Opinion: Is it better to behave unlawfully while off-duty?

After our story about the Loggers’ Run teacher arrested for Grand Theft, we were reminded of Dave Mech’s campaign for school board. We asked him to write an opinion piece about the incident.

This month Loggers’ Run Middle School social studies teacher Sheena Studstill made news when she was arrested and charged with grand theft. Although court records show previous drug, domestic battery, and criminal traffic charges, all were dropped. According to our justice system she is innocent.
Despite her innocence, the state’s educational regulators sent her a letter of reprimand and gave her two years probation. This begs a question: Why reprimand someone who has not violated the law?
Suppose an excellent teacher has a lazy student in his or her class who decides not to show up or to do any homework. The student subsequently fails the course and becomes upset. What is stopping our hypothetical disgruntled student from making a false criminal claim against the teacher, perhaps accusing him or her of sexual misconduct? Even though there would be no evidence to support the false claim, state educational authorities likely would send a letter of reprimand and put the teacher on probation, resulting in a permanent public record for a perfectly law-abiding teacher. Is that reasonable?
Earlier this year, Judge Lynn D. Rosenthal became the third Broward County judge in six months to be arrested on charges of driving under the influence. Her colleague, Judge Gisele Pollack, was suspended five days earlier after being arrested on a DUI charge while already on leave for twice taking the bench intoxicated.
Pollack pled guilty this month to the DUI charge. “I am going to plead guilty because I am guilty,” she said. “I’m guilty of driving under the influence. I’m guilty of letting myself down. I’m guilty of letting the community down.” What is her punishment for violating the law and putting others’ lives at risk? Her license will be suspended for six months; she will receive six months of probation and 75 hours of community service; and she will have to wear an alcohol monitoring bracelet for 60 days. She is seeking to keep her job.
So how does unlawful off-duty employee conduct compare to lawful off-duty employee conduct? Clearly, one would think that a penalty for violating the law would carry far more weight than one for complying with the law. But is this the case?
In 2011, Shawn Loftis was a teacher at Miami-Dade’s Nautilus Middle School when the principal learned of his past employment as a perfectly lawful gay porn producer and performer, likely having his videos hosted on gay porn sites like twinkmovies.xxx. Even though Loftis had no criminal background and was no longer in the adult film industry, he was suspended from his job in January and his teaching certification subsequently revoked in April. He likely had to consider going back to the webcam jobs after that, which is nothing to be ashamed of but sad that he would be removed from his educational role.
Loftis challenged the action through the Florida Education Practices Commission, the state’s regulatory body that governs teacher conduct and ethics. In 2012, the commission ruled that Loftis could go back to teaching, thus reversing the lower-level decision to fire him. The commission said his past pursuits were not illegal and the school did not have the authority to dismiss him on that basis.
Clearly, a governmental entity should be able to discriminate against, discipline, or even terminate an employee or contractor for a violation of the law, but allowing our public officials to exercise arbitrary judgment and discriminate “at will” based on their personal moral agendas is against the very nature of our Constitution. As English philosopher and economist John Stuart Mill said, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
If a school district can fire a teacher merely because he or she moonlights as an exotic dancer (i.e., lawfully employed in an establishment where minors are prohibited), then we also open the door for a teacher who moonlights as a bartender, tobacco salesman, or gun shop owner to meet a similar fate.
Thankfully, the courts consistently have ruled in favor of civil liberties, including the First Amendment guarantees of freedom of speech, expression, and association, and the Fourteenth Amendment guarantees of due process and equal protection. Thus, most public employees and government contractors are successful when challenging adverse employment decisions that are based on arbitrary morality.
Some states and local jurisdictions already have led the way in further protecting employees from this type of discrimination. Under section 201-d of the Labor Law, which took effect in January 1993 (over 20 years ago!), New York state employers may not take adverse employment actions against employees or applicants for employment on the basis of their legal, off-duty conduct. The statute broadly defines a variety of legal activities that, if engaged in on an employee’s own time and without the use of company property or equipment, may not form the basis for adverse employment decisions. Similar statutes exist in California, Colorado, and North Dakota, but no such statute currently exists in Florida.
In a 2004 academic paper, What Do You Do When You Are Not at Work?: Limiting The Use Of Off-Duty Conduct As The Basis For Adverse Employment Decisions, which was published in the University of Pennsylvania Journal of Labor and Employment Law, legal studies professor Marisa Anne Pagnattaro wrote, “When there is no legitimate business-related reason for an employer to use an employee’s off-duty conduct as the basis for an adverse employment decision, the employer should not be allowed metaphorically to “open wide the back door” of an employee’s reasonable expectation of privacy.” She concluded, “Overall, the proposed statutory language would protect employees’ reasonable expectation of privacy for their off-duty conduct and also protect employers’ business interests, as well as their ability to avoid liability.”
In today’s digital society, with Facebook, Twitter, InstaGram, and other social networking sites, personal privacy is eroding at a rapid pace. These privacy issues are beginning to affect the more educated, affluent sectors of society. As such, I predict we will begin to see more legal challenges to the practice of arbitrary discrimination by public officials based on the off-duty, lawful conduct of their employees, contractors, and advertisers.
David Mech
Owner, The Happy Fun Math Tutor – www.HappyFunMathTutor.com
David Mech is the owner of Happy Fun Math Tutor, a math education company serving students in Boca Raton and Delray Beach. He became interested in civil rights issues after the Palm Beach County School Board removed banner advertisements for his math tutoring service due to his previous involvement with the adult film industry. Mech currently has a civil rights lawsuit pending in federal court against the Palm Beach County School Board. The case is set to go to trial in November.