OIG Sentinel Case No. 20-02

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight SENTINEL CASE OIG NO. 20–02 View Case Summary in Data Explorer JUNE 11, 2020 The Department Settled a Case Against area and the next group of staff arrives to begin the next shift. The shift change process lasts an Officer Who Was Dishonest at a State about 15 to 20 minutes. The officer recounted Personnel Board Hearing Regarding Another that on the day in question when the second Officer’s Misconduct officer was done assisting him, she did not remain in the area because there was nothing The Office of the Inspector General (OIG) is responsible for, more for her to do. among other things, monitoring the California Department According to the department attorney, on the of Corrections and Rehabilitation’s (the department) internal day of the hearing, the officer sat in a waiting investigations and employee disciplinary process. Pursuant to area outside the hearing room and spoke with the California Penal Code section 6133, the OIG reports semiannually second officer’s father. The second officer’s father on its monitoring of these cases. However, in some cases, where is a lieutenant who works at the same prison. The there are compelling reasons, the OIG may issue a separate public officer also spoke with the attorney representing report; we call these Sentinel Cases. The OIG may issue a Sentinel the second officer. During a break from the Case when it has determined that the department’s handling of a hearing, the department attorney informed the case was unusually poor and involved serious errors, even after the officer that she intended on calling him as a department had a chance to repair the damage. This Sentinel Case, witness. Given her observations of the officer’s No. 20–02, involves the department entering into a settlement conversations with the second officer’s father agreement permitting an officer to return to work for the and the second officer’s attorney, the department department despite a preponderance of evidence suggesting that he attorney questioned the officer regarding his lied at a State Personnel Board hearing to protect another officer. upcoming testimony. In a complete reversal, the officer told the department attorney that he had On December 4, 2018, a department attorney called an officer to been mistaken in his prior statements, suddenly testify in a State Personnel Board hearing involving allegations that remembering that the second officer was with a second officer left her prison post before the end of her shift and him at his post for an hour. lied about it. The department attorney responsible for litigating the case called the officer to testify as a witness concerning After speaking with the second officer’s father previous statements he had made multiple times that supported and the second officer’s attorney, the officer the department’s position that the second officer had left her post testified under oath that the second officer had early. However, the officer took the stand and, in our opinion, been in his presence for one hour and that he falsely testified that the second officer had spent an hour assisting had also seen the second officer later during his him with his duties and that he had seen her “around” later in shift when she walked past his window in the the shift. corridor multiple times. The department attorney tenaciously questioned the officer regarding his The officer met with the department attorney twice before being prior inconsistent statements, which the officer called as a witness. An employee relations officer also attended admitted making. Nevertheless, on the stand and these meetings and took contemporaneous notes of the statements under oath, the officer continued to contradict the officer made. The department attorney advised the officer he his original statements and maintain his new needed to be truthful regarding the events in question. During recollection of events. those meetings, one of which took place only a few days before the State Personnel Board hearing, the officer stated he could not The State Personnel Board administrative law remember the specific details of his shift that day, but he could judge, unconvinced by the officer’s blatantly assuredly state that the second officer assisted him at work on a false testimony, upheld the second officer’s few occasions and that, on those few occasions, the second officer termination for being dishonest. only assisted him for about 15 to 20 minutes. The officer also told the department attorney and the employee relations officer that the Subsequently, the department initiated an second officer assisted him with duties that day in connection with employee disciplinary case against the officer a shift change, the period when staff ending their shift leave the for lying under oath. On December 2, 2019, Page 1 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG NO. 20–02 SENTINEL CASE JUNE 11, 2020 the warden reviewed the evidence in the case, attorney’s weak analysis that he could not prove it was more likely determined the officer was dishonest, and than not the officer provided false testimony at the hearing. The decided to dismiss him. On January 13, 2020, the deputy director, without offering any evidence in support thereof, department served the officer with a disciplinary also opined that the officer was probably just “confused” when he action for dismissal. testified under oath at the State Personnel Board hearing. Based After being served with a disciplinary action