Comments About Obama Scrutinized

Two Durham, N.C. police officers being investigated for remarks made against Obama.

Derogatory remarks toward President-elect Barack Obama made on a social networking Web site are now the subject of an internal police investigation.
A police department employee claims the statements were made on the MySpace pages of two Durham officers.

"There's no exact words that were said," said Police Chief Jose L. Lopez Sr. in a telephone interview Wednesday from San Diego, where he is attending the International Association of Chiefs of Police conference. "It wasn't a racial slur, but we're still investigating it."

Investigators, who are focusing on the context of what was written, have been looking into the allegations since Thursday.

In a community not exactly known for a "by the book" approach to issues with racial overtones, this is a troubling development. More to the point, this investigation seems to be rife with subjectivity and that is a dangerous combination.

But there is a larger point to be made here- and that is about a "Code of Conduct," public employees and their rights.

The department's code of conduct, under the heading "private life," states that an officer's "character and conduct while off duty must always be exemplary, thus maintaining a position of respect in the community in which he or she lives and serves. The officer's personal behavior must be beyond reproach."

Lopez said even though the remarks were made on a personal Web page, the comments could be a violation of the policy.

"As a police officer, it doesn't matter where you do it, if you provide disservice to the organization, it violates the [department's] code of conduct," he said. "It is a high standard that officers are held accountable to."

Now, I can understand a Code of Conduct that prohibits things like becoming visibly intoxicated in public, or bringing disrepute to the police department or you actually violating the law. But where can the city or other governmental entity draw the line as to what is admittedly private behavior by an public employee being inappropriate or violating a Code of Conduct. In other words, where does a public employee's free speech rights end and the government's rights as an employer begin.

For example, when I worked as a law clerk at teh Federal Election Commission, I was prohibited from lending advice on campaign finance matters to candidates or parties. Fine, but I wasn't prohibited from campaigning for candidates or causes. The restriction was the price of admission and a reasonable restriction on my first amendment right of association. The line was clear--This activity is permitted, this type of activity is not. Everyone knew what was right and wrong.

Now, the problem with many of these municipal codes of conduct (and I have not seen the Durham police departments' Code but the supposition is probably not far off) is that this Code of Conduct is probably far from specific. That is the danger both for the city (who will no doubt get sued for this investigation) and the employees. No one is really sure what is permitted and what is not permitted.

The other problem with such non-specfic Codes of Conduct is not just the vagueness but the subjectivity and room for abuse that can occur. I would not be surprised that in the course of this investigation and subsequent lawsuit that it is discovered that these two officers are not well liked by others and/or their leadership. So, someone in a position of authority takes upon themselves to do a little digging in to these guys and lo and behold we have something that is negatively said about a popular political figure. So the busy-body says, "well this is a violation of the Code of Conduct and they should be investigated." While we know the posting was not a racial slur, it is being investigated with racial overtones ("Bonfield added that if the allegations are found to be true and officers posted racially charged statements, then an appropriate response by the department would be warranted."), I don't think we would be hearing about it if it was a death threat (which would be investigated by the Secret Service who are actually, you know, capable of keeping their mouth shut about investigations) so you are left with the idea that it is racially motivated (a loaded term in Durham) but no other details.

So, the larger question is how far can cities go in limiting the rights of their employees for what is clearly and admitted private behavior?