Another Arbitrator Weighs In On Brady List And Discipline

Arbitrators seem increasingly skeptical that a police officer’s placement on a Brady list, in and of itself, should be a basis for discipline. The latest arbitrator to speak to the issue, Thomas Levak, has followed what is now the general trend that Brady list status cannot alone justify discipline.

The case involved Officer Kevin Tuggle of the Elma, Washington Police Department. A local district attorney deemed Tuggle a “Brady officer” after Tuggle wrote an inaccurate report about an arrest. The Department fired Tuggle, both for deliberately writing an inaccurate report and as well for his placement on the District Attorney’s Brady list.

The Arbitrator overturned the discharge, finding that “the City failed to prove by clear and convincing evidence – indeed, not even by a preponderance of the evidence – that Tuggle was discharged for just cause. Indeed, the persuasive and convincing evidence proved that the mistakes made by Tuggle were the result of a degree of carelessness, and most certainly were not untruthful nor otherwise intentional.

“The Arbitrator cannot consider the asserted Brady determination. The Arbitrator agrees with the Association that the Prosecutor’s determination was based on preliminary, challenged and speculative findings, and is therefore not binding; and that the determination is circumspect because it was based solely on the Chief’s telephonic summary of events to two district attorneys, who never reviewed any relevant file nor provided any due process to Tuggle. More importantly, however, the determination is irrelevant because of the Arbitrator’s overall finding that Tuggle was never untruthful.

“The Arbitrator finds that the three statements in the Grievant’s report that were inconsistent with a video of the scene were the result of fatigue, Tuggle’s medical condition, his desire to be consistent with another officer, the on-the-job and marital stresses that existed as he attempted to complete the report after his shift had already ended, and his use of customary language when completing a report. It is obvious to the Arbitrator that he simply was not thinking when he restated the mistaken reason for the arrest that the other officer had given. It is also obvious that he simply had a failure of recollection when he stated that he told the suspect that he was under arrest before beginning to search him. And it is equally obvious that his statement that he had read the suspect his Miranda rights was simply the way that he normally recounted a from-memory recitation.”

The Arbitrator then turned to the critical issue of the Brady list: “Because of the Arbitrator’s finding that Tuggle was never untruthful, it will be necessary for the City and the Department to purge their files of any reference to untruthfulness, or to take some other definitive action to ensure that this matter will not be subject to a Brady disclosure during any criminal proceeding. This Opinion and Award stands as the final determination that Tuggle was truthful throughout the course of the stop, when he wrote his report, when he was interviewed, and when he testified at the arbitration hearing.”

The Arbitrator ordered Tuggle reinstated with full back pay.

City of Elma, Washington (Levak, 2013).