Petitioners Brief — O'CONNOR v. Ortega

Supreme Court, U.S.

No. 85-530

IN THE | JOSEPH F. SPANIOL, JR.

FILED

FEB 10 1986

CLERK

Supreme Court of the United States

OCTOBER TERM, 1785

DENNIS M. O’CONNOR, ef al,

Petitioners,

VS.

MAGNO ’. ORTEGA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONERS

JOHN K. VAN DE Kamp

Attorney General of the State of

California

MARVIN GOLDSMITH

Assistant Attorney General

JEFFREY IT. MILLER

Deputy Attorney General

TERESA TAN

Deputy Attorney General

Attorneys for Petitioners

Counsel of Record:

JEFFREY T. MILLER

California Attorney General’s Office

110 West A Street, Suite 700

San Diege, CA 92101

(619) 237-7762

i

QUESTION PRESENTED

Whether it is a violation of a government employee’s civil

rights for government officials to make an administrative

inventory of papers in a government office assigned to him

while he is undergoing an administrative investigation.

i

PARTIES BELOW

PETITIONERS: Dennis M. O’Connor, Richard Friday,

Dorothy Owen, Stefan Donoviel

RESPONDENT: Magno J. Ortega

REESE nN St eo

ESTEE Sar a

CONSTITUTIONAL PROVISIONS AND APPLICABLE FEDERAL

SESE EEE EEE EE EEE EE EEE EEE EEE EEE EEE EEEEEEE TEESE EEE EEEEEEEEEEEEEEEEEEEE EEE EES

NEITHER ENTRY INTO RESPONDENT’S GOVERNMENT

OFFICE NOR INVENTORY OF ITS CONTENTS IN THE

COURSE OF PETITIONERS’ ADMINISTRATIVE IN-

VESTIGATION INTO RESPONDENT’S EMPLOYMENT AC-

TIVITY VIOLATED RESPONDENT’S CIviL RIGHTS UNn-

nl Te

A.

At the Threshold, Respondent Has Not Iden-

tified A Constitutional Or Other Right Cogni-

zable Under 42 U.S.C. Section 1983 ................

The Entry Of Respondent’s Office And In-

ventory Of Its Contents Were Not Intrusions

For Fourth Amendment Purposes....................

No Privacy Expectation That Society Is Pre-

pared To Recognize As Reasonable Was

Breached By Such An Entry and Inventory .....

Excessive Social Costs Would Attend Fourth

Amendment Application To Government’s

Entry And Inventory Of Its Employee’s Office

For Work-Related Purposes ..................cccc0e+0:

Assuming, Arguendo, Such An Entry And

Inventory Is Subject To Fourth Amendment

Protection, The Action Of Petitioners Was

Reasonable Under An Appropriate Balancing

, SRE os COA Lt LOE EEE

EE A Se

APPENDIX

SEER EEE EEE EEE EEE EEE EEE EEE EEE EEE EERE EERE HERE

14

20

iv

TABLE OF CITATIONS

CASES . PAGE

Allen v. City of Marietta, 601 F.Supp. 482

aaa ia 19

Arnett v. Kennedy, 416 U.S. 134 (1974) ooo.ccccccccccccesseseeereeeees 10

Baker v. McCollan, 443 U.S. 137 (1979) .....cccccccccceseeceeees 5,7,8

Bishop v. Wood, 426 U.S. 341 (1976) ...........0... 6, 14, 22, 25, 26

Bivens v. Six Unknown Fed. Narcotics Agents,

RSE eI 11

Bush v. Lucas, 462 U.S. 367 (1983 ).............. 5, 6, 11, 12, 20, 21

Butz v. Economou, 438 U.S. 478 (1978) ......cccccccccscceeeeeeees 20, 21

Camara v. Municipal Court,

og! SS ,__, REE ee eee 9, 22, 23, 24

Ce a Fs ae le Be 0 FFD crccrccccccscncsccsennsenctnnnssnecesens 7

Chenkin v. Bellevue Hosp. Ctr., N.Y.C., Etc.,

ue fC OG ee 4,19

Chocallo v. Bureau of Hearings and Appeals,

SSA, 548 F.Supp. 1349 (E.D. Pa. 1982) .00......cccccccceeeeeees 19

Colonnade Catering Corp. v. United States,

Te Tee aia laeiicterantncntesnscnscitninni 14

Connick v. Myers, 461 U.S. 138

_{ FRRRORRESRIS PE: een anE Ter CTT tenn EDIE 5, 9, 10, 12, 20, 21

Davis v. Scherer, 468 U.S. 183, 82 L.ED.2d 139,

Een 14, 26

Ex parte Curtis, 106 U.S. 371 ( 1882 ) ...........ccccccccccceccccecccoceees 10

Gillard v. Schmidt, 579 F.2d 825 (CA3 1978) .......ccccccccceeeeeees 18

Givhan v. Western Line Consolidated School District,

SRE RRA eS IEE Ey Aer 10

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........cccccccceeeeeeeeseees 20

Hudson v. Palmer, 468 U.S. 517, 82 L.Ed.2d 393,

| ER RE NE cena re 9,14

Imbler v. Pachtman, 424 U.S. 409 (1976) v.cccccccccccccecceeeeeee 7, 20

Jafree v. Scott, 372 F.Supp. 264 (N.D. Ill. E.D. 1974).......... 19

Katz v. United States, 389 U.S. (1967 ) ...........cccccecccccseceeeeeeeee, 17

Mancusi v. DeForte, 392 U.S. 364 (1968)... 9,13

Marshall v. Barlow’s, Inc., 436 U.S. 307

DR DD 2 Esa ae ne 9, 14,24

Martinez v. California, 444 U.S. 277 (1980) ........ccccccc eee 5, 8

CASES PAGE

Michigan v. Tyler, 436 U.S. 499 (1978) ..........cccccessscessseeeseeeeeeees 9

Mitchum v. Foster, 407 U.S. 225 (1972) ........ccccccsssecsscceeseeeeceeees 7

Moanree ¥. Pape, S65 US. 167 ( 1961 )cccccccccccccecesccccsssscccescesseseees 7

Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274

STAT Tt eacebieestieatehis hence tabeetadialareraratitsiainclenncmmnenmannnemmseanenmemnnnnins 10

New Jersey v. T.L.O., 469 U.S. —_,

83 L.Ed.2d 720, 105 S.Ct. 733 (1985) ................ 9, 22, 23, 24

Oliver v. United States, 466 U.S. 170 (1984)................00.. 9,15

Pr BL CE Se |) een 26

FE Oe ae ee 0 rR centettceresrencctsnssnssccossomsccesemnen 8

Perry v. Sindermann, 408 U.S. 593 (1972) .........ccceccsceeeeeeseeees 10

Pickering v. Board of Education, 391 U.S. 563 (1968) .......... 10

See v. City of Seattle, 387 U.S. 541 (1967 ).........ccceeseeeeeeeeeeees 9

Shaffer v. Field, 339 F.Supp. 997 (C.D. Cal. 1972),

ge en 18

ee ee OD cctererncsnntemnestinnticericicmmenson 23

United States v. Biswell, 406 U.S. 311 (1972) .............eeeeeeeees 14

United States v. Blok, 188 F.2d 1019 (CA D.C. 1951 ).......... 16

United States v. Brignoni-Ponce, 422 U.S. 873 (1975).......... 23

United States v. Bunkers, 521 F.2d 1217 (CA9 1975)........... 18

United States v. Collins, 349 F.2d 863 (CA2 1965) ............... 17

United States v. Donato, 269 F.Supp. 921 (E.D.

Pa. 1967) Aff'd. 379 F.2d 288 (CA3 1967) .........ee cece 18

United States v. Jacobsen, 466 U.S. 109 (1984)...........0.000000.. 15

United States v. Kahan, 350 F.Supp. 784

i a a ceacins 19

United States v. Nasser, 476 F.2d 1111 (CA7 1973) ............. 17

United States v. Speights, 557 F.2d 362 (CA3 1977)............. 17

Williams v. Collins, 728 F.2d 721 (CAS 1984) ..........cccccceeeee 19

Wyman v. James, 400 U.S. 309 (1971 ) 0... eee a ts be

Youngberg v. Romeo, 457 U.S. 307 (1982 ).....ccccccccsseeeeeseeeeeees 21

CODES

California Government Code,

SE HU IH cciccuscucesssdenscnstecdssedunccniesseenieeton A-!1 to A-9

aE 24

PAGE

CONSTITUTIONS

United States Constitution Fourth Amendment....................... 2

MISCELLANEOUS

P. Schuck, Suing Government (1983) ............cccccccceseesseeeeeeeeees 21

pt en 21

ey ite SF EE cicirencscnnnemnesencnceessnnismneinnpennenanians 21

No. 85-530

In THE

Supreme Court of the United States

OCTOBER TERM, 1985

DENNIS M. O’CONNOR, et al.,

Petitioners,

vs.

