Maintaining the public’s trust is as synonymous with law enforcement as the slogan “to protect and serve.” A sustained allegation of untruthfulness has long been regarded a career killer for police officers.
Recent years have seen a significant impact from Brady v. Maryland, the U.S. Supreme Court case that requires prosecutors to disclose exculpatory evidence to the defense in a criminal case. Citing the Brady rule, prosecutors have placed officers on so-called “Brady lists,” which at least implicitly brands them as untruthful or unreliable. Inclusion on a Brady list has often meant that prosecutors will not prosecute those officers’ cases. This inability to testify has in turn resulted in the termination of numerous police officers because their inability to testify renders them “unfit” to perform the essential requirements of law enforcement.
The last several years have seen developments bucking these general trends. Several arbitrators have held that placement on a Brady list, absent clear proof of an officer’s underlying dishonesty, is an insufficient basis to terminate an officer. Arbitrators and courts have also applied a gradation of untruthfulness, separating misconduct directly relating to the performance of duty from lesser incidents of untruthfulness on the periphery of officers’ actual job duties.
For example, in Wetherington v. N.C. Department of Crime Control & Public Safety, 752 S.E.2d 511 (N.C. App. 2013), a court reinstated a state trooper who was terminated for lying about how he lost his hat. In Hubacz v. Village of Waterbury, Vermont, 2014 WL 4060314 (D. Vt. 2014), a court reinstated an officer who was terminated solely for being placed on a Brady list.
State legislatures have also started weighing in on this issue. In 2013, California’s Public Safety Officers Procedural Bill of Rights Act was amended to provide that “a punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland.” In 2014, the Maryland Legislature adopted a similar statute.
In a recent case, one that did not directly involve Brady, the Connecticut Supreme Court decided that a lie told by an officer to protect his job was not as serious as if he had lied in the performance of his job. In December 2014, the Court upheld an arbitration award reinstating Justin Loschiavo, a Stratford, Connecticut police officer fired for lying during a medical examination.
Loschiavo suffered from latent epilepsy but started working as a probationary police officer for the Town in 2006. As a condition to his hiring, he was to remain seizure free throughout his probationary period, a requirement he satisfied. Loschiavo was apparently seizure free until June 2009, when he suffered a seizure in a police car, striking two parked cars. Loschiavo’s physician cleared him to return to light duty in August 2009. The Town ordered Loschiavo to a neurologist for an independent medical examination. The neurologist determined that Loschiavo was capable of returning to work full time but required Loschiavo to call out sick whenever he felt symptoms of an oncoming seizure.
Upon reviewing the neurologist’s report, the Town’s human resources director found two discrepancies between the report and the report from Loschiavo’s doctor. Specifically, Loschiavo failed to inform the neurologist about seizures he suffered in 2005 and 2008 and he failed to disclose that he had been using or abusing alcohol.
Loschiavo was terminated for lying during the independent medical examination. A three-member arbitration panel reinstated Loschiavo without back pay but no loss of seniority, holding the termination was excessive because both doctors returned Loschiavo to his full duties without restrictions and because the Town knew of Loschiavo’s condition when he was hired and did not raise any issue of Loschiavo’s work performance. The Arbitration Panel concluded that “a police officer’s lying about his physical and mental condition to doctors that could return him to work is a very serious violation, but understandable because he wants his job back.”
In rejecting the employer’s appeal of the arbitration decision, the Court considered whether the arbitration award violated an explicit, well-defined and dominant public policy. The Court had no trouble finding a well-defined public policy, holding: “We conclude that there is a public policy against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties.”
The Court then reviewed the specific facts to determine whether the public policy required Loschiavo’s termination and stated that “an arbitrator reasonably may consider circumstances such as the length of employment, previous instances of misconduct by the employee, and the circumstances and severity of the misconduct under review in determining the likelihood of future misconduct and whether discipline less severe than termination would constitute a sufficient punishment and deterrent.”
The Court concluded that Loschiavo’s conduct, although serious, did not compromise his qualifications or ability to perform his official duties as a police officer, because his physician and his neurologist were both aware of his dishonesty and yet still cleared him to return to duty. The Court stressed that Loschiavo did not lie under oath and his dishonesty was not disruptive or repeated. The Court also noted that Loschiavo was not dishonest with his fellow police officers or while performing his official duties. In particular, the Court observed that Loschiavo was not warned about the repercussions of his misconduct and so could not be characterized incorrigible. Finally, the Court pointed to the fact that the punishment that Loschiavo received under the arbitration award was severe.
Town of Stratford v. AFSCME, Council 15, Local 407, 2014 WL 7086502 (Conn. 2014).