on these excuses, the deputy director removed the dishonesty for dismissal, the officer proposed a settlement allegation from the disciplinary action, added a neglect of duty of the matter through his attorney. The officer allegation instead, and reduced the officer’s penalty from a presented no new information or evidence, dismissal to a 30-working-day suspension. but offered to settle the case if the department The OIG disagrees with the settlement in this case. To meet its reduced the dismissal penalty to a nondismissal burden of proof in an employee disciplinary case against the officer, penalty. Surprisingly, a senior department the department need only prove it was more likely than not that attorney recommended that the warden accept the officer was dishonest. There is certainly enough evidence to this offer. The senior department attorney prove it was more likely than not that the officer was dishonest. advised the warden that he believed the The officer made his original statements on two occasions to department could not prevail in a disciplinary a department attorney and to an employee relations officer, action because he could not prove the officer’s who contemporaneously documented the officer’s statements. intent to deceive the State Personnel Board. Immediately before testifying at the hearing, the officer spoke with The warden, relying on the senior department the second officer’s attorney and also with the second officer’s attorney’s recommendation to settle, indicated father, a lieutenant and higher-ranking officer at the same prison. she was willing to settle the case for a Immediately following these interactions, the officer suddenly 10 percent salary reduction for 12 months. The and radically changed his testimony to the benefit of the second OIG disagreed and elevated the decision to the officer. The officer suddenly recalled and testified under oath warden’s supervisor. In the meantime, the officer that the second officer spent an hour with him at his post. The offered to settle the case for a 10 percent salary officer suddenly recalled and testified under oath that the second reduction for 24 months, which is a higher penalty officer walked by him several times after the second officer left the than the warden was willing to proffer. officer’s post. Shortly after speaking to the second officer’s father The warden’s supervisor, an associate director, and to her attorney, the officer made these statements in support of agreed with the warden and opined that the the second officer’s defense, in complete contradiction of his prior officer was not being deceitful, but was just recorded statements. unsure of dates and times; she indicated that she This case reflects a lack of understanding regarding was willing to settle the case against the officer the importance of peace officers providing truthful testimony for a 30-working-day suspension. This is an under oath. The department’s unwillingness to dismiss a dishonest even lower penalty than that which the officer peace officer from its ranks is troubling, especially as it pertains to proffered.1 The OIG disagreed and elevated the an officer who attempted to subvert a righteous employee matter to the associate director’s supervisor. disciplinary case pursued by one of its own department attorneys The associate director’s supervisor, a deputy and involving another dishonest peace officer. The courts have director, relied upon the senior department provided ample guidance regarding the importance of peace officers being truthful, noting that peace officers are held to a higher standard and that dishonesty by law enforcement personnel 1. There are typically 21 or 22 working days in a month. is to be treated seriously ( Ackerman v. State Personnel Board (1983) A one-working-day suspension amounts to losing 1/21 or 1/22 145 Cal.App.3d; Pauline v. Civil Service Commission (1985) 175 Cal. of an employee’s monthly salary, which is approximately a App.3d 962 ). In this case, the department did not pursue the 5 percent salary reduction. A two-working-day suspension is the equivalent of a 5 percent salary reduction for two months, appropriate disciplinary action. Instead, it entered into a settlement or a 10 percent salary reduction for one month. Therefore, agreement for a penalty less than that to which the officer was a 10 percent salary reduction for 24 months would be about equivalent to a 48-working-day suspension. It is a significantly willing to settle and which also permits the officer to keep his job higher monetary penalty than a 30-working-day suspension. at the prison. OIG This analysis solely covers the approximate monetary equivalents and does not address collateral issues, such as potential loss of benefits, seniority, or breaks in State service. Page 2 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 1 4 5, 6, 9, 12 The OIG’s comments begin on page 10. Page 3 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 2 3 3 Page 4 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 3 5 6 Page 5 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 5 7 Page 6 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 8 5, 6, 9 12 10 5, 6, 9 12 Page 7 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 10 7 6 5 5 7 11 Page 8 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 11 12 2 Page 9 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 COMMENTS OFFICE OF THE INSPECTOR GENERAL’S COMMENTS ON THE RESPONSE FROM THE DEPARTMENT OF CORRECTIONS AND REHABILITATION To provide clarity and perspective, we