The following is a news article about the reinstatement of a Seattle officer who had been fired for lying.  The basis of the Civil Service Commission’s decision was, apparently, that the discipline of termination for lying was too severe; that no one else had been fired for lying; that the “dishonesty rule” was not imposed in an “even handed” way; and that the proof had to be by “clear and convincing evidence.”   Assuming what is in the article is accurate, this case should be an example for all law enforcement management on how not to proceed.

Following the news article is an article just published in CPOA’s “Peace Officer” magazine.  In light of the Seattle decision, I thought it would be timely and of interest.  The issue of dishonesty and law enforcement continues to be viewed differently by different people. It needs to be constantly in the forefront of our concern and attention since it is an integral element of the profession.

Seattle Officer Fired for Dishonesty Gets Job Back

Posted: Monday, January 25, 2010
Updated: January 25th, 2010 03:03 AM E

Sara Jean Green
Seattle Times

A Seattle police officer fired last May for dishonesty will get his job back, along with back pay, after the city’s Public Civil Service Commission ruled that termination was too harsh.  Officer Eric Werner, 31, instead will be assessed a 30-day suspension, which will mean a deduction from his back pay.
Werner maintained he forgot about punching an agitated man when he was initially questioned in 2007 by Seattle police during an investigation into the man’s complaint that he was repeatedly tazed.

Werner, during testimony last year before the commission, said he later remembered striking the man and decided to come clean while applying for a job with the Snohomish County Sheriff’s Office in May 2008.   The hiring process included polygraph examinations.  The Sheriff’s Office didn’t hire Werner, but it notified the Seattle Police Department of his disclosure and, after aninternal investigation, he was fired last May by interim Police Chief John Diaz for violating the department’s honesty policy.

Werner appealed his firing in what was viewed as a key test of the honesty policy, which presumes officers will be fired for dishonesty in their official duties and was a cornerstone of new rules adopted in 2008 to address community concerns about police accountability.  Though the city and the Police Department could appeal the commission’s ruling in King County Superior Court, such a move is extremely rare.   “The City Attorney’s Office is analyzing the decision, and considering whether to appeal. No decision has been made yet,” a spokeswoman for City Attorney Peter Holmes wrote in an e-mail today.

However, Werner’s name has now been added to the so-called “Brady list,” a list kept by the King County prosecutor’s office of potential witnesses whose honesty has been called into question, said spokesman Dan Donohoe.  Most of the 52 names on the list are law-enforcement officers, though the list also includes two former State Patrol crime-lab employees and a former employee of the King County Medical Examiner’s Office, he said   The prosecutor’s office will be required to notify defense attorneys whenever Werner is called to testify against a criminal defendant, Donohoe said.

Sgt. Rich O’Neill, president of the Seattle Police Officers’ Guild, was pleased with the Public Civil Service Commission’s ruling. He said the department didn’t follow its own rules in applying the dishonesty policy.  “Dishonesty is a very serious charge,” he said, and to fire an officer, the department has to prove there is “clear and convincing evidence” that an officer lied about “a material fact” — something O’Neill insists didn’t apply in Werner’s case.

Werner will receive back pay for all but a 30-day period that constitutes his unpaid suspension, O’Neill said. Werner, who joined the Seattle police in 2000, earned nearly $106,000 in 2008 in regular and overtime pay.

Two of the three commissioners believed “that termination was the inappropriate form of punishment given the facts and circumstances of the case,” according to the ruling issued Thursday.  Instead, they ruled a 30-day suspension — the most severe punishment short of termination — was more appropriate.

In their majority opinion, the two commissioners — Seattle police Officer Joel Nark and Herb Johnson, a retired assistant Seattle police chief — pointed out that other officers in past cases involving dishonesty “either received no suspension of duties or only temporary suspension of duties.”

Concluding that the department doesn’t apply the dishonesty rule in an evenhanded way, Nark and Johnson also pointed out that to date, “no other employee has been terminated based on dishonesty.”

Terry Carroll, the third commissioner and a former Superior Court judge, authored a partial dissent and disagreed with the decision to overturn Werner’s termination, saying common sense and the law “require we give some deference to the Chief’s decision.”  He also wrote: “Although my colleagues are sincerely motivated, the opinion as to discipline appears based principally on sympathy for an officer with an apparent good record.”

The original excessive-force investigation involving Werner cannot be reopened because of time-limit rules governed by the city’s contract with the Seattle Police Officers’ Guild, according to the Police Department’s Office of Professional Accountability.

THE DISHONEST OFFICER – STILL BEING DEBATED

                                                                                    By:  Martin J. Mayer, General Counsel
                                                                                     California Peace Officers’ Association

“When is a lie a lie?”  “Is it acceptable to lie for the common good?”  “Is an omission of material facts, in response to a question, a lie?”

These and other questions are still raised when a decision must be made by a law enforcement executive as to what charges should be lodged against a peace officer when the question of honesty is involved.  There are very few acts of misconduct which are as damaging to a law enforcement officer’s career than that of lying in his or her official capacity.  As such, this issue continues to be analyzed and debated.

Subject of Debate

At the recently held annual conference of the International Association of Chiefs of Police (IACP) the Legal Officer’s Section held a workshop dealing with “The Dishonest Officer.”  Two highly respected speakers discussed the questions set forth at the beginning of this article.  Both of them, as well as members of the audience who spoke out, were in agreement that certain “lies” were completely and totally unacceptable and called for termination from employment.  Among those were lying during a personnel investigation, lying in a criminal affidavit, lying by falsifying evidence, and lying under oath, to name just a few.

