On December 2, 2013, a complainant alleged that an officer of the Hutchinson, Kansas Police Department had arrested her in late November for a DUI violation. The complainant said that the officer later telephoned her at home, sent her several text messages, and generally engaged in harassing conduct.
The Department interviewed the officer, who admitted visiting the home of the complainant after the DUI arrest to follow up on the arrest. The officer stated that the complainant made sexual advances towards him, and that he shared the story of the encounter with other officers. The officer stated that he might have “amped” up the story and told an officer only identified as “Officer M” that he got a blow job from the complainant. The officer denied that he actually had received a blow job, and told the Department’s investigator that he did not have any sexual contact with the complainant other than a sexual advance that she made towards him by attempting to grab his crotch, which he rebuffed.
A search of the officer’s cell phone revealed a record of a text message to Officer M claiming that the arrestee performed oral sex on him and that he tried to say no, but could not resist. During an interview, Officer M initially denied reading the text message. Later in the interview, Officer M admitted reading the text message. When asked why he lied when he was first asked the question about text messages, Officer M said, “’Cause I didn’t wanna get nobody else in trouble. I didn’t want to actually be a part of it.”
When the City fired Officer M for dishonesty during the interview, the termination decision was challenged in arbitration by the Fraternal Order of Police. An arbitrator overturned the termination.
The Arbitrator found “several reasons” for overturning the discharge: “One reason is that in the very same interview in which he lied, he later admitted that his original denial that he received a text from the other officer was not the truth and that he had lied because he did not want to get the officer in trouble. Progressive discipline, the Arbitrator believes, rather than peremptory discharge, was the appropriate penalty in this case.
“In his colloquy with Officer M, Captain Hoover indicated that he could no longer trust Officer M because Officer M had lied in the interview. The implication of such a position on the captain’s part is that once somebody lies, that person cannot be believed in the future. The Arbitrator does not believe that there is any valid psychological or logical basis to such a stance. Nor has the Department conducted itself on that principle in the recent past.
“The Arbitrator believes it to be significant that Officer M decided during the course of the interview to admit that he had received a text message that night and to disclose its content. When asked if he had lied previously in the interview, he admitted that he did.
“Officer M’s about-face in his interview shows that he is capable of understanding that for a police officer loyalty to a friend can go only so far; that the duties and responsibilities of his job require that he reveal whatever knowledge he has of wrongdoing regardless of the consequences or whom may be affected. The present experience has also brought home to Officer M that the cost of trying to help a friend can be loss of his job. The Arbitrator believes that Officer M has learned and taken to heart that a fellow officer who violates any Departmental rule or regulation has forfeited any claim to his loyalty to the extent that it would require him to lie or withhold the truth. No officer can fairly expect that of another officer.”
The City pointed to a letter from the Reno County District Attorney stating that because of a finding that they had lied to superiors during interviews, he would not use Officer M as a witness in any criminal prosecution unless absolutely necessary to avoid a gross miscarriage of justice or to protect the community’s safety from a real threat. The Arbitrator was unconvinced, finding that the District Attorney’s letter did not “discuss the possibility, and perhaps likelihood, that if turned over to the judge, that the judge would rule that the incident in question was not a basis for impeachment and that defense counsel could not question the officer concerning it. One must ask why the District Attorney would not use Officer M as a witness if he were not required to submit the information about his misconduct to the judge for a ruling as to whether the information must be turned over to defense counsel. If Officer M were the arresting officer in the case and had material evidence regarding the alleged crime, how could the District Attorney justify not calling him as a witness? Is the District Attorney aware of Officer M’s prior commendable record as a police officer with the Department?
“That brings us to the question of how the Brady/Giglio line of cases affects the determination of this arbitration. [This raises] the question of whether, under Kansas law, it is probable that a judge would permit defense counsel to impeach Officer M for his misconduct in the present case or to question him about the incident in order to impair his credibility. Having examined the applicable statutory and case law and having read the parties’ briefs on the issue, the Arbitrator concludes that under Kansas law evidence would not be admissible regarding the fact that Officer M was disciplined for lying in a Departmental interview.
“Kansas statutes make clear that the only admissible evidence of specific instances of a person’s conduct that is admissible is ‘evidence of conviction of a crime which tends to prove the trait to be bad…’ The statutes also contain rules about the admissibility of character evidence regarding an accused in a criminal trial, which is not pertinent to this proceeding. Plainly then, under Kansas law, evidence regarding Officer M’s misconduct which is the subject of this proceeding would not be admissible into evidence in order to attempt to show that he is not a credible witness, and he could not be questioned about such misconduct in an effort to impeach him. The foregoing interpretation has been upheld in at least three Kansas Supreme Court decisions.”
By way of remedy, the Arbitrator ordered the City to reduce the discharge to a verbal warning, “including a Final Warning with regard to any future failure to be truthful in the performance of his police duties. The City will be required to promptly offer Officer M reinstatement to his former position with the Police Department and make him whole for all lost wages and benefits as a result of his discharge.”
City of Hutchinson, 134 LA 1683 (Kossof, 2015).
[Written by Will Aitchison (www.LRIS.com)]
[Posted 2015_9_6]
