Paper Due May 2nd

Article Submission to the IACP – Police Chief Magazine Submitted February 9, 2010 The Untruthful Employee - Is Termination the Only Response? By: Chief Ronal Serpas and Captain Michael Hagar, Metropolitan Nashville Police Department, Nashville, TN Over the last many years law enforcement leaders have come under increasing pressure to answer the question: “What do I do with a law enforcement employee who has been proven to be untruthful in the work place?” Many departments have also been confronted with significant and far reaching court decisions that play a prominent role in this decision making process, as well as vigorous debates and lengthy court battles with labor organizations around the issue of truthfulness expectations in policy and disciplinary actions. Beyond court decisions and day to day management issues, in recent years the US Department of Justice has issued far reaching instructions on the conduct of federal law enforcement cases that may involve local and state police employees who have a history of being untruthful in the work place. There have been articles titled, “Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?”1, “Chief's Counsel: Should Police Officers Who Lie Be Terminated as a Matter of Public Policy?”2 and similar discussions in this magazine and others. In light of these critical and evolving issues, a recent decision from the Tennessee Court of Appeals analyzing the procedures and practices of the Metropolitan Police of Nashville Davidson County, TN can be instructive. Without disregarding the import and consequences of Brady v Maryland3 and Giglio v. United States4, this article proposes that it should be the public policy of law enforcement agencies that untruthful conduct by a law enforcement agency employee has a most damaging effect to the day to day efficient and effective service of policing. Moreover, the use of untruthful statements to avoid disciplinary action further undermines the efficient and effective service expected of American police departments. Truthfulness by employees is not only an issue of witness credibility in a court of law; it is the fundamental nature of law enforcement service and strikes to the core of our ability to provide effective and efficient service. As a result, untruthful conduct, when found, must be met with the most serious of disciplinary action – termination.

1 Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?, Police Chief Magazine, November, 2005. 2 Chief's Counsel: Should Police Officers Who Lie Be Terminated as a Matter of Public Policy?, Police Chief Magazine, April, 2008. 3 Brady v. Maryland, 373 U.S. 83 (1963) 4 Giglio v. United States, 405 U.S. 150 (1972)

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Ethical dilemmas have plagued many professions for centuries. However, few draw the attention, or more properly, the publicity, than those involving law enforcement officers. In a law enforcement agency, employees are in a unique occupation unlike any other because they testify under oath as a job requirement, and many testify frequently. They complete factual reports based upon their investigation and observations. These reports are relied upon by others, by internal groups to further investigations and often used as critical evidence in courts of law. These officers take enforcement action, they secure evidence, they maintain confidential information, they have access to privileged information, they handle drugs, money, guns, they process crime scenes, they maintain reports of crimes and accidents, and importantly, they are authorized by law to dispossess others of their constitutional rights and to use deadly force when appropriate. Simply put, a law enforcement official’s word, and the complete veracity of those words, is the fundamental expectation of our service. In all areas of a law enforcement agency, employee credibility is essential to the ability of the agency to carry out its mission. As agencies remove sworn personnel from some non-enforcement type roles and hire and train civilian personnel, many of these ethical issues also arise. In Nashville for example, civilian employees handle property and evidence, process crime scenes, enter and maintain crime reports, process crime statistics that drive law enforcement activities, and similar duties where a strong ethical duty exists. In no small way, we can also state that the fundamental duty of any employee of a law enforcement agency falls into the same category of complete expectations of absolute truthfulness in furtherance of the efficiency and effectiveness of service to the community. The effectiveness of a law enforcement agency and its members depends upon community respect and confidence. The trust earned by the department allows its employees to operate efficiently. It is vitally important that all employees of a law enforcement agency conduct themselves in a manner demonstrating unquestionable integrity, reliability, and honesty consistent with public expectations. Whether interacting with citizens, testifying in any court or legal proceeding, or providing information in any official setting, the efficiency, effectiveness and success of a law enforcement agency rests upon the reliability of the member representing that agency. From the very beginning, police officers are taught the principles of the IACP Law Enforcement Code of Ethics. The code begins by stating, the “fundamental duty is to serve the community” and it includes the pledge that “I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust…”. All employees of the Metro Nashville Police Department and many others understand the obligation of accepting the public trust and service to the community. As we seek to provide clear standards and training for our members, we create policy statements, mission statements, ethical manuals, and other documents that seek to remind employees of these obligations, as well as clearly

