KUBARK MANUAL - The Association of Inspectors General

Eric W. Miller, Inspector General
Agency for Health Care Administration
[email protected]
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Introduction of Attendees
Office Conduct Advisory Video
Pre-test
Compelled Statements
Workplace Searches
Special Situations
• Vehicle Tracking
• Key Loggers
• Special Provisions for Public Employees
• Extended Statute of Limitations
• Forfeiture of Retirement Benefits
• Ethics Commission Fines
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2.
3.
4.
Name
Agency
Special Skills
What you want to learn about today
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These materials are not intended to provide
legal advice about any particular situation.
The law can have important impacts on you
and your agency. If you have any questions
or doubts in a particular situation, consult
your agency attorney or supervisor.
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Federal
 Supreme Court of the United States
 United States Courts of Appeals (11th Cir.)
 United States District Courts (N., S., & M. Districts of Fla)
 Specialized tribunals (e.g, Bd. Contract Appeals, Comp. Gen.)
State
 Supreme Court of Florida
 District Courts of Appeals (5)
 Circuit Courts (20)
 County Courts
 Specialized tribunals (e.g, Div. Admin. Hearings (DOAH))
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Federal
 Constitution of the United States (1787)
 United States Code (statutes)
 Code of Federal Regulations (rules)
State
 Constitution of the State of Florida (1968)
 Florida Statutes
 Florida Administrative Code
Local
 County and Municipal Ordinances
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Would you agree with these statements?

An effective investigation may stop improper conduct and prevent
future harm to the organization and its employees. Failure to stop
improper conduct can result in the employer being liable for negligent
retention and negligent supervision, among other legal claims.

