SHERIFF’S SERGEANT
RETURNS TO WORK DESPITE SUSTAINED DISHONESTY FINDING
By Christopher Miller
A recent arbitration
decision returning a sheriff’s sergeant to work with a sustained
dishonesty finding has renewed the controversy over the affect on peace
officer discipline of the prosecutor’s obligation to disclose evidence
affecting witness credibility.
Arbitrator Finds
Disparate Treatment: Arbitrator
Alexander Cohn determined the sergeant was not discharged for just cause
because evidence I presented at the hearing showed the employer had
given lesser discipline to a deputy sheriff accused of similar
misconduct. The deputy had suffered sustained allegations of dishonesty
in three different cases, yet had received only a written reprimand and
two short suspensions.
Employees accused of
misconduct in similar circumstances must be treated alike as a matter of
equal protection under the law. Minor differences in penalty are
permissible but the penalty in a particular case must be consistent with
the employer’s usual practice in like cases. Both California courts
and the State Personnel Board have applied these standards in peace
officer discipline appeals. (See Nicolini v. County of Tuolumne
(1997) 190 Cal.App.3d 619, 637; Timothy J. Green (1992) SPB Dec.
No 92-18 at p.5; but see Talmo v. Civil Service Commission (1991)
231 Cal.App.3d 210, 230-231 [similar charges need not result in
identical penalties].)
In this case, the sheriff
himself testified his practice for "the past several years"
had been to terminate or offer resignation to employees with sustained
allegations of dishonesty. However, the deputy sheriff and the sergeant
were disciplined only three years apart and the department had done
nothing to notify its employees the standards for dishonesty had
changed. The arbitrator therefore rejected the department’s contention
the sergeant had to be fired for willful dishonesty.
The arbitrator reinstated
the sergeant but denied back pay and benefits for the year since the
termination, finding the sergeant had been willfully dishonest on
applications for hiring and promotion several years earlier.
D.A. Issues
"Brady Letter": As
Arbitrator Cohn put it in his Opinion and Award, "the finding
presents an obvious problem." The sergeant was reinstated with a
personnel file containing information that she had been found to be
willfully dishonest. Criminal defendants and defense attorneys will have
the right to obtain that information through a Pitchess motion.
While the arbitrator did
not consider this "obvious" credibility issue to be a bar to
reinstatement, the local district attorney had a different take. In a
letter issued two weeks before the sergeant returned to work, a
chief deputy district attorney advised the undersheriff that any
prosecution witness known to have committed perjury, or to have been
dishonest or deceitful, would be of little use in court.
The district attorney
asserted the prosecution has an affirmative duty to disclose to
criminal defendants any information affecting the credibility of a
prosecution witness even if there is no Pitchess motion. This
"Brady material" -- so called because a 1963 U.S.
Supreme Court case requires federal prosecutors to turn over
credibility evidence -- is protected from disclosure in California by
Penal Code section 832.7. Many prosecutors, however, believe state
statutes making peace officer personnel records confidential must yield
to the federal law requiring disclosure.
A Test of PORAC’s
"Brady" Amendment?: PORAC
sponsored legislation in the 1999-2000 Assembly session to prevent
prosecutors from disclosing peace officer personnel records to criminal
defendants and defense attorneys without a Pitchess motion. The
bill, AB 2559, was signed into law by Governor Davis on September 30,
2000, and went into effect January 1, 2001.
Penal Code section
832.7(a) now will read:
"Peace officer
personnel records and records maintained by any state or local
agency pursuant to [Penal Code] Section 832.5, or information
obtained from these records, are confidential and shall not be
disclosed by the department or agency which employs the peace
officer except by discovery pursuant to Sections 1043 and 1046
of the Evidence Code."
The amended language is
intended to prevent the informal, unregulated disclosure of peace
officer personnel records to criminal defendants and defense attorneys
by prosecutors who believe they have an obligation under Brady v.
Maryland (1963) 373 U.S. 83 and Penal Code section 1054.1(e) to
discover and disclose to the defense any evidence affecting the
credibility of peace officer witnesses. Prosecutors now will be required
to follow the same Pitchess process as defendants to obtain peace
officer records.
In the reinstated
sergeant’s case, the real issue is whether a prosecuting agency may
affect a peace officer’s employment notwithstanding the ruling of an
arbitrator. There was some sentiment in the department to reinstate the
sergeant to an operational assignment; however, the district attorney’s
position that the sergeant could not be used in court for any purpose
may have compelled the department to assign the sergeant duties which
would not require direct contact with the public, courtroom testimony,
or investigation of crimes.
Had the parties in this
case not been subject to binding arbitration, the district attorney’s
"Brady letter" against the sergeant might have caused
the employer to appeal the decision to Superior Court on the basis there
was no position available in law enforcement for a supervisor with the
sergeant’s "credibility problem." Instead, the agency is
likely to restore the sergeant over time to assignments involving
investigation and testimony while observing the five-year period in
which the agency is required to maintain discipline records.
Christopher W. Miller
is a former deputy district attorney who now provides representation to
PORAC LDF clients throughout northern California as an attorney with
Mastagni, Holstedt, Chiurazzi & Amick in Sacramento.
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