The Official Publication of the Wisconsin Professional Police Association Wisconsin Police Journal January 2021 • Vol. 89, No. 1 Can Your Personal Cell Phone Get You in Professional Hot Water? p. 6Wisconsin Professional Police Association January 2021 • Vol. 89, No. 1 OFFICERS President – Todd Hoover, Racine Vice President – Nichelle Nelson, Waukesha Treasurer – Trevor Rud, Pepin County Secretary – Brian Barbour, Oneida County Sergeant at Arms – Steven Bartels, Waukesha DIRECTORS James Brigham – Dane County Jeffrey Darst – Superior Danielle Engen – Onalaska Dan Frei – Madison Devon Gaszak – Minocqua Dale Gerbig, II – La Crosse Justin Greuel – Eau Claire Nicholas Groth – Racine Mark Hollister – Chippewa County Matt Karls – Dane County Sups. Ted Knoeck – Marathon County Sups. Dennis LeCaptain – Janesville Travis Levandowski – Portage County Mark Moderson – Appleton Terry Pockat – Oneida County Kelly Powers – Madison Robert Richardson – Retiree Andrew Rosenow – La Crosse Nick Stachula – West Allis Brian Tuescher – Dane County Travis Tuttle – Fond du Lac Adam Zukowski – Dunn County EXECUTIVE DIRECTOR James L. Palmer, II GENERAL OPERATIONS OFFICE 660 John Nolen Dr., Suite 300, Madison, WI 53713 (608) 273-3840; (608) 273-3904 Fax Web Site: www.wppa.com Editor and Design: Julie Neeley Printing: Thysse Printing; Oregon, WI 53575 CORRESPONDENCE Address all magazine editorial correspondence to: WPPA, 660 John Nolen Dr., Suite 300, Madison, WI 53713 POSTMASTER: Send address changes to: Wisconsin Police Journal 660 John Nolen Dr., Suite 300, Madison, WI 53713 ABOUT THE WISCONSIN POLICE JOURNAL The WISCONSIN POLICE JOURNAL (ISSN 1086-5187) Vol. 89, No. 1, is owned and published by the Wisconsin Professional Police Association, 660 John Nolen Dr., Suite 300, Madison, WI 53713. The WISCONSIN POLICE JOURNAL is published quarterly (January, April, July and October) and is circulated to dues-paying members of the Wisconsin Professional Police Association. Members’ subscriptions are included in dues. For retirees and non-members, the subscription price is $12 per year. Subscriptions will be accepted only from bona fide law enforcement officers and students enrolled in law enforcement. COPYRIGHT & POSTAGE Periodical Postage Paid at Madison, Wisconsin, and additional mailing offices. Material contained herein shall not be reproduced in any form without express advanced written permission. Manuscripts and photos will not be returned unless accompanied by an addressed, stamped envelope. Copyright© 2021 Wisconsin Professional Police Association Purposes And Aims Of The Wisconsin Police Journal The Official Publication of the Wisconsin Professional Police Association The Wisconsin Police Journal is the voice of thousands of WPPA members throughout Wisconsin. The Wisconsin Police Journal is dedicated to the following principles: • To disseminate important news and information affecting the WPPA membership. • To publicize the purposes, programs and public service projects of the WPPA. • To inform government officials and state legislators of the problems and concerns of the membership. • To inform the citizens of Wisconsin of the duties of the law enforcement officer and to encourage public acceptance of, and compliance with, the laws of the state. • To reflect the proper and deserved image of law enforcement officers in order to help them perform their responsibilities to provide security for all persons and protect the rights of the individual regardless of race, creed or religion. • To defend and promote the integrity of law enforcement officers who, at great personal sacrifice, are devoting their lives and careers to the noble profession of law enforcement. Wisconsin Police Journal - 2 Table of Contents Message From the President p. 3 Hitting the Street Without Your Ballistic Vest? Extended Legal Protection Plan p. 4 Executive Director's Report p. 5 Can Your Personal Cell Phone Get You in Professional Hot Water? pp. 6-10 From the Desk of Attorney General Josh Kaul p. 11 Check Out Our App p. 11 Special Olympics Wisconsin Polar Plunge p. 12 WPPA's 88th Annual Convention pp. 13-16 Maximizing Your Effectiveness Retired Members p. 18 WRS Investment Performance p. 18 New Synthetic Opioid – Brorphine p. 19 WPPA Scholarship Program p. 19 WPPA Service Awards pp. 20-21 WPPA Merchandise pp. 22-23MESSAGE FROM THE PRESIDENT Todd Hoover Comments and letters can be sent to: hoover1803@sbcglobal.net I can’t recall ever being more pleased to wish you a Happy New Year! Though we are far from out of the woods as far as the COVID-19 pandemic and the immense scrutiny facing our profession is concerned, I’m sure we are all thrilled to put the dumpster fire that was 2020 in the rearview mirror. I sincerely hope all of you were able to enjoy the holidays and that this issue of the WPJ finds you and your families safe and healthy. While we can all readily identify the challenges and difficulties that the last year posed to us, I would prefer to focus on some of our successes. Though the state legislature has met infrequently this year – largely as a result of the pandemic – 2020 ended one of the most successful legislation sessions in recent memory. For instance, we finally saw the enactment a new law ensuring that the survivors of officers