MAGNO J. ORTEGA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit (Pet. App. A-1 to A-7) is reported at 764 F.2d

703 (1985). The judgment of the United States District Court

(Pet. App. A-8) is not reported.

2

JURISDICTION

The decision of the United States Court of Appeals for the

Ninth Circuit was entered on June 27, 1985. The petition for a

writ of certiorari was filed on September 25, 1985. On Decem-

ber 9, 1985, a writ of certiorari was granted limited to the first

question in the petition. US. , L.Ed2d , S.Ct.

The jurisdiction of this court is involved under Title 28,

United States Code section 1254(1).

CONSTITUTIONAL PROVISIONS AND

APPLICABLE FEDERAL LAWS

1. United States Constitution, Fourth Amendment:

“The night of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath of

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

2. Title 42, United States Code Section 1983:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, or any State or Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress.

For the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.”

3

STATEMENT OF THE CASE

This case arises out of a complaint by respondent that his

Fourth Amendment rights were violated under 42 U.S.C.

§ 1983 by hospital administrators of Napa State Hospital who

entered his locked, government-owned office without a warrant

to conduct an administrative inventory of his papers. On cross-

motions for summary judgment, the District Court granted the

petitioners’ motion on all grounds raised. (Pet. App. A-8.) The

Court of Appeals reversed the trial court’s decision on the claim

of a violation under 42 U.S.C. § 1983."

Petitioners Dennis M. O’Connor, Richard Friday, Dorothy

Owen, and Stefan Donoviel were all employees of the Napa

State Hospital of the State of California. Dr. O’Connor was the

Executive Director; Mr. Friday was the hospital administrator;

Mr. Donoviel was the Clinical Director, and Ms. Owen was the

personnel officer of said hospital. (J.A. 2, 18.) Respondent,

Dr. Magno J. Ortega, is a licensed physician and psychiatnst

who had held the position of Chief of Professional Education at

Napa State Hospital from 1964 to September 22, 1981.

(J.A. 13.)

On July 30, 1981 Dr. O’Connor informed Dr. Ortega that

he planned to investigate the management practices of Dr.

Ortega’s department. (J.A. 8, 27-28.) Previously Dr.

O’Connor had received complaints against Dr. Ortega. These

complaints included charges that | ) medical residents had been

coerced into purchasing a computer;? 2) Dr. Ortega had

entered into improper contracts involving the computer; 3)

female residents had been sexually harassed; and 4) a doctor

had been improperly placed on involuntary leave by Dr.

Ortega. (J.A. 30, 31, 49; Pet. App. A-10 to A-15.)

At the July 30 meeting, Dr. O’Connor stated that he

intended to place Dr. Ortega on administrative leave. Dr.

Ortega instead requested that he be permitted to take two

1 Several other issues decided in the District Court in petitioners’ favor

are not involved here. Respondent appealed only two matters to the Court of

Appeals: 1) the Fourth Amendment issue; and 2) whether or not respond-

ent’s pendent state claims were barred for failure to comply with the

California Torts Claims Act. The Court of Appeals affirmed the trial court’s

decision on the pendent state claims issue. Respondent did not appeal the ton

claims issue. (Pet. App. A-1 to A-7.)

2In August of 1981, Dr. O’Connor and Mr. Friday believed the

computer was hospital property donated to the instituuion by a computer

distributor (J.A. 30. 3§. 49-50. )

4

weeks vacation commencing on Friday, July 31, 1981. Dr.

O’Connor confirmed the requesi in a memo which further

directed Dr. Ortega to remain off hospital grounds unless he

had Dr. O’Connor’s written approval to return. (J.A. 8.) On

Friday, August 14, 1981, Dr. O'Connor ordered Dr. Ortega by

letter to go on administrative leave with pay because the

investigation was incomplete. (J.A. 9.)

Shortly after the July 30, 1981 meeting with Dr. Ortega,

Dr. O’Connor selected three hospital personnel to investigate

the charges against Dr. Ortega. They included an accountant

(Mr. Arnold), a physician (Dr. Laskay), and a hospital peace

officer attached to security service (Mr. Stratton). (J.A. 34, 48,

62-63.) Mr. Friday directed the investigative team. As part of

the investigation he authorized entry into the office to have state

property identified and secured, including residents’ files. (J.A.

50-51, 58-59.) Further justification for the entry was based on

a report to Dr. O’Connor that Dr. Ortega had returned to

hospital grounds and removed the computer in question from

the hospital to his home during the weekend of Augusi 15th

and 16th. Dr. O’Connor was concerned that a theft of state

property may have occurred. (J.A. 35-36.)

Sometime after the weekend the computer was removed,

and in the continuing course of the investigation, Dr. Ortega’s

office door was unlocked, his office entered, and its contents

inventoried.4

Oa April 10, 1984, cross-motions for summary judgment

were made in the District Court by petitioners and respondent.

The District Court granted petitioners’ motion for summary

judgment on all issues raised, and denied respondent’s motion

in its entirety. The District Court found the administrative

search reasonable citing the three-prong test raised in Chenkin

v. Bellevue Hosp. Ctr. N.Y.C., Etc., 479 F.Supp. 207 (S.D. N.Y.

1979). It found there was a public necessity to secure the office,

particularly when the computer had been removed. It found the

search efficacious since state property was secured and the

contents of the office were re:noved so that the office could be

3 The Court of Appeals implies that Dr. O'Connor was aware that Dr.

Ortega removed the computer to his home on weekends This is in direct

conflict with testimony of petitioners O'Connor and Friday. Each denied such

knowledge until mid-August 1981. (J.A. 18-19. 35-36. )

4 See footnote $ for a description of the inventory

5

used by another employee. It also found the degree of intrusion

in the seizure of the personal effects was minimized by the fact

that plaintiff could have secured his effects but chose not to do

so. (J.A. 22-25.)

The Court of Appeals reversed the decision of the tral

court and found that Dr. Ortega had a reasonable expectation

of privacy in his office which society was prepared to accept and

protect as reasonable. (764 F.2d 703 at p. 705.) The Court of

Appeals held that Dr. Ortega had a great expectation of privacy

in his office since his name was on the door, the office was kept

locked, and he believed he had the only key. The office was also

likely to contain sensitive and confidential information about

Ortega’s patiznts as well as personzel files. (Jd., at 706.) The

court further found that Napa had never instituted a general

inspection policy which might have defeated Dr. Ortega’s

expectation of privacy. (Jd., at 706-707.) The Court of Appeals

reversed the decision for the petitioners, granted judgment to

respondent, and remanded to the trial court only on the issue of

damages. (Jd., at 707.)

SUMMARY OF ARGUMENT

Respondent has failed to identify a constitutional night

cognizable under 42 U.S.C. § 1983 in bringing this action

against petitioners, officials and administrators of Napa State

Hospital as a result of their authorization for the entry and

inventory of respondent’s office in the course of an adminis-

trative investigation into the latter’s work-related conduct.

Identification of such a right is 2 necessary first step in any

§ 1983 action. (Baker v. McCollan, 443 U.S. 137, 140 (1979);

Martinez v. California 444 U.S. 277, 284 (1980).)

Petitioners submit neither entry into nor inventory of

respondent’s office in the course of their supervision and

investigation of respondent was conduct within the con-

templation of Fourth Amendment protection. Although the

scope of the Fourth Amendment extends to one’s office, the

“practical realities involved in the administration of a govern-

ment office” ( Connick v. Myers, 461 U.S. 138, 154 (1983)) as

well as considerations of social costs (Bush v. Lucas, 462 U.S.

6

367 (1983); Bishop v. Wood, 426 U.S. 341 (1976)) foreclose

Fourth Amendmer* applicability to government’s entry and

inventory of its employee’s office for supervision or adminis-

trative investigation purposes.

Moreover, a public employee can lay no claim to a

legitimate expectation of privacy in the office in such a context

which society would accept as reasonable. Federal decisional

law is virtually unanimous in its recognition that such govern-

mental action is necessary and reasonable and intrudes upon no

reasonable expectation of employee privacy.