are commenting on the California Department of Corrections and Rehabilitation’s (hereinafter referred to as the department) response to our Sentinel Case 20–02. The department contends the Sentinel Case does not fully capture the facts underlying the discipline of the officer in this case. We submit the facts contained in the Sentinel Case are comprehensive and have been verified for accuracy. Any factual revisions in the Sentinel Case have been noted in this response. Furthermore, the department alleges that we are inaccurate in our representation of the legal standard in this case, but that is not correct. “The California Supreme Court has stated that the standard of proof to be used in state employment cases is a preponderance of the evidence” (Skelly v. State Personnel Board, supra, 15 Cal.3d at p. 204, fn. 19, 124 Cal.Rptr. 14, 539 P.2d 774). This is the standard which we have used in our analysis. The numbers below correspond with the numbers we have placed in the margin of the department’s response (pages 3–9). 1. The department alleges that this case involved circumstances in which there was “not likely” a preponderance of evidence that the officer had intentionally misrepresented known facts and a belief that the officer understood his errors when he made “inconsistent statements.” Nevertheless, at the investigative and disciplinary findings conference, the warden, who was the hiring authority designated by the department to make decisions in the case, reviewed the evidence and determined there was, in fact, a preponderance of the evidence that the officer had misrepresented known facts when the officer testified at a State Personnel Board hearing. Based on the warden’s finding that there was a preponderance of evidence that the officer was dishonest, the warden dismissed the officer. At the time of the investigative and disciplinary findings conference, the senior department attorney assigned to the case disagreed with the hiring authority’s finding and set forth the reasons for his disagreement. The warden did not find the senior department attorney’s arguments convincing, however, and still decided to find that the officer had been dishonest and that the officer should be dismissed. The warden sustained a finding that the officer intentionally provided false information when he testified at a State Personnel Board Hearing. When the OIG or department attorneys do not concur with the decisions of a warden or any other hiring authority, department attorneys may choose to elevate decisions to the hiring authority’s supervisor. This process is called executive review. Here, even though the senior department attorney did not agree with the warden’s findings, the senior department attorney never elevated the matter to the warden’s supervisor. Page 10 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 Furthermore, if it is true that the department is now asserting that the officer’s actions should not have warranted a sustained finding of dishonesty and a dismissal penalty, then it follows that the senior department attorney wrote and the department served a disciplinary action dismissing an officer based on a case the department believed it could not prove. 2. The department is not providing a complete history of the settlement discussions and the negotiations between the department and the officer. The warden originally indicated she was willing to offer a salary reduction of 10 percent for 12 months to resolve the officer’s case. The employee relations officer sent the following email message to the senior department attorney and to the OIG: This offer was never communicated to the officer. The officer conveyed to the department that, in lieu of a dismissal, he was willing to enter into a settlement agreement with the department for a 10 percent salary reduction for 24 months, which is the monetary equivalent of 48 days. The employee relations officer sent the following email message to the senior department attorney and to the OIG: The OIG did not agree with the department’s decision to settle the case and invoked executive review. From the time the warden decided to sustain the dishonesty allegation and dismiss the officer to the time the department offered to settle case, there was not a change of circumstances, meaning the evidence in the case remained the same.1 Yet, even though there was not a change in circumstances and evidence, the department was willing to settle the case. After the OIG invoked executive review, the department proposed 1. To the present day, the evidence has remained the same. In other words, the evidence the warden originally analyzed to decide to sustain the allegation and dismiss the officer is still the same even though the department has now settled the case for a 30-working-day suspension. Page 11 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 settling the case for a 30-working-day suspension, which is a more favorable penalty for the officer than the 48-working-day suspension. 