killed in the line of duty get to keep their health insurance. The WPPA led the charge on this issue for nearly a decade, and this was an enormous accomplishment. Our organization is also proving to be an influential voice in the development and passage of new statutory guidelines regarding the use of body-worn cameras and the retention of the data that they collect. As more agencies implement body-worn camera programs, these laws advance the interests of the public and the officers that serve it alike. Also, amidst a flurry of police reform proposals offered at every level of government, we have again demonstrated our value as a credible and authoritative voice of reason surrounding the public discussions about policing. In addition to being appointed to the Speaker’s Task Force on Racial Disparities, Executive Director Palmer has been invited to weigh in on the local police reform efforts in various cities throughout Wisconsin. Our advocacy on this front has never been more important, and it gives us a critically important voice that law enforcement officers elsewhere throughout the country simply do not have. The last year also saw the successful launch of the popular WPPA Mobile App, which has been very well-received by our members as an outstanding resource for emergencies, information, guidance, and newsworthy developments impacting all of us. Available for members to download from the App Store and Google Play, you can also use it to enroll or re-enroll in the WPPA’s Extended Legal Protection Plan, which has continued to thrive as a stand-alone program. Established in 2018, the ELPP is the best supplemental legal services program of its kind, and for hundreds of new members, this added additional protection last year. In order to build upon these achievements and expand our services to you, the WPPA met in November and December to consider a variety of strategic proposals that had been painstakingly formulated by the organization’s top managers. After a great deal of thoughtful discussion and inquiry by your elected board, we approved of the plans to restructure and increase staffing so that we are in the best position to maintain our ability to meet your service demands. The challenges confronting our profession have never been more dynamic, complex, and publicly-divisive, but I am confident that we are in the best position possible to perpetuate the organization’s proud tradition of providing excellent service to those of us that wear a badge. I’m also pleased that we were able to do so without implementing an increase in our monthly dues. The fact that we can do this is a testament to the WPPA staff and that this is the second year in a row that the board has worked to avoid a dues increase is a testament to the officers from across the state that serve on our governing body. In both respects, all of us in law enforcement benefit greatly from the dedication and commitment exemplified by the WPPA staff and its leaders. While I’m sure that we are all thrilled to put 2020 behind us, significant uncertainties will continue to front us all. While we can’t know what all of those will be, I am honored to have enjoyed your trust as the president of this wonderful organization. The more that I’ve come to learn about what the WPPA does in comparison to similar organizations throughout the country, the more I’ve come to appreciate and respect how special this organization is. More importantly, I know that the WPPA is ready to protect us when we need them the most. There is no uncertainty in my mind about that. We've got your six. Send in your award nomination today! Award Nominations must be postmarked byJanuary 6, 2021. See pages 20-21 for additional information. Wisconsin Police Journal - 3Hitting the Street Without Your Ballistic Vest? Throughout recorded history, humans have used various types of materials as body armor to protect themselves from injury in combat and other dangerous situations. In 1976, scientists came to the conclusion that Kevlar was bullet-resistant, wearable and light enough for police officers to wear full-time. Since that time, bulletproof vests have improved significantly, and most patrol officers depend on them as a basic safety precaution. Indeed, according to the International Association of Chiefs of Police, bulletproof vests have saved over 3,100 officers' lives since 1987. The WPPA Extended Legal Protection Plan (ELPP) is similar to that bulletproof vest: a simple way to shield yourself from a situation that could devastate you and your family at any time. Since we launched the ELPP in January of 2018, over 2,100 WPPA members have spent just 10 minutes and $72 to enroll in order to protect themselves and their loved ones from what could be significant financial loss. In our first two years of experience, WPPA attorneys have taken on several cases. They haven't been the types of circumstances that attract headlines, but involve issues that officers encounter every day in every area of our state: • An officer suffering from the effects of numerous duty-related concussions; • An officer diagnosed with PTSD as a result of being threatened and stalked after a shooting; and • An officer that developed a hearing loss caused by 30 years of exposure to the loud noises