Budgetingin a Police Organization
Discussion1 Interesting thoughts,
Would you consider the vehicles as a part of your repair budget rather thanpurchase budget? I have seen this taken into consideration, however afterone year, it cost more for up keep than buying new vehicles and took threeyears to catch up. What would be your way to handle this? Suggestions?
Accountabilityin a Police Department and the Community
You bring up the ideas and concerns with ethics andofficers. A case that has decided this more than anything else isBrady. I have attached a link here outlining this. Would you take amoment and look this over and let us know what you think!
Police Officer Truthfulness andthe Brady Decision
Jeff Noble, Commander, Irvine,California, Police Department
ruthfulnessand the 1963 Brady decision have become hot topics in law enforcementcircles. Although years went by without much concern with the Bradydecision, recent U.S. Supreme Court decisions have enforced Brady toinclude evidence maintained in a police officer’s personnel files. Under Brady,evidence affecting the credibility of the police officer as a witness may beexculpatory evidence and should be given to the defense during discovery.Indeed, evidence that the officer has had in his personnel file a sustainedfinding of untruthfulness is clearly exculpatory to the defense. To remindthe reader, in 1963 the Supreme Court ruled in Brady v. Maryland thatthe defense has the right to examine all evidence that may be of anexculpatory nature. This landmark case stands for the proposition that theprosecution will not only release evidence that the defendant might be guiltyof a crime but also release all evidence that might show that the defendantis innocent as well. Today many police executives have recognized theimportance of officer credibility and have established a “No Lies”proclamation. As simple as No Lies sounds, it is far more complex anddifficult to manage. Lies are not a fixed target; rather, deception exists ona continuum, from what is commonly called social lies or little white lies toegregious misconduct that warrants dismissal or prosecution. The truechallenge is in dealing with deceptive conduct that lies somewhere in themiddle of the continuum-not so far on one end of the continuum fortermination and not far enough toward the other end of the continuum to bejustifiable or excusable.
Law enforcement executives haveresponded to these judicial decisions by imposing strict rules and, on thesurface, No Lies seems great. This black-and-white rule certainly appears tobe one upon which everyone can agree. To achieve a goal of maintaining theofficer’s and the department’s credibility, ruling out all lies is thesimplest solution and the easiest to enforce. But are police administratorsreally prepared to enforce the rule as it is communicated in the No Liesmaxim?
There is an adage in managementcircles that rules should be explained and tools provided so employees canachieve the vision set out for them. No Lies, however, does not express thetrue concern of police administrators. Rather, the concern is with improper,intentional, deceptive conduct that affects an officer’s credibility, whetherthat deceptive conduct consists of lying, making material omissions, orengaging in other unacceptable deliberate actions.
Not only should there be a policydefining improper, intentional, deceptive misconduct but there should also bea clear definition of deceptive conduct that is accepted by an agency. Inpolice work, deceptive conduct in some areas is not only condoned but alsoencouraged or even required. The key to developing a policy is anunderstanding of the difference between deceptive conduct and deceptivemisconduct.
In Lying (New York: Vintage,1999), Sissela Bok defines a lie as any intentionally deceptive statedmessage. According to Bok, these are statements that are communicated eitherverbally or in writing. Lying is a subset of the larger category ofdeception, and deception is undertaken when one intends to dupe others bycommunicating messages meant to mislead and meant to make the recipientsbelieve what the agent (the person performing or committing the act) eitherknows or believes to be untrue. Deception encompasses not only spoken andwritten statements but any conduct that conveys a message to the listener.Deceptive conduct can range from verbal statements or writings to physicalexpressions such as a shoulder shrug, eye movement or silence-any intentionalaction that conveys a message.
Historically, not allintentionally deceptive conduct in social interactions has been consideredimproper. Indeed, as early as the Middle Ages, Saint Thomas Aquinasclassified deceptive conduct as helpful, joking, or malicious. Aquinas arguedthat lying helpfully and lying in jest may be acceptable forms of conduct,whereas telling malicious lies, lies told deliberately to harm someone, was amortal sin.
Acknowledging that some deceptiveconduct is acceptable helps to define deceptive misconduct. For example, theclassic dilemma, argued about for centuries, is what to do if a murdererapproaches you and asks the location of his intended victim. If you tell thetruth, the murderer will kill the victim. If you lie, the intended victimwill have the opportunity to escape. Although this hypothetical dilemmaforces you to choose between insufficient options with no other choices, itis illustrative of Aquinas’s argument. Lying to a murderer to protect apotential victim is helpful, and it may be both morally and ethically theproper thing to do because it is the lesser of evils under the circumstances.
OfficerTruthfulness: Relevant Case Law
Haney v. City of Los Angeles, 109 Cal. App. 4th 1 (2003).
