Correctional officer can be demoted for living with parolee brother

Monday, May 3, 1999

A correctional officer in Clayton County, Ga., can be demoted for not informing his employer that he was living with his parolee brother, a federal appeals court recently ruled.

Gary Ross sued Clayton County and the warden, claiming that his demotion for living with his brother violated his First Amendment free-association rights.

Ross was hired by Clayton County as a correctional officer in February 1992. For the first 12 months he was employed on a “working test” basis. In October 1992, he moved into an apartment with his brother, who was on probation for failing to pay child support. Ross did not inform his employer that he was living with his brother.

County officials became aware of Ross’ living arrangements after his brother was accused of abducting and raping a woman at their residence.

The warden demoted Ross for violating a Georgia Department of Corrections rule providing that “employees shall not, without the express written approval of the appropriate Deputy Commissioner, maintain personal association with … known inmates, active probationers, or parolees.” Ross dropped from “Sergeant” to “Correctional Officer II” and subsequently lost $3,000 per year in salary.

In February 1993, Ross appealed the decision to the Clayton County Civil Service Board, which affirmed the warden’s decision. In October 1993, Ross filed a lawsuit in a federal district court, claiming that the demotion had violated both his procedural due-process and First Amendment free-association rights.

The federal district court dismissed the lawsuit in 1995, but in 1997 the 11th Circuit sent it back down to the lower court for additional analysis of the legal claims. Last year, the federal district court again granted summary judgment to the county.

On appeal, the 11th U.S. Circuit Court of Appeals in Ross v. Clayton County affirmed the lower court, rejecting Ross’ First Amendment free-association and other claims.

The 11th Circuit used a balancing test articulated by the U.S. Supreme Court in its 1968 decision Pickering v. Board of Education of Township High School District 205 to analyze Ross’ First Amendment claim. In Pickering, the high court balanced an employee’s interest in free speech against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The 11th Circuit recognized that Ross had free-association rights. However, the court ruled that those free-association rights were outweighed by the county’s interests in “avoiding potential conflicts of interest between loyalty to the law enforcement employer and loyalty to someone in an off-duty, personal relationship.”

The 11th Circuit ruled that the balance was “tilted substantially” in favor of the county, because the rule prohibiting associations with probationers contains an exception in which the employee can obtain special permission from the appropriate official to waive the prohibition.

The court wrote: “This flexibility enhances the reasonableness of the rule, giving an employee an opportunity to seek an exception in the circumstances where the employee’s interests are strong and the employer’s interests might be accommodated in some manner.”

The attorneys for Ross and Clayton County were out of town and unavailable for comment.