Alaska Employment Law

Kleinfeld on the liberty to drink beer while watching football 

Marcus Betts was the “inside man” at the TransUnion credit reporting agency; he took bribes to help people improve their poor credit scores.  He pleaded guilty to conspiracy, but then challenged several conditions of supervised release, including restrictions on any employment where he would handle an employer’s money.

Federal sentencing law permits the district court to restrict any post-conviction employment that “bear[s] a reasonably direct relationship to the conduct constituting the offense . . .”  18 USC § 3563(b)(5).    Betts argued that the no-money-handling employment restriction was overbroad, given that the court had convicted him of (essentially) bribery, not embezzlement.  

The Court of Appeals has now affirmed that restriction.  For the unanimous court, Judge Andrew Kleinfeld stated:

The question here is how close the crimes protected against by the employment restriction have to be to the crimes of conviction.  The answer implied by the statutes and guidelines is, close enough to protect the public from reasonably similar crimes.

In upholding the restriction, the Court emphasized (citing the Restatement of Agency) that all employees owe their employers the duty of loyalty.  “An employee who takes a bribe to benefit some third party violates his duty to his employer, even if the harm induced by the bribe is to a third party.”  The Court concluded: “The public is entitled to be protected against crimes flowing from the same character trait demonstrated by the crime.  Betts was a dishonest employee who betrayed his employer.” 

The Court did, however, invalidate a restriction on ingestion of alcohol, given the absence of any evidence that Betts had an alcohol-related problem.  In so holding, Kleinfeld wrote:

Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.

U. S. v. Betts, ___ F.3d ___, 2007 WL 4355365 (9th Cir. Dec. 14, 2007).

H/T: Terry Hall, Atty.