Ziegler v. City of South Pasadena, 73 Cal.App.4th 391 (1999).
Brogan v. United States, 118 S. Ct. 805 (1998).
LaChance v. Erickson, 118 S. Ct. 753 (1998).
Ackerman v. State Personnel Board, 145 Cal. App. 3d 395 (1983).
Gee v. California State Personnel Board, 5 Cal. App. 3d 713 (1970).
Brady v. Maryland, 83 S. Ct. 1194 (1963).
LiesJustified by Investigative Necessity
In the performance of theirduties, police officers frequently engage in a significant amount ofdeceptive conduct that is essential to public safety. Consider lying tosuspects, conducting undercover operations, and even deploying unmarked cars.Presenting a suspect with false evidence, a false confession of a crimepartner, or a false claim that the suspect was identified in a lineup are buta few of the deceptive practices that police officers have used for yearsduring interrogations. These investigatory deceptive practices are necessarywhen no other means would be effective, when they are lawful, and when theyare aimed at obtaining the truth.
Some, like John P. Crank and MichaelA. Caldero in Police Ethics (Cincinnati: Anderson, 1999), have arguedthat accepting these types of deceptive practices places the police on aslippery slope, which will create a belief by officers that all deception isacceptable, or a perception by the public that diminishes the trustworthinessof officers. It may be true that some persons who engage in seriousmisconduct began with minor acts of deception, but it does not follow thatall deception is a gateway to serious misconduct. Most police officers candistinguish the differences and do not conclude that specific, lawfuldeception implies the rightness of all deception. The majority of policeofficers are quite capable of applying the Constitutional test of whetherthat deceit would make innocent persons confess to a crime that they did notcommit.
LiesMade in Jest
Where specific lies can besupported by rational argument as justified, other lies may be deemedexcusable by the same type of ethical analysis. Lies made in jest, althoughsometimes callous and hurtful, do not affect an officer’s credibility unlessthey are in such bad taste that they call into question the person’s judgmentin general. Between officers, embellishments and exaggerations arecommonplace in the descriptions of the misfortunes of others. A sense ofhumor, even where some deception is involved, can and does help responsiblepersons cope with great stress and grim circumstances. Indeed, a sense ofhumor and a sense of proportion may be inseparable under the worst circumstances.Although humor is an acceptable practice at the appropriate time, humor isnot a shield to the disciplinary process. When jokes become intentionallyharmful to others, they become malicious lies that should be dealt withaccordingly. Agency leaders should not strive to create such a sterileworkplace that humor is forbidden, for they would succeed only in makingthemselves objects of derision and ridicule. Police leaders should seek toestablish and enforce reasonable standards.
Deception concerning trivialmatters, often told to spare another’s feelings may also be excusable. Thesewhite lies are meant not for any personal gain but rather for socialcourtesy. Not every social situation calls for the whole truth. How do Ilook? What do you think? Sometimes benign statements or tactful silence arethe most appropriate responses.
In The Varnished Truth(Chicago: University of Chicago Press, 1994), David Nyberg asserts that actsof deception are such common practice in human communication that deceptiveconduct would be impossible to prevent entirely by any rule, law, policy, ormanner of enforcement. From the social kindness of white lies toembellishments, exaggerations, and boastful behavior, we frequently concealthe truth for a variety of reasons. We not only condone these activities butalso teach our children the art of deception from an early age. Childrenlearn from their parents, friends, television, books, and other sources howto deceive. Children quickly learn how to maintain a poker face, so theirhand is not easily identified by their body language, or in sportingactivities where young athletes fake a throw or head-fake an opponent bylooking one way and going another.
Our laws and culture have evencreated exceptions to the unvarnished truth such as in advertising,recognizing that there is speech that tends to embellish the value of aproduct, but because these speech patterns are so common and easilyrecognized, they do not dupe a reasonable, mature person into a false belief.This exception, called puffery, encompasses terms like “world’sbest,” “the greatest,” “the purest,” and so on.
Although lies justified bynecessity, lies told in jest, and white lies may be acceptable forms ofdeception in law enforcement, malicious lies are the true evil of officermisconduct. The difference between lies justified by necessity or lies madein jest and malicious lies is the presence of actual malice by thecommunicator. Here, malice would include not only lies told with a bad intentbut also lies that exceed the limits of legitimacy.
For example, a police officer maybe tempted to testify falsely to imprison a criminal. The officer’s intentmay be a worthy objective to the public; removing a criminal from society andthe officer may validate his intent in his own mind by believing that he isengaging in a greater good. But this lie would violate the standard by whichwe would say the lie was reasonable and appropriate under the circumstancesgiven the status obligations of the person engaging in the lie. Although theintent may be legitimate, the actions are malicious. This malice is themotive by which any sense of limits or constraint or fidelity to law andpolicy is destroyed.
