More and more public safety departments are utilizing the services of Lexipol, a management resource designed to assist agencies by purportedly helping them comply with current laws, regulations and law enforcement “best practices.”  The resource includes a set of policy manuals, and frequent updates, that agencies can integrate into the work place.  Agencies have been quick to unilaterally implement these policies and updates without negotiating with the law enforcement associations, and worse, have failed to independently consider the legality of these policies themselves. 

          In one such case, the City of Guadalupe unilaterally imposed a Lexipol policy that significantly restricted the rights of officers off duty to engage in certain constitutionally protected free speech activities.  Believing that the policy went too far and restricted a significant amount of protected speech, a lawsuit was filed on behalf of the Guadalupe Police Officers Association to challenge the constitutionality of the policy.  Just recently, a Federal District Court denied the City’s attempt to have the case thrown out and indicated that Lexipol’s policy was flawed and that it would be struck down as unconstitutional.     

          Lexipol issued, and in 2010 the City of Guadalupe adopted, Policy 1058, entitled “Employee Speech, Expression and Social Networking” which regulates officers’ off duty speech.  In a nutshell, the policy forbids an officer from speaking publicly about any private matter occurring within the Department, saying anything that might disparage the City, or even telling someone that you work for the City Police Department.        

          More specifically, the policy applies to all forms of communication, including, use of the internet, social networking, and instant messaging and restricts speech in several different ways.   The policy prohibits employees from “disseminat[ing] or post[ing] any information on any forum or medium that could reasonably be expected to compromise [the] safety or privacy of any employees, employee’s family or associates.”  The policy also bars speech or expression “significantly linked to, or related to, the Guadalupe Police Department” that “tends to compromise or damage the mission, function, reputation or professionalism of the Guadalupe Police Department or its employees.”  In addition, the policy bars “speech or expression that could reasonably be foreseen as creating a negative impact on the credibility of the employee as a witness” or that “could reasonably be foreseen as creating a negative impact on the safety of the employees of the Department.”   

          In siding with the POA, the Court pointed out that the aforementioned provisions of the policy could be read to prevent officers from speaking publicly about corruption or misconduct within the Police Department.  By disclosing corruption or misconduct, the officer would necessarily violate the ban on disseminating information that could compromise the safety or privacy of employees, would damage the reputation of the Department, and would create a negative impact on the credibility of the Department.  The Court found that the policy either directly prohibits speech involving the disclosure of such misconduct or is sufficiently vague that it could be read to apply to such speech. 

          The Court went on to find that public employees’ positions inside government agencies plainly gives them greater access to information about public corruption and misconduct.  Working with a department, public employees have the opportunity to witness misconduct firsthand.  Thus the Court found this type of speech to involve a matter of public concern and determined that the policy in question plainly restrict important speech.  Because the policy is either overbroad in restricting such speech, or sufficiently vague and can be interpreted as restricting such speech, the Court found the policy to be unconstitutional. 

          In addition, the Court tackled a separate provision from the policy that further prohibits employees from “identify[ing] themselves in any way as being affiliated with the Guadalupe Police Department in order to” endorse, support, oppose, or contradict any political campaign, initiative, social issue, cause, religion, service, company, or other commercial entity.  The Court found that officers have a protected right to engage in political, social, or other community matters while off duty.  And the Court found that an officer can identify himself as an officer even though they are acting as a private citizen.  Since the provision would ban such off duty lawful activities, this provision was likewise found to be unconstitutional.  

          In light of the District Court’s ruling, it is expected that either public safety departments will move quickly to rescind the unconstitutional policies or Lexipol will cure the problems by revising Policy 1058 so that it does not restrict officer’s free speech rights.  However, to be sure, officers and association leaders are encouraged to review their own department policies and procedures to insure compliance.