Assuming, arguendo, the entry and inventory of respond-

ent’s office was subject to Fourth Amendment protection, the

action of petitioners was reasonable and did not constitute an

unreasonable search. Significant governmental needs of

efficient operation through effective supervision, employee dis-

cipline, and preservation of informality in the employment

relationship, when balanced against a minimal privacy interest

of the employee, justify only a greatly reduced standard of

Fourth Amendment protection. Warrant, probable cause, and

reasonable suspicion standards which apply in the contexts of

the traditional criminal search or the business/premises in-

spection are not relevant here. Instead, such governmental

action is reasonable when based upon concern for an employ-

ee’s work-related activity. Finally, petitioners submit the entry

and inventory of respondent's office was reasonable and not

actionable under § 1983.

-

ARGUMENT

NerrHer Entry IntTO RESPONDENT'S

GOVERNMENT OFFICE Nor INVENTORY

Or Irs Contents In THE Course OF

PETITIONERS’ ADMINISTRATIVE

INVESTIGATION INTO RESPONDENT’S

EMPLOYMENT ACTIVITY VIOLATED

RESPONDENT’S Crvit RIGHTS UNDER

42 U.S.C. Secrion 1983

A. At The Threshold, Respondent Has Not Identified A Con-

stitutional Or Other Right Cognizable Under 42 U.S.C.

Section 1983

The legislative history of § 1983 demonstrates that it was

intended to “[create] a species of tort iiability” in favor of

persons who are deprived of “rights, privileges or immunities

secured” to them by the Constitution. (Carey v. Piphus, 435

U.S. 247, 253 (1978); Imbler v. Pachtman, 424 U.S. 409, 417

(1976); Mitchum v. Foster, 407 U.S. 225, 238-242 (1972);

Monroe v. Pape, 365 U.S. 167, 172-183 (1961).)

The Court, in Baker v. McCollan, 443 U.S. 137, 140

(1979), reiterated the fundamental principle concerning any 42

U.S.C. § 1983 action that before liability under the statute

“can be meaningfully explored, it is necessary to isolate

the precise constitutional violation . . . charged. For § 1983

imposes civil liability only upon one

‘who, under color of any statute, ordinance, regu-

lation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws... .’

(42 U.S.C., § 1983.)

The first inquiry in any § 1983 suit, therefore, is whether

the plaintiff has been deprived of a right ‘secured by the

Constitution and laws.’”” [Onginal emphasis. }

8

The Court hastened to observe that identificatios of a

constitutional right allegedly infringed in a pacticular case is a

necessary and initial step in a § 1983 suit. (Martinez v.

California, 444 U.S. 277, 284 (1980); Baker v. McCollar,

supra, 443 U.S. 137, 140 (1979); Paul v. Davis, 424 U.S. 693,

700-701 (1976).) The following analysis of this necessary first

step process demonstrates respondent has not established a

viable claim under § 1983, because he has failed to identify a

right subject to Fourth Amendment protection which was

iniringed when officials of the government agency employing

him authorized and conducted the entry and inventory of his

assigned government office in the course of its administrative

investigation into respondent’s management practices and other

work-reiated conduct.

B. The Entry Of Respondent’s Office And Inventory Of Its

Contents Were Not Intrusions For Fourth Amendment

Purposes

Petitioners, at the threshold of their Fourth Amendment

analysis, tender for the Court’s consideration the specitic ques-

tion of whether the Fourth Amendment applies to a govern-

ment’s administrative inventory of the contents of an office

assigned to its employee in the course ot the agency’s adminis-

trative investigation into the employee’s work-related conduct.

In making their initial submission that the Fourth Amend-

ment does not apply 1 such a context, petitioners are mindful

that the Court has applied Fourth Amendment guarantees

* Various terminology has been used in this case to characterize the

coniact made with the contents of respondent's office. In the Petition for Writ

of Certiorani, peticioners, in presenting the question, described the activity as

an “inventory of papers.” The opinion of the Court of Appeals states

“investigating Officials attempted to sort through the items... took some for

use in the Ongoing investigation... and ... removed the items from the

office for storage in a special locked area, where they were available for

[respondent] to pick them up.” (764 F.2d at p. 704: see also Appendix to

Peution for Wnt of Certorari.) Both petitioner O’Connor, the Executive

Director of Napa State Hospital, who authorized the investigation (J.A. 37.)

and petitioner Friday, Business Manager of the hospital, who oversaw the

investigation (J.A. 48-50.) testified their purpose was to identify and separate

state property from personal, and to maintain access to government records.

The official assigned to the task described the attempted separation as

impossible and boxed the materials. (J.A. 61-63.) For purposes of con-

istency and simplicity, petitioners continue to refer to the activity as an

“inventory.”

9

beyond the “paradigmatic entry” into a home by police officers

in search of evidence for the prosecution of crime. ( Michigan v.

Tyler, 436 U.S. 499, 504 (1978).) Protection of the Fourth

Amendment extends to an office,® as well as business premises

when searched or inspected to insure compliance with fire,

health, and safety statutes and regulations.? As recognized in

Oliver v. United States, 466 U.S. 170, 178, fn. 8, (1984), such

protection is based upon “societal expectations that have deep

roots in the history of the Amendment.”

Furthermore, petitioners recognize the relevant corollary

that Fourth Amendment strictures apply to state officials,

whether criminal or civil, in safeguarding reasonable privacy

interests against arbitrary governmental invasion. (New Jersey

v. T.L.0., 469 US. , 83 L.Ed.2d 720, 730, 105 S.Ct. 733

(1985).)

The Court, however, has addressed the intitial question of

Fourth Amendment applicability in varying contexts,® and the

issue is ripe for determination here.

The “practical realities involved in the administration of a

government office” (Connick v. Myers, 461 U.S. 138, 154

€ in Mancusi v. DeForte, 392 U.S. 364 (1968), a warrantless search by

criminal! authorities of a union official’s office for business records during the

pendency of indictment proceedings was held to be in violation of the Fourth

Amendment.

7 Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-313 (1978) (holding a

warrant is required for OSHA inspections ); Camara v. Municipal Court, 387

U.S. 523, 528 (1967) (an inspection for housing code violation requires a

warrant issued upon a standard less stringent than probable cause); See v.

City of Seattle, 387 U.S. 541 (1967) applying the rationale of Camara to a

safety inspection of business premises.

® See, e.g., New Jersey v. T.L.O., supra, 83 L.Ed.2d 720, 729 (1985)

(holding Fourth Amendment applies to a public school official’s search of a

student’s handbag); Hudson v. Palmer, 468 U.S. 517, 82 L.Ed.2d 393, 402-

403, 104 S.Ct. 3194 (1984) (holding Fourth Amendment protection does not

apply “within t. confines of the prison cell”); Wyman v. James, 400 U.S

309, 316-318 (1971) (implying a social worker’s home visitation to verify

conditions justifying financial assistance under New York’s AFDC program !s

not a traditional search within the contemplation of the Fourth Amendment).

See also Oliver v. United States, 466 U.S. 170, 176-177 (1984) (reaffirming

Fourth Amendment protection does not apply to “open fields”).

10

(1983) )® must be considered at this threshold juncture against

a public employee’s claim of violation of civil nghts. Although a

public employee does not relinquish consitutional rights by

virtue of public employment ( Pickering v. Board of Education,

391 U.S. 563 (1968) ), the Court has carefully noted that in all

of Pickering’s progeny there is reflected “both the historical

evolvement of the nghts of public employees, and the common-

sense realization that government offices could not function if

every employment decision becomes a constitutional matter.”'°

Over one hundred years ago, the Court recognized govern-

ment’s proper purpose in “promot|[ing] efficiency and integrity

in the discharge of official duties, and to maintain proper

discipline in the public service” Ex parte Curtis, 106 U.S. 371,

373 (1882), a purpose which Justice Powell noted in his

separate opinion in Arnett v. Kennedy, 416 U.S. 134, 168

(1974):

“To this end, the Government, as an employer, must have

wide discretion and contro] over the management of its

personnel and internal affairs. This includes the pre-

rogative to remove employees whose conduct hinders

efficient operation and to do so with dispatch. Prolonged

retention of a disruptive or otherwise unsatisfactory em-

ployee can adversely affect discipline and morale in the

work place, foster disharmony, and ultimately impair the

efficiency of an office or agency.”