3. The OIG does not instruct the department to do anything. The OIG monitors the department’s internal investigations and employee disciplinary process and makes recommendations, which the department can choose to accept or reject. Moreover, while the OIG may review written settlement agreements to verify that the form of an agreement complies with policy and that it accurately reflects the decision made by the department, the OIG does not approve settlement agreements and is not a signatory to the agreements. When the department presented the settlement agreement to the OIG, the OIG reviewed it and agreed with the form of the settlement agreement, not the substance. The OIG has never agreed with the substance of the settlement agreement in this matter. It is important to point out that, at the time the department forwarded the settlement agreement to the officer, the OIG had already expressed its disagreement concerning the settlement to the warden, invoked executive review of her decision, and engaged in the executive review process with two other departmental executives: an associate director and a deputy director. Furthermore, by this time, an OIG executive had already elevated the matter to an undersecretary at the department. The undersecretary indicated he was reviewing the case and that the department would be taking no further action on the case until he concluded his review. On April 10, 2020, after discussions with the undersecretary, the OIG informed the department that it was invoking further executive review. However, by that juncture, the department attorneys had already sent the written settlement agreement to the officer, and it had been executed by all parties. 4. We strongly disagree with the department’s contentions that our report does not fully and accurately capture the facts underlying the discipline of the officer and that it does not accurately reflect the legal standards that apply to dishonesty cases. We provide further clarifications in sections 5, 6, 9, and 12 below. 5. In the prior discussions with the department attorney and the employee relations officer, the officer consistently stated that the second officer assisted him for approximately 10-20 minutes. In an October 1, 2018, discussion, the officer told the department attorney and the employee relations officer that he did not remember any details of the shift he worked on December 24, 2017, the date in question concerning his interaction with the second officer. The officer said the second officer helped him briefly in the past during shift change, but the officer did not remember the specific day and had no memory regarding whether he had seen the second officer during the rest of the shift after the second officer had helped him. In another discussion on December 2, 2018, two department attorneys and the employee relations officer met with the officer in person and again discussed the officer’s recollection of December 24, 2017, events. Again, the officer indicated he could not remember any details of his shift except for the fact Page 12 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 that he remembered working in the control booth and that the second officer helped him during shift change on one of three days (December 24, 25, and 26, 2017). The officer stated that the second officer only helped during shift change for approximately 15-20 minutes. The officer said the second officer would have no reason to remain in the control booth after the control booth was no longer busy. The officer specifically stated he did not remember if he had seen the second officer after she left the control booth. The department attorney did not subpoena the officer to the hearing. It is reasonable to infer the department attorney did not subpoena the officer because of the officer’s poor memory regarding the events in question. The State Personnel Board held a hearing concerning the second officer’s disciplinary action on December 4, 2018. Prior to the hearing, in the lobby, the officer interacted with the second officer, the second officer’s father, and the second officer’s attorney. Subsequent to his interaction with those individuals, the officer testified under oath at the hearing. Interestingly, the officer suddenly had a moment of clarity and clearly remembered the specific date that the second officer assisted him in the control booth and testified regarding the duration of the time that the second officer allegedly assisted him on the date in question. Under oath, the second officer testified that the second officer assisted him for a duration which was at least triple the time frame he had previously provided to the department attorney and the employee relations officer on the two prior occasions. Furthermore, the officer testified under oath that the officer definitively saw the second officer after the second officer left the control booth. Concerning the bottom paragraph of page six of the department’s response (numbered 1 and 2), the OIG reviewed the audio recording of the State Personnel Board hearing again and notes that the officer testified that the second officer was in the control booth for an hour or “within the hour” of his first shift, and the OIG acknowledges that the officer did not testify that the second officer left the institution before the end of the second officer’s shift. Earlier in the December 4, 2018, hearing, the department attorney impeached the second officer’s testimony based on the department attorney’s two prior conversations with the officer, meaning she confronted the second officer with the information provided by the officer in the two prior conversations. The officer subsequently testified. The officer’s testimony not only contradicted his earlier statements to the department attorney and to the employee relations officer, the officer’s testimony also negated the department’s prior impeachment of the second officer. The officer’s testimony also corroborated the length of time the second officer was claiming to have stayed in the control booth and the second officer’s story that she had, in fact, returned to the vicinity of the control booth later in the afternoon in question. 