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Billings police car.

CASEY PAGE, Billings Gazette

Three police officers disciplined for sex on the job or in public buildings are now arguing in court that the public has no right to know any further information the city has, and calling media outlets' attempts to identify them a "witch hunt that is destroying peoples' lives and families."

In a 21-page filing in advance of a hearing scheduled Monday, lawyers for the officers expand their contention that not only should the officers' names remain private, but that any documents, including those in their personnel file, should be sealed. 

"These officers should be commended for coming forward when they were accused of wrongdoing, like they did," the filing says. 

The officers had sex with another city employee in separate incidents between 2013 and 2016, either while they were on the job or in City Hall. The conduct was discovered during an unrelated investigation. When confronted by a supervisor early in 2018, the officers admitted they had sex with the woman in question.

Two officers were suspended for two weeks without pay. A third was suspended for one week without pay.

The officers were granted a temporary restraining order on April 23 to stop the city from releasing their names. The Gazette on April 19 requested a series of documents relating to the officers' conduct, including the officers' names.

The city initially told the Gazette that documents would be released, including the names of the officers. The city also told the officers that their names would be released to the public, according to the police officers’ sworn affidavits. The Gazette and KTVQ were granted a request to intervene in the restraining order case. 

The filing is the latest argument by the officers that their right to privacy outweighs the public's right to know. The police officers continue to argue that their ability to do their jobs would be impaired if their identities were released, and it ramps up criticism of KTVQ and the Gazette.

"They are reopening old scars that have already healed by republishing stories that were forgotten," the filing says. "The Gazette and KTVQ have their news story. ... The right to know does not extend to ruin people's lives for the sake of selling more newspapers."

It paints officers' actions as "inappropriate" but not criminal and not having an effect on their job performance.

"Public employees only have a diminished privacy interest when the information sought relates to fitness to perform a public duty," it says. "Here, by contrast, engaging in sexual activities while on duty is only a policy violation, it is not a crime, it is not illegal, it did not harm the public, and it did not affect the (officers) ability to do their jobs."

The filing also repeatedly mentions the woman in question as "Jane Doe." Police Chief Rich St. John released the woman's name when announcing the officers' conduct, but did not release the names of the officers. 

The police officers call the woman's identification of the officers during an unrelated investigation "a likely attempt to drag down others with her." 

The filing also says that the officers requested the woman's name be withheld, and incorrectly says that the Billings Gazette released her name to the public. The Gazette has not released her name, though other media outlets have. 

The Gazette and KTVQ argued in court filings that “the Supreme Court has repeatedly recognized that police officers have only a limited expectation of privacy,” as they hold a position of public trust, and cited specific reasons why the public’s right to know should outweigh the officers' right to privacy:

  • “The public has a right to know why these three male officers were treated differently by the Department from a female employee. The city released the name of Jane Doe, the city employee with whom Police Officers 1, 2, and 3 had sex … . Why was the only female city employee involved in these sexual encounters treated differently from the male police officers?”
  • Officers may claim that their conduct was not serious and their discipline was not severe, but their position of public trust creates a higher standard for conduct than for some other city employees.
  • “The public has a right to review the discipline imposed and determine if these particular officers received special treatment.”
  • “Police Officers 1, 2, and 3 have submitted affidavits which indicate a willingness to have sex with another person simply because sex was available or offered to them, knowing that this conduct conflicted with their duties. The public seriously questions this judgment, especially with respect to these officers engaging in traffic stops and other solitary police activities.”
  • “Police Officers 1, 2, and 3 all admit that their conduct affects their ability to do their jobs … . Unless their identities are disclosed, the conduct of Police Officers 1, 2, and 3 affects every male police officer’s ability to do his job, because all are suspected of this conduct by implication.”

City response

In a separate filing, the City of Billings has pushed back against requests by media outlets that a judge require the release of requested documents about the cops' conduct.

The Gazette and KTVQ filed a motion on Tuesday asking a judge at Monday's hearing to declare that the officers' right of privacy does not exceed the public’s right to know.

But the city filed a motion Friday to dismiss those "cross-claims," arguing that the motion didn't comply with legal procedural rules. 

The city also filed a brief in advance of Monday's hearing arguing that some of the requested documents contained confidential criminal justice information and could identify those who cooperated with investigations, and therefore should not be released. 

The Gazette requested a series of documents on April 19:

  • A copy of the investigatory report for Police Officer 1, 2, and 3, including interview transcripts, disciplinary letters, or summary reports.
  • The dates of sexual contact and the corresponding calls for service log for that 24-hour period.
  • A copy of the police department policies that deal specifically with moral turpitude or that can be considered sections addressing moral turpitude.
  • The names of Police Officer 1, 2, and 3.

In an affidavit from deputy city attorney Thomas Pardy, he maintains that the city determined it would release several of the documents that the Gazette requested with redactions, but not full investigatory files. He cites a previous affidavit from Gazette Editor Darrell Ehrlick describing communication about the Gazette's initial records request in which Ehrlick said Pardy "stated that the city would release all documents requested by the Gazette."

Pardy's affidavits says that he "never informed (Ehrlick) that the Gazette would receive everything it requested."

Ehrlick's affidavit says that Pardy "did not indicate that the city would redact information from the documents."

However, the letter to Pardy requesting documents indicates the Gazette was open to redaction. 

"While we understand the city may choose to redact portions of the records, we reserve the right to challenge such redactions in court," it says. It goes on to ask that the city cite Montana law if they choose to deny any part of the request. 

Judge switch

The city also moved Thursday to bump Judge Michael Moses, who had scheduled the Monday hearing, off the case. 

It’s a legal move in Montana that each party in a case can use once. The case shifted to Judge Gregory Todd.

The Gazette and KTVQ asked to bump Todd from the case on Friday, citing concerns that his schedule would not allow for the Monday hearing.

The move also comes after the Gazette filed documents arguing that since the city previously agreed to release the documents, the city has “no further interest to assert in this matter.”

The case now sits before Judge Donald Harris. As of Friday evening, Monday's hearing was still on the schedule.

Bridget LeFeber, a Bozeman lawyer representing the city, said the timing of the Monday hearing did not affect the city's move to change judges. 

She declined to provide a specific reason in a phone interview Friday.  

“You don’t talk, typically, about the reasons for substitution, you just exercise that right,” she said.

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