® Although the Court .. Connick engaged in a balancing of interests

between First Amendment freedoms and a government employer’s need to

provide efficient public services, the majority opinion recognized there was

“much force” to the position that a deputy district attorney’s distribution of

her questionnaire soliciting views on office morale and other problems

following a change in her duty assignment was “wholly without First

Amendment protection.” (/Jd., at p. 143.)

10 Connick v. Myers, supra, 461 U.S. 138, 143 (1983). See also Perry v.

Sindermann, 408 U.S. 593, 598 (1972); Mi. Healtiy City Board of Ed. v.

Doyle, 429 U.S. 274, 284 (1977); Givhan v. Western Line Consolidated School

District, 439 U.S. 410, 414 (1979).

ll

The case of Bush v. Lucas, 462 U.S. 367 (1983) dealt with

the related context of a federal employee suing the federal

government directly under the First Amendment"' for a retali-

atory demotion occasioned by the employee’s public criticism of

his agency. In refusing to create a new judicial damage remedy,

the opinion of Justice Stevens for a unanimous Court identified

significant policy considerations which apply with much force to

the instant action:

“Given the history of the development of civil service

remedies and the »mprehensive nature of the remedies

currently available, it is clear that the question we confront

today is quite different from the typical remedial issue

confronted by a common-law court. The question is not

what remedy the court should provide for a wrong that

would otherwise go unredressed. It is whether an elaborate

remedial system that has been constructed step by step,

with careful attenuon to conflicting policy considerations,

should be augmented by the creation of a new judicial

remedy for the constitutional violation at issue. That ques-

tion obviously cannot be answered simply by noting that

existing remedies do not provide complete relief for the

plaintiff. The policy judgment should be informed by a

thorough understanding of the existing regulatory structure

and the respective costs and benefits that would result from

the addition of another remedy for violations of employees’

First Amendment r~hts.

The costs associated with the review of disciplinary

decisions are already significant—not only in monetary

terms, but also in the time and energy of managerial

personnel who must defend their decisions. Respondent

argues that supervisory personnel are already more hesi-

tant than they should be in administering discipline, be-

cause the review that ensues inevitably makes the perform-

ance of their regular duties more difficult. Bnef for Re-

spondent 37-41. Whether or not this assessment is accu-

11 The Court noted, 462 U.S. at 374-375, the action as akin to one

brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), which is, of course, the federal analogue of a § 1983 action. The

Court assumed, without deciding. a First Amendment violation. (/d., at

p. 372.)

12

rate, it is quite probable that if management personnel face

the added risk of personal liability for decisions that they

believe to be a correct response to improper criticism of the

agency, they would be deterred from imposing discipline in

future cases. In all events, Congress is in a far better

position than a court to evaluate the impact of a new

species of litigation between federal employees on the

efficiency of the civil service. Not only has Congress

developed considerable familiarity with balancing govern-

mental efficiency and the rights of employees, but it also

may inform itself through factfinding procedures such as

hearings that are not available to the courts.”'?

The relevance of Bush to this case is the Court’s recognition

of the significant social costs’? that would attend a public

employee’s option to convert a work-related dispute or griev-

ance into a constitutional tort. Such social costs are unaccep-

table, as they ultimately prevent government from fulfilling its

public trust.

Any analysis of social costs must be placed in context.

(Connick v. Myers, supra, 461 U.S. 138, 153-154 (1983).) In

this case, we are concerned with government’s duties to oversee

its employees, insure its mandated service is performed, and

investigate possible misconduct relevant to the employee's

performance of his duties. Specifically, we deal with govern-

ment’s entry into its employee’s office and inventory of office

contents in the course of an administrative investigation into

concerns of work-related wrongdoing. An entry into and in-

ventory of an employee’s government-assigned office for such a

purpose do not constitute a “search in the traditional criminal

law context.” (See Wyman v. James, supra, 400 U.S. 309, 317

(1971).) In Wyman, the Court reasoned that a social worker’s

home visitation for the purpose of monitoring health and

decency conditions and verifying justification for public finan-

12 Jd., at pages 388-389. Petitioners realize that the result in Bush was

substantially bas:d upon the existence of comprehensive legislation of

Congress regulating civil service employment, a factor “counselling hesita-

tion” in the creation of a new judicial remedy. California also has enacted

such a scheme. (See Cal. Gov. Code, §§ 19570-88, set forth in attached

Appendix. )

13 The issue of social costs is discussed in greater detail in Part D, infra

13

cial assistance was not a search “in the Fourth Amendment

meaning of that term.” (Jbid.) It would defy reason and logic

to hold that although government’s visitation of a welfare

recipient’s home does not implicate Fourth Amendment protec-

tion, administrators of the social age cy providing the benefit

may not enter and inspect its employ _’s office to investigate or

monitor performance without Fourth Amendment compliance.

Yet, both respondent’s position and the reasoning of the

opinion of the Court of Appeals in this case call for such a

result.

Office entry and inventory by administrators of a govern-

ment agency for the purpose of supervising its employee and/or

investigating work-related conduct is not a criminal in-

vestigation and should not be equated with one. Where the

government employer does not act in aid of a pending criminal

proceeding, it must have the same right to oversee its employees

and investigate job performance as any private employer would

have. If government’s access to its own records and offices for

the efficient conduct of its business is predicated upon Fourth

Amendment pre-justification standards, provision of public

services will truly suffer. Even Mancusi v. DeForte, supra, 392

U.S. 364, 369 (1968), in applying Fourth Amendment protec-

tion to a union official’s shared office, in the context of a search

of business records by criminal authorities during grand jury

proceedings, recognized the reasonable assumption that such

records were subject to the dominion of DeForte’s “union

superiors,” or “union higher-ups.”

In the context of supervision and administration, a govern-

ment agency’s access to the offices of its employees, and the

contents of those offices, cannot be conditioned upon pnor

compliance with standards of Fourth Amendment protection.

In this regard, there is a parity of reasoning between govern-

ment’s need to function through effective supervision of its

employees and the rationale expressed in the business in-

spection cases that hold voluntary entry into an industry

“closely regulated” by government removes reasonable ex-

14

pectations of privacy related to the object of regulation.

(United States v. Biswell, 406 U.S. 311 (1972); Colonnade

Catering Corp. v. United States, 397 U.S. 72 (1970).)*4

Government offices and their contents play a foreseeable

and integral part in government’s very essence, i.e., service to

the public, and it is unreasonable for a government employee to

claim Fourth Amendment thresholds must be successfully

negotiated by administrative officials before they may gain

access to these places for supervisory purposes. Justice Powell,

in writing for the Court in Davis v. Scherer, 468 U.S. 183, 82

L.Ed.2d 139, 150, 104 S.Ct. 3012 (1984), wisely rejected a

government employee’s § 1983 claim where it, “. . . if adopted,

would disrupt the balance that our cases strike between the

interests in vindications of citizens’ constitutional nghts and in

public officials’ effective performance of their duties.” As Justice

Stevens cogently observed for the Court in Bishop v. Wood, 426

U.S. 341, 349 (1976), denying a § 1983 claim brought by a

government employee:

“The federal court is not the appropriate forum in

which to review the multitude of personnel decisions that

are made daily by public agencies.”

Petitioners respectfully submit that the Fourth Amendment

does not apply to an entry into and inventory of a public

employee’s government-assigned office by agency adminis-

trators in the context of supervision or administrative in-

vestigation into work-related conduct.

C. No Privacy Expectation That Society Is Prepared To

Recognize As Reasonable Was Breached By Such An Entry

And Inventory

In the course of a determination of whether Fourth

Amendment protection applies in a given context, or following

such a determination, the Court has further considered whether

a claimed intrusion breached a legitimate expectation of pri-

vacy. (Hudson v. Palmer, supra, 468 U.S. 517, 82 L.Ed.2d 393,

14 See Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978) for the

Court’s interpretation of Biswell and Colonnade. Indeed, government's needs

in this case are even stronger than in the business inspection context

15

400-404, 104 S.Ct 3194 (1984); Wyman v. James, supra, 400

U.S. 309, 318-326 (1971).) (See also Oliver v. United States,

supra, 466 U.S. 170, 177 (1984).)