An effective investigation provides a sound foundation for taking
disciplinary action, if necessary. An effective investigation also shows the
complaining person that you take his or her concerns seriously, which
may lessen the likelihood that he or she will file a charge with an external
enforcement body, the EEOC, or some other regulatory entity.
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An effective investigation also shows external monitors, such as
regulatory agencies and stakeholders, that the organization is serious
about preventing and correcting misconduct.
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An effective investigation allows an employer to avoid or minimize
liability for some types of employee misconduct, even if the alleged
misconduct actually happened. It can also avoid the disruption in the
workplace caused by litigation.
Why we investigate.
Employers have a legal duty to investigate allegations of certain types of misconduct, including but not
limited to harassment and discrimination based on federal or state protected characteristics, and violations
of certain state and federal statutes. Enforcement agencies have set strong expectations on ethical grounds
for organizations to investigate suspected misconduct, even where there are no legal duties.
The element(s) that must be present for the
Fourth Amendment to be implicated in a
search is/are:
a.
b.
c.
d.
e.
Government participation
Standing
Reasonable expectation of privacy
A&C
A, B, and C
The dominant case that courts reference
related to workplace searches of public
employees is:
a.
b.
c.
d.
Garrity v. New Jersey
Katz v. United States
O’Connor v. Ortega
Connick v. Myers
The 5th Amendment not only protects the individual
against being involuntarily called as a witness
against himself in a criminal prosecution but also
privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal
or informal, where the answers might incriminate
him in future criminal proceedings.
a.
b.
True
False
As the law stands now in Florida, a mobile
tracking order is not required to surveil an
employee’s travels through the use of a GPS
device if the device is installed wherein
trespass would not be implicated.
a.
b.
True
False
Fourth Amendment considerations are
heightened in the video surveillance of an
employee subjected to a/an ___________
investigation.
a.
b.
c.
d.
administrative
criminal
discrimination
nonfeasance
A public employee convicted of commercial
bribery in connection with his/her public
employment shall be required to forfeit their
retirement benefits.
a.
b.
True
False
Dram Shop recordings may prove useful in
misconduct cases emanating from activity at a:
1.
2.
3.
4.
5.
Bar
Courthouse
Jail
Financial Institution
Penn State Locker Room
Violations of Florida’s ethics laws are not
punishable as criminal acts.
a.
b.
True
false
1.
An individual would have the lowest
expectation of privacy in the following
situation:
a) Their unattended personal car is parked in their
home’s driveway
b) Their unattended personal car is parked in a
public parking lot
c) Their unattended state/corporate car is parked in
the parking lot where they work.
d) Their unattended state/corporate car is parked at
a friend’s apartment complex.
The Supreme Court recently held that a
government employer _______ read through an
employee's personal text messages on a
government-issued device if they suspect
workplace rules are being violated.
a)
b)
may
may not
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What are some of the rights employers
have?
What are some of the rights employees
have?
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Right to establish rules of conduct (within
contractual parameters)
Right to establish wages (again, within
contractual or career service parameters)
Right to evaluate employees’ work
Right to exercise overall discretion over entire
plan or operations and budget
Employers’ Rights & Responsibilities
Employers have a legal right and duty to investigate
allegations of certain types of misconduct, including but
not limited to harassment and discrimination based on
federal or state protected characteristics, and violations of
certain state and federal statutes.
Enforcement agencies and the courts have set high
expectations on ethical grounds for organizations to
investigate suspected internal misconduct.
Early History of Employment
Investigations
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Vatican Investigations
Law Master-Servant:- The Ordinance of Labourers
(1349), Statute of Labourers (1351, amended 1562)
made the employment contract different from all
others and prohibited any attempt on the part of
workers to bargain collectively.
England’s Investigation into Child Labor
Railroad Police
1892: a Massachusetts Court upheld the firing of a
police officer for violating a statute barring political
affiliations, holding that he had no constitutional
right to be a police officer, and, therefore, must be
bound by the conditions of his contract.
The Inquisition was first
established in Germany,
extended to Spain in 1232, and
became a general institution in
1233. The Dominicans were
recruited by Conrad of Marburg,
Germany to assist in the
Inquisition. Later, the
Franciscans also were recruited
to serve as inquisitors. The
inquisitors followed a guide, the
Processus inquisitionis (1249).
CIA Cryptograms
SECRET
KUBARK: CIA Headquarters
KUCAGE: CIA Overseas Paramilitary /
Propaganda Operations
KUCLUB: Office of Communications
KUDESK: Counterintelligence
department
KUDOVE: Office of the director
KUFIRE: Intelligence
KUGOWN: Propaganda
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Issued by the Department of the Army on
September 6, 2006.
The largest and most newsworthy section
of the document details procedures for the
screening and interrogation of POW’s and
combatants.
Executive Order 13491, issued by President
Barack Obama on January 22, 2009 (two
days after Obama's inauguration) revoked
Executive Order 13440 of July 20, 2007. It
restricted the CIA and other Executive
Agencies to proceed with interrogations
"strictly in accord with the principles,
processes, conditions, and limitations
[Army Field Manual 2 22.3] prescribes".
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To Collectively Bargain (Chapter 447, Florida Statutes)
but not to strike
To request the presence of a union rep during an
investigative interview that the employee “reasonably
believes might result in disciplinary action” (if the
requestor is a unionized employee).
To work in an environment devoid of discrimination
and harassment
Right to pursue employment in their chosen field
(liberty right)
Right to continued employment (property rightunless at will)
Right to due process if rights are infringed
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Personal Privacy
FCRA Protections
Privacy of Educational Records (tuition
reimbursement verification)
Medical Record Privacy (other than 440 claims)
Protection Against Libel and Slander
Security of Communications
• Federal Wiretap Act
• Chapter 934
• ECPA
• SCA
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Charles Katz used a public pay phone booth to
transmit illegal gambling wagers from Los
Angeles to Miami and Boston. Unbeknownst to
Katz, the FBI was recording his conversations via
an electronic eavesdropping device attached to
the exterior of the phone booth.
Katz was convicted based on these recordings.
He challenged his conviction, arguing that the
recordings were obtained in violation of his
Fourth Amendment rights.
The Court of Appeals sided with the FBI because
there was no physical intrusion into the phone
booth itself. But….
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“The Government's activities in electronically
listening to and recording the petitioner's words
violated the privacy upon which he justifiably
relied while using the telephone booth and thus
constituted a 'search and seizure' within the
meaning of the Fourth Amendment." – Justice
Stewart
Regardless of the location, a conversation is
protected from unreasonable search and seizure
under the Fourth Amendment if it is made with a
“reasonable expectation of privacy”.
Wiretapping counts as a search (physical
intrusion is not necessary).
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The Fifth Amendment provides that no person "shall be
