Finding Of Dishonesty Does Not Preclude Officer From Retaining Employment

In recent years, employers and prosecutors have become increasingly concerned that any disciplinary finding of an officer’s dishonesty must be disclosed to defense attorneys in a criminal case involving the officer. In response to this concern, some police departments have either deliberately avoided making findings of misconduct (where other disciplinary charges fit the offense), or have moved directly to termination whenever dishonesty is found.

A recent case from the California Court of Appeals shows that, at least in the mind of one court, concerns about an officer’s prospective effectiveness as a witness do not necessarily mandate the officer’s termination.

Bryan Pinto is a police officer with the City of Visalia, California. In September 2002, Pinto was taking a break in a gourmet coffee shop while in uniform and on duty. A woman approached him and identified herself as the stepmother of 20-year-old Justin Helt.

The woman told Pinto that Helt was having problems with an ex-boyfriend and needed some advice, asking Pinto if he could talk to Helt. Pinto gave her his business card. About an hour later, Helt called Pinto on his work cell phone. Helt told Pinto he had recently broken up with 16-year-old “C.” Helt believed “C” was stalking and harassing him, and asked what he could do. Pinto told Helt he could take a police report for stalking or harassment, and told him how to get a restraining order. Helt declined to do anything, stating he would deal with it and call Pinto back if the problem continued.

Thereafter followed a series of meetings and telephone conversations between Pinto, Helt, and “C.” The relationship between Pinto and “C” grew closer when Pinto was on the Internet in a gay chat room and encountered “C,” who was representing himself as being 18 years old. “C” eventually told him that he had had sex with a man named “Aaron,” and that Aaron had pressured him into the sex after offering him drugs. A couple of days later, “C” learned from others on the Internet that Aaron was HIV positive, and told Pinto that he was worried about his health. Pinto told “C” that he needed to tell his mother, should be tested for HIV, and needed to report the incident to the Tulare Police Department. “C” declined Pinto’s offer of assistance, and said he wanted to talk to his mother.

As it turned out, Pinto had a one-time sexual encounter with a man named Aaron Rodriguez. Rodriguez was the “Aaron” to whom “C” was referring.

Pinto revealed none of these activities or discussions to the Department. When “C” eventually filed a police report with another police agency, the Department instituted an investigation. The Department fired Pinto for not reporting the child abuse of “C” by Rodriguez, and for being untruthful in the internal affairs investigation when he initially denied knowing Rodriguez. When an arbitrator upheld Pinto’s termination, Pinto challenged the decision in court.

The California Court of Appeals overturned the discharge. The Court found that the Department’s rules concerning reporting child abuse paralleled those in California state law for “mandatory reporters.” The Court ruled that the obligation to report suspected child abuse on a “mandated reporter” only applies when the “mandated reporter” is acting either in a professional capacity or within the scope of employment.

The Court reasoned that “Pinto was not working as a police officer when ‘C’ called him and when he gave ‘C’ advice, he was off duty and at home. Pinto did not assume the duties of a police officer during the conversation, and ‘C’ and Pinto had a social relationship. That Pinto may have drawn on his training and experience as a police officer when giving ‘C’ advice does not mean he was rendering police services, as Pinto was not working as a police officer at the time.”

The Court was convinced, however, that Pinto did lie in the internal affairs investigation about his relationship with Rodriguez. The Court found that termination was “an excessive penalty given this one incident of misconduct. A review of the record reveals a lack of evidence directly showing how Pinto’s lack of candor adversely affected the public service.”

The City argued that Pinto could never be an effective witness in court because he would be impeached by the finding of misconduct on cross examination. The Court was ultimately unconvinced by the argument, reasoning that “the incident at issue here is already over three years old. As time goes by, it is less and less likely a court will find it discoverable. As for the prosecution’s general constitutional duty of disclosure, that duty is limited to evidence that is material in the sense its disclosure would reasonably be likely to affect the outcome of the case. While we cannot say with absolute certainty that Pinto will never have to face questioning about his misconduct, he would not be the first officer forced to confront a prior act of dishonesty.

“The human condition being what it is, few witnesses come to the stand with an unblemished record of telling the truth. Our adversarial system recognizes that and allows an accused the opportunity to delve into issues of credibility if they are germane to the issues at hand. Yet, the system also provides means for rehabilitation and the opportunity for explanation. In other words, it recognizes that there are usually two sides to every story and not every act of dishonesty will inevitably destroy a witness’s credibility in the jury’s eyes. Experience teaches us this is true even when the witness happens to be a police officer.”

Pinto v. City of Visalia, 2006 WL 1431088 (Cal.App. 2006).

This article appears in the July 2006 issue