The Court stated in Oliver:

“Since Katz v. United States, 389 U.S. 347, 19 L.Ed.2d

576, 88 S.Ct. 507 (1967), the touchstone of [Fourth]

Amendment analysis has been the question whether a

person has a ‘constitutionally protected reasonable ex-

pectation of privacy.’ 389 U.S., at 360, 19 L.Ed.2d 576, 88

S.Ct. 507 (Harlan, J., concurring). The Amendment does

not protect the merely subjective expectation of privacy,

but only ‘those expectations that society is prepared to

recognize as “reasonable’” Jd. at 361, 19 L.Ed.2d 576, 88

S.Ct. 507. See also, Smith v. Maryland, 442 U.S. 735, 740-

741, 61 L.Ed.2d 220, 99 S.Ct. 2577 (1979).” (Oliver v.

United States, supra, 466 U.S. at 170, 177 (1984).)

[ Original emphasis. ]

The Court in United States v. Jacobsen, 466 U.S. 109, 122

(1984) explained the critical difference between subjective

expection of privacy and a reasonable privacy interest:

“The concept of an interest in privacy that society is

prepared to recognize as reasonable is, by its very nature,

critically different from the mere expectation, however well

justified, that certain facts will not come to the attention of

the authorities.”

The Court in Oliver further stressed that a privacy interest

must be “‘ligitimate”:

“The test of legitimacy is not whether the individual

chooses to conceal assertedly ‘private’ activity. Rather, the

correct inquiry is whether the government’s intrusion in-

fringes upon the personal! and societal values protected by

the Fourth Amendment.” ( Oliver v. United States, supra,

466 U.S. 170, 182-183 (1984) [fn. omitted}. )

16

A public employee’s right of privacy in traditional Fourth

Amendment terms is fundamentally incompatible with the need

of agency officials and supervisors to have access to the offices

of public employees, and their contents, to monitor perform-

ance, administratively investigate work-related conduct, or

merely to retrieve government records. Government’s need in

this regard is obvious, reasonable, and indispensible to its

efficiency. Further, such procedures and purposes are as reason-

ably foreseeable to a public employee as the common practice

of a fellow employee’s entry of an office to obtain a file or piece

of correspondence, or borrow a paper clip. Such practical

realities of office life render a privacy interest of the type

respondent asserts unrealistic and unreasonable from a societal

point of view. Society has no interest in government offices,

desks, and file cabinets becoming citadels of inefficiency. Impo-

sition of Fourth Amendment strictures ir this context would

unduly disrupt the critical governmental functions noted above

and serve no legiumate expectation of employee privacy.

Accordingly, the balance must be struck in favor of govern-

ment’s need to efficiently conduct its business.

At this juncture, it would be appropriate to review the

federal circuit and district court opinions generally concerning

the Fourth Amendment’s application to a search of a public

employee’s office. The cases are not uniform in either factual

context or search purpose, but all appear to recognize, in a

balancing context, government’s right as an employer to search

its employee’s office in th course of supervision or to in-

vestigate possible employee work-related misconduct.

In the initial case of United States v. Blok, 188 F.2d 1019

(CA D.C. 1951), police, without a warrant but with supervisor

consent, searched a desk assigned to a government public

employee’s exclusive use in connection with a larceny in-

vestigation. It was held the search violated the Fourth Amend-

ment, but the Court of Appeals observed in a consistently

followed caveat:

“No doubt a search of [the desk] without her consent

would have been reasonable if made by some people in

some circumstances. Her official superiors might reasonably

have searched the desk for official property needed for

17

official use. But as the Municipal Court of Appeals said, the

search that was made was not ‘an inspection or search by

her superiors. It was precisely the kind of search by

policemen for evidence of crime against which the con-

stitutional prohibition was directed.’” (United States v.

Blok, supra, 188 F.2d 1019, at 1021.) (Emphasis added. )

In United States v. Collins, 349 F.2d 863 (CA2 1965),

criminal authorities investigating jewel theft searched the jacket

of a custom official in a government office and extracted

evidence used for a criminal conviction. The Court of Appeals,

in citing the above and oft-quoted language of Blok concluded:

“We hold, then, that, in the circumstances of this case,

the search by government agents who were investigating

the theft of property connected with the defendant's

employment, of defendant’s work jacket hanging in a

public area in the Government office where he was em-

ployed, was reasonable within the intendment of the

Fourth Amendment and, therefore, not unconstitutional.”

( United v. Collins, 349 F.2d 863, 868 (CA2 1965).)

Collins, while relying on Blok’s reasoning, rendered a

different result as the theft of jewels was connected with

employment. The result of Collins, predating Katz v. United

States, 389 U.S. 347 (1967), is of no force, but its adherence in

principle to the Blok caveat is appropriate.

United States v. Nasser, 476 F.2d 1111 (CA7 1973)

concerned criminal prosecution of an IRS attorney for conflict

of interest. Evidence produced by electronic surveillance during

the period of employment, and before Karz, was held not to be

in violation of the Fourth Amendment on the rationale that a

warrantless police search of the work area for evidence of work-

related crime was not unreasonable. ( United States v. Nasser,

supra, at 1123.)

United States v. Speights, 557 F.2d 362 (CA3 1977)

involved a criminal investigation into a police officer’s posses-

sion of an illegal weapon. The defendant’s police locker was

— ee ee

18

searched in the process. The Court of Appeals, struggling to

distinguish no less than three'S other “locker” cases upholding

searches, pointed to special circumstances indicating agency

acquiescense to a subjective expectation of privacy and ruled

the search illegal. The criminal nature of the investigation in

Speights distinguishes that case from the case at bar.

Gillard v. Schmidt. 579 F.2d 825 (CA3 1978) heavily

relied upon by both the Court of Appeais'® in this case and

respondent, is in fact contrary to respondent’s cause. Indeed, it

is consistent with the general principle of Blok, Collins, and

Nasser that a public employer may scarch an employee’s office

when the search is “work-related.” In Gillard, a Board of

Education member was offended by his depiction in a pub-

lished political cartoon drawn by a public school counselor. The

board member searched the counselor’s desk to verify his

involvement. While recognizing the counselor’s expectation of

privacy was breached and a 1983 claim was stated, the Court of

Appeals expressly implied the search would have been proper if

“work-related” and not merely the product of personal animus

of a nonemployer.

“Because the record contains no evidence that

Schmidt was acting to recover government property, Or

was undertaking as an employer to monitor Gillard’s

18 United States v. Bunkers, 521 F.2d 1217 (CA9 1975), cert. den., 423

U.S. 989 upheld a warrantless criminal search for stolen C.O.D. parcels of a

postal employee’s locker. Shaffer v. Field, 339 F.Supp. 997 (C.D. Cal. 1972),

aff'd. 484 F.2d 1196 (CA9 1973), upheld a warrantless criminal search of the

locker of a deputy sheriff. United States v. Donato, 269 F.Supp. 921 ( E.D.

Pa. 1967) aff'd. 379 F.2d 288 (CA3 1967), upheld a warrantless search of a

U.S. Mint employee’s locker. The Speights court reasoned the results were

correct in Bunkers, Shaffer, and Donato, because each involved either a

regulation or practice of such a search thereby providing notice. Notwith-

standing Speights apparent willingness to accept the risk of government by

proclamation, it is clear that Speights must be distinguished from this case as

the foreseeable and necessary practice of government supervision of its

employees provides the “notice” that Speights would require.

16 The opinion of the Court of Appeals in this case fails to analyze the

critical issue of whether respondent's subjective expectation of privacy was

one which society would recognize as reasonable. Both the Ninth Circuit and

respondent place mistaken reliance upon subjective privacy factors ( respond-

ent’s seventeen year assignment to one office, respondent's faulty assumption

he possessed the only key to his office, and respondent's utilization of

government office space for storage of private practice patent records) in

determining the question of whether his privacy expection was reasonable by

society's standards. Gillard presents a similar defect in analysis.

19

performance of his official duties, we have no occasion to

determine the force of precedents which indicate that a

public employer may invade an employee’s privacy when

the invasion is ‘work-related.’ E.g., United States v. Nasser,

476 F.2d 1111, 1123 (7th Cir. 1973) (IRS’s search of

employee’s office to determine employee’s proper work

performance upheld); see United States v. Hagarty, 388

F.2d 713 (7th Cir. 1968) (search of government employ-

ee’s office to secure criminal evidence violated fourth

amendment. )” (Gillard v. Schmidt, supra, 579 F.2d at

829, fn. 1.)