compelled in any criminal case to be a witness against
himself." U.S. Constitution, Amendment V.
"The Amendment not only protects the individual against
being involuntarily called as a witness against himself in a
criminal prosecution but also privileges him not to answer
official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings." Lefkowitz v.
Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274
(1973).
CRIMINAL INVESTIGATIVE STATEMENT
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Voluntary Statement- Not "coerced“ with
threat of job loss
No Job Loss Should The Employee Not Provide
A Statement
Admissible in Criminal Case or Administrative
Case If "Voluntary" and "Not Compelled"
if statement is offered in custodial setting,
must be offered post- Miranda
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In 1966, New Jersey police officers were
questioned during the course of a state
investigation concerning alleged ticket fixing.
The officers were ordered to respond (compelled)
and their answers were later used to convict
them in subsequent criminal prosecutions.
The Supreme Court ruled that the use of the
officers statements violated their 5th Amendment
right.
The court ruled that the compelled statements
(forced to make under threat of possible
forfeiture of job) could not be subsequently used
against them in a criminal case.
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In 1967, an NYPD police officer (Gardner) that
was being questioned about alleged bribery and
corruption was discharged (by Chief Broderick)
after refusing to sign a waiver of immunity that
would have allowed his statements to be used in
subsequent criminal prosecution.
The court reversed the officer’s discharge. The
court ruled that while a law enforcement agency
can conduct an administrative investigation, it
cannot (during the course of their investigation)
compel the officer to waive the immunity under
Garrity.
Only two people can grant immunity – the
assigned prosecutor / or the assigned judge.
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Can be either voluntarily provided or a compelled statement
Threat of job loss based only upon refusal to answer questions may be communicated
only after being advised that results won’t be used in a criminal case—and then, only
specific, narrowly focused, job-related questions are permitted
Statements so compelled are not admissible in criminal case (except for charges related
to perjury) but are admissible in administrative case
No Miranda warnings required.
Typical Administrative Statement Procedure (Questioning By Agency Representatives)
Advise that statement is administrative.
Advise work-related nature of investigation.
Advise he/she must answer questions, if you intend to compel answers.
(If compelling) Advise refusal can subject employee to dismissal.
(If compelling) Advise responses or evidence derived from the statement cannot be used
in subsequent criminal proceeding, EXCEPT CRIMINAL PROCEEDINGS ASSOCIATED WITH
PERJURY.
If you do NOT intend to compel answers, advise that any responses to questions are
strictly voluntary and that there will be no sanction or adverse effect should the
employee choose not to answer.
Real World Example
Sarasota Herald Tribune June 15, 1978
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Lee County Sheriff’s Office and IRS Agents
develop informant in investigation of
Cablevision installer who was allegedly
involved in the sale of cocaine hydrochloride
Informant tells agents of “Coastguardsmen”
who diverted bales of marijuana from seized
vessel in 1978
Informant recalls going to Coastguardsman’s
home to retrieve 1 bale
Uniform descriptions don’t match. USCG
recommends referral to DEP/OIG
An employee can be ordered to cooperate in an internal administrative
investigation and answer questions specifically, directly and narrowly related to
the employee’s official conduct.
Statements made pursuant to an order to cooperate in an internal administrative
investigation and evidence that is derived from the statements cannot be used
against the employee in any subsequent criminal proceeding (except a prosecution for perjury).
An employee may not refuse to answer specific, direct, and narrow job-related
questions as long as the employing agency does not compel a waiver of
constitutional rights. Meaning that if an agency advises the employee that his/her answers cannot
be used against him/her in a criminal proceeding, the employee can be required to answer jobrelated questions, or suffer the administrative consequences.
An employee can be disciplined or fired for refusing to cooperate and provide
statements in an internal administrative investigation after a Garrity advisory has
been made.
An employee has no right to lie should he/she choose to provide a statement (more on this later).
This is a good time to talk about the impact criminal
misconduct may have upon a public employee
 Statute of Limitations- Section 775.15, Florida Statutes
And there’s more:
Applicable Offenses:
The committing, aiding, or abetting of an embezzlement of public funds;
2. The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer;
3. Bribery in connection with the employment of a public officer or employee;
4. Any felony specified in Chapter 838, except ss. 838.15 and 838.16; (commercial bribery)
5. The committing of an impeachable offense;
6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the
public or the public agency for which the public officer or employee acts or in which he or she is employed of the
right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or
attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the
use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment
position; or
7. The committing on or after October 1, 2008, of any felony defined in s. 800.04 against a victim younger than
16 years of age, or any felony defined in chapter 794 against a victim younger than 18 years of age, by a public
officer or employee through the use or attempted use of power, rights, privileges, duties, or position of his or her
public office or employment position.
What are an employee’s rights when being
questioned by his employer?
(112.532, FS)
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Weingarten was decided under the National Labor
Relations Act. NLRB v. Weingarten, 95 S.Ct. 959, (975)
The Supreme Court in Weingarten believed that a
trained representative could assist in the determination
of facts.
Non-union employees are not entitled to representation
in an administrative internal investigation.
In Florida, the right to have a representative is covered
under Florida Statutes (examples:112.532 and 120.62).
No 6th Amendment right to legal counsel during ADMIN
investigation.
6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
You have no right to compel the employee to stay while
you interview him or her in an administrative investigation.
(In a criminal investigation you may also have this right—
the employee may be in your custody as an arrestee).
In an ADMIN setting , if he or she wishes to leave,
document the intent, telling the employee that by leaving
(s)he will be considered to have failed to cooperate fully,
as required by agency policy.
Holding the employee against his/her will might subject
you to liability for false imprisonment or a similar tort.
Speaking of liability…
No Right to Lie
Two 1998 cases from the United States Supreme Court make it clear that once a public employee is
granted immunity by compelling the employee to respond to questions in an administrative
interview, the employee must tell the truth or face exposure to further discipline or criminal charges
(for perjury). (Do all agencies take sworn statements under Chapter 117?)
LaChance v. Erickson involved the questioning of federal employees. In each of the cases
consolidated in this appeal, the employees made false statements to agency investigators with
respect to their alleged misconduct. The employees were subsequently disciplined for the
underlying charges and the charge of giving the false statements. The employees challenged the use
of their false statements to support additional disciplinary charges. In rejecting the claims of the
employees, the United States Supreme Court citing Bryson v. U.S., 396 U.S. 64 (1969), asserted
