By Reggie Ellis
woodlake – A former Woodlake Police officer’s civil suit against the City of Woodlake will return to Tulare County after being rejected for consideration by two higher courts.
Maggie Melo, with the Law Offices of Melo and Sarsfield in Visalia, said the California Supreme Court denied review Daniel Garibay vs. the City of Woodlake and sent the case back down to the trial court level. Last year the case was already denied review by the Court of Appeals, which paused all Trial Court cases on whether adulterous relationships are protected under the right to privacy laws under the First Amendment.
A former Woodlake Police officer, Garibay claims he was wrongfully fired earlier in February 2015 for having an affair with the wife of a close friend of his superiors.
Garibay, a three-year veteran of the police department, filed a lawsuit against the City of Woodlake for violations of the Fair Employment and Housing Act (FEHA), claiming the police chief, lieutenant, city manager and a fellow officer acted together “in an effort to wrongfully and illegally drive Garibay from his employment in the City of Woodlake.” Garibay claims he was fired on Feb. 13, 2015 for having an affair with the wife of a Woodlake man, only identified as John Doe #1, who is close friends with City Manager Ramon Lara and Police Chief Mike Marquez.
The lawsuit claims Woodlake Police Chief Mike Marquez “pressured” Garibay to end his relationship with the unnamed woman, referred to as Jane Doe #1 in court documents, stating “you better fix this,” or something to that effect. “Chief Marquez, on information and belief, acting on the orders of City Manager Lara and John Doe #1, attempted to dissuade and discourage Garibay’s relationship with Jane Doe #1,” the lawsuit stated.
When Garibay refused to cease contact with the woman, he claims Marquez initiated an internal affairs investigation for allegations of insubordination. Furthermore, Marquez assigned Lt. Jose Aguayo to conduct an internal affairs investigation which invaded Garibay’s privacy and infringed on his freedom. “As a result of the pre-allegations of misconduct, Garibay was wrongfully fired from his employment on or about Feb. 13, 2015 at the orders and direction of Marquez,” stated the lawsuit.
Melo said, “This was a very thorough investigation for something not associated with work performance and was way outside a normal investigation.”
The lawsuit also names Officer Jesus Mendez, who allegedly made false statements that Garibay had confided in him about lying about his relationship with the woman. Mendez also allegedly failed to disclose that he himself had tried to have a social/sexual relationship with the same woman.
“(Mendez) had gone so far as to kiss or attempt to kiss her while she was participating on a ‘ride-a-long’ with the Woodlake Police Department,” according to the lawsuit. Melo said if Garibay was disciplined and the other officer was not, that would constitute “selective enforcement” which is also against the law which requires you “discipline everyone equally.”
The Constitutional issue was the only of seven causes of action that was not overruled by the judge. Garibay claims his firing was discriminatory because of his gender and marital status, that it created a hostile work environment through harassment, retaliation and was in violation of his First Amendment freedoms, right to privacy.
In his April 20 decision, Judge Hillman ruled that there was not sufficient evidence in regards to Garibay’s claims of discrimination based on sex and gender; discrimination based on marital status; that his superiors created a hostile work environment; that his superiors failed to prevent sexual harassment; that Garibay was harassed for his marital status; and that his superiors retaliated against him and violated his rights under the Fair Employment and Housing Act (FEHA).
The former officer claims there was no legal reason he could not have a relationship with the woman because she was not an employee with the city, was not a criminal defendant being investigated by the Woodlake Police Department and is not a confidential informant for the police department.
“This was between two consenting adults,” Melo said. “This is more befitting of a discussion in church than in government.”
Judge Hillman did rule that an investigation of Garibay ordered by Chief Mike Marquez and carried out by Lt. Jose Aguayo “was conducted in a manner intended to invade, and did in fact invade, Plaintiff’s right to privacy guaranteed to him under the First Amendment of the United States Constitution.”
The Judge ruled that there was sufficient evidence to show that Marquez and Aguayo’s actions “violated a clearly established constitutional right” to privacy, freedom of association, due process and equal protection. Hillman said arguments in the final complaint will come down a discussion as to whether adulterous conduct falls within the core of individual liberty stated in the First Amendment.
“The Court also recognizes defendants’ [City of Woodlake] admission in their reply papers that ‘there has existed since 2002, a clear conflict among the courts on the issue of whether adulterous sexual relationships were constitutionally protected in a way that would forbid public employees from disciplining and investigating their employees for such actions, and the U.S. Supreme Court has not ruled one way or the other.”
Melo, who is representing Garibay, said the City is attempting to make two arguments, that the officer was fired for violating the Police Department’s morality clause and that they were unaware that the morality clause did not include adultery.
“Usually these clauses are about officers not breaking the law, such as being arrested as a crime, dating co-workers or abuse of power,” Melo said. “They do not apply to who someone can have a relationship with. It’s problematic to have government dictating what you can and can’t do. Where would it end?”
Melo went on to say that her client didn’t even commit adultery because he is not married. She said under the law, only someone who is married can commit adultery. If anything, her client would only be guilty of an arcane set of rules regarding “fornication,” which is sex out of wedlock.
Daniel Garibay vs. the City of Woodlake will return to Tulare County Superior Court Judge Bret Hillman on March 23, 2017, unless there is new evidence or a settlement. During a settlement conference on Oct. 13, Judge Hillman found a stay in the case until there is a ruling from the State Appellate or Supreme Court. The Constitutional question of whether adultery is protected under the First Amendment was the only of seven causes of action that was not overruled by the Hillman. Garibay claims his firing was discriminatory because of his gender and marital status, that it created a hostile work environment through harassment, retaliation and was in violation of his First Amendment freedoms, right to privacy and association.
“The government cannot say who you can and can’t associate with,” Melo said.
The officer claims there was no legal reason he could not have a relationship with the woman because she was not an employee with the city, was not a criminal defendant being investigated by the Woodlake Police Department and is not a confidential informant for the police department.