The latest relevant circuit opinion rejects a federal employ-

ee’s common-law action against his supervisors stemming from

their search and inventory of his desk. ( Williams v. Collins,

728 F.2d 721 (CAS 1984).) At 728 F.2d 728, the Court of

Appeals notes:

“It is by no means certain that Williams had a reasonable

expectation of privacy in his government-furnished desk, in

relation to the possibility of his supervisors entering the

desk as part of an investigation of Williams’ job perform-

ance or as part of an office inventory.” [ Citations omitted. |

The federal district court opinions concerning this issue

overwhelmingly support the entry and inventory in this case.'”

When the pertinent opinions of all the circuit courts of

appeals and district courts are parsed, perhaps the most com-

pelling analysis is found in Allen v. City of Marietta, 601

F.Supp. 482, 491 (N.D. Ga. 1985), to which petitioners fully

subscribe:

“This court believes that the theme underlying all of

the cases discussing searches of government employees can

be summarized as follows. Government employees do not

surrender their fourth amendment rights merely because

they go to work for the government. They have as much of

17 Allen v. City of Marietta, 60\ F.Supp. 482, 490-491 (N.D. Ga. 1985);

Chocallo v. Bureau of Hearings and Appeals, SSA, 548 F.Supp. 1349, 1364

(E.D. Pa 1982); Chenkin v. Bellevue Hasp. Ctr., N.Y.C., Etc., 479 F.Supp.

207. 213-215 (S.D. N.Y. 1979); Jafree v. Scott, 372 F.Supp. 264, 273-274

(N.D. ILL.. E.D. 1974); United States v. Kahan, 350 F.Supp. 784, 791 (S.D

N.Y. 1972)

20

a right to be free from warrantless government searches as

any other citizens. At the same time, however, the govern-

ment has the same right as any private employer to oversee

its employees and investigate potential misconduct relevant

to the employee’s performance of his duties. Thus, a

government employee’s superiors might legitimately search

her desk or her locker or her jacket where the purpose of

the search is not to gather evidence of a crime unrelated to

the employee’s performance of her duties but is rather

undertaken for the proprietary purpose of preventing

future damage to the agency’s ability to discharge effec-

tively its statutory responsibilities. Because the government

as employer has the same rights to discover and prevent

employee misconduct relevant to the employee’s perform-

ance of her duties, the employee cannot really claim a

legitimate expectation of privacy from searches of that

nature.”

In sum, petitioners submit their conduct violated no pm-

vacy expectation of respondent that society would accept as

reasonable.

D. Excessive Social Costs Would Attend Fourth Amendment

Application To Government’s Entry And Inventory Of Its

Employee’s Office For Work-Related Purposes

As petitioners have recognized, Part B, supra, the Court

has expressed concern over the significant social costs that

would result from the conversion of a public employee’s work-

related dispute into a constitutional or other federal tort. ( Bush

v. Lucas, 462 U.S. 367 (1983); Connick v. Meyers, 461 U.S. 138

(1983).) Certainly, potential proliferation of § 1983 and Bivens

litigation by disgruntled persons subject to the administrative

process has concerned the Court. ( Butz v. Economou, 438 US.

478, 515 (1978).) Immunity principles have been fashioned so

as to prevent such a prospect and permit government officials to

perform their jobs. (Harlow v. Fitzgerald, 457 U.S. 800, 816-

817 (1982); Imbler v. Pachtman, 424 U.S. 409, 426-428

(1976).)

21

Just as the role of the prosecutor is likely to produce “with

some frequency retaliatory suits by angry defendants,” Butz,

supra, 438 U.S. at 510, so the obstinate or vengeful public

employee may easily convert an office inventory or inspection

for records into an ascription of supervisorial malice and

constitutional wrongdoing.

In the absence of a threshold barrier to such lawsuits,

government officials will become ensnared in frivolous and

time-consuming actions. Professor P. Schuck, who has exhaust-

ively written on the subject of social costs attending suits against

public servants, notes the probable responses of all officials to

the threat of litigation as inaction, formalism, and changes in

the character of decisions. (P. Schuck, Suing Government

(1983) at pp. 59-81.)

Recognition of this action as viable under § 1983 would

create intolerable burdens in the administration of a govern-

ment office. Supervision would become a formalized product of

Fourth Amendment prejustification standards. Agency in-

efficiency due to administrative paralysis would ultimately

impair provision of government services. A § 1983 action could

be triggered by an intended beneficiary suffering such denial or

impairment of the service. Officials such as petitioners herein '®

would be placed on the horns of a sinister civil rights dilemma.

Inadequate supervision or administration might lead to person-

al liability on the part of the official in favor of the intended

beneficiary denied the needed service, whereas a proper level of

public employee supervision by the same official might produce

claims such as respondent’s herein. Such a prospect must be

avoided.

As the Court has noted in the past, such “practical realities

involved in the administration of a government office” must be

considered against a public employee’s § 1983 claim. ( Connick

v. Myers, supra, 461 U.S. 138, 154 (1983); see also, Bush v.

Lucas, supra, 462 U.S. 367 (1983).) Simply put, § 1983 is not

the appropriate vehicle to review “the multitude of personnel

1®See Youngberg v. Romeo, 457 U.S. 307 (1982), recognizing con-

stitutional rights of developmentally disabled persons in state institutions to

reasonable conditions of confinement and care.

22

decisions that are made daily by public agencies.” ( Bishop v.

Wood, supra, 426 U.S. 341, 349 (1976).) The social costs of

recognizing respondent’s claim as viable under § 1983 are too

great for society to bear.

Petitioners respectfully submit that based upon sound

considerations of Fourth Amendment tradition and principles,

as well as a considered inquiry into the excessive social costs

that would attend extension of Four:h Amendment protection

to government’s entry and inventory of its employee’s office for

administrative purposes, respondent has failed to state a claim

cognizable under the Federal Civil Rights Act (42 US.C.,

§ 1983).

E. Assuming, Arguendo, Such An Entry And Inventory Was

Subject To Fourth Amendment Protection, The Action Of

Petitioners Was Reasonable Under An Appropriate Balanc-

ing Test

Assuming, arguendo, the entry and inventory of respond-

ent’s office was the type of intrusion which would invoke some

level of Fourth Amendment protection on the rationale that an

employee, whether in the public or private sector, brings

personal items to the work place, such action was reasonable

when viewed in “context” and “balancing the need to search

against the invasion which the search entail[ed].” ( Camara v.

Municipal Court, supra, 387 U.S. 523, 536-537 (1967); see also

New Jersey v. T.L.O., supra, 469 U.S. _, 83 L.Ed.2d 720, 731-

735, 105 S.Ct. 733 (1985).)

In New Jersey v. T.L.O., the Court, in upholding a school

Official’s search of a student’s purse, balanced the reasonable

privacy interests of a public schoo] student against the needs of

school teachers and administrators to (1) maintain school

discipline and (2) preserve informality of the student-teacher

relationship. Similarly, the needs of government to (1) operate

efficiently and effectively through proper supervision and ad-

ministration of its employees, (2) maintain discipline in the

workplace, and (3) preserve the informality of the employer-

employee relationship, dictate the reasonableness of an entry

and inventory of a public employee’s office by the employee’s

supervisors for work-related purposes.

23

Government’s needs in this type of case are even greater

than the needs recognized in New Jersey v. T.L.O., for it is both

foreseeable and reasonable that government have access to its

employee’s desks and file cabinets for the very purpose of

conducting its business. Files, correspondence and other work-

related materials are contained therein and must be retrieved,

reviewed, or simply reassigned. School officials, although unde-

niably having an interest in securing weapons or contraband

from a student’s purse, do not rely upon access to the contents

of such a container to conduct government business.

Furthermore, the need of government to maintain access to

the offices of its employees for work-related purposes is reason-

ably foreseeable to every public employee. The employee's

option of not bringing to the workplace contraband or highly

personal items is much more reasonable than imposing strict

Fourth Amendment standards upon governmental access to its

employees’ offices.

The question then becomes how should we strike the

balance between any legitimate expectation of a public employ-

ee’s privacy and the government employer’s legitimate needs

noted above. (See New Jersey v. T.L.O., supra, 469 U.S. at ,

83 L.Ed.2d at 733, 105 S.Ct. 733 (1985).) In the words of the

Court in New Jersey v. T.L.O., “ [t]he warrant requirement, in

particular, is unsuited . . .” to the context of a governmental

inventory of an office for work-related purposes. (Jd.) Such a

requirement would “unduly interfere” with government’s abili-

ty to function. (Jd.) Moreover, the warrant process would

“frustrate the governmental purpose behind the search.” (See

Camara v. Municipal Court, supra, at 387 U.S. 532-533

(1967).)

