Judge wants cops’ names released, but will wait 2 days

The names of three Billings police officers disciplined for job-related sexual encounters will remain private for at least two more days.

District Judge Donald Harris ruled on Monday that the names should be released, but he allowed a temporary restraining order to stand for 48 more hours, to give lawyers for the officers time to document the basis for what they said would be an appeal to the Montana Supreme Court.

After he reviews the court precedents they plan to use in their appeal, Harris said, he’ll decide in two days whether to dissolve the restraining order.

The ruling came a little after noon on Monday, at the conclusion of a one-hour hearing involving lawyers for the officers, the city of Billings and the Billings Gazette and KTVQ, which teamed up to ask the court for release of the officers’ names and documents related to their disciplinary proceedings.

The three officers had been suspended without pay — for two weeks in the case of two officers who admitted having on-duty sex with a Police Department clerk, and one week in the case of an officer who admitted having off-duty sex with the same clerk. Two of the encounters took place in the basement of City Hall and one in or near a patrol car parked on private property.

The judge rejected claims by lawyers for the three patrol officers that their names should be withheld because the men violated city policy but did not commit any crimes. Layne Scheveck, the lawyer for unnamed officer No. 1, said police officers have three essential duties: to uphold the law, protect the public and prevent crime.

None of their activities involved the dereliction of any of those duties, Scheveck argued.

Harris, in tones of pronounced skepticism, said the suspension notices specifically stated that the officers were being disciplined for “failure to perform their duties.” He asked the officers’ lawyers why the men had a right to privacy “when they’re having sex … at City Hall or in a patrol car?”

And if the lawyers were arguing that the officers had a right to privacy because their actions were wrong but not serious, Harris asked, “When is conduct that involves moral turpitude not serious?”

During the hearing and again in delivering his order, Harris said one of his major concerns was that engaging in such behavior left the officers “vulnerable to blackmail.” Also, he said, when he rules on whether or not to grant a search warrant, he asks the police officer making the request whether everything in the application is truthful and accurate.

“This kind of conduct calls honesty, judgment and integrity into question,” he said.

One of the cases cited by the officers’ lawyers was a Supreme Court ruling  that the city of Billings didn’t have to release the names of five city employees disciplined for viewing pornography at work.

Harris said police officers are held to higher standards than other employees because “we give them the power to infringe on our most basic liberties. … With this kind of power comes scrutiny.”

Martha Sheehy, the lawyer for KTVQ and the Gazette, said the question of releasing the names hinged on the balance of the public’s right to know and the officers’ right to privacy. The news outlets were representing the public, she said, and “the public’s interest in this is, ‘What’s going on in the Police Department?'”

She noted that the city had previously released the name of the city clerk the officers had sex with, and so the public should know the officers’ identities in order to determine whether the city acted fairly toward them and other city employees.

Also at issue in the hearing was whether the officer’s official request for a temporary restraining order wasn’t itself a waiver of the right to privacy. After city officials decided to release the names to the public, the officers filed a request for a TRO on the afternoon of Friday, April 20.

The application inadvertently named all three officers and was not sealed by a judge until the afternoon of Monday, April 23. Until it was sealed, Harris said, the document was public and could have been seen by any number of people in the clerk of court’s office.

The police officers themselves, in a later filing, said they had already suffered damage to their reputations, and in at least one case an officer’s child was bullied at school over the case. That, Harris said, demonstrated that the information was already circulating in public to some extent.

After Harris ordered the release of the officers’ names, their lawyers said they would appeal to the state Supreme Court. That’s when Harris said he would keep the TRO in place for another 48 hours.

Also left dangling was the second part of the request made by KTVQ and the Gazette. They had asked to see documents related to the investigation of the officers’ activities, including interview transcripts, disciplinary letters and summary reports. The city argued against releasing some of that information.

Harris, who said he hasn’t yet seen any of those documents himself, said he will review them as soon as they are submitted and then contact lawyers for the news outlets and the city to let them know which documents he thinks are clearly open to the public.

If lawyers for the city or the news outlets disagree with any of his findings, he said, he will schedule a hearing to hash things out.

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