“Our legal system provides methods for challenging the Government’s right to ask questions—
lying is not one of them. A citizen may decline to answer a Government question, or can answer it
honestly, but cannot with impunity knowingly and willfully answer it with a falsehood.” The
court concluded that if the Government’s questions would have exposed the employees to criminal
prosecution, they could have asserted their Fifth Amendment privilege. However, they had no right
to give false statements regarding their conduct in the internal investigation.
Similarly, a week later, the United States Supreme Court decided in Brogan v. United States 522
U.S. 398 (1998) that an “exculpatory no” in response to Government questioning would not be
protected where the “no” is false. In this case, James Brogan, a union official was charged
criminally with making a false statement to government officials under 18 U.S.C. § 1001.
“If answering an agency’s investigatory question could expose an employee to a
criminal prosecution, he may exercise his Fifth Amendment right to remain silent.
See Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Ward, 448 U.S. 242,
248 (1980). It may well be that an agency, in ascertaining the truth or falsity of the
charge, would take into consideration the failure of the employee to respond. See
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (discussing the “prevailing rule
that the Fifth Amendment does not forbid adverse inferences against parties to
civil actions when they refuse to testify”). But there is nothing inherently irrational
about such an investigative posture. See Konigsberg v. State Bar of Cal., 366 U.S.
36 (1961).
For these reasons, we hold that a government agency may take adverse action
against an employee because the employee made false statements in response to an
underlying charge of misconduct.”
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Kansas v. Ventris: United States Supreme Court examined
whether or not a statement obtained by law enforcement in
violation of the Sixth Amendment right to counsel could be used
against the defendant for impeachment purposes when the
defendant took the stand and denied that he committed the
crime.
The Kansas Supreme Court reversed the conviction, holding that
“[o]nce a criminal prosecution has commenced, the defendant’s
statements made to an undercover informant surreptitiously
acting as an agent for the State are not admissible at trial for any
reason, including the impeachment of the defendant’s
testimony.”
The U.S. Supreme Court concluded that Ventris’s statement,
taken in violation of the Sixth Amendment, could be used against
him for impeachment of his testimony denying his role in the
crime.
Workplace Searches
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Government conduct - the 4th Amendment does not apply to private actors. See, Burdeau v.
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Standing - to say that a party lacks fourth amendment standing is to say that his/her
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Reasonable Expectation of Privacy (REP) – must exist in the area or item subjected to the
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If any one of the three above are absent, the 4th Amendment is simply not implicated.
McDowell, 256 U.S. 465, 475 (1921) - evidence illegally obtained by private parties and turned
over to police is not a 4th Amendment violation.
reasonable expectation of privacy has not been infringed. 4th Amendment rights are
personal. There must be a sufficient nexus between the area or item subjected to the
search/seizure and the person claiming a constitutional violation. See, Rakas v. Illinois, 439
U.S. 128, 138-39 (1978) – mere passengers in a vehicle have no standing to contest the legality
of a search of the vehicle.
search or seizure. The individual must exhibit a subjective expectation of privacy in the item or
area and that expectation of privacy must be objectively reasonable to society as a whole. See,
Katz v. United States, 389 U.S. 347 (1967)- indicating that a two part analysis governs whether
an expectation of privacy exists ie., there must be a subjective REP exhibited, and it must be
objectively reasonable to society.
O’Connor v. Ortega, 480 U.S. 709 (1987)
THE Workplace Search Case
In O’Connor v. Ortega, a California physician who worked in a state hospital was suspected of various acts of misconduct, including
theft of hospital property and sexual harassment.
The executive director of the hospital suspended the physicians pending completion of an investigation into the alleged misconduct. As
part of that investigation, the executive director and other management officials entered the physician’s office and searched his file
cabinets and desk. Certain materials found in that search were used in the subsequent administrative proceeding to remove the
physician.
The physician maintained that the search of his office by hospital officials violated the Fourth Amendment’s prohibition against
unreasonable searches. The Court, in a 5-4 ruling, held that searches of government offices by government employers are subject
to Fourth Amendment constraints.
The Court first held that the physician had a reasonable expectations of privacy in his office, including his desk and file cabinets. The
Court then considered the standard for judging whether a search of the physician’s office was reasonable, holding that “the invasion of
the employee’s legitimate expectations of privacy” must be balanced against “the government’s need for supervision, control, and the
efficient operation of the workplace.”
The Court held that the reasonableness of a search had to be determined on a case-by-case basis. In the O’Connor case, the Court
declined to rule on whether the search of the physician’s office had been reasonable because there were unresolved issues of fact.
Justice O’Connor authored the majority opinion.
EPILOGUE:
This case went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s,
and the Ninth Circuit denied Ortega's superiors their appeal. After the state paid his claim, amounting to over $700,000 with interest,
Dr. Ortega was sued by one of his former attorneys for unpaid bills. The two settled the claim in arbitration, but after Ortega refused to
comply, the attorney sued him and won an adjustment to the arbitration award.
Justice Sandra Day O’Connor:
• Although all nine justices agreed that public employees had Fourth
Amendment protections during administrative searches in the workplace, and
that routine work-related intrusions as discussed at oral argument did not
constitute a violation, they differed as to whether Ortega's rights had been
breached by the search. The five-justice majority believed it could not
determine the purpose of the intrusion into Ortega's office and so remanded the
case to the district court to do so.
"In our view, requiring an employer to obtain a warrant whenever
the employer wished to enter an employee's office, desk, or file
cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable.”
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Symantec Discovery Accelerator
NeedleFinder
Clearwell
Email Server-Based
Programmed (rule-based) Duplications and
Diversions
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Holding: The search of a police officer’s text
messages sent over a government pager to
private parties was reasonable, and therefore
the officer’s Fourth Amendment rights were
not violated.
Surveillance
In Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court
ruled that the rights guaranteed by the text of the Fourth
Amendment apply equally in state courts via the Fourteenth
Amendment, which guarantees to the citizen of every state the right
to due process and equal protection of the laws.
• No expectation of privacy is maintained for property and personal effects
held open to the public. Things visible in "plain view" for a person of
ordinary and unenhanced vision are entitled to no expectation of privacy and
thus no Fourth Amendment protection.
• Items seen only through enhanced surveillance, such as through highpowered or telescopic lenses, may be subject to the strictures of the Fourth
Amendment.
• Public records, published phone numbers, and other matters readily