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demonstrate to the public at large the expectations for behavior we hold critical. These documents also end up becoming support for departmental charges or as evidence in politically elected or appointed boards who review disciplinary actions within police agencies. It was this factor that drove the Metro Nashville Police Department to reevaluate our policies, procedures, and training - specifically governing truthfulness. The first goal of our department, and many others, is to provide fair, efficient and effective service to all our citizens consistent with our established mission statement, policies, procedures, rules, regulations, ethical codes, and administrative or executive orders as established by the department or government. To advance that mission, it is vitally important that all departmental employees conduct themselves in a manner demonstrating unquestionable integrity, reliability, and honesty. Whether interacting with citizens, testifying in any court or legal proceeding, or providing information in any official setting, the success of a law enforcement agency rests upon the reliability of the member representing that agency. This has become our guiding principle with respect to employee conduct. All other employee conduct is really a derivation of those general principles, whether it is a truthfulness issue or deficient work performance, they all directly relate to integrity. If the public relies on the Police Officer or police employees to maintain the public trust, who can they, the public, then rely on to maintain the trust of those law enforcement officers and agency employees? It is the Chief Executive Officer and supervisors, at all levels, who create and enforce sound and rational policies to make it clear that untruthfulness and a lack of integrity by any employee will not be tolerated. It is the reviewing administrative bodies or politically elected officials, who are selected to represent the communities, who support the department heads in the fair enforcement of the policies and further convey the message that law enforcement officers must always behave in a manner that does not discredit themselves, their agency, or the community they represent. Recognizing that a fundamental and unequivocal duty of all employees is to promote the efficient and effective operation of department and government operation through the pursuit of lawful objectives, any conduct which detracts from this respect and confidence is detrimental to the public interest. The Louisiana Court of Appeals, in Rodriguez v. Board of Com'rs, Port of New Orleans held, and the Tennessee Court of Appeals found persuasive, that “there was a real and substantial relation between his untruthful conduct and the efficiency of the public service”5 Such behavior is therefore prohibited under applicable departmental policy. When circumstances suggest that a member has engaged in prohibited conduct, it is the policy of the department to investigate and impose disciplinary action when appropriate. Simply stated, legal cause exists for disciplinary action, when 5 Rodriguez v. Board of Com'rs, Port of New Orleans, 344 So.2d 436 (La.Ct.App. 1977)

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there is a real and substantial relation between the conduct of an employee and the efficient operation of the public service.6 In 2004 as many departments were considering the effects of Brady and Giglio7 and as the US Department of Justice was revising its U.S. Attorney manuals to add police misconduct to its procedures for disclosing potential impeachment information8, the Metropolitan Police Department of Nashville-Davidson Co, TN implemented a sweeping change to its disciplinary and deportment policies. In June 2004, a complete overhaul of the disciplinary process was published which resulted in a grid or matrix for sanctions for sustained violations of departmental policies in general. But this revisions also provided specific and detailed policies regarding truthfulness and false or inaccurate reports – both becoming for the first time presumptive terminable offenses if the allegations were sustained. The MNPD also provided a specific charge for failing to report misconduct and for failing to cooperate/withholding information. A violation of these provisions varies by the nature of the conduct but can range up to termination. The current policy provisions state:

Honesty & Truthfulness Employees shall be honest and truthful. Truthfulness shall apply when an employee makes a materially false statement with the intent to deceive. A statement is material when, irrespective of its admissibility under the rules of evidence, it could have affected the course or outcome of an investigation or an official proceeding. False or Inaccurate Reports Employees shall not knowingly make or allow or cause to be made a false or inaccurate oral or written report of an official nature.

Failure To Report Misconduct Any department employee who observes or becomes aware of any act of misconduct by another employee of the government shall immediately report the incident to their immediate supervisor or the most appropriate Metropolitan Nashville Police Department (MNPD) supervisor (Violation of this provision may be charged up to and including the category of the underlying offense not reported).

Failure to Cooperate/Withholding Information

6 Id. at 439. 7 Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972). 8 United States Attorneys’ Manual, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm#9-5.100, retrieved Feb. 6, 2010.

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In accordance with established rights under law, employees shall not withhold any information pertinent to the investigation of any matter, whether internally or externally, investigated by any official entity. Additionally, any employee who withholds information or fails to cooperate with any internal investigation may be disciplined in addition to any other disciplinary action based upon conduct disclosed by the primary investigation.9

