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By PORAC | December 1, 2019 | Posted in PORAC LDF News


Associate Attorney
Mastagni Holstedt, A.P.C.

In a lengthy, scathing opinion, Arbitrator Luella Nelson reversed the Lake County Sheriff’s Department’s termination of two deputies for alleged dishonesty. Arbitrator Nelson addressed Sheriff Martin’s bias, Skelly violations, unlawful Brady disclosures and the contrived discipline process. While only an advisory decision, given its weight and analysis, the Lake County Board of Supervisors unanimously ratified the arbitrator’s decision and the deputies were reinstated with full back pay.
On January 10, 2017, Lake County Deputies Armando Alvear and Mauricio Barreto were working patrol during record-producing rain storms. While responding to a call for service, the deputies approached a road with a significant amount of water flowing over it. After observing another vehicle safely pass through the water, the deputies deemed it safe and successfully drove through the water. Upon their return to the same area after clearing their call for service, Deputy Barreto lost control and his patrol vehicle was pushed into a ditch by the flowing water. Eventually, the deputies were able to get Deputy Barreto’s car out of the ditch and back onto the roadway without damage to the vehicle.
Subsequently, the Lake County Sheriff’s Office initiated an internal affairs investigation. In their statements, both deputies reported seeing another vehicle’s headlights heading toward Deputy Barreto’s car prior to him losing control of his vehicle in the flooded roadway. According to the deputies, this likely caused Deputy Barreto to veer to the right. However, the dashboard camera footage from Deputy Barreto’s patrol car only showed a vehicle crossing an intersection approximately 50 yards in front of them, before Deputy Barreto lost control.
This difference in recollection and perception compared to the video footage led Sheriff Martin to draw the unsupported conclusion that the deputies “conspired to or colluded to concoct a story about an oncoming vehicle causing Deputy Barreto to veer into the water-filled ditch that night.” Both deputies were terminated for alleged dishonesty.
At arbitration, attorneys David L. Kruckenberg and Mark E. Wilson from Mastagni Holstedt, A.P.C. argued that the allegation of dishonesty was so stigmatizing that if the decision was upheld, they would likely never work in law enforcement again. Thus, the appropriate quantum of proof was a higher clear and convincing evidence standard. The arbitrator agreed. However, the arbitrator also held that the County failed to meet even the lesser burden of proof — a preponderance of the evidence.
Specifically, the arbitrator found that in ordinary or routine discharge cases, arbitrators typically apply the preponderance of evidence rule in deciding fact issues. However, it is not at all unusual for arbitrators to require a higher standard of proof (e.g., clear and convincing evidence) in cases in which the employee’s fundamental character and integrity are in question.
Although the arbitrator applied a higher standard than ordinarily applied in disciplinary matters, the arbitrator found that the Sheriff’s Office failed to produce any evidence to support the dishonesty allegations, stating:
“The County has not provided any evidence … to support what amounts to an unsupported allegation … Furthermore, undisputed and undeniable evidence from the IA investigation strongly and directly contradicts this allegation.”
In reinstating the deputies, the arbitrator noted the deputies were terminated solely “based on the [sheriff’s] belief that the deputies conspired or colluded to concoct a story about an oncoming vehicle.” Yet, as the arbitrator found, “this conclusion amounts to nothing more than an inference.” Clearly knowledgeable on how the brain perceives, reacts to and recalls traumatic or stressful events, the arbitrator noted:
“So-called ‘eyewitness’ testimony, even testimony shortly after an incident, and testimony by peace officers, can be remarkably inaccurate. Such inaccuracies do not somehow automatically mean that the witnesses were dishonest.”
Applying a Graham v. Conner-type analysis, Arbitrator Nelson further stated:
“It was a far easier task for these deputies’ supervisors and the IA investigator … to accurately identify what happened in the incident than it was for the [deputies], both of whom ‘lived’ or experienced the incident firsthand. Supervisors and the IA investigator were afforded the opportunity to, and carefully reviewed and studied the MAV recording of the incident after it occurred, in the relative comfort of an office and with ample time. These deputies, however, were not afforded the same opportunity under the same conditions …They were on night shift patrol, in the elements, on a dark and rainy January night, driving on wet, dark, rural roads, going from call to call and not sitting in an office.”
In recognizing the imperfections of memory, Arbitrator Nelson dismissed the County’s dishonesty allegations, chalking the County’s evidence up to a “house of cards” and nothing more than suspicions and inferences that collapsed under the weight of independent and objective arbitral scrutiny. As the arbitrator aptly stated, “Suspicion of dishonesty and actually proving it with the evidence are two very different things.”
Arbitrator Nelson further determined that Sheriff Martin violated the deputies’ Skelly due process rights. Two weeks prior to serving the deputies with their notice of proposed disciplinary action, Sheriff Martin advised the Lake County district attorney that the deputies may have Brady material in their personnel files due to this investigation. Sheriff Martin later served as the Skelly officer for both deputies. Arbitrator Nelson found the timing of the Brady letter to the D.A. “disturbing, premature, and improper,” and she opined that the sheriff’s intent was to do “whatever he could to drum them out of law enforcement.” She even went on to state that the sheriff’s actions appeared retaliatory and stated that “he abused his discretion and exceeded his authority.”
Regarding Sheriff Martin’s subsequent role as the Skelly officer, Arbitrator Nelson stated:
“[It] was not only improper, it violated their Skelly due process rights. And it made a sham of the entire Skelly process … The person who serves as a Skelly officer is legally required to be reasonably impartial and uninvolved in the events comprising the employee’s case…Yet, sheriff would have this arbitrator believe that even after he sent the above-noted letter to [the D.A.], he could be, and indeed functioned as, an impartial and objective Skelly officer … However, the arbitrator finds his testimony in this regard self-serving and specious. Indeed, his premature letter to the district attorney is prima facie evidence of Sheriff Martin’s lack of impartiality and objectivity (i.e. his bias), for he had already made up his mind about the guilt of these deputies before they even received their notice of proposed disciplinary action letters …Thus, in effect, he functioned not only as the Skelly officer for these two deputies, but also the judge, jury, and the executioner.”
In light of the County’s failure to impartially examine all the evidence and mitigating factors, in addition to the biased investigation and due process violations by the Sheriff’s Office, Arbitrator Nelson overturned the dishonesty findings and reinstated both deputies with full back pay. Furthermore, Arbitrator Nelson ordered the Sheriff’s Office and the County to make every effort to repair the damage they caused to the deputies’ professional reputations, integrity and character due to their wrongful discharge for dishonesty.
Mark Wilson and the Mastagni Law Firm are privileged to work with the deputies, the Lake County Deputy Sheriff’s Association and the PORAC Legal Defense Fund and thank LDF for its unwavering support of law enforcement. In the era of “police transparency” and Senate Bill 1421, this case provides an important reminder to always vigorously defend dishonesty allegations and fight for the higher burden of proof, clear and convincing evidence.

About the Author
Mark E. Wilson, associate in the Labor Department of Mastagni Holstedt, A.P.C., is an experienced PORAC LDF panel attorney who represents labor associations and their members in disciplinary matters, criminal defense, grievances and critical incidents.