A Federal Judge gave the Pima County Sheriff’s Department a day to tighten its rules on what employees can wear while participating in political activities.
The ruling by U.S. Federal Judge Raner Collins on Monday came after Pima County Sheriff’s Sgt. Aaron Cross was placed on paid leave for taking part in a political event that supported the political opponent of Sheriff Chris Nanos while wearing attire the department said was too similar to a uniform.
“The court acknowledges the seriousness of this issue, and agrees that the PCSD directive is unclear and ambiguous,” Collins wrote in his court order, although denying a preliminary injunction Cross sought against Nanos and Capt. Juan Carlos Navarro.
“The court also understands the department’s concern that Plaintiffs should not engage in political activities looking like on-duty deputies,” Judge Collins noted.
The judge determined that in reviewing photographs from protests attended by Cross on Oct. 12 and Oct. 14, that the off-duty Sergeant was “certainly attempting to look like an on-duty deputy.”
These actions, Collins wrote, were a violation of the Hatch Act, which states that state or local officers or employees can not use their official authority or influence to interfere or affect the results of an election.
Attorney Steve Serbalik, who represents Cross, said the lawsuit his client filed against Nanos, and others, will remain ongoing, despite Judge Collins’ ruling.
According to Judge Collins’ ruling, the colors and clothing items allowed to be worn by protesting off-duty employees are not clearly defined by the PCSD and that the “ambiguity” could have an effect on others who wish to exercise their right to protest off-duty.
While the ruling noted plaintiffs have the right to protest and express their displeasure with the current “regime”, it needs to be done in a way where the public cannot perceive that they are on-duty deputies.
“The court is perplexed at where to draw the line,” Collins wrote.
As a result, the court is requiring the department to submit more definite descriptions of what types of clothing an off-duty employee is prohibited from wearing during political protests. This is to include colors, clothing types, and any other indices it believes will create the appearance of official authority.
“This is a positive thing for us,” Serbalik said. “Now the Sheriff’s Department has to say exactly what their restrictions are … What does ‘too similar’ to a deputy mean?”
Nanos’ attorneys, Richard Rollmand and Kevin Kristick, responded Tuesday by saying that deputies shall be prohibited from wearing a PCSD uniform, badge insignia, or other similar item while engaging in political activity. They stated that several written uniform specifications address both on- and off-duty uniform and appearance standards. These include types and colors of shirts, pants, footwear and accessories.
“Clothing items treated similarly to Department uniforms are a combination of clothing, footwear, and accessories that appear to identify the employee as a Department deputy when worn while engaging in political activities,” the department’s response states.
These clothing items, which can be synonymous with deputy attire include: green or khaki color BDU pants; tan colored boots; a “5.11” type tactical belt with an ammunition magazine; handcuffs; and a polo shirt.
Serbalik said that at no point during Cross protesting did he wear anything identifying himself as a member of the PCSD. He had no insignia, no badge, and in one instance, was wearing a gray shirt, which is not part of the deputy uniform at all, Serbalik said.
To avoid any further confusion, Cross has been protesting in an outfit he’s sure will create no confusion. He’s a rootin’, tootin’ cowboy — hat, fringed vest, and plastic star badge included.
“We believe off-duty deputies can wear anything the public can wear. That’s part of the first amendment.” Serbalik said. “We’re trying to get clarity. Deputies shouldn’t be in position where they must wear a costume to avoid retribution from their agency.”
