IF A PEACE OFFICER CHOOSES TO LIE; BE PREPARED TO SAY “GOODBYE.”
September 19, 2005
On September 12, 2005, the California Court of Appeal published the case of Kolender v. San Diego County Civil Service Commission ( Berry ), where it ruled that it is justifiable to terminate the employment of a peace officer for being dishonest. The Court stated that a peace officer’s “.job is a position of trust and the public has a right to the highest standard of behavior.. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.”
San Diego County Sheriff William Kolender terminated Deputy Timothy Earl Berry for lying to cover up a fellow deputy’s physical abuse of an inmate. Berry appealed to the San Diego County Civil Service Commission, which sustained all acts of misconduct but reduced the penalty to a ninety-day suspension. The Sheriff filed a petition for writ of mandate and requested the superior court vacate the Commission’s order. The superior court denied the petition because it found the Commission did not abuse its discretion.
On appeal to the Fourth District Court of Appeal, the Sheriff contended that the superior court’s decision should be reversed because, (1) the Commission abused its discretion in reducing Berry’s penalty and, (2) the Commission’s enabling statutes must be harmonized with other authorities that grant the Sheriff the right and duty to manage his department.
The Court of Appeal unanimously agreed with the Sheriff, found that the Commission had abused its discretion, and reversed the superior court decision with direction to enter a new order granting the Sheriff’s writ of mandate and sustaining Berry ‘s termination.
The court pointed out that when Berry joined the Sheriff’s Office, he signed a Recruit Honor Code that stated, “I will not lie, cheat or steal. I will not tolerate those who do. I will treat everyone fairly and respectfully. . . I tell the truth and ensure that the full truth is known. I do not lie.”
On September 5, 2002, Berry was on duty at the jail when an inmate became disorderly and belligerent towards another deputy, Padilla. Berry accompanied Padilla in taking the inmate out of the housing module, and witnessed Padilla yell provocative words at the inmate, forcefully hold the inmate, and intermittently tug at him. Padilla said that he no longer needed Berry ‘s cover, and Berry left. Thereafter, Padilla repeatedly hit the inmate’s head against the wall and caused him to suffer injuries for which he needed medical care.
That same day, the inmate filed a complaint and Berry ‘s Sergeant questioned Berry about it. Berry followed Padilla’s request and lied about the incident, saying Padilla simply took the inmate to the medical holding area.
Seven days later, as the I.A. investigation proceeded, the investigators received other information regarding the incident and confronted Berry , challenging the truth of his account. At some point during his second interview, the investigator stopped his tape recorder and told Berry he believed that he was not being honest. Berry then admitted that, when he was first questioned regarding the incident, he had lied to protect Padilla. Berry , only then, proceeded to tell the investigators the truth.
The Sheriff terminated Berry for his lack of truthfulness and “acts incompatible with and/or inimical to the public service and with the Sheriff’s Department Executive Order and its Mission , Vision, Values and Goals.” Berry appealed his termination to the Civil Service Commission, which ruled that “(t)he Department proved all of the charges contained in the Order of Termination and Charges. . . . Nevertheless, this Hearing Officer concludes that, under the circumstances presented at the Commission hearing, termination is excessive.”
In overturning both the superior court decision and the civil service commission, the Court of Appeal began by observing that,
A deputy sheriff’s job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust. (Talmo, supra, 231 Cal.App.3d at p. 231 [sheriff’s deputy abused jail inmates and lied about it to his superiors].) Dishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.
The Court addressed Berry ‘s defense that he had, eventually, told the truth and noted that,
Berry apparently did not believe he had a professional duty to correct his first lie on his own, and he elected not to do so.
Instead, Berry let one week go by, and only told the truth after the office discovered his lie and pressed him for the truth; otherwise, he might never have done so.
Berry did nothing special by testifying truthfully against Padilla; indeed, the dishonesty and truthfulness charges against Padilla would have been easier and more quickly proved if Berry had simply responded honestly to the investigators when he first was asked.
The Court also rejected the Hearing Officer’s reasoning that Berry should be credited with having ultimately told the truth. The Court stated that this reasoning, logically extended, could encourage sheriff’s deputies to play “cat-and-mouse games with investigators,” and to only tell the truth when they determine the moment is opportune to do so, or if their lie has been found out.
Of importance to the Court, too, was that Berry was complicit in covering up abuse of an inmate, a very serious violation, stating that,
The safety and physical integrity of inmates is one of the office’s paramount responsibilities. No requirement exists that San Diego Sheriff’s Office retain officers who lie and protect deputies who harm inmates; rather, the Sheriff was entitled to discharge Berry in the first instance.
Once again a California Court of Appeal has upheld the standard of conduct proscribing material lies and untruths by peace officers. It is important to note that this has nothing to do with making a mistake – this has to do with a deliberate act of dishonesty.
Retaining an officer who has been proven to be dishonest poses numerous potential problems for a law enforcement agency. The dishonest officer may be, virtually, useless when testifying due to disclosure requirements in Brady v. Maryland; the local prosecutor may require independent corroborating evidence before filing cases brought by that officer; and/or his or her credibility may be attacked when the officer is testifying on behalf of another officer who has acted properly, thereby placing that other officer in jeopardy. The list of concerns goes on and on.
Assuming that a Department has proven, by preponderant evidence, one or more charges of a material (i.e., duty related) lie by a peace officer, the ultimate sanction of termination is both warranted and should be sustained on review.
Again, as always, we urge a close working relationship between law enforcement management and their department’s legal advisors. If you wish to discuss this matter in greater detail, please don’t hesitate to contact our office by phone (714 – 446-1400) or e-mail (prc@jones-mayer.com ormjm@jones-mayer.com).