Spouse Swapping Not Cool for Police Officers, Says the Fifth CircuitJust how much can you regulate a public employee’s off-duty conduct? In an interesting and rather frank opinion, the Fifth Circuit found a sheriff’s department could regulate deputies’ private conduct pretty broadly. In Brandon Coker and Michael Golden v. Julian Whittington and Charles Owens, two Louisiana sheriff’s deputies (Coker and Golden) were terminated for moving in with each other’s wives before getting divorced from their current spouses. The sheriff’s department’s code of conduct broadly prohibited employees from engaging in any “illegal, immoral or indecent conduct” or engaging in even any “legitimate act which, when performed in the view of the public, would reflect unfavorably” on the department. After Chief Deputy Sheriff Charles Owens learned that two of his officers had each moved into the other’s house and exchanged spouses, he put both on administrative leave for violating the code of conduct. He gave them an opportunity to remedy the situation by providing a deadline to move back in with their legal spouses. When that deadline passed without a spouse “re-swap,” the department determined that they had voluntarily terminated their employment. The deputies immediately sued for wrongful termination and violation of their Constitutional rights.

The lower court dismissed the case, holding that the code of conduct was properly applied based on the rational grounds of preserving a cohesive police force and upholding the reputation of the department. The court cited Fifth Circuit precedent that approved terminations of law enforcement officers for sexually inappropriate conduct. Finally, the court found that the code was not unconstitutionally vague.

The Fifth Circuit affirmed the dismissal of the officers’ suit. The Court specifically noted that “sexual decisions between consenting adults take on a different color when the adults are law enforcement officers.” The opinion stated that the wife swapping “notoriously” violated the legally sanctioned relationships of marriage and therefore besmirched the reputation of the department. Even if the extramarital relationships were consensual and loving at first, according to the Court, they have “great potential to create internal dissension within the force.” Finally, the Court was concerned how this unique living arrangement might be adversely used in litigation concerning the deputies’ official conduct. The Fifth Circuit took a final shot by stating that the Supreme Court’s Obergefell decision on same-sex marriage did not create rights for sexual relations beyond a formal marital relationship. Specifically, Obergefell did not “create ‘rights’ based on relationships that mock marriage.”

Although this situation is likely very, very extreme, it does show that codes of conduct are more than just window dressing in an employment manual. Employers should be cautious in applying them and be careful to apply them consistently across the board. Do not use a code of conduct violation against one employee and not against another who committed the same violation. And if you live in Louisiana, Mississippi or Texas, it appears that you certainly can terminate two employees who decide to openly swap spouses—especially if they are cops.