Sheriff’s Sergeant Returns to Work Despite Sustained Dishonesty Finding

Posted 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.