It is important to understand thatmotive or intentions can be mixed, so that a person may deceive in order topursue some worthwhile, utilitarian goal (such as public safety) and at thesame time have a malicious disregard for the rights of the suspect and forthe laws, policies, and limits that apply to policing. This willingness tobetray basic principles of honesty attacks the very public safety that theperson believes himself to be pursuing. A police officer who by maliciousdisregard goes beyond the limits of legitimacy is a threat to the publicsafety, since the officer may end up violating anybody’s rights, and thispoisons the idea that the lie is advancing public safety.
Perhaps it is easier to assessintentional deceptive conduct on a continuum. At one end is intentional,malicious, deceptive conduct that will take one of three forms:
- Deceptive action in a formalsetting, such as testifying in court or during an internal affairsinvestigation
- Failure to bring forwardinformation involving criminal action by other officers, also known asobserving the so-called code of silence
- Creation of false evidencethat tends to implicate another in a criminal act
Intentional, malicious, deceptiveconduct in any of these three areas will permanently destroy an officer’scredibility. Should an officer violate these standards, there is noalternative in an employment context other than termination or permanentremoval from any possible activity where the officer could be called upon tobe a witness to any action.
At the other end of the continuumare lies justified by necessity, which may be defended, based on thecircumstances and excusable lies, including lies made in jest and white lies,which like minor embellishments and exaggerations are not intended to harmothers or convey a benefit to the communicator. These types of deceptions areat least excusable if not acceptable.
Deceptive conduct at either end ofthe continuum can be dealt with easily. At one end, the conduct does no harmand no action is necessary. At the other end, there is great harm and thereis no option other than the termination of the officer’s employment. Theproblem is not the conduct at the ends of the continuum, but rather the conductthat falls somewhere in between. Consider the following example:
A supervisor asks an officerwhether a particular report has been completed. The report itself is of verylittle consequence, and the question was prompted by a routine administrativeaction rather than any specific employee concern. The officer has notsubmitted the report but quickly replies that the report has been turned in,fearing what would be at most a minor counseling by the supervisor. Theofficer then immediately completes the report and turns it in before thesupervisor can discover the lie.
In this example, the officer wasdishonest. He was asked a direct question by a supervisor and he failed torespond truthfully. Although the officer had no opportunity for reflection,there is no excuse for his misconduct. The question was not posed as part ofa formal process, the officer was not engaging in an action to protectanother officer, and there was no conduct that would place a community memberat risk of a false prosecution. Similarly, there is no evidence that theofficer’s deceit was either justified or excusable.
What is left is conduct that fallssomewhere in the middle of the continuum. The officer’s response is certainlynot acceptable, but it leaves the question of whether it is far enough on theother end of the continuum to be grounds for termination. There is a strongargument for termination in this case. After all, the officer was asked adirect question by a supervisor about a work-related subject and the officerresponded untruthfully. The difficulty for managers is balancing the need ofthe department and community to have officers that are beyond reproachagainst the recognition that all officers are human beings and that they havehuman failings. The officer’s response may best be described as aspontaneous, unintelligent statement, and there are other factors that shouldbe considered in making a final determination. Is the officer remorseful?Does the officer recognize the error? Does the officer have an otherwise acceptablerecord with the department? Was the underlying issue one of very littleconsequence?
Consider the following:
A dispatcher asks an officer if heis available for a call. The officer radios that he is out of service andunavailable, when in fact he does not want to receive a call because it isnear the end of his shift. Based on the officer’s statement, the dispatcherassigns the calls to another officer.
As in the last scenario, theofficer’s conduct is neither justifiable nor excusable. However, the conductprobably does not amount to the end of the scale that mandates termination.It is this type of intentional, deceptive, misconduct that can be termed”administrative deception” that creates consternation for policemanagement. The conduct may not warrant termination, but a sustained findingof untruthfulness creates a Brady issue that many believe willprohibit the officer from continuing his employment. The question thenbecomes, does Brady mandate termination on the basis of any lie or actof deception?
The No Lies rule causes managersto deem that Brady has taken their discretion away on these cases thatfall outside the justified or excusable categories. But removing managementdiscretion is not the Brady rule. Brady stands for theproposition that evidence that may be exculpatory in nature must be given tothe defense. In a case where an officer will be testifying as a witness to anevent, the officer’s credibility is a material issue and his lack ofcredibility is clearly potentially exculpatory evidence and thereforesustained findings of untruthfulness must be revealed.
