Arbitrator rejects claim that Deputy’s “isolated lying incident” makes him Giglio impaired or provides just cause for termination

By John H Curley on November 16, 2018

Arbitrator Richard J. Miller overturned the termination of a Benton County, MN Deputy. Benton County, Foley, Minnesota and Law Enforcement Labor Services, Inc. Grievant began his employment with the County in 2007. He was recognized as a “good and dependable” Deputy. In 2012, grievant sought and received a transfer to a multi-jurisdiction task force focused on violent crime. The new assignment was less structured than his previous position and was subject to looser oversight. Grievant began to fall behind in his new position, missing or failing to timely complete reports and occasionally not properly handling evidence. Grievant’s ADHD may have contributed to some of these issues in the less structured environment of the task force. In July 2016 a task force supervisor became aware of missing reports in 43 of the 71 cases grievant had been assigned. In response to questions about the missing reports grievant claimed that most of the reports were in various stages of completion on external storage devices. Grievant was required to complete the missing reports, which he did and submitted the following Monday.

A Lieutenant reviewing the reports noticed that all of the reports had a “created date” on the preceding weekend and later met with grievant and asked where he had located the reports he had completed. Grievant stated that he had copied them from the external storage device and pasted them into new documents on the County’s software program. The Lieutenant directed grievant to submit the device he’d copied them from. Grievant submitted a device, but an analysis showed that it had never contained the files. He later admitted that he was aware that the device he submitted had never contained the documents, but that he had lost the device that had contained them and didn’t want his supervisors to know of his carelessness.
At around the same time, grievant submitted several return of search warrants to the Court. The Court staff noticed irregularities, including what appeared to be the judge’s signature copied on to other warrants. At the County’s request, the State began a criminal investigation of the search warrants. Grievant was interviewed and, according to the investigator, denied having copied or written the Judges name on the warrant. (Grievant later testified that he had been asked if he had forged the judge’s signature which he denied.)

The State declined to pursue criminal charges. It noted that the warrants were originally approved by the Judge, but the documents submitted by grievant had the judge’s signature copied on them because the originals may have been lost or stolen and grievant “attempted to cure the delayed filing/return by repairing the damaged signatures” before submitting the documents. It noted also that “no unauthorized warrants were executed on citizens.”

Thereafter the County conducted its own investigation, during which grievant acknowledged that he had used a copy machine to duplicate the judges signature because several of the original documents had been kept in his desk where they had become stuck together or stained and he wanted to make the documents he submitted appear to be originals.

While the investigation was underway, the County Attorney sent a letter to the Sheriff indicating his belief that he could no longer use grievant as a witness. His letter further informed the Sheriff:

Going forward, my office will be obligated under Minnesota law, as well as our duty under the Rules of Professional Responsibility, to inform Defendants that Deputy Haas is Giglio- impaired. That means open notification that there is evidence that [grievant’s] ability to be truthful is in question, in virtually all circumstances. …
Please understand, that if [grievant] is re-instated, any new case that he is involved in will likely not be charged. [Grievant] has ruined his professional credibility and the confidence of this office and the courts. As you know, proving a case ‘beyond a reasonable doubt’ is onerous, we have a difficult enough time getting jurors to focus on the facts we present. Having to overcome the additional burden of jurors understandably doubting anything [grievant] would have to offer, would be untenable and fatal to virtually any case. I cannot and will not put my attorneys in this position.

At the conclusion of its investigation, the County informed grievant that his employment was being terminated for violation of “multiple” office policies.

In his decision, Arbitrator Miller rejected the County’s reliance on the opinion of the County Attorney, observing:

It should be noted, however, that even if law enforcement officers have been untruthful in the past, which impacts their credibility, this does not automatically disqualify them from testifying in court. A Giglio issue may need to be disclosed to the defense counsel, but that does not preclude law enforcement officers from testifying.
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Clearly, just cause for a discharge cannot be automatically established by the County claiming credibility issues.

Arbitrator Miller concluded that that there was no evidence of a pattern of dishonesty, and “no convincing evidence that the Grievant was dishonest in a official report or in any manner which would affect the rights of a suspect or any member of the general public.” He found that the evidence that grievant had lied to the State’s investigator during the criminal investigation was unconvincing. He did find that grievant had lied about the reports being stored on an external device.

He concluded:

While lying to anyone is never an accepted practice in the workplace, the Grievant’s lying to his superior in a non- investigative setting is a violation of County Sheriff’s Office Policies and a punishable offense, but there is no convincing argument that this isolated lying incident would make the Grievant Giglio-impaired and unable to testify credibly on behalf of the County. Even if a court were to conclude this incident could be used in effort to impeach the Grievant’s testimony in a criminal proceeding, it is entirely speculative whether a defense would attempt to do so, especially since the Grievant claims that he lied as a face-saving effort to buy additional time in which to locate the actual hard drive. Many jurors or a judge might well be aware of individuals who have lied to a work supervisor to avoid embarrassment. Therefore, the County’s argument that there is no role that the Grievant could be used in and continued employment is not a possibility has not been proven by the evidence.