In Spite Of Brady Rule, Washington Supreme Court Reinstates Arbitrator’s Opinion Overturning Deputy’s Discharge For Untruthfulness

Brian LaFrance worked as a deputy for the Kitsap County, Washington Sheriff's Department for 14 years, during which he was disciplined several times. Beginning in May 2000, LaFrance began to behave unusually. He had been assigned to a child pornography task force, and he became “obsessive” and “fixated” on this work and on “protecting the children.” Despite repeated warnings and reprimands, LaFrance continued to work outside his regular shift without permission and maintained an unacceptable number of open cases.

In the fall of 2000, LaFrance was reassigned to the patrol division and instructed to return all equipment and uncompleted cases. In the eyes of the County, by this point LaFrance had developed “paranoia” and “delusions of persecution.” LaFrance failed to return the case files and equipment, and in January 2001, he was suspended for two days after an internal investigation. In addition, an equipment audit discovered that LaFrance had failed to secure a pistol issued to him. LaFrance had said that he had turned in the weapon, but it had instead been found in an unlocked desk drawer. In February 2001, following the discovery of additional files in LaFrance's possession after he denied having any other files multiple times, LaFrance was placed on administrative leave pending further investigation.

During the County's investigation, LaFrance appeared “erratic and confused.” The County ultimately terminated LaFrance based on 29 documented incidents, including instances of untruthfulness. LaFrance's labor organization, the Kitsap County Deputy Sheriff's Guild, filed a grievance and requested arbitration.

The Arbitrator found that LaFrance had been untruthful, but that the County had failed to show that “the degree of discipline administered was reasonably related to the seriousness of the proven offenses.” The Arbitrator concluded that LaFrance's mental disability was apparent from his behavior and that the County should have recognized this and referred him for counseling and fitness-for-duty exams. The Arbitrator reduced LaFrance's penalty to three separate final written warnings and ordered that LaFrance be “made whole by retroactively placing him in the position that he would otherwise have been in. Specifically, Deputy LaFrance should be allowed to access any benefits that an officer in good standing could have accessed as of his date of discharge including sick leave, disability benefits, or any other benefit provided to disabled employees covered by this collective bargaining agreement. Since Deputy LaFrance was (and possibly still is) incapacitated he is not entitled to back pay per se, but may keep any unemployment insurance benefits for which he is monetarily eligible.”

The County challenged the Arbitrator's decision in court, arguing that it was against public policy to reinstate a law enforcement officer who was proven to be untruthful. When the Washington Court of Appeals sided with the County and overturned the Arbitrator's opinion, the Guild appealed to the Washington Supreme Court.

The Supreme Court ordered the reinstatement of the Arbitrator's opinion. The Court focused on the County's argument that since criminal statutes prohibit public officers from knowingly making false statements in an official report or statement or committing misconduct, reinstatement of an untruthful public employee must be against public policy. The Court disagreed, finding “these statutes do not provide an explicit, well-defined, and dominant public policy prohibiting the reinstatement of any officer found to violate these statutes. Examples of explicit, well-defined, and dominant public policies in comparable cases in other states include a statute prohibiting individuals who have committed felonies from serving as police officers, and the affirmative duty under federal statute to prevent sexual harassment by law enforcement officers. Washington has no similar statute prohibiting persons found to be untruthful from serving as officers or placing an affirmative duty on counties to prevent police officers from ever being untruthful.”

The Court also noted that “courts in other states have upheld similar arbitration decisions reinstating officers when there is no explicit, well-defined, and dominant public policy against reinstatement, even when reinstatement would likely be contrary to general public policy considerations. Washington statutes prohibit making false statements to a public officer but there is no statute or other explicit, well-defined, and dominant expression of public policy that requires the automatic termination of an officer found to have been untruthful.”

The County also argued that the Brady rule – which requires prosecutors to disclose exculpatory evidence – exemplifies a public policy against reinstatement of police officers found to be untruthful. The County contended that prosecutors would have to disclose LaFrance's record of dishonesty in any criminal proceedings where LaFrance served as a witness. The Court was not convinced, however, finding “even if that were true, it would not be sufficient to vacate the arbitration decision because it does not constitute an explicit, well-defined, and dominant public policy prohibiting LaFrance's reinstatement. The cases requiring disclosure of an officer's history of untruthfulness have not commented on whether such an officer could continue to be employed. As a result, there is no explicit (or even implicit) statement regarding the continued employment of an officer found to be untruthful. Further, even if Brady case law constituted a public policy against reinstatement of an officer found to be dishonest, it provides no guidance regarding what level of dishonesty would prohibit reinstatement. The Brady rule provides neither an explicit nor a well-defined public policy against reinstating an officer found to be untruthful. As such, the Brady rule does not meet the exacting requirements necessary to void an arbitration award on public policy grounds.”

Kitsap County Deputy Sheriff's Guild v. Kitsap County, 219 P.3d 675 (Wash. 2009).

This article appears in the February 2010 issue