that are common to the law enforcement profession. As is common practice, all of these cases were initially rejected by the employer's worker's comp administrator, and ordinarily the officers would have had to make the tough choice between hiring an attorney or trying to navigate all the complicated medical and legal paperwork alone. But each of these officers had made the wise choice to spend $72 to enroll in the ELPP. Each one has the huge advantage of being guided and represented by WPPA attorneys at no additional charge. No matter how complicated their case, none of these folks will pay any more than $72 annually. They each have a legal equivalent of a ballistic vest. But...every few weeks we get a call from someone hoping against hope that they had enrolled in the ELPP because now something has happened to remind them that they had recognized what a great benefit it was, but had put if off for a later day and now couldn't remember whether they had ever gotten to it. Here are a few examples of those that forgot to don their legal bulletproof vest: • An officer exposed, on the job, to a lethal substance, resulting in a significant long-term medical condition; • An officer assaulted during an arrest that suffered an injury requiring surgery; and • An officer that stepped out of his squad, slipped on the ice and cracked his head. Each of these cases will likely cost the officer thousands of dollars. Each is at risk of using most or all of his available leave and losing out on overtime, as well as facing the decision whether to hire an attorney or try to deal with the insurance company alone. Each of them wishes that they had someone in their corner, protecting their interest without charging an arm and a leg. Each of them wishes they had grabbed their legal bulletproof vest before hitting the street. On the flip side, we have also seen circumstances in which a member believed he had a valid claim but, after review, it was determined that he did not. In these cases, participation in the ELPP saved the officers from hiring a lawyer and spending a lot of their own time and money in fruitless pursuit. Worker's comp and duty disability claims are very frequent and very complicated. Most claims are rejected out-of-hand, as the insurance companies work in the interest of the employers. At the WPPA, we work exclusively for our members and, for $72 per year, we will extend our services to protect you in a wide range of situations stemming from your capacity as a law enforcement officer. Extended Legal Protection Plan Highlights: 1. Under this optional plan, the WPPA will cover all of the costs in connection to the following types of legal matters that are not currently covered by your WPPA membership: Criminal defense in actions stemming from conduct performed in the capacity of a law enforcement officer; Civil defense (e.g., civil rights claims) in actions stemming from conduct performed in the capacity of a law enforcement officer for which an officer’s employer does not provide representation; Worker’s compensation cases; and Duty disability cases. 2. This plan is only available to full-service members in good standing and members from retainer local associations that do not have binding arbitration. 3. Each member must enroll in the extended plan on an individual basis by completing the plan contract available at wppa.com and submitting the annual plan fee. Local associations may pay for their members out of their treasuries, but the WPPA must receive a signed extended plan contract and the annual plan fee for each individual member in order for them to be enrolled. 4. The annual fee for this extended legal plan is $72. 5. The plan even covers outside (non-WPPA) attorneys that have been vetted and approved by the WPPA. For more information about this important extended service option, or to enroll and begin receiving the added protection that it provides, visit our website: www.wppa.com. ✓ ✓ ✓ ✓ Wisconsin Police Journal - 4EXECUTIVE DIRECTOR’S REPORT James L. Palmer, II Comments & letters can be sent to: palmer@wppa.com or on Twitter, @JimPalmerWI 2020 State Elections Recap Despite the fact that the 2020 election cycle was extraordinarily divisive, the November elections resulted in few changes insofar as the composition of the state legislature is concerned. The Republicans in the senate gained two seats to achieve a 21-12 majority over their Democratic counterparts. Likewise, as a result of also garnering two new seats, the Assembly Republicans will enjoy a 61-38 majority over the Democrats in that chamber when the 2021-22 legislative session begins in January. On October 30, the WPPA released its detailed assessment of state lawmakers and their treatment of law enforcement issues during the 2019-2020 legislative session. Prepared every two years, this report includes our legislative report card – the most cumulative of its kind in the country – while also demonstrating how the candidates for the state legislature responded to a questionnaire that the WPPA sent to every individual running for state office. As in the past, the WPPA’s Board of Directors relied upon these measures in deciding which candidates to endorse. Using those measures, the WPPA endorsed eight candidates for the State