Saratoga Springs Public Safety Commissioner James Montagnino has unilaterally added a section to the “Saratoga Springs Police Standards of Conduct” that will make adultery a cause for the termination of an officer. The section that was added approximately a week ago without any notification or fanfare is highlighted below in yellow. It can be found on the city’s web page.
It is important to note that Commissioner Montagnino is not just referring to relationships that may occur at work between members of the department. His broad directive includes firing officers engaging in adulterous relationships between consenting adults occurring in officers’ private lives as well. Absent from the directive is how Montagnino will determine that an officer has committed this crime.
In operatic terms, Montagnino justifies his directive by asserting that a private act between consenting adults “…bring[s] shame upon the entire department.” Supposedly, “it jeopardizes prosecutions.” He imperiously asserts “it has a corrosive effect on the morale and reputation of all members of the service whether uniformed or civilian.”
Montagnino’s amendment to the city’s standards of conduct for the police notes that adultery is still a crime in New York. This is a link to a webpage from the New York Times on this archaic law. New York is one of the few states that still has a statute criminalizing adultery.
About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)
While no one is really at risk of being jailed for adultery, adultery still has tremendous significance in family law, said Alton L. Abramowitz, another divorce lawyer.
Adultery is one of three principal grounds for divorce in New York State…New York Times March 21, 2008
As Commissioner Montagnino spent most of his career as a “referee” for divorces, it is not surprising that he is familiar with this law.
Federal Court Rules Firing For Adultery Is Unconstitutional
In the case of Janelle Perz v. City of Roseville Police Department; Stephan Moore, Captain Daniel Hahn, Chief, Cal Walstad, Lieutenant, the United States Court of Appeals For The Ninth Circuit ruled that unless it affects the officer’s performance, adultery cannot be used as the basis for dismissal.
Commissioner Montagnino’s rash decision to introduce this addition to the Police Standards of Conduct seems to invite costly litigation for the city.
US courts have a long and storied history of being reluctant to allow the government to intrude into the bedrooms of its citizens. We have seen this especially in recent decades in cases pertaining to gay rights. The Supreme Court in Lawrence v Texas struck down a Texas law that criminalized homosexual intimate relations. The court held that “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
Commissioner Montagnino’s call for severe sanctions for the private, consensual off-duty sexual conduct of police officers tramples on the same Constitutional rights that the Supreme Court sought to protect in the Lawrence case.
In addition, his statement that this behavior must be punished because it brings “shame on the entire department” is particularly troubling as it brings to mind the long history of victimization and stigmatization of women who engaged in unsanctioned sexual relationships. In its most extreme form this behavior, which was considered to bring “shame” on the woman’s family, resulted in horrific deaths by stoning and honor killings. I guess just losing your job for bringing shame on your department might be considered mild in comparison.
Groups such as UN Women have asserted that “penalization of adultery … leads to discrimination and violence against women.” However, as we already know, Mr. Montagnino’s record on these issues is questionable at best.
I find Montagnino’s adoption of this standard more than strange. It prompts me to ask four questions:
- What prompted Commissioner Montagnino to adopt this standard?
- How will he determine that a member of the police force is involved in an adulterous relationship?
- His deputy, Jason Tetu, was a member of the Saratoga Springs Police Department before he became Commissioner Montagnino’s deputy. He is divorced and one of the issues that prompted the divorce was adultery. Would Mr. Tetu be subject to this standard?
- Does Commissioner Montagnino have an officer in mind who this amendment will be used to target?
These are really rhetorical questions as Commissioner Montagnino never responds to my queries.