The context of governmental supervision of its employees

for work-related purposes renders the “probable cause”

requirement and its accepted reducible levels'® irrelevant to an

19 Such as “reasonable suspicion” (e.g., Terry v. Ohio, 392 U.S. 1 (1968);

United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

24

inventory of a public employee’s office, because government’s

purpose is neither to detect crime (or its evidence) nor to

enforce business inspection or regulation statutes. ?°

Rather, petitioners submit legality of such an intrusion

should be based simply upon its reasonableness in light of all

surrounding circumstances. (New Jersey v. T.L.O., supra, 469

U.S. at , 83 L.Ed.2d at 734, 105 S.Ct. 733 (1985).) In lieu of

the somewhat formalized “twofold inquiry” applied in New

Jersey v. T.L.O.,2' petitioners suggest an office entry and

inventory in the context under present scrutiny be deemed

reasonable if conducted for a work-related concern. Such a test

permits the involved government officials to identify the con-

cern without judicial evaluation of the relative importance of

various employment standards or rules. Such a test will spare

government supervisors and administrators “the necessity of

schooling themselves in the niceties of probable cause and

permit them to regulate their conduct according to the dictates

of reason and common sense.” (New Jersey v. T.L.O., supra,

469 U.S. , 83 L.Ed.2d at 735, 105 S.Ct. 733 (1985).)

Finally, there remains the question of the legality of the

office entry and inventory in this case. It is undeniable petition-

ers had legitimate concerns regarding respondent’s work-

related conduct. Petitioners received reports of respondent’s

sexual harassment of other employees and questionable posses-

sion of a computer on state hospital grounds. Petitioners were

also concerned about respondent’s management practices.??

20 Cf. Camara v. Municipal Court, supra, 387 U.S. 523, 528 (1967):

Marshall v. Bariow’s, Inc., supra, 436 U.S. 307, 312-313 (1978).

21 The test of (1) justification for the search at inception, and (2)

reasonable scope of the search is too strict in the context of this case, as such a

standard still requires a confined pre-justification process conducive to the

purpose of illicit activity detection.

22 Respondent was eventually terminated from state employment follow-

ing an administrative hearing conducted by the State Personnel Board. An

independent hearing officer found, inter alia, respondent engaged in sexual

harassment on the job, coerced employees under his supervision to contribute

money for acquisition of a computer, and improperly placed a resident

physician under his supervision on administrative leave, all in violation of

California Government Code section 19572. (Fet. App. A-9 to A-15.)

25

After advising respondent he was under investigation for

these work-related concerns, petitioners authorized entry into

and inventory of respondent's office situated on state hospital

grounds. The Court of Appeals opinion in this case ( footnote 2 )

notes that motivation for the “search” was proper. In fact,

concerns that state records and files in the office needed to be

secured and that the matters needed investigation prompted the

inventory.

There can be no argument the purpose of the entry and

inventory was properly related to work-related activity of

respondent. This was not a “search” within the traditional

meaning of the Fourth Amendment, i.e., by police officers in

search of evidence of crime. Petitioners were not acting as

agents of prosecution authorities, and no criminal proceeding

was pending against respondent. The inventory, which con-

sisted of no more than an attempt to sort government property

from respondent's, resulted in personal items being boxed and

available for respondent’s pickup from a secured area.

It is clear that by any conceivable standard of protection

that could apply under these circumstances, the entry and

inventory of respondent’s office was reasonable and not in

violation of the Fourth Amendment. Petitioners respectfully

submit that to find their conduct violated the Fourth Amend-

ment would have a chilling effect on governmental supervision

of its employees and result in a multitude of personnel matters

being placed before federal courts in a § 1983 context, a result

to be avoided. ( Bishop v. Wood, 426 U.S. 341, 349 (1976).)

CONCLUSION

For the foregoing reasons, petitioners urge this Court to

reverse the decision of the Court of Appeals?? and determine

that neither the entry into nor inventory of respondent’s office in

the course of an administrative investigation into respondent’s

work-related activity gives rise to 42 U.S.C. § 1983 liability, as

no Fourth Amendment right is infringed thereby.

Respectfully submitted,

JOHN K. Van DE Kamp

Attorney General of the State of

California

MARVIN GOLDSMITH

Assistant Attorney General

JEFFREY T. MILLER

Deputy Attorney General

TERESA TAN

Deputy Attorney General

By: JEFFREY T. MILLER

Deputy Attorney General

Attorneys for Petitioners

23 The opinion never addresses adequacy of state remedies for due

process purposes ( Parratt v. Taylor, 451 U.S. 527 (1981), and the Parties

have never raised the issue. Were the issue presented, petitioners submit the

combination of the state’s statutory scheme for personnel actions and state

and common-law remedies would suffice. (See Bishop v. Wood, supra, at

p. 349: Davis v. Scherer, supra, 468 U.S. 183, 82 L.Ed.2d4 139. 148, 104 S.Ct.

3012, (1984).)

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APPENDIX

LAWS AND RULES GOVERNING THE

CALIFORNIA STATE CIVIL SERVICE

CHAPTER 8. Separations From Service?

Article 3. Disciplinary Proceedings

§ 19570.

As used in this article “adverse action” means dismissal,

demotion, suspension, or other disciplinary action.

§ 19571.

In conformity with this article and the board rule, adverse

action may be taken against any employee, or person whose

name appears on any employment list for any cause for

discipline specified in this article.

§ 19572.

Each of the following constitutes cause for discipline of an

employee, or person whose name appears on any employment

list:

(a) Fraud in securing appointment.

(b) Incompetency.

(c) Inefficiency.

(d) Inexcusable neglect of duty.

(e) Insubordination.

(f) Dishonesty.

(g) Drunkenness on duty.

(h) Intemperance.

(i) Addiction to the use of narcotics or habit-forming

drugs.

(j) Inexcusable absence without leave.

24 Statutory language is set forth as it existed in 1981.

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(k) Conviction of a felony or conviction of a mis-

demeanor involving moral turpitude. A plea or verdict of

guilty, or a conviction following a plea of nolo contendere,

to a charge of a felony or any offense involving moral

turpitude is deemed to be a conviction within the meaning

of this section.

(1) Immorality.

(m) Discourteous treatment of the public or other

employees.

(n) Improper political activity.

(0) Willful disobedience.

(p) Misuse of state property.

(q) Violation of this part or board rule.

(r) Violation of the prohibitions set forth in accord-

ance with Section 19990.

(s) Refusal to take and subscribe any oath or affirma-

tion which is required by law in connection with his

employment.

(t) Other failure of good behavior either during or

outside of duty hours which is of such a nature that it

Causes discredit to his agency or his employment.

(u) Any negligence, recklessness, or intentional act

which results in the death of a patient of a state hospital

serving the mentally disabled or the developmentally dis-

abled.

(v) The use during duty hours, for training or target

practice, of any material which is not authorized therefor

by the appointing power.

§ 19573.

Any employee who is or claims to be a citizen of any

foreign country or is or claims to be a dual citizen of the United

States and of any foreign country with which the United States

is at war or who has renounced his citizenship or allegiance to

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the United States or has taken an oath of allegiance or

otherwise pledged allegiance to any foreign country with which

the United States is at war or who has committed or commits

any act of disloyalty to or disrespect towards the United States

or its Flag or who does any act or thing when the United States

is engaged in war to obstruct the war effort or the defense

preparations of the United States, in addition to any other

penalties provided by law therefor, is subject to discipline under

this article.

§ 19574.

The appointing power, or any person authorized by the

appointing power, may take adverse action against an employ-

ee for one or more of the causes for discipline specified in this

article by notifying the employee of the action, pending the

service upon the employee of a written notice. Adverse action is

valid only if a written notice is served on the employee and filed

with the board not later than 15 calendar days after the

effective date of the adverse action. The notice shall be served

upon the employee either personally or by mail and shall

include: (a) a statement of the nature of the adverse action; (0)

the effective date of the action; (c) a statement of the causes

therefor; (d) a statement in ordinary and concise language of

the acts or omissions upon which the causes are based; and (¢)

a statement advising the employee of his or her night to answer

the notice and the time within which that must be done if the

answer is to constitute an appeal.

§ 19574.1.