6. The officer’s testimony at the December 4, 2018, State Personnel Board hearing was not only a vast departure from the information he had previously repeatedly provided to the department attorney and to the employee relations officer, but suddenly his recollection of the events in question became specific concerning events which occurred almost a year earlier in December 2017. In a Page 13 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 matter of days, the officer’s memory went from failing — on October 1, 2018, and again on December 2, 2018, just 48 hours before the hearing, his recollection concerning the events was very unclear — to suddenly becoming undecayed and clear at the December 4, 2018, State Personnel Board hearing. This is not a case of nerves. This is a case in which the officer completely changed his testimony on the heels of being surrounded in the lobby of the location of the State Personnel Board hearing by the second officer and the second officer’s father — a lieutenant and higher-ranking official of the department. Incidentally, the second officer’s father was a character witness who was present and remained in the lobby during the hearing and interacted with subpoenaed witnesses. Although there is no direct evidence of the content of the discussions which took place in the lobby before the hearing, after his interaction with the other individuals in the lobby, the officer suddenly had an otherwise unexplainable and significant change in his version of events and testified with newfound clarity concerning events which took place almost a year before. The officer’s interactions with the second officer, the second officer’s father, and the second officer’s attorney immediately before testifying coupled with the officer’s inexplicably radical change in his recollection while testifying is circumstantial evidence of the officer’s intent to be dishonest. 7. The department identified as an issue that the department attorney’s statement and the officer’s contention regarding the contents of their previous discussions of the incident in question contradict each other. It is disheartening to note that the department views conflicting statements between its own department attorneys versus those of an officer as problematic without assessing the quality and reliability of the statements. While the officer changed his story multiple times, the department attorney has been consistent with her recitation of the facts and her recollection of events. Furthermore, the department attempts to corroborate the officer’s testimony during the State Personnel Board hearing with the fact that the employee relations officer mentions in her memorandum that the officer previously stated the second officer would “brief” him on what to do. On the day of the hearing, the officer testified that the second officer “debriefed” him for the remainder of the hour after shift change in an attempt to account for the extra time the second officer remained in the control booth. However, the officer never mentioned anything about a debrief in his previous conversations with the department attorney and the employee relations officer. The department incorrectly uses the words “brief” and “debrief” interchangeably. However, there is a difference between the verb and the noun forms of brief and debrief. To brief means to summarize or to give instructions. On the other hand, to debrief means to question or get information from someone.2 A briefing primarily occurs before and sometimes during an event. A debriefing usually occurs after the event. Therefore, even if the second officer gave the officer a brief, it still would not account for any of the time the officer is now claiming the second officer allegedly stayed in the control booth after shift change. 2. A Brief on “Brief” and “Debrief.” Retrieved from https://www.merriam-webster.com. Page 14 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 8. The department seems to be applying a double standard here to the information and testimony provided by the officer and the information and statements provided by the department attorney and the employee relations officer. It gives the officer every deference and benefit of the doubt as to the interpretation of his statements, yet it does not do so with the statements provided by the department attorney and the employee relations officer. The department has now determined that all instances in which the officer gave dates and times were “approximations,” that it should now overlook the fact that, under oath, the officer dramatically changed his recollection of events and omitted crucial information he provided in prior conversations with the department attorney and the employee relations officer, and, therefore, gave the officer leniency and settled the case. In the two prior conversations between the department attorney and the officer, the officer appeared to be candid when he indicated that he had an extremely poor recollection of the incident in question. However, on the day of the hearing, the officer had no reasonable explanation as to why his version of the events in question changed and never articulated a reason as to how or why his memory suddenly improved. In contrast, the department now criticizes the statements of the department attorney and the employee relations officer, who are credible and reliable departmental staff, and their recollections of the December 4, 2018, hearing despite the fact the department’s position was undermined by the contradictory testimony of the officer. The department now concludes that statements of the department attorney and the employee relations officer “could open the department employees up to significant impeachment.” However, a memorandum is a summary of their recollections and, unlike the actions of the officer, not sworn testimony. The department now gives every benefit of the doubt to the officer, but not to the department attorney and the employee relations officer. Clearly, the department has no confidence in the ability of its own employees to articulate their recollection of the events or clarify their memorandums. Ultimately, the department’s point is moot because the State Personnel Board recorded the hearing and the recording of the hearing is, itself, the best evidence. 