It seems that the analysis oftenstops at this point, suggesting that if there is evidence regarding anofficer’s credibility, the officer can no longer be placed in a positionwhere he may become a percipient witness in an investigation. If thatevidence is that the officer violated the far right of thecontinuum-deception in a formal process, participation in a code of silence,or planting evidence-both Brady and responsible management principlesdictate the termination of the employee. But what if the misconduct is in themiddle area of the continuum? Working through the complete Bradyanalysis and court evidence admission process will help the manager make thisdetermination.
First, it is important tounderstand that even though the defense gets the information-and they shouldget it-there is no guarantee that the defense will be able to present theevidence of officer misconduct to the jury. It is the court, not the defense,that makes this determination. In its decision to admit evidence, the courtwill weigh the evidence to determine if it is more probative thanprejudicial. Not all evidence of deceptive conduct by an officer will beadmissible.
Think about an officer who engagesin a secretive extramarital affair. At a minimum, the officer has lied to aspouse and broken a vow (an oath) to remain faithful. If there is evidencethat the officer has maliciously lied for his own benefit, it certainlyfollows that the officer’s credibility and testimony may be questioned.Although the officer may have committed a mortal sin according to Aquinas,the evidence of the officer’s deception will probably never be heard incourt. This type of evidence would be prejudicial against the officer’scredibility, but at the same time it offers very little probative evidence onthe officer’s credibility while testifying in court and therefore most judgeswould not permit this evidence to be introduced.
Courts are likely to treat manyadministrative lies in the same manner. The court would probably view theseadministrative lies as evidence that would uniquely tend to evoke anemotional bias against the officer as an individual and would have verylittle effect on the issues. But even if the court allows the evidence to bepresented to the jury the analysis has not been completed. The prosecutorwill be able to present evidence in an effort to rehabilitate the officer.How long ago did the misconduct occur? Was it of a relatively minoradministrative issue? Did the officer show appropriate contrition? Was theofficer punished? Did the misconduct occur more than once? Has the officerreceived training as a result of the discipline? Did the officer that madethe statement immediately make a subsequent truthful admission? Is thereevidence that the officer’s conduct has changed?
Police managers should weigh allof the factors of deceptive actions that fall at the middle of the continuumand use their management discretion on a case-by-case basis. In some cases,termination will follow. In others, it may not.
Managers should also be warnedthat there would be a strong temptation to use euphemisms in describing theofficer’s misconduct to protect the officer and the agency against potential Bradyissues. In the examples cited above, managers may choose to discipline forthe underlying misconduct-failing to complete a report and failing to respondto a call, rather than disciplining the officers for their statements. Thistype of discipline would send the wrong statement to both the officers andthe organization. The officers should be disciplined for their deceptivemisconduct as well as the underlying conduct. If management did anything elsethey would be engaging in intentional deceptive misconduct on a greater levelthan the officer. In the above examples, the officers’ statements werespontaneous, where management’s actions to discipline for only the underlyingmisconduct were thoughtfully chosen to hide the officer’s deceit.
The key in making a decisionregarding a particular middle-of-the-continuum deception is whethermanagement can defend their decision or thoughtfully tell their story. Thedecision must be able to withstand rigorous analysis from those on all sidesof the issue. In making the final decision, the chief of police mustdetermine whether he or she can stand in front the community and defend thedepartment’s position. If so, then the chief should deal with the issuedirectly and honestly; if not, there is no alternative other thantermination.
No Lies has started aconversation, but refinement of that discussion focuses our energy on theareas of deceptive conduct that cause the real concern for policeadministrators. In law enforcement, malicious deceptive conduct includesintentional deceptive conduct in a formal setting, the code of silence, andthe false implication of another in a criminal act. A violation of any ofthese precepts should effectively and permanently end an officer’s career.Both honesty and the reputation for honesty in law enforcement are absolutelyessential. Those who are not able to meet these expectations simply are notable to fulfill the essential job requirements of a peace officer.
Law enforcement managers should beable to recognize deceitful conduct at either end of the scale and deal withthe conduct appropriately. The issues that fall somewhere in the middle ofthe continuum are obviously much more difficult. The issue is not whetherthese middle ground deceptions are acceptable; they clearly are not. Anyintentional deceptive conduct that is not justified or excusable isinappropriate. The issue for police managers is whether they have managementdiscretion and whether there is any punishment available to them other thantermination. The answer is that police chiefs have discretion available tothem and that not every act of intentional deception may be worthy oftermination. But management must be warned that with their discretion comes aduty to punish the inappropriate behavior and the willingness to deal withthe officer’s action for years in the future.
In life, there are often secondchances, and sometimes even more. In law enforcement, there are no secondchances when it comes to the integrity of our officers and ourselves. In lawenforcement, malicious deceptive conduct is untenable and cannot be toleratedat any level in the organization. ■