accessible to the general public enjoy no expectation of privacy.
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After receiving information that University
of Alaska box office manager Lindalee
Cowles was stealing cash from ticket sales,
the University police, without obtaining a
warrant, installed a hidden video camera
which recorded her in the act of theft. The
question in this case was whether the
videotape was obtained in violation of
Cowles's constitutional rights and therefore
should have been suppressed. Court
answered in the negative.
Dram Shop Tapes
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A covert surveillance case from the 9th Circuit Court of Appeals establishes the important
distinction between administrative and criminal investigations. In Taketa, a DEA agent
reported to her supervisor that another agent, Taketa, had shown her how to turn an
authorized pen register into an unauthorized wiretap to record conversations. Agent Taketa
shared an office at McCarran Airport in Las Vegas with Thomas O’Brien of the Nevada Bureau of
Investigation. O’Brien was also involved in the illegal wiretapping. The DEA began an internal
investigation and entered the airport office using a key from headquarters. The investigators
examined the feasibility of putting in a covert camera the next time the Taketa sought
authorization for a pen-register. In its review of this first entry, the court applied the
standards announced in O’Connor v, Ortega in holding that the first entry was reasonable.
Taketa later sought such an authorization for a pen register and the investigators returned to
the airport office. Unable to find the audio recording equipment, the investigators had to force
open O’Brien’s door with a plastic card to gain entry. The investigators found the recording
device. They then placed a covert camera in the office. This investigation led to the arrests of
Taketa and O’Brien. In its review of the covert surveillance, the court held that the video
evidence had to be suppressed. In so holding, the court determined that since O’Brien’s office
had been locked, investigators should have obtained a warrant before entering. In addition the
court concluded that once the investigation changed from an internal investigation to a
criminal investigation, the standards from O’Connor v. Ortega no longer applied, rather the
more stringent standards of probable cause and a search warrant were required.
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Identify and document the business reasons for having surveillance
cameras. Legitimate reasons include health, safety, theft prevention,
workplace productivity, and security.
Give advance notice (via policy, orientation or email) to employees of
the possibility of cameras and give reasons for using them.
Remember to advise new employees in advance of their employment
if possible.
Each employer should explain which areas of the workplace their
employees should not expect to be private.
Adopt a written policy reserving the right to monitor the workplace
with visible and hidden cameras. The policy should reserve the right
to use hidden cameras on the premises when the employer
reasonably suspects health, safety or company policy violations.
For unionized labor forces, ensure that camera use has been
addressed as part of the collective bargaining process. Although you
need not reveal exact camera location and times of use, you should
discuss the general use and need for surveillance
The
surveillance
of Ronald
McCullers
GPS Surveillance
For
Global Positioning System (GPS) is a worldwide
radio-navigation system initially formed from the
constellation of 24 satellites and their ground
stations. The Global Positioning System is mainly
funded and controlled by the U.S Department of
Defense (DOD). The system was initially
implemented in 1973 for the operation of U. S.
military assets. But today, there are more
commercial users of GPS across the whole world.
The civilian users are allowed to use the Standard
Positioning Service without any kind of charge or
restrictions. Military has moved to the GPS Next
Generation Operational Control System (OCX).
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In a recent case United States v. Cuevas-Perez, 2011 WL 1585072
(C.A. 7 (Ill.)), the Seventh Circuit Court of Appeals considered whether
the warrantless installation of a GPS device which allowed "real time"
tracking of a suspect vehicle for approximately 60 hours while it
traveled from Arizona to Illinois violated the Fourth Amendment.
Court concluded that there was simply no constitutionally relevant
difference between devices which simply record and store
information for later retrieval and GPS units which furnish real time
data. In fact, the Seventh Circuit indicated that GPS units which
record and store historical data are less akin to the publicly exposed
data on which permissible Fourth Amendment GPS tracking is based.
Id. at 3. In referencing an earlier Seventh Circuit case the Court
stated "GPS tracking is on the same side of the divide with the
surveillance cameras and the satellite imaging, and if what they do is
not searching in Fourth Amendment terms, neither is GPS tracking"
See., United States v. Garcia, 474 F.3d 944 (7th Cir. 2007)
•
In United States v. Smith, 387 Fed.Appx. 918, 2010 WL
2825488 (C.A. 11 (Fla.)), a DEA Task-Force Officer, without
the benefit of a warrant attached a GPS unit to a marijuana
trafficker’s Cadillac Escalade. The Court found that the GPS
was installed in a public place and held that Smith lacked
any reasonable expectation of privacy in the exterior of his
vehicle. Id. at 921. The Court indicated that without any
legitimate expectations of privacy there were no 4th
Amendment issues. See, United States v. Barton, 698
F.Supp.2d 1303 (N.D. Fla. 2010) – “there is no 4th
Amendment violation for using a tracking device as a
substitute for visual surveillance”. In the 11th Circuit
warrantless installation of GPS devices does not impede on
any reasonable expectations of privacy, thus no Fourth
Amendment concerns exist.
Saturday Travel
Saturday Night Travel
Sunday Travel
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Search Allowances
Privacy Concerns
Retention of Evidence
Introduction of Evidence in Other Forums
Keylogging
 Jurisdictions at Odds Over Privacy Concerns
Keystroke logging (or “keylogging”) is the noting (or logging) of the keys struck on
a computer keyboard. Typically, this is done secretly, so the keyboard user is
unaware his activities are being monitored.
Several cases throughout the country have examined an employer’s use of
keylogging. Recently, the Criminal Court of the City of New York held in New York
v. Klapper that an employer who installed keylogging software on office computers
and subsequently monitored an employee's e-mail activity did not, absent some
showing of contrary e-mail protections or acceptable use policies, access a computer
“without authorization” in violation of New York law.
In contrast to the strong language from New York, the U.S. District Court for the Northern
District of California ruled in Brahmana v. Lembo that a plaintiff could proceed to trial in his
case alleging his employer committed an impermissible “interception” under the Electronic
Communications Privacy Act (ECPA) by using keylogging to discover the password to his
personal e-mail account, and using the logged password, accessed his personal e-mail.
[Update]
Another California District Court found in United States v. Ropp that because the keylogger
recorded the keystroke information in transit between the keyboard and the CPU, the system
transmitting the information did not affect interstate commerce as is required by the ECPA.
Further complicating the issue, a federal court in Ohio questioned Ropp, suggesting in Porter
v. Havlicek that it read the statute too narrowly by requiring the communication to be
traveling in interstate commerce as opposed to merely “affecting interstate commerce.”
Because of the numerous issues arising from the use of electronic communications, and the
varying court opinions on these questions, IG’s would do well to re-examine their use of
keystroke monitoring or logging technology on a regular basis.
Here’s the logger
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Florida supreme court invalidates order by