Drawing upon those guiding principles and clear policy, it is recognized that the truthfulness and credibility of a member of a law enforcement agency directly affects two important areas-the effectiveness and the efficiency of the agency at conducting its operations. Many people confuse effectiveness with efficiency. They strive to become more efficient, but their effectiveness doesn't always improve. Sometimes, the price of greater efficiency is less effectiveness. With respect to truthfulness in a law enforcement agency, it can easily be summarized - effectiveness: producing desired effects, reaching desired goals. Efficiency is considered to be producing the desired effects without wasted efforts. Even simpler is to consider that efficiency refers to quantity where effectiveness refers to quality. The practical effect of a loss of credibility or the creation, or allowing to be created a false or inaccurate report, or an untruthful oral or written report in any area of official communications, failure to report misconduct, or failing to cooperate and/or withholding of information dramatically impairs the ability of the department to operate at its most efficient level. All of these examples are breaches of the public trust described in the Code of Ethics. Also important is our ability to be effective in all our operations. A loss of efficiency results in loss of effectiveness. An inability to be effective makes the agency less efficient. There can be no balancing of these self imposed inefficiencies or ineffective behaviors in favor of the employee against the public’s expectation of efficient and effective police service. Therefore, an employee who, by a loss of credibility or loss of integrity, clearly subjects their work product to legitimate and inevitable attack and brings unnecessary scrutiny to the entire department which unnecessarily tarnishes the image of those who serve honorably. Once character and credibility has been destroyed by the actions of an employee, the employee will be tainted forever. Such conduct, particularly untruthfulness of an official nature, not only impairs the effectiveness of the officer to conduct further business on behalf of the department, but unreasonably impairs the ability of the department to operate efficiently. Clearly, the Chief Executive and the agency must take timely and decisive action to restore the integrity and efficiency of the service. For almost two years, these clear policy statements went uncontested by agency employees. In the thirteen years prior to June 2004, eight departmental employees had been terminated for offenses characterized as truthfulness or 9 MNPD General Order 09-03, Deportment and Personal Appearance, October 16, 2009.

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dishonesty. Many of these offenses were so egregious as to warrant no other conclusion. None were for basic integrity issues or for what may be characterized as a zero tolerance for truthfulness. In October, 2005 these new policies would be tested. In the four years it would take to fully litigate that case, ten more employees, sworn and civilian would be terminated for truthfulness related offenses. The 2005 case, Garner v. Civil Service Commission of Metropolitan Government of Nashville10, now adjudicated by the Tennessee Court of Appeals, arose from a case that began when Officer Chris Garner, a six year veteran assigned to the Specialized Investigations Division, was running late to work. He contacted his supervisor via a cell phone direct connect feature. A subsequent investigation revealed his report of being late was not accurate. In fact he had been stopped for speeding by a state trooper, clearly in opposition of his own statements that reported heavy traffic conditions was the cause of his tardiness. He also was untruthful about why he had been stopped by the state trooper. A simple investigation into why an employee had been late for work became an exacerbated drawn out series of untruthful and false statements by an employee for the only apparent reason of avoiding discipline for being tardy. The court uses phrases such as “to aggravate the matter, he repeatedly provided false reports to his immediate supervisor…to avoid discipline and he continued to falsely answer questions…presented …during the ensuing investigation”.11 He was ultimately charged under the aforementioned policy violation of false or inaccurate reports. Garner requested and appeared at a departmental hearing before a disciplinary board and presided over by a Deputy Chief, he was recommended for termination; the final determination to terminate was authorized by the Chief of Police. Pursuant to rights granted under the Civil Service system of the city, he appealed his termination to the Civil Service Commission and was referred to an Administrative Law Judge (ALJ). At the hearing before the ALJ, the officer took the position that any statements he may have made did not violate any MNPD policy because the statements were not "of an official nature". The ALJ held that “Officer Garner intentionally lied to Sergeant Chestnut ... in order to avoid further disciplinary action. Because disciplinary action taken by the Police Department constitutes business of an official nature, any oral or written reports pertaining to or that could result in disciplinary action constitute reports of an official nature.”12 The Civil Service Commission upheld the administrative judge's findings and order. That decision was appealed to the Chancery Court of Davidson County. After a trial, the Chancery Court reversed the Commission, holding that “the Commission's findings of fact that petitioner made false statements to his supervisor are supported by substantial and material evidence but that the Commission erred in its conclusion of law that the statements constituted an official report.”

10 Garner v. Civil Service Commission of Metropolitan Government of Nashville, 2009 WL 3616614, (Tenn.Ct.App., 2009) 11 Garner, 2009 WL 3616614 at 7. 12 Id. at 1.

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Essentially, the Chancery Court held that the statements made by the officer to his supervisor were too informal to qualify as official statements. It was the reasoning of the Chancery Court that in order for the statements to apply in the employment context the officer would have to be called into the supervisor's office, asked the questions, and make the untruthful statements in that office. The Police Department and the City appealed. During the appeal, it was not disputed that the officer made false statements to his supervisor during four telephone conversations and thereafter in response to questions by this supervisor; the issue is whether any of the false statements to his supervisor constituted “an oral report of an official nature.” Ultimately, the Court of Appeals reversed the trial court and upheld the termination, stating in part, “the matter of discipline within the Police Department is an official matter” and “Garner made false reports to his immediate supervisor in a failed attempt to avoid disciplinary action and that the false statements were of an official nature…by making false reports of an official nature…constitutes a “Category AA” offense punishable by termination of employment; therefore, the termination…was in compliance with the official policies of the Police Department.” 13 Case law on termination relating to untruthfulness when the untruthfulness is related to official duties is well established through court rulings in LaChance v. Erickson and DeMauro v. Loren-Maltese.14 Important however, from the holding of the Tennessee Court of Appeals, was the recognition of the findings from the Louisiana Supreme Court in Rodriguez v. Board of Comm’ners, Port of New Orleans, 344 So.2nd 436 (La. Ct. App, 1977) which recognized that “[n]ot all conduct, however disapproving, will or is likely to impede the efficiency of the public service.” In cases such as Leggett v. Northwest State College and Brickman v. New Orleans Aviation Bd., other courts have also held that a false statement or report must have a “real and substantial relation to the efficiency of the public service” for it to be of an official nature.15 “Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.”16. Based upon the persuasive case law from Louisiana and the clear policies of the department, the Tennessee Court of Appeals reasoned that when Officer Garner made his reports, he knew he might be disciplined and the statements were to avoid discipline. The Court of Appeals determined that "the matter of discipline within