Senate, consisting of five Democrats and three Republicans. In the State Assembly, the WPPA endorsed 51 candidates, consisting of 26 Republicans and 25 Democrats. The fact that the organization’s endorsements were so evenly split is a testament to the value of our report card and candidate questionnaire. By using these objective tools to identify which candidates will best support the interests of Wisconsin’s law enforcement community, the WPPA reinforces its credibility as a nonpartisan advocate with state lawmakers. That credibility is crucial to maximizing our ability to influence policymaking in a way that benefits public safety, the law enforcement profession, and your ability to support your loved ones. Critical Incident Update Not surprisingly, it would appear that the global health crisis that we have all endured for the last year has resulted in a decline in the number of critical incidents involving officers in Wisconsin. By mid-December, the WPPA’s preliminary data indicates that there were 18 officer-involved shootings in Wisconsin in 2020, 16 of which resulted in a fatality. That represents a decline of approximately 44 percent from 2019, when there were 32 officer-involved shootings across the state. With regard to the fatal officer-involved shootings that occurred in 2020, it’s worth highlighting that every single one of them included an armed suspect. Also notable is the fact that, in all but one case, the incidents involved officers that were confronted with individuals armed with a firearm. In contrast, of the fatal officer-involved shootings that occurred in the state in 2019, approximately 67 percent of them involved suspects armed with a firearm. Not included in these statistics are six critical incidents that did not involve officers that fired their weapons. In these cases, which included pursuit-related fatalities, suicides, and other custody-related deaths, the WPPA swiftly responded with the full force of its field and legal staff to assist the officers involved. In a time when extraordinary scrutiny is applied to each and every incident involving an officer, the WPPA’s ability to respond to our members on a 24/7 basis has never been more crucial. Personnel Changes In order to effectively maintain our unparalleled ability to meet the service demands of our members, the WPPA Board of Directors recently approved strategic changes to our staffing. In December, Staff Attorney Roger Palek was promoted to Director of Legal and Field Services. An exceptionally talented practitioner with many years of labor and employment law experience, Palek has been with the WPPA since 2008. Since that time, he has grown into an authority on critical incident advocacy, having represented countless officers during the most stressful periods of their careers and lives. In his new leadership role, Palek will help oversee the WPPA’s legal and field service programs. Assisting him in that undertaking will be Randy Ingram, who has assumed the role of Field Services Coordinator. Following his service in the United States Air Force and after having worked as a telecommunicator, corrections officer, and deputy sheriff, Ingram joined the WPPA’s field staff as a business agent in 2002. During the intervening years, Ingram has emerged as an adept advocate and has come to be recognized as an influential leader amongst our staff. While Ingram will continue to service the WPPA’s local association affiliates in Northern Wisconsin, his addition to the WPPA’s management team will help bridge our front-line business agents with the attorneys on our staff. Continued on page 10 Wisconsin Police Journal - 5Wisconsin Police Journal - 6 Can Your Personal Cell Phone Get You in Professional Hot Water? By Andrew Schauer, Senior Staff Attorney aschauer@wppa.com Mobile phones have become so ubiquitous that, to many people, they have become an extension of us. Among many other things, we use them to take pictures, browse the internet, order food, pay bills, and schedule appointments. The technology has advanced so much that their primary purpose – to make and answer phone calls – is almost an afterthought. This dynamic is no less true for those that work in law enforcement than it is for the public at-large. Increasingly, the prevalent advancement and widespread use of mobile phone technology has presented numerous challenges to both law enforcement agencies and the officers that work within them. Among the most pressing questions are those related to how mobile phones ought to be used and the circumstances under which a department’s interests in investigating its officers’ conduct overrides the officers’ protected privacy interests. In light of the fact that the WPPA’s field and legal staff are frequently asked questions on these issues, along with what we can see as an increase in the number of disciplinary investigations stemming from an officer’s mobile phone use, this clearly appears to be an area where some guidance is needed. Officers working in departments of all sizes from across the state have asked about the extent to which an employer can seize their phone, and what information in their phones constitutes a “record” for purposes of the Wisconsin Public Records Act. These two questions are related, but the