Antonio A. Andrade v. City of Phoenix and Lawrence Wetzel, Clifford D. Fugate and Robert Dennis Barnhart v. Phoenix Civil Service Board

Police officers Andrade, Fugate and Barnhart were suspended by the Phoenix police department (the department) for engaging in sexual relations with women who were not their wives. Disciplinary action against Andrade was based upon charges of commission of a crime and immorality, both of which designated adultery as the underlying offensive conduct. Fugate and Barn-hart were charged, in addition, with neglect of duty and conduct unbecoming an officer or which tends to bring discredit upon the department. The crime and immorality charges against Fugate designated adultery as the underlying offensive conduct. The crime and the immorality charges against Barnhart designated lewd and lascivious acts in addition to adultery as the underlying offensive conduct.

Andrade’s twenty-day suspension without pay was upheld by the Phoenix Civil Service Board (the civil service board). Fugate and Barnhart were dismissed by the department. The civil service board reinstated them, but let stand suspensions of sixty-eight and sixty-one days respectively. All three officers filed complaints in the district court arguing that their suspensions violated their constitutional rights. The district court…

concurring in part and dissenting in part:

I agree that we should remand these section 1983 actions to the district court to determine whether the police officers’ conduct violated Arizona law. I also agree that, because resolution of this question could dispose of the cases, we should not reach “the difficult question whether discipline for extramarital sexual activity is constitutionally permissible.” 1 I write separately because I do not agree that the district court should “remand” the cases to the appellees if it finds that the officers did not commit crimes.

*561 A. The Proper Procedure on Remand

The court today instructs that “if, on remand, the district judge decides that the officers have not committed the crime of adultery, he should frame an order retaining jurisdiction pending a determination ... by the [police] department and the civil service board” whether the officers would have been disciplined anyway. At 560 (emphasis added). It is well established, however, that the district court, and not the defendant agencies, must determine whether the officers would have been disciplined. The Supreme Court has repeatedly instructed that where a plaintiff demonstrates…

692 F.2d 557 Antonio A. ANDRADE, Plaintiff-Appellant, v. CITY OF PHOENIX and Lawrence Wetzel, Defendants-Appellees. Clifford D. FUGATE and Robert Dennis Barnhart, Plaintiffs-Appellants, v. PHOENIX CIVIL SERVICE BOARD, et al., Defendants-Appellees. Nos. 80-5426, 81-5150. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 12, 1981. Decided Oct. 12, 1982. Robert R. Clarke, Napier & Jones, Phoenix, Ariz., for plaintiffs-appellants. William R. Jones, Jr., Jones, Teilborg, Sanders, Haga & Parks, Phoenix, Ariz., argued, for defendants-appellees; Don C. Stevens, II, Jones, Teilborg, Sanders, Haga & Parks, Phoenix, Ariz., on brief. Appeal from the United States District Court for the District of Arizona. Before BAZELON, * WALLACE, and NELSON, Circuit Judges. PER CURIAM: 1 Police officers Andrade, Fugate and Barnhart were suspended by the Phoenix police department (the department) for engaging in sexual relations with women who were not their wives. Disciplinary action against Andrade was based upon charges of commission of a crime and immorality, both of which designated adultery as the underlying offensive conduct. Fugate and Barnhart were charged, in…