chief that a subordinate submit to a
polygraph exam. Farmer v. City of Ft.
Lauderdale, 427 So.2d 187 (Fla. 1983). Preemployment polygraph is not affected by the
FSC’s decision in Farmer v. Ft. Lauderdale;
see Drayton v. City of St. Petersburg, 477
F.Supp. 846 (M.D. Fla.), a race discrimination
suit which upheld the test in a suit by
African-American applicants.
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The right to a "name-clearing hearing" has been held to stem from an individual's "liberty
interest" as protected by the fourteenth amendment. As in instances where a property interest
is at stake, a governmental employer may not engage in actions that results in the deprivation
of a protected liberty interest without due process of law.
It is critical at the outset to recognize that a liberty interest exists regardless of whether the
employee is terminable at-will or has a property interest in continued employment. In the
context of public employment, liberty interest has been held to protect, to a limited extent, an
employee's good name and reputation. Damage to one's reputation alone is generally not
enough to implicate the liberty interest. Paul v. Davis, 424 U.S. 693 (1975). However, if other
employment opportunities are foreclosed because false information is created and distributed
by the governmental employer, than the employee's liberty interest is implicated.
In Buxton v. City of Plant City, 871 F.2d 1037 (11th Cir. 1989), the
Eleventh Circuit set forth six elements of a violation of a governmental
employee's liberty interest. The employee must prove: (1) a false
statement; (2) of a stigmatizing nature; (3) attending the public
employee's discharge; (4) was made public; (5) by the governmental
employer; and (6) without a meaningful opportunity for the employee to
have a name-clearing hearing.
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Only Obtain the Information if it’s material to your
investigation
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Obtain informed consent
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Searches should be uniformly and consistently applied
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Choose least intrusive method to obtain information or
conduct surveillance
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Develop Minimization Plans (Like a Title 3 Intercept)
◦ Exclude personal communications (Scalia emphasized privacy not
solitude)
◦ Exclude privileged communications
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The employing agency of any law
enforcement officer shall have the option to
pay the legal costs and reasonable attorney’s
fees for any law enforcement officer in any
civil or criminal action commenced against
such [LEO] in any court when the action arose
out of the performance of his official duties…
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111.07 Defense of civil actions against public officers, employees, or agents.—
Any agency of the state, or any county, municipality, or political subdivision of the state,
is authorized to provide an attorney to defend any civil action arising from a complaint
for damages or injury suffered as a result of any act or omission of action of any of its
officers, employees, or agents for an act or omission arising out of and in the scope of
his or her employment or function, unless, in the case of a tort action, the officer,
employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. Defense of such civil
action includes, but is not limited to, any civil rights lawsuit seeking relief personally
against the officer, employee, or agent for an act or omission under color of state law,
custom, or usage, wherein it is alleged that such officer, employee, or agent has
deprived another person of rights secured under the Federal Constitution or laws. Legal
representation of an officer, employee, or agent of a state agency may be provided by
the Department of Legal Affairs. However, any attorney’s fees paid from public funds for
any officer, employee, or agent who is found to be personally liable by virtue of acting
outside the scope of his or her employment, or was acting in bad faith, with malicious
purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety,
or property, may be recovered by the state, county, municipality, or political subdivision
in a civil action against such officer, employee, or agent. If any agency of the state or
any county, municipality, or political subdivision of the state is authorized pursuant to
this section to provide an attorney to defend a civil action arising from a complaint for
damages or injury suffered as a result of any act or omission of action of any of its
officers, employees, or agents and fails to provide such attorney, such agency, county,
municipality, or political subdivision shall reimburse any such defendant who prevails in
the action for court costs and reasonable attorney’s fees.
Suspended Escambia County Commissioner W.D. Childers was
sentenced to 60 days in jail for discussing redistricting in a telephone
conversation while a fellow commissioner listened on a speaker
phone, and for talking with two fellow commissioners about county
building projects in front of a staffer.
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Florida Constitution revised in 1968
o Required a code of ethics for all state employees
and non-judicial officers
o Prohibited conflict between public duty and private
interests be prescribed by law
o 1976 the “Sunshine Amendment” was adopted
o Provided additional constitutional guarantees
concerning ethics in government.
o Created independent commission(Commission on
Ethics) to investigate complaints
o Five of the Commission’s nine members are appointed
by the Governor
o Two each are appointed by the President of the Senate
and Speaker of the House of Representatives
o No more than five (5) Commission members may be
members of the same political party
o None of the Commission members may hold any
public employment during their two-year terms of
office
The “Code of Ethics for Public Officers and
Employees” adopted by the Florida Legislature is
found in Chapter 112 of the Florida Statutes
o Primary goal to promote public interest and maintain
respect of the people for their government
o Ensure that public officials conduct themselves
independently and impartially
o Ensure that public officials are not using their office
for personal gain
o Avoid creation of unnecessary barriers to public
service while maintaining integrity of government
ROLE OF THE COMMISSION ON ETHICS
Investigate complaints
Renders advisory opinions to public officials
Prescribes forms for disclosure
Administers the Executive Branch Lobbyist Registration and
Reporting Law
o Maintains financial disclosure filings of constitutional
officers and state officers and employees
o Administers automatic fines for public officers and
employees who fail to timely file and financial disclosures
o May file suit to void contracts, prepares mailing lists of
officials subject to disclosure and makes recommendations
to disciplinary officials when appropriate
o
o
o
o
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Primarily two types of provisions:
o Those prohibiting certain actions or conduct
o Those requiring certain disclosures be made to public
Laws generally apply to all public officers and
employees, State and local as well as members of
advisory bodies.
 Principal exclusion is the judiciary – judges fall
under jurisdiction of Judicial Qualifications
Commission
 Public Service Commission members and
employees are subject to additional ethics
standards enforced by the Ethics Commission
under Sec 350 of Florida Statutes.
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Solicitation and Acceptance of Gifts
o Public officers, employees, local government
attorneys AND CANDIDATES are prohibited from
soliciting or accepting anything of value based on
understanding that their vote, official action or
judgment would be influenced by such gift
[S112.313(2) Fla. Stat.]
o Any person required to file financial disclosure
Form 1 or Form 6 is prohibited from soliciting any
gift from political action committee, lobbyist who
has lobbied his/her agency in last 12 months or the
partner, firm, employer or principal of such lobbyist