answers to them diverge. Examining these issues properly requires a thorough review of the policies departments usually have regarding the use of personal cell phones, a review of the applicable case law, persuasive secondary authority, and applicable state statutes. Ultimately, the best advice that we can provide to any officer is to refrain from using a personal mobile phone while on duty, or for any work-related purpose while off- duty. This is the most effective way to avoid entanglements with public records requests, along with the prospect of opening a personal phone for an employer’s inspection. Applicable Policies The analysis of these issues must begin with the identification of any policies that an employer (i.e., the department and/or the municipality itself) may have that potentially apply to an officer’s personal phone use. First, many public employers have an information technology acceptable use policy that may provide a specific prohibition against the use of personal cell phones while at work. Many of these policies recognize an officer’s ability to use their phones during break periods or in extenuating or emergency situations. These policies are a reasonable use of the employer’s rulemaking authority, and they should be frequently consulted and followed to the letter. Other common policies which address and limit an officer’s ability to conduct personal business on the employer’s computers apply to the use of a mobile phone. For instance, many such policies address the use of social media, often directing employees not to use social media to engage in or post communications or material that would violate any other policy, including but not limited to, the employer’s harassment policy, confidential/ privileged information policy, or the department’s code of conduct. These policies, too, are reasonable, and officers should be cognizant to limit their social media use (irrespective of the “privacy” settings) to those comments that they would just as easily post on a sign in their front yard. These types of policies have become increasingly commonplace in departments across the state. Nonetheless, they can be applied or interpreted by an employer in ways that potentially violate an officer’s Fourth Amendment right to privacy. A number of significant court rulings have served to give shape to the obligations that employers must satisfy when operating in this area, and the legal guidance those decisions provide is instructive for officers and agencies alike. Applicable Judicial Precedent The line of applicable case law begins with a decision by the Supreme Court of the United States having nothing to do with cell phones, but rather a search of a public employee’s office. In O’Connor v. Ortega, 480 U.S. 709 (1987), the employee was a physician working at a state hospital who was responsible for training other physicians in the psychiatric residency program. Hospital officials became concerned about possible improprieties in his management of the program, particularly with respect to his acquisition of a computer and charges against him concerning sexual harassment of female hospital employees and inappropriate disciplinary action against a resident. While he was on administrative leave pending an investigation of the charges, hospital officials, allegedly in order to inventory and secure state property, searched his office and seized personal items from his desk and file cabinets. These items were used in administrative proceedings that resulted in his discharge. No formal Wisconsin Police Journal - 7 → inventory of the property in the office was ever made, and all the other papers in the office were merely placed in boxes for storage. The employee brought a civil action alleging a deprivation of his rights (commonly referred to as a “§ 1983 claim”) that the search of his office violated the privacy protections secured by the Fourth Amendment of the U.S. Constitution. In a plurality decision, the Supreme Court held that “searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints” but that the “operational realities of the workplace may make some public employees’ expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official.” The court also held that “given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case- by-case basis.” Accordingly, it reversed and remanded the case because it could not determine whether the search of the employee’s office and the seizure of his personal belongings satisfied the standard of reasonableness without an evidentiary hearing. The takeaway from this decision is that while a privacy right does exist for personal belongings in the governmental office of a public employee, it can be overcome by a search that is reasonable and focused on the investigation of potential workplace rule violations. The next significant precedent is City of Ontario, California, et al. v. Quon et al., 560 U.S. 746 (2010) which applied the O’Connor holding to text messages sent by a department-issued pager. In this case, the city issued pagers to Quon and other officers in the department, and when the monthly character limit was exceeded for several months running, the department’s chief sought to determine whether the existing limit was too low, or whether the overages