ON THE JOB OFFICER SAFETY EYE ON EDUCATION JUST HANDED DOWN RANGEMASTER PUBLIC SAFETY IT SOLUTIONS
Brady/Giglio Disclosure Requirements, Part Four
By Randy Means and Pam McDonald Recommendations regarding officer untruthfulness
Randy Means is a 35-year full-time police legal advisor and trainer. He was formerly in-house counsel to a major city police department, head of the legal department at a state law enforcement training center, head of the national as- sociation of police legal advisors (IACP-LOS), and executive officer on a small combatant naval vessel. He is author of the book The Law of Policing.
In her 25-year career with law enforcement, Pam McDonald has been a patrol officer and felony investigator, a felony prosecutor and a col- lege professor, specializing in police law. She was a Sr. Rule of Law Advisor overseas and studied police legal matters internationally, recently completing her LL.M. She continues to assist Randy Means in much of his work. She can be reached at
pammcdonaldfirm@aol.com.
www.thomasandmeans.com I
overslept. Since the employee is re- morseful, long-tenured, has an unblemished service record— and the supervisor views this fi b as a minor matter—she decides not to document or report the employee’s untruthfulness but does remind him that untruth- fulness is unacceptable and will not be tolerated, stressing that any recurrence would be han- dled differently. The employee again apolo-
gizes, assures the supervisor that ‘it’ (the untruthfulness) will not happen again, and expresses how
much he appreciates the way the supervisor is handling the situation. The supervisor responds honestly that she is just doing what she thinks is right and fair. This situation involves at least a dozen things that we know
t is easy to deal with lies when there is conclusive
evidence that an offi cer has lied under oath, in offi cial in- ternal investigations, or has materially falsifi ed offi cial re- cords. Those are termination cases in almost every agency. Other easy ones are when local prosecutors have laid out specifi c rules for disclosure and all we have to do is follow them or when discovery processes have led to court orders requiring disclosure of specifi c records. But what if none of those factors have made decision-mak-
ing easy and we have to make decisions about disclosure of relatively minor lies about purely administrative matters? Those are the hard ones, at least for those who really under- stand the entirety of the legal landscape. Let’s do one of those.
Scenario A veteran, stellar employee is fi ve minutes late to a roll call-type briefi ng that was to start the work day. When asked privately by his supervisor why he was late, he says his car broke down. Two hours later, that supervisor hears from a colleague that the actual reason the employee was late was that he overslept. An hour later, the supervisor sees the employee and asks
him to clarify why he was late to work. He repeats his earlier story that his car broke down. The supervisor then tells him that the supervisor has received contrary information and is going to verify the car-breaking-down story. The employee then admits apologetically that he has lied, that his car did not break down, and that the real reason he was late was that he
14 LAW and ORDER I June 2016
about its untruthfulness aspect. This is a common superviso- rial response to a situation like this, especially given this em- ployee’s long tenure and stellar record. It might be different if the employee were on a supervisor’s ‘bad’ list. Other supervi- sors might document the untruthfulness in this situation, but only to a shift level (and usually temporary) record. In the fi rst two instances, the agency’s senior leadership is unlikely to hear of this untruthfulness but the word typically will be out among the troops and at least some fi rst-line su- pervisors. If the incident were reported up the chain of com- mand, many law enforcement leaders would be inclined to administer a documented counseling or a written reprimand of the employee. Others might do less than that and some oth- ers would attempt a light suspension. Still other leaders would attempt to fi re the employee, some
basing that decision on the character issue but a greater per- centage on the notion that the employee is damaged goods because of the Brady/Giglio effect. It is uncertain whether this type of untruthfulness (a relatively minor fi b about a relatively minor administrative matter) rises to the level of Brady/Gi- glio concern as an actual legal matter. ‘Materiality’ issues are always questionable when trying to predict trial dynamics. Experts disagree on all these issues and the (federal constitu- tional) law is anything but clear. Efforts to terminate an employee on facts like these fre- quently fail, partly due to the view among many review- ers—arbitrators, civil service boards, courts, and other public administrators—that this is a relatively minor matter, and
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