A Public Employer's Need-to-Know vs. A Public Employee's Expectation of Privacy: Where Are the Boundaries?

Rapid changes in electronic communication devices presents a host of problems that society has yet to resolve concerning the issue of what is subject to employer scrutiny and what is off limits.  The scope and purpose of this bulletin is to help clarify the current status of the law regarding the boundaries which exist between a public employee’s right of privacy versus the right of a public employer’s need to know how the employee is using government equipment. This article discusses recent U.S. Supreme Court decisions and a Tenth Circuit U.S. Court of Appeals opinion. Oklahoma is within the jurisdiction of this federal appellate court.

The U.S. Supreme Court has construed the Fourth Amendment to mean that it protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures….”  While normally Fourth Amendment cases pertain to the activities of law enforcement officials in trying to arrest suspected criminals or to obtain evidence against them, similar issues are presented when government employers search the electronic records of an employee produced by communication equipment, e.g., cell phones, computers, or pagers or even the employee’s office, including files and records. This area of the law is likely to evolve as the communication industry continues to develop new ways to stay electronically connected to others.

A.  Electronic text pagers: Are they immune from search?

A California city provided alphanumeric pagers for its police officers. Before issuing the pagers the City announced a policy specifying that the City “reserves the right to monitor and log all activity with or without notice” and that “users should have no expectation of privacy or confidentiality when using these resources.” The contract with the wireless internet service provider allowed for a monthly limit on the number of characters each pager could send or receive. Officer Quon was issued one of these pagers. The City was billed an additional fee when that limit was exceeded. Quon exceeded this monthly limit for several months. The police chief sought to determine if the monthly limit was set too low or whether Quon was using the pager for personal messages. The police chief secured a print out of Quon’s monthly use of the pager through the service provider. After examination of the pager records it was determined that Quon was using the pager for non-work related messages. Quon was disciplined for misuse of the police department’s rules pertaining to non-authorized personal use of the public employer’s property.

Quon filed suit arguing the City violated his Fourth Amendment right to privacy by obtaining and reviewing his pager messages. In  City of Ontario, California, et al. v. Quon, et al., 130 S. Ct. 1133 (2010), the Supreme Court held the search of Quon’s text messages was reasonable and did not violate his Fourth Amendment rights.  The Court concluded that the department’s search of the pager messages was motivated by a legitimate work-related purpose of determining whether the monthly message limit on the City’s contract with the service provider was sufficient to meet the City’s need and the search was not excessively intrusive in light of the intrusion. (i)  However, Quon shouldn’t be viewed as granting a public employer free rein to delve into an employee’s electronic communications.

Would the Court’s decision be different if these facts were present?

  • the messages didn’t exceed the monthly maximum?
  • the department policy was silent on the issue of personal use?
  • the department policy allowed for personal use if the employee reimbursed the city for these messages?
  • the personal messages were all in-coming?

B. Is an employee’s office off limits to a search?

The Supreme Court has held that the Fourth Amendment applies to the conduct of government officials acting as school administrators, (ii) building inspectors, (iii)  and safety inspectors (iv) when conducting searches of regulated businesses or premises. The Court first entered into this area of public employer searches in O’Connor v. Ortega, 480 U.S. 709 (1987). Ortega was a state university professor who was suspected of sexually harassing female employees. While on leave, hospital administrators searched his office for files and records that were later used in his termination proceedings. He filed suit alleging that the evidence used against him was seized in violation of the Fourth Amendment.

The Court held that whereas a search of a public employee’s office is guided by the Fourth Amendment standard of reasonableness, a public employee’s office may be searched when there are reasonable grounds to suspect  the search will find evidence of an employee’s work-related misconduct, or when the search is required for non-investigatory work-related purposes, such as the need to retrieve a file.

Public employers should note that the Court’s decision was not a broad grant of authority to employers, but was issued on a “case-by-case basis.” What this means is that the lower courts are instructed to look closely at all the facts, because the municipal government bears the burden to establish its reasonable basis to search an employee’s office.

Would the Court’s decision be different if these facts were presented?

  • the department policy stated that the employee had an expectation of privacy in his office, records, files, etc.?
  • the administration had no suspicion of wrongdoing, but randomly searched offices?

C.  Is an employee’s computer free from search?

In United States v Angevine, 281 F.3rd 1130 (10th Cir. 2002), the appellate court was asked to consider whether a state university violated a professor’s expectation of privacy by searching his office computer for evidence of downloading child pornography.
The university had published a computer policy that warned the viewing of obscene material could result in “disciplinary action up to and including discharge, dismissal….and/or legal action.” The policy also stated the following:

  • [T]he university reserves the right to view or scan any file or software stored on the computer or passing through the network and will do so periodically…to audit the use of University resources…
  • [T]hat access to an individual’s data is required in order to conduct an internal investigation into such possibility, system administrators may monitor all the activities of and inspect the files of such specified user(s) on their computers….
  • The university claims a “right of access to the contents of stored computing information at any time for any purpose which it has a legitimate “need to know”  including access to word processing equipment, personal computers, workstations, mainframes, minicomputers, and associated peripherals and software.

The court noted that the ultimate question in whether one’s claim to privacy from government intrusion (i.e., the public employer) is reasonable in light of all the circumstances, citing Ortega. After examining the evidence of the widely-proclaimed university policy regarding the use of its computers, the court concluded that society is not prepared to recognize a public employee’s reasonable expectation of privacy in the use of a university computer.

Would the Court’s decision be different if these facts were presented?

  • the computer belonged to the employee as his personal property?
  • if the  person was an independent contractor working on university premises?
  • if the computer was leased, rather than owned by the university?

Conclusion

The courts have consistently held that searches and seizures by government employers of the private property of their employees are subject to the restraints of the Fourth Amendment. However, when the government employer provides the offices and equipment for the public employee to perform their duties, the courts have favored the searches by the government employer. Yet the Supreme Court has cautioned that each case must stand on its own based upon the facts presented. This should be considered by government employers as a warning that all searches must be reasonable and based upon the employers right to know if its resources are being properly used by the employee.

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i   David W. Lee, 2011 Handbook of Section 1983 Litigation,  Wolter Kluwer Law & Business, 268,     (2011).
ii   New Jersey v. T.L.O., 469 U.S. 325 (1985)
Iii  Camara v. Municipal Court, 387 U.S. 523 (1967)
Iv  Mashall v. Barlow’s Inc., 436 U.S. 307 (1978)

A Public Employer’s Need-to-Know vs. A Public Employee Expectation of Privacy: Where are the Boundaries?  was written by Stephen E. Reel, OMAG General Counsel. You may contact the author at sreel@omag.org. The information in this bulletin in intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article.                                                                                                                                                          
June 2011




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