were for personal messages. The chief requested the texts from the carrier and not only determined that many of Quon’s messages were not work-related, but that some were sexually-explicit; Quon was disciplined as a result. Quon and other officers filed suit alleging that the city violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of the texts, and that the wireless carrier violated the SCA by providing the transcripts to the city. The U.S. Supreme Court held that the search of Quon’s text messages was reasonable, and therefore, the city did not violate Quon’s Fourth Amendment rights. It first underscored that the Fourth Amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the governmental actor is investigating a crime or performing another function, and that this rule must be applied no differently when the government acts in its capacity as an employer. The Court also held that the question as to whether the employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Finally, it held that where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all of the circumstances. From these cases, we can conclude that reasonable governmental searches to retrieve work-related materials or to investigate violations of workplace rules do not violate the Fourth Amendment. As such, it follows that the information the department seeks by gaining access to an officer’s personal mobile phone must prove or disprove an allegation of this reasonable investigation. Also, in order for any investigation to be proper in the first place, a department would need some evidence to provide a reasonable suspicion that a work rule violation has occurred (like it had in O’Connor) or some other reasonable non-investigatory, work-related purpose (like it had in Quon). Due to the growing functionality of the modern mobile phone, courts are beginning to determine that the investigation into the information in a phone must be reasonably limited to that which they are seeking in the relevant investigation. In line with the considerations listed in Riley v. California, 573 U.S. 373 (2014) it is likely that courts will examine whether an employer’s investigations have been appropriately restricted to what they are looking for, as opposed to embarking on a “fishing expedition.” At present, however, there are not that many cases that have fleshed this out. Here in Wisconsin, we believe this is primarily because our field and legal staff work to minimize these conflicts when our members are confronted with these issues. Most often, departments have effectively demonstrated the reasonable suspicion needed to investigate officers and inspect their mobile phone data. When that’s the case, WPPA staff will work with the affected members and their employers to narrowly define their inspections and have the officers voluntarily provide the specific information requested. This approach not only protects officers, but it is consistent with the applicable judicial guidelines. Due to a lack of judicial precedent in Wisconsin, however, it’s often useful to examine how courts elsewhere throughout the country have considered these issues. While such holdings are not binding on the courts in our state, they can be used for their persuasive value as secondary precedents that demonstrate to a Wisconsin court how these dynamic emerging issues have been evaluated. Such secondary authorities can also prove instructive as to how a federal court in Wisconsin might approach this matter. Persuasive Secondary Authorities For instance, in Larios v. Lunardi, 2016 WL 6679874 (E.D. Cal. 2016), the California Highway Patrol seized the personal phone of a trooper and searched it, relying upon its policy notifying troopers that any work on personal cell phones can be retrieved upon demand. The federal district court held that an employee “[k]nowing that work product [on a personal phone] Wisconsin Police Journal - 8 would remain open to inspection in no way puts the employee on notice that the government will also have carte blanche to review everything an employee keeps on his or her phone. To be sure, if the government’s argument is taken to its logical conclusion, permissibly keeping work files at home would permit the government to search an employee’s house. Certainly, employees have a legitimate expectation of privacy in their homes, and their interest in the contents of their cell phones is not materially different.” The court focused on the fact that the employer searched everything on the personal cell phone and did not limit the search to evidence of specific wrongdoing. In Manasco v. Board of Police Commissioners, Case No. 4:11-CV- 00557-CDP, (E.D. Mo., 2011), a suspect was shot by a team of Deputy U.S. Marshals and police officers from St. Louis when they arrived at the home of a suspect to serve him with a felony warrant. The suspect shot two U.S. Marshals and a St. Louis police officer and one of the U.S. Marshals died. The suspect was killed when officers returned fire. A photo of the suspect, lying in a pool of blood, ended up being circulated around St. Louis through social media. The St. Louis Police Department started an internal affairs investigation to determine who took the photo and how it was leaked to citizens and the media. The