This piece was originally published in the October edition of the California Employment Law Letter.
Partner Jon Holtzman authored this piece for the October California Employment Law Letter.
It isn’t necessarily surprising that the California Court of Appeal recently ruled in favor of Los Angeles County after it fired a sheriff’s deputy for dishonesty and failure to report that he had witnessed two incidents in which another deputy sheriff committed serious violence against an inmate. What’s unusual about the case is that to reach its conclusion, the court was required to reverse a decision by the Los Angeles County Civil Service Commission, which held that the deputy sheriff had in fact lied and failed to report the incidents, but nonetheless overturned his termination, finding that only a one-month suspension was warranted.
The Civil Service Commission’s failure to recognize the gravity of the offenses at issue is perhaps a sign of the times when it comes to truth-telling. The county should be commended for filing a case against its own Civil Service Commission. Based on the facts the Civil Service Commission itself found, it’s difficult to fathom how the commission could have reached a decision contrary to the sheriff’s department and the court of appeal.
On the positive side, this case will be Exhibit A for any other public agency pursuing charges of dishonesty against a peace officer in the future. It’s a virtual compendium of cases supporting the “you lie, you die” rule. And we apparently have the Los Angeles County Civil Service Commission to thank for that.
Dequan Ballard, a jail inmate, stole items from a commissary cart. Two deputy sheriffs, Omar Lopez and Mark Montez, took Ballard to an elevator landing, and Montez monitored the hallway while Lopez strip-searched Ballard. During the search, Lopez struck Ballard multiple times with his fist. The civil service administrative law judge (ALJ) found that Montez was aware of the assault.
Later, Lopez took Ballard to a control booth, put paper on the windows, and shoved him into the wall, causing “severe bleeding from his face, nose and mouth areas, and bloodying his clothes, the wall, and the floor.” Montez wasn’t present during the second assault, but he arrived shortly after and spoke to Lopez while standing in front of the bloody wall. When he was interviewed, Montez claimed he wasn’t aware that Lopez had assaulted Ballard on the elevator landing, denied being aware of Ballard’s injuries after the second incident, and, when shown a video of himself standing with Lopez after the incident, stated he didn’t even recognize Lopez. Importantly, the Civil Service Commission’s hearing officer, and ultimately the commission itself, found all of that (and more) to be true and acknowledged that Montez had lied during the investigation.
Nonetheless, the commission reduced the sheriff’s decision to terminate Montez to a 30-day suspension. The hearing officer focused on the fact that a civilian employee who cleaned up the aftermath of the control booth incident had also failed to report the incident and wasn’t fired. The hearing officer was apparently swayed by Montez’s “unblemished” record, viewing the incident as an “anomalous instance of poor judgment.” After the commission upheld the hearing officer’s decision to reduce the penalty to a 30-day suspension, the county appealed.
The court of appeal’s decision is essentially a reference bible of quotes from cases holding that (1) peace officers are held to a higher standard of honesty than other public employees, (2) dishonesty by law enforcement officers undermines public trust in law enforcement and damages the employing agency, and (3) such conduct should result in discharge. The following quote, one of many, summarizes those points well:
“A deputy sheriff’s job is a position of trust[,] and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility[,] and temperament are crucial to the proper performance of an officer’s duties. Dishonesty is incompatible with the public trust.”
All of that may seem obvious to HR professionals, but it’s a reminder of some of the relativism and tolerance for cronyism and dishonesty that has crept into the public dialogue in general and into some public safety departments in particular.
Although the principles articulated here aren’t new, the case itself is useful to help persuade ALJs, civil service commissions, and arbitrators to do the right thing in cases involving lies by sworn personnel. In addition to forming the basis for challenging an adverse determination by an administrative body, the case may be useful in challenging adverse arbitration decisions. Although arbitration decisions are entitled to an even higher level of deference than civil service determinations, it’s well established that arbitration decisions can be challenged when they are contrary to public policy. This case makes a compelling argument that reinstating a peace officer who has lied is contrary to public policy. County of Los Angeles v. Civil Service Commission of Los Angeles (California Court of Appeal, 2nd Appellate District, 10/3/19).
The one caveat to our pitch for a less “flexible” view of discipline for employee dishonesty is that not all lies are of the same gravity. The lie at issue in this case was very significant: It was part of an attempt to cover up an assault on a prisoner, and it couldn’t have been anything but intentional. Some lies are sins of omission, some involve minor details, and some occur because they’re coerced, so there will obviously be exceptions to the “you lie, you die” maxim. But this case is a reminder that although lying has become more common in public discourse, it should have no place in the world of peace officers, whose veracity must be above reproach.