13 Garner, 2009 WL 3616614 at 7. 14 LaChance v. Erickson, 522 US 262 (1998), DeMauro v. Loren-Maltese, #98C8318, 2001 US Dist. Lexis 12409 (N.D. Ill), et al. 15 Leggett v. Northwest State College, 140 So.2d 5, 9-10 (La.1962); see also Brickman v. New Orleans Aviation Bd., 107 So.2d 422, 428 (La.1959). 16 Leggett, 140 So.2d at 9-10

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the Police Department is an official matter. Accordingly, [the officer] was untruthful with [his supervisor] regarding an official matter" and further, any conduct that would "likely impede the efficiency" of the agency gives legal cause for disciplinary actions taken as a result of that conduct.17 This directly supported the position of the department. This case also showed what the MNPD believed in principle and prior authoritative sources have held, that “based upon certain circumstances, an employer could discharge an employee for an act of dishonesty, even if others were not” and that “dishonesty by law enforcement officers is both a serious and terminable offense”, and even more importantly, “does not require progressive discipline”.18 The Supreme Court of New Jersey said it plainly in that some “disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record”.19 The effects of this case provided an excellent reminder for the leadership of the police department and for members of the department. Recognizing that a fundamental and unequivocal duty of all employees is to promote the efficient and effective operation of department and government operation through the pursuit of lawful objectives, any conduct which detracts from this respect and confidence is detrimental to the public interest. It is equally detrimental to the effectiveness of the department, the efficiency of department operations and the morale of all members. Such behavior is therefore prohibited under applicable departmental policy. In that most, if not all, of the policies and procedures of police departments across the country are designed to promote the efficiency and effectiveness of a department's ability to carry out its mission and serve the public. Complete candor and fully truthful responses are required when employees are providing information or responding to inquiry related to any official duty. When circumstances suggest that a member has engaged in prohibited conduct, it is the policy, and necessarily an ethical obligation, of the department to investigate and impose disciplinary action when appropriate. Consider that all disciplinary actions for departure from expected standards of conduct, not only integrity or truthfulness, are really based upon the standard that the conduct would "impede the efficiency" of the department, thus giving legal cause for the disciplinary action. As agency heads, we do not terminate employees lightly, without just cause and without due deliberation. For it is a significant, often traumatic, event for not only the employee, but for the agency and even for the community. The law enforcement employee is a steward of the people’s trust and often his or her oath of office was taken with the pledge that they will serve their community honestly and faithfully. A betrayal of that oath is a violation of policy and is a violation against the community as a whole and the disciplinary action taken by an agency head is taken on behalf of the community. Lest we forget our

17 Garner, 2009 WL 3616614 at 8 18 City of Tampa and Hillsbororough County Police Benevolent Association, 109 LA 453, 458 (Sill, 1997) 19 John Carter v. Township of Bordentown, Docket No A-16-06, June 20, 2007.

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obligation as agency heads to act on behalf of the community. Courts and administrative hearing boards from Washington State to Tennessee and from New Jersey to California continue to uphold the principle that untruthfulness, when committed by a law enforcement officer related to official business or to avoid discipline, is a terminable offense. The most important lesson derived from this event within our department and the resulting Tennessee Court of Appeals decision would be the reminder that one of our most important obligations, as Chiefs and supervisors, is to establish clear and unambiguous policies which promote the effective and efficient operation of department operations and to properly counsel and advise those employees we are responsible for. We must emphasize and counsel employees, both in policies and practice that employees must always demonstrate the professional integrity expected of them by the public in their behavior. An important aspect of that counsel is to share the importance of adhering to the integrity standards described in the oath of public service that, as law enforcement officers, we all proudly take. It is the duty, a fundamental duty, of police officers to adhere to these principles and of police supervisors to ensure appropriate levels of accountability. It is a right of citizens to expect nothing less from their law enforcement agencies and officers to act efficiently and effectively, with integrity.