department and the U.S. Marshal’s service have policies which state that photos taken of a crime scene are for investigative purposes only. The internal investigation was able to identify the officer who took the photo when a third party received the photograph and informed internal affairs. Although the officers admitted to either taking, sending, receiving, or forwarding the photograph, they could not recall to whom the picture had been sent. The department then asked the officers to turn over their cell phone records for review by internal affairs, and they refused. The officers were then ordered to turn their personal cell phone records of text messages during the relevant time period when the photo had been taken. The purpose of internal affairs’ investigation was to determine how the photograph was disseminated and to whom, because the photograph was ultimately transmitted to the suspect’s family members and various media outlets. After being ordered by the department to produce their cell phone records, the plaintiffs brought this action to prevent the execution of the department’s order, asserting that it amounted to an unlawful search and seizure of their records in violation of the Fourth Amendment. The court first determined that the plaintiffs had a protectable interest in their cell phone and cell phone records. It then cited the two-step inquiry in O’Connor: “(1) whether the employee had a reasonable expectation of privacy given the ‘operational realities’ of the workplace; and (2) if there is a legitimate expectation of privacy, the employer’s intrusion for investigation of work- related misconduct must be ‘judged by the standard of reasonableness under all circumstances.’” The court then found that the production of the officers’ personal cell phone records of text messages with image attachments between two certain dates to be a reasonable intrusion on the plaintiffs’ expectation of privacy. The officers “used their personal cell phones to send or receive unauthorized work- related information … and therefore were on notice that they and any devices in their control that perpetuated work- related misconduct, would be subject to investigation.” The court considered this to be a reasonable intrusion into the privacy of the officers because they admitted to some amount of misconduct by sending or receiving the pictures for non-investigatory purposes. The court also distinguished this case from the Quon decision because it involved private communication on a government-issued device with notice, while this one involved the employees’ private cell phones. Finally, the court curtly dismissed the officers’ assertions that their cell phones were private and there was no notice that their phones would be audited. The court “was not persuaded by this argument because the plaintiffs used their cell phones to violate police policy.” That was not the end of the inquiry for the court, however. It then balanced the department’s reasonable desire to investigate the extent of the officers’ violation (“to refresh the officers’ recollection of how many transmissions of the picture had been made and to whom”) against their legitimate expectation of privacy the officers otherwise have in their cell phones and cell phone records. It found that the department’s request was “motivated by a legitimate work- related purpose,” and was “not excessive in scope” considering its purpose. Therefore, the employer’s intrusion was deemed reasonable. Applicable State Statutes A thorough legal examination of an issue not only looks to the courts for guidance, but to the statutes as well. There are no specific rules listed in the Wisconsin statutes on the exact topic of personal cell phones, but due to the interrelatedness of email and mobile phones that can access them, there are two laws that may be applicable to the issues addressed in this article. First, Wisconsin’s internet privacy protection statute (Wis. Stat. § 995.55) generally provides that employers may not require an employee or an applicant to disclose access information for the personal internet account of the employee, and they cannot discharge, refuse to hire, or otherwise discriminate against an employee for refusing to disclose this information. What is especially instructive for our purposes is that the statute also lays out as a matter of policy a range of actions that employers can take despite the protections just stated. Employers may still discharge or discipline employees for transferring proprietary or confidential information to an employee’s personal internet account. Employers are also allowed to conduct investigations and require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s propriety or confidential information to the employee’s personal Wisconsin Police Journal - 9 → internet account, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules, if the employer has “reasonable cause” to believe that such has occurred. In conducting this investigation, an employer may require an employee to grant access to or allow observation of the employee’s personal internet account, but may not require that the employee disclose access information (i.e., their password) to that account. This law also makes an explicit allowance for employers