Solicitation and Acceptance of Gifts, (continued)
o Any person required to file financial disclosure Form 1 or
Form 6 is prohibited from accepting any gift worth over
$100 from political action committee, lobbyist who has
lobbied his/her agency in last 12 months or the partner,
firm, employer or principal of such lobbyist
o Effective in 2006, no EXECUTIVE BRANCH or legislative
lobbyist, or principal shall make indirect or direct
expenditure for purpose of lobbying nor no EXECUTIVE
BRANCH or legislative official shall accept any
expenditure made for the purpose of lobbying
[112.3215, Fla. Stat.]
o This would include any gift UNDER $100 permitted
under Statute 112.3148
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Unauthorized Compensation
o Public officers or employees, local government
attorneys, and their spouses or minor children
prohibited from taking any compensation or
anything of value that:
 They know
 They should have known with exercise of reasonable
care
will influence their vote or official action

Misuse of Public Position
o Prohibited from corruptly using or attempting to
use their official positions to obtain a special
privilege for themselves or others

Disclosure or Use of Certain Information
o Information not available to the public and obtained
by reason of their position for the personal benefit
of themselves or others

Prohibited Employment and Business
Relationships
o Doing business with one’s agency
 5% ownership test – his/her spouse or child
o Conflicting employment or Contractual Relationship
 Public officer or employee prohibited from holding any
employment or contract with any entity or agency
regulated by or doing business with his/her public
agency