An employee who has been served with notice of adverse

action, or an attorney admitted to the practice of law in this

state and designated by the employee, shall have the right to

inspect any documents in the possession of or under the control

of the appointing power which are relevant to the adverse

action taken and which would be admissible in evidence at a

hearing of the employee’s appeal from the adverse action. The

employee, or the designated attorney shall also have the night to

interview other employees having knowledge of the acts or

omissions upon which the adverse action was based. Interviews

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of other employees and inspection of documents shall be at

times and places reasonable for the employee and for the

appointing power.

§ 19574.5.

Pending investigation by the appointing power of accusa-

tions against an employee involving misappropriation of public

funds or property, drug addiction, mistreatment of persons in a

state institution, immorality, or acts which would constitute a

felony or a misdemeanor involving mora: turpitude, the appoin-

ting power may order the employee on leave of absence for not

to exceed 15 days. The leave may be terminated by the

appointing power by giving 48 hours’ notice in writing to the

employee.

If adverse action is not taken on or before the date such a

leave is terminated, the leave shall be with pay.

If adverse action is taken on or before the date such leave

is terminated, the adverse action may be taken retroactive to

any date on or after the date the employee went on leave.

Notwithstanding the provisions of Section 19574, the adverse

action, under such circumstances, shall be valid if written notice

is served upon the employee and filed with the board not later

than 15 calendar days after the employee is notified of the

adverse action.

§ 19575.

No later than 20 calendar days after service of the notice of

adverse action, the employee may file with the board a written

answer to the notice, which answer shall be deemed to be a

denial of all of the allegations of the notice of adverse action

not expressly admitted and a request for hearing or in-

vestigation as provided in this article. With the consent of the

board or its authorized representative an amended answer may

subsequently be filed. If the employee fails to answer within the

time specified or after answer withdraws his appeal the adverse

action taken by the appointing power shall be final. A copy of

the employee’s answer and of any amended answer shall

Promptly be given by the board to the appointing power.

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§ 19575.5.

At any time before an employee’s appeal is submitted to

the board or its authorized representative for decision, the

appointing power may with the consent of the board or its

authorized representative serve on the employee and file with

the board an amended or supplemental notice of adverse

action. If the amended or supplemental notice presents new

causes or allegations the employee shall be afforded a reason-

able opportunity to prepare his defense thereto, but he shall not

be entitled to file a further answer unless the board or its

authorized representative so orders. Any new causes or allega-

tions shall be deemed controverted and any objections to the

amended or supplemental causes or allegations may be made

orally at the hearing or investigation and shall be noted in the

record.

§ 19576.

Whenever an answer is filed by an employee who has been

suspended without pay for 10 days or less the board or its

authorized representative shal! make an investigation with or

without a hearing as it deems necessary; however, in the event

an employee is suspended under subdivision (r) of Section

19572 for behavior or acts outside of duty hours, he shall, if he

files an answer to the action, be afforded a nearing; or if he is

suspended in more than three instances in any calendar year, he

shall upon each additional suspension be afforded a hearing if

he files an answer to the action.

§ 19578.

Whenever an answer is filed to an adverse action other

than a suspension without pay for 10 days or less, the board or

its authorized representative shall within a reasonable time hola

a hearing. The board shall notify the parties of the time and

place of the hearing. Such hearing shall be conducted in

accordance with the provisions of Section 11513 of the Govern-

ment Code, except that the employee and other persons may be

examined as provided in Section 19580, and the parties may

submit all proper and competent evidence against or in support

of the causes.

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§ 19579.

Failure of the employee to appear at the hearing shall be

deemed a withdrawal of his answer and the action of the

appointing power shall be final.

§ 19580.

Either by deposition or at the hearing the employee may

be examined and may examine or cause any person to be

examined under Section 776 of the Evidence Code.

§ 19581.

The board or its authorized representative shall issue

subpoenas for witnesses for the employee upon his written

request and at his cost. The board or its authorized representa-

tive may require such costs to be prepaid.

§ 19582.

(a) Hearings may be held by the board, or by any

authorized representative, but the board shall render the deci-

sion which in its judgment is just and proper.

(b) If a contested case is heard by an authorized repre-

sentative he shall prepare a proposed decision in such form that

it may be adopted as the decision in the case. A copy of the

Proposed decision shall be filed by the board as a public record

and furnished to each party within 10 days after the proposed

decision is filed with the board. The board itself may adopt the

Proposed decision in its entirety, or may reduce the adverse

action set forth therein and adopt the balance of the proposed

decision.

(c) If the proposed decision is not adopted as provided in

subdivision (b) each party shall be notified of such action, and

the board itself may decide the case upon the record, including

the transcript, with or without taking any additional evidence,

Or may refer the case to the same or another authorized

representative to take additional evidence. If the case is so

assigned to an authorized representative he shall prepare a

Proposed decision as provided in subdivision (b) upon the

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additional evidence and the transcript and other papers which

are part of the record of the prior hearing. A copy of such

proposed decision shall be furnished to each party. The board

itself shall decide no case provided for in this subdivision

without affording the parties the opportunity to present oral and

written argument before the board itself. If additional oral

evidence is introduced before the board itself no board member

may vote unless he heard the additional oral evidence.

(d) In arriving at a decision or a proposed decision the

board or its authorized representative may consider any prior

suspension or suspensions of appellant by authority of any

appointing power, or any prior proceedings under this article.

(e) The decision shall be in writing and contain findings

of fact and the adverse action, if any. The findings may be

stated in the language of the pleadings or by reference thereto.

Copies of the decision shall be delivered to the parties person-

ally or sent to them by registered mail.

§ 19583.

The board shall render a decision within a reasonable time

after the hearing or investigation. The adverse action taken by

the appointing power shall stand unless modified or revoked by

the board. If the board finds that the cause or causes for which

the adverse action was imposed were insufficient or not sus-

tained, or that the employee was justified in the course of

conduct upon which the causes were based, it may modify or

revoke the adverse action and it may order the employee

returned to his or her position either as of the date of the

adverse action or as of such later date as it may specify. The

decision of the board shall be entered upon the minutes of the

board and the official roster.

§ 19583.1.

Dismissal of an employee from the service shall, unless

otherwise ordered by the board:

(a) Constitute a dismissal as of the same date from any

and all positions which the employee may hold in the state

service.

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(b) Result in the automatic removal of the employee’s

name from any and all employment lists on which it may

appear.

(c) Terminate the salary of the employee as of the date of

dismissal except that he shall be paid any unpaid salary, and

paid for any and all unused and accumulated vacation and any

and all accumulated compensating time off or overtime to his

credit as of the date of dismissal.

§ 19583.5.

Any person with the consent of the board or the appointing

power may file charges against an employee requesting that

adverse action be taken for one or more causes for discipline

specified in this article. The employee against whom such

charges are filed shall have a right to answer as provided in this

article. In all such cases a hearing shall be conducted in accord

with this article and if the board finds that the charges are true

it shall have the power to take such adverse action as in its

judgment is just and proper.

§ 19584.

Whenever the board revokes or modifies an adverse action

and orders that the employee be returned to his Position it shall

direct the payment of salary to the employee for such period of

time as the board finds the adverse action was improperly in

effect.

Salary shall not be authorized or paid for any portion of a

period of adverse action that the employee was not ready, able,

and willing to perform the duties of his or her position, whether

such adverse action is valid or not or the causes on which it is

based state facts sufficient to constitute cause for discipline.

From any such salary due there shall be deducted com-

pensation that the employee earned, or might reasonably have

earned, during any period commencing more than six months

after the initial date of the suspension.

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§ 19586.

Within thirty days after a receipt of a copy of the decision

rendered by the board in a proceeding under this article, the

employee or the appointing power may apply for a rehearing

by filing with the board a written petition therefor. Within

thirty days after such filing, the board shall cause notice thereof

to be served upon the other parties to the proceedings by

mailing to each a copy of the petition for rehearing, in the same

manner as prescribed for notice of hearing.

Within sixty days after service of notice of filing of a

petition for rehearing, the board shall either grant or deny the

petition in whole or in part. Failure to act upon a petition for

rehearing within this sixty-day period is a denial of the petition.

§ 19587.

If the petition for rehearing is granted, the matter shall be

set down for hearing by the board of its authorized representa-

tive. The hearing shall be conducted as to the matters on which

granted in substantially the same manner and under like rules

or procedures as an original hearing upon charges under this

article.

§ 19588.

The right to petition a court for writ of mandate, or to

bring or maintain any action or proceeding based on or related

to any civil service law of this State or the administration

thereof shall not be affected by the failure to apply for

rehearing by filing written petition therefor with the board.