Principles for Public Safety Employment

committed, but “is the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, ‘[h]arm to the public service.’’ A [peace officer] is held to the highest standards of behavior. His honesty and credibility are crucial to proper performance of his duties. Dishonesty in matters of public trust is intolerable.” 213 The reason dishonesty is intolerable is that it demonstrates a character flaw which is likely to recur. “Honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character.” 214 Termination of employment is usually required for acts of dishonesty because, as noted below, the misconduct is discoverable via a “ Pitchess Motion” or as “Brady material.” 215 As such, an officer with a dishonesty finding in his personnel file will undoubtedly jeopardize the public safety department’s mission to successfully prosecute criminals. Kolender v. San Diego Civil Service Commission 216 The Sheriff for the County of San Diego (Kolender) terminated a deputy (Berry) for lying during an administrative investigation to cover up a fellow deputy’s abuse of an inmate. After he was terminated, the employee filed an administrative appeal with the San Diego County Civil Service Commission. The hearing officer who presided over the appeal found that while the Sheriff proved all of the charges against the employee, the penalty of termination was too severe. The Commission adopted the hearing officer’s recommendation and reduced the employer’s selected penalty from termination to a 90 day suspension. The rationale for the Commission’s penalty reducing decision was that the deputy admitted he lied to the internal investigator after he was caught in the lie.

The Sheriff sought to vacate the Civil Service Commission’s penalty reducing decision by filing a petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5. But the trial court denied the petition on the grounds that the Commission’s penalty reducing decision was not an abuse of discretion. The Court of Appeal reversed and held that it was an abuse of discretion to reduce discipline selected by the employer to a 90 day suspension. In so doing, the Kolender court held that “[f]alse statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.” The Court of Appeal then rejected the Commission’s rationale for reducing the Sheriff’s penalty finding that there is no leeway when it comes to lying by peace officers. “We disagree with the hearing officer because his reasoning, if logically extended, encourages sheriff’s deputies to play cat-and-mouse games with investigators and only tell the truth when they determine the moment is opportune to do so, or if they are cornered to do so because their lie has been found out.”

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 72