for the purpose of lobbying [112.3215, Fla. Stat.] o This would include any gift UNDER $100 permitted under Statute 112.3148 Unauthorized Compensation o Public officers or employees, local government attorneys, and their spouses or minor children prohibited from taking any compensation or anything of value that: . They know . They should have known with exercise of reasonable care will influence their vote or official action Misuse of Public Position o Prohibited from corruptly using or attempting to use their official positions to obtain a special privilege for themselves or others Disclosure or Use of Certain Information o Information not available to the public and obtained by reason of their position for the personal benefit of themselves or others Prohibited Employment and Business Relationships o Doing business with one’s agency . 5% ownership test – his/her spouse or child o Conflicting employment or Contractual Relationship . Public officer or employee prohibited from holding any employment or contract with any entity or agency regulated by or doing business with his/her public agency
Prohibited Employment and Business Relationships o Conflicting Employment or Contractual Relationship Some (not all) Exemptions from Prohibitions . Emergency purchase required to protect public health, safety or welfare . Business entity is sole source of supply and full disclosure on Form 4A . Aggregate of such business < $500 in calendar year . If public officer or employee is employed by tax exempt organization and the officer or employee is not directly compensated as a result
Restrictions on appointing, employing and contracting with relatives o Anti-nepotism law . Public official prohibited from seeking for a relative any appointment, employment, promotion or advancement in the agency which he/she is serving or over which he/she exercises control . No person shall be appointed, employed, promoted or advanced in or to a position if such action was advocated by a related public official
Restrictions on appointing, employing and contracting with relatives (cont’d) o Anti-nepotism law (cont’d) . Prohibition DOES NOT apply to school districts (except as provided in Fla. Stat. 1012.23), community colleges, and State universities, or to appointments of boards of municipalities with < 35,000 population . Approval of budgets does not constitute “jurisdiction or control” for purposes of this prohibition other than volunteer emergency medical, fire fighting or police service providers
Post-office Holding and Employment Restrictions o Lobbying By Former Legislators, Statewide Elected Officers and Appointed State Officers . Prohibition from representing any person or entity for compensation before the government body or agency in which the individual was an officer or member for two (2) years o Lobbying by Former State Employees . Certain employees of executive and legislative branches of State government prohibited from representing any person or entity for compensation before the agency they were employed by for two (2) years after leaving their positions
Voting Conflicts of Interest o NO STATE PUBLIC OFFICIAL is prohibited from voting in an official capacity on any matter o A STATE PUBLIC OFFICER who votes on a measure which inures to his/her special private gain or loss or to a PRINCIPAL by whom he/she is retained, a RELATIVE, BUSINESS ASSOCIATE or PARENT ORGANIZATION or SUBSIDIARY of CORPORATE PRINCIPAL by whom he/she is retained must file memorandum of voting conflict on Commission Form 8A with the recording secretary within 15 days after the vote occurs Voting Conflicts of Interest o NO COUNTY, MUNICIPAL, or other LOCAL PUBLIC OFFICER shall vote in an official capacity upon measure which would inure to his/her special private gain or loss or to PRINCIPAL, RELATIVE, BUSINESS ASSOCIATE or PARENT ORGANIZATION or SUBSIDIARY of CORPORATE PRINCIPAL of which he/she is retained o Must publicly announce his/her interest before the vote and file Form 8A with recording officer within 15 days after the vote occurs o No Appointed State or Local Officer shall participate in any matter inuring to the officer’s private gain or loss or to Principal, Relative, Business Associate or Parent Organization or Subsidiary of Corporate Principal to which he/she is retained without first disclosing the matter on Form 8A
Non-criminal Penalties for Violation of the Sunshine Amendment and the Code of Ethics o Penalties may include . Impeachment . Removal from office or employment . Suspension . Public censure . Reprimand . Demotion . Reduction in salary level . Forfeiture of no more than 1/3 salary per month for no more than 12 months . Civil penalty not to exceed $10,000 . Restitution of pecuniary benefits received Candidates o Disqualification from being on ballot o Public censure o Reprimand o Civil penalty not to exceed $10,000 Former Officers and Employees o Public censure and reprimand o Civil penalty not to exceed $10,000 o Restitution of pecuniary benefits received
Felony Convictions: Forfeiture of Retirement Benefits o Public officers and employees subject to loss of retirement benefits if convicted of: . Embezzlement of theft of public funds . Bribery and felonies under Fla. Stat. 838 misuse of public office . Impeachable offenses . Felonies connected with intent to defraud the public o Automatic penalties for failure to file annual disclosure . Fines of up to $25 each day late the form is filed after Sept. 1 . Maximum of $1,500
An Integrity Test You May Not Have Heard About In the 1970’s, ABC News conducted an integrity test in Miami, in which 31 wallets containing money and identification were turned over by role players to 31 police officers. Nine of the officers kept the money and were subsequently fired and/or prosecuted.
Thirty years later, ABC News replicated the integrity test in Los Angeles and in New York. Twenty wallets containing money and identification were turned in to officers of the LAPD and another twenty were turned in to officers of the NYPD. All forty wallets were recovered by the officers without a dollar missing.
It is unclear if the officers have become more ethical over the past three decades, or if they suspected the wallets was simply bait being offered in some type of sting operation. Contact Info: [email protected] Secure email: [email protected] 850-412-3965