But then the debate focused on whether or not inaccuracies, or incomplete responses to specific questions, constituted “lies?”  It was at that point that the debate became more intense. It should be noted that a lie is defined as a false statement made with the deliberate intent to deceive.  It is not a mistake, it is not an inaccuracy based upon perception, and it is not inadvertence due to negligence.  It is the willful, deliberate, intentional, intent to deceive and/or mislead.

Type of Lie

There was extensive discussion during the IACP workshop surrounding the concept of a “social” lie.  By that, it was meant to describe a situation where someone is dishonest in a social setting, in an effort to avoid hurting someone’s feelings.  As an example, someone asks whether you think they look good in a particular dress or suit or because of a particular hair style and, in honesty, you do not think so, but in order to avoid hurting the individual’s feelings you answer in the affirmative.

That is not the type of dishonesty referred to in disciplinary actions brought against peace officers.  The dishonesty must relate, in some manner, to his or her official role and/or duty.  Because the peace officer has the authority to take someone’s freedom, to inflict physical harm upon them, to forcibly enter their private home, and to do so based upon their articulating lawful justification, the word of the peace officer must be sacrosanct.

Credibility and the Peace Officer

In Kolender vs. San Diego County Civil Service Commission (Berry), 132 Cal.App.4th 716 (2005), the California Court of Appeal stated that, “a deputy sheriff’s job is a position of trust and the public has the 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.”

The credibility of a peace officer is perhaps the most important characteristic of that officer, in order to be able to perform his or her duties.  Recently, in a criminal prosecution against the chemical company W.R. Grace, U.S. District Judge Donald W. Malloy in Montana, delivered a jury instruction stating that the government “has violated its solemn obligation and duty in this case by suppressing or withholding material proof pertinent” to the credibility of a key witness.  Subsequently the jury acquitted the defendant and the Judge dismissed the remaining charges.

The case of Brady vs. The State of Maryland, 373 U.S. 83 (1963) is the seminal case dealing with the government’s obligation to disclose evidence in order to insure a fair trial in any criminal prosecution.  It has been held that “Brady material” involves exculpatory evidence, as well as evidence which could be used to challenge the credibility of a material prosecution witness.  The duty to disclose such evidence, even if it isn’t requested, falls on the government prosecutor.

In a recent decision by the Ninth Circuit U.S. Court of Appeal, Tennison vs. City and County of San Francisco, 548 F.3d, 1293 (2008), the Court noted that Brady imposes a duty on police officers,  as well as on prosecutors, to disclose exculpatory evidence.  In citing to an earlier Ninth Circuit decision, the Court stated that “exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does.”

Furthermore, the Court, in citing to an earlier U.S. Supreme Court decision, stated that “Bradysuppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.”  Law enforcement’s duty, therefore, is to notify the prosecutor of the existence of what might be “Brady material.”

For example, knowledge of dishonesty by a police officer may be known only to the law enforcement agency, but it might constitute “Brady material,” if that officer were a material prosecution witness, since it could be used to challenge that officer’s credibility.  As such, the law enforcement agency would have a duty to disclose it to the prosecutor.

Impact on the System Caused by Dishonesty

We have seen, throughout the State of California, situations where prosecuting attorneys have taken the position that, absent additional corroborating evidence, the prosecutor will not move forward in a case where the only material witness is a “Brady officer.”  That, obviously, undermines the ability of that officer to effectively carry out his or her duties as a law enforcement officer.  It also, potentially, has a detrimental impact on the public’s safety if the testimony of an officer is not accepted as true.
Recently, I was designated an expert witness by the City of Los Angeles in a case where an officer was challenging the officer’s termination from employment based upon findings of dishonesty.  The purpose of my expert testimony was to provide the court and the jury with my opinion about the adverse impact on a law enforcement agency when a dishonest officer is kept on the job. There were two primary concerns raised by me during my deposition.  The first involved the potential negative impact on the officer’s ability to testify since, pursuant to Brady vs. The State of Maryland, the prosecutor would be required to notify defense counsel of the prior finding of dishonesty.

The second concern, however, was of a different nature:  it involved the danger presented to other officers in the field if the “Brady officer” was needed to testify about actions taken by another officer. If the only witness available to testify that the subject officer’s actions were proper, was already tainted as a result of having been previously been found, by his or her own department, to have been untruthful in the past, the danger to the subject officer would be, potentially, monumental.  The harm would not fall on the “Brady officer” but rather would fall on the subject officer, who acted properly, but had a witness whose credibility has been severely undermined and damaged.

HOW THIS AFFECTS YOUR AGENCY

To continue to debate whether or not law enforcement officers should be retained on the job, after determining that the officer has lied, seems strained at best.  It is noted, over and over again, in multiple court decisions, that the credibility and honesty of a peace officer is fundamental to the proper performance of the officer’s duties.

Over fifty years ago, in the case of McCain vs. Sheridan, 160 Cal.App.2nd 174 (1958), the California Court of Appeal said that keeping the public trust is vital and “whatever weakens that trust tends to destroy our system of law enforcement.  Accordingly, the courts have long recognized that a policeman’s tenure of office may be terminated for derelictions far less serious than violation of the criminal statutes governing citizens generally.”

As stated above, and citing from a much more recent Court of Appeal decision, Talmo vs. Civil Service Commission, 231 Cal.App.3d 210 (1991), a peace officer’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.”

It is imperative, however, that rules and/or prohibitions be applied in an “even handed” manner and that due process be applied and followed in all cases.  It is also important to bring these issues forward to all employees on a regular basis so all know the rules and what is expected of them in carrying out their duties.  It shouldn’t be assumed that everyone keeps these things in the front of their minds – remind them.