Prohibited Employment and Business
Relationships
o Conflicting Employment or Contractual Relationship
Some (not all) Exemptions from Prohibitions
 Emergency purchase required to protect public health,
safety or welfare
 Business entity is sole source of supply and full
disclosure on Form 4A
 Aggregate of such business < $500 in calendar year
 If public officer or employee is employed by tax
exempt organization and the officer or employee is not
directly compensated as a result

Restrictions on appointing, employing and
contracting with relatives
o Anti-nepotism law
 Public official prohibited from seeking for a relative
any appointment, employment, promotion or
advancement in the agency which he/she is serving or
over which he/she exercises control
 No person shall be appointed, employed, promoted or
advanced in or to a position if such action was
advocated by a related public official

Restrictions on appointing, employing and
contracting with relatives (cont’d)
o Anti-nepotism law (cont’d)
 Prohibition DOES NOT apply to school districts (except
as provided in Fla. Stat. 1012.23), community colleges,
and State universities, or to appointments of boards of
municipalities with < 35,000 population
 Approval of budgets does not constitute “jurisdiction
or control” for purposes of this prohibition other than
volunteer emergency medical, fire fighting or police
service providers

Post-office Holding and Employment Restrictions
o Lobbying By Former Legislators, Statewide Elected
Officers and Appointed State Officers
 Prohibition from representing any person or entity for
compensation before the government body or agency in
which the individual was an officer or member for two (2)
years
o Lobbying by Former State Employees
 Certain employees of executive and legislative branches of
State government prohibited from representing any person
or entity for compensation before the agency they were
employed by for two (2) years after leaving their positions

Voting Conflicts of Interest
o NO STATE PUBLIC OFFICIAL is prohibited from
voting in an official capacity on any matter
o A STATE PUBLIC OFFICER who votes on a measure
which inures to his/her special private gain or loss
or to a PRINCIPAL by whom he/she is retained, a
RELATIVE, BUSINESS ASSOCIATE or PARENT
ORGANIZATION or SUBSIDIARY of CORPORATE
PRINCIPAL by whom he/she is retained must file
memorandum of voting conflict on Commission
Form 8A with the recording secretary within 15
days after the vote occurs

Voting Conflicts of Interest
o NO COUNTY, MUNICIPAL, or other LOCAL PUBLIC OFFICER
shall vote in an official capacity upon measure which would
inure to his/her special private gain or loss or to PRINCIPAL,
RELATIVE, BUSINESS ASSOCIATE or PARENT ORGANIZATION
or SUBSIDIARY of CORPORATE PRINCIPAL of which he/she is
retained
o Must publicly announce his/her interest before the vote and
file Form 8A with recording officer within 15 days after the
vote occurs
o No Appointed State or Local Officer shall participate in any
matter inuring to the officer’s private gain or loss or to
Principal, Relative, Business Associate or Parent
Organization or Subsidiary of Corporate Principal to which
he/she is retained without first disclosing the matter on
Form 8A

Non-criminal Penalties for Violation of the
Sunshine Amendment and the Code of Ethics
o Penalties may include
Impeachment
Removal from office or employment
Suspension
Public censure
Reprimand
Demotion
Reduction in salary level
Forfeiture of no more than 1/3 salary per month for no more
than 12 months
 Civil penalty not to exceed $10,000
 Restitution of pecuniary benefits received
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
Candidates
o Disqualification from being on ballot
o Public censure
o Reprimand
o Civil penalty not to exceed $10,000

Former Officers and Employees
o Public censure and reprimand
o Civil penalty not to exceed $10,000
o Restitution of pecuniary benefits received

Felony Convictions: Forfeiture of Retirement
Benefits
o Public officers and employees subject to loss of
retirement benefits if convicted of:
 Embezzlement of theft of public funds
 Bribery and felonies under Fla. Stat. 838 misuse of public
office
 Impeachable offenses
 Felonies connected with intent to defraud the public
o Automatic penalties for failure to file annual disclosure
 Fines of up to $25 each day late the form is filed after Sept.
1
 Maximum of $1,500
An Integrity Test You May Not Have Heard About
In the 1970’s, ABC News conducted an integrity test in Miami, in
which 31 wallets containing money and identification were turned
over by role players to 31 police officers. Nine of the officers kept
the money and were subsequently fired and/or prosecuted.
Thirty years later, ABC News replicated the integrity test in Los
Angeles and in New York. Twenty wallets containing money and
identification were turned in to officers of the LAPD and another
twenty were turned in to officers of the NYPD. All forty wallets
were recovered by the officers without a dollar missing.
It is unclear if the officers have become more ethical over the past
three decades, or if they suspected the wallets was simply bait being
offered in some type of sting operation.
Contact Info:
[email protected]
Secure email: [email protected]
850-412-3965