to request or require an employee to disclose access information to gain access to or to operate an electronic communications device (such as a cell phone) that is supplied or paid for in whole or in part by the employer. This is in line with every department’s policy that they have access to the accounts and phones they provide, and if they lose access, they can order an employee to provide it. This also squares with other common employment policies that provide that employees have no right to privacy for communications made through employer-paid phones and on department computers. We next turn to the Wisconsin Public Records Law (Wis. Stat. § 19.31 et seq.) and a Wisconsin Supreme Court case which applied it directly to personal emails composed on publicly-owned computers. The Public Records Law generally provides any requestor with the right to inspect any “record” as defined by the statute. The statute defines “record” to include “electronically-generated or stored data” being kept by an “authority” which includes a police department. A month after the U.S. Supreme Court decided Quon, the Wisconsin Supreme Court provided useful guidance on the extent of the Public Records Law. In Schill v. Wisconsin Rapids School District, 327 Wis.2d 572 (2010), the court held that teachers’ personal emails sent on school district email accounts and district-owned computers were not “records” under the Public Records Law. This case is instructive because cell phones are now capable of sending and receiving email, and many of the same considerations apply to these various forms of electronic communication. The Wisconsin Supreme Court arrived at this holding by putting their “focus … on the content of the document.” Since the contents of the teachers’ personal emails had no connection to a government function, the court reasoned that they were not records under the Public Records Law. While the court held that these personal emails were not “records” and the decision is widely regarded as a big win for privacy advocates, the court explicitly held that its decision does not affect the public employer’s right to use them for investigative purposes against these public employees. “If the emails were used as evidence in a disciplinary investigation or to investigate the misuse of government resources, the personal emails would be records under the Wis. Stat. 19.32(2). A connection would then exist between the contents of the emails and a government function, namely the investigations.” The court held that the ruling in favor of the teachers applies only to “the contents of the personal emails that the teachers created and maintained on government-owned computers pursuant to the government employer’s permission for occasional personal use of the government email account.” Even though this article has largely focused on the contents of personal cell phones, we include references to Wisconsin internet privacy protection statute and the Public Records Law (as clarified by the court in Schill) to underscore that even in those instances where the government has created a limited privacy right of public employees on government-owned systems, an investigation into data possessed by employees can still lead to the forced disclosure of this information for bona- fide disciplinary investigations. Advice for Members The judicial precedent, persuasive secondary authorities, and state laws outlined above lead us to provide the following advice to our members: • While accessible to the employer, emails that officers create on department-owned devices pursuant to the department’s permission for occasional personal use of the department email account and internet access are not “records” for public records purposes, but • All information kept on the department’s email systems, or on department-owned devices is completely accessible to the department and can be used in disciplinary matters against officers. • An officer who uses their personal cell phone for work-related activity will be creating “records” which may be requested by the public. • When an officer uses their personal cell phone during working hours or for work purposes, such use may raise questions about the amount of time an officer is using their phone instead of working, or about the propriety of the circumstances in which they are using that phone. Either of these situations may provide reasonable cause/suspicion for an investigation. • Once the department starts such a bona-fide investigation, an officer may be required to provide information from the phone relevant to the investigation. • Any search of the officer’s personal phone in that circumstance would need to be done in the narrowest way possible, and such a search or information request may only lead to information which is relevant (by time and type) to the investigation. • An officer may be asked to provide access to this information (i.e., to unlock the phone) but may not be asked to provide “access information” (i.e., a password) which would provide the department with complete access to all of the information in the phone or personal internet account. • The Association will insist that an outside third party (a neighboring department or independent IT professional) be used to provide the Next >