9. The officer changed his testimony multiple times on the stand. Under oath, the officer repeatedly testified concerning facts that he had never previously shared with the department attorney, despite his previous conversations with the department attorney on October 1, 2018, and December 2, 2018, and in which the department attorney repeatedly questioned the officer concerning his recollection of the incident in question. The first time the officer revealed the new information was immediately before he was called to testify under oath. Under oath, the officer repeatedly testified that the second officer helped him on December 24, 2017; that the second officer was in the control booth for the duration of the first hour of his shift; and, finally, the officer testified that he, in fact, saw the second officer later in the shift after the second officer left the control booth. The officer’s testimony was clear enough that, after the hearing, the employee relations officer, who was present at the hearing and saw the officer testify, felt compelled to write a complaint to the hiring authority concerning the officer’s sworn testimony being so different from his prior Page 15 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OOIIGG NNOO.. 2200––0022 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1111,, 22002200 statements to the department attorney and to the employee relations officer. In addition, the officer’s testimony was clear enough that two department attorneys wrote memorandums detailing the substantive inconsistencies of the officer’s testimony compared with the officer’s previous statements to departmental staff concerning the incident. 10. The department even admits that the officer’s affirmative responses under oath concerning specific facts, such as the officer helping the second officer on December 24, 2017, and seeing the second officer again after she left the control booth, support the allegation that the officer falsely testified at the State Personnel Board hearing.3 11. The department is correct when it notes that the State Personnel Board did not conclude that the second officer lied about leaving the institution early, but that the second officer was dishonest for not accurately reflecting on her time sheet when she left the institution and for lying in a memorandum concerning the incident. The department contends the State Personnel Board did not reject the officer’s testimony because the officer’s name and testimony are not mentioned in the State Personnel Board’s decision concerning the second officer’s case. However, the fact that the State Personnel Board administrative law judge did not mention the officer’s name and testimony in the written decision indicates the officer’s testimony was rejected or dismissed by the administrative law judge. 12. The OIG is clear concerning the legal standard needed to prove a dishonesty allegation. Allegations are proven by evidence. The department contends that it does not have direct evidence of the officer’s intent to make false statements while testifying at a State Personnel Board hearing. However, the department’s contention completely ignores the fact that there are two types of evidence — direct and indirect. Direct evidence is that which speaks for itself. For example, if a witness testifies she saw a jet plane fly across the sky before she testified at the State Personnel Board hearing, that testimony is direct evidence a jet plane flew across the sky. Indirect evidence suggests a fact by implication or inference. For example, if a witness testifies she saw the white trail which jet planes often leave, that testimony is indirect evidence because it supports the conclusion a jet plane flew across the sky.4 It appears, however, the department is positing that, in order to prove intent, the department needs a confession from the officer regarding his false testimony, which would be direct evidence that the officer intentionally misrepresented known facts. The reality is that direct evidence of intent rarely exists. Intent can be proven by circumstantial evidence.5 The law makes no distinction between the weight given to direct or circumstantial evidence. It is well settled that circumstantial evidence is just as reliable as direct evidence (NLRB v. Wal-Mart Stores, Inc. 488 F.2d 114, 116 (CA8 1973); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75-76 (CA8 1969)). As mentioned above, circumstantial evidence exists in this case (see No. 6). 3. Department’s Response, page 5, 2 (d); page 6, 3 (d). 4. Example taken from Judicial Council of California Civil Jury Instructions, 202 Direct and Indirect Evidence. 5. CALCRIM 223 Direct and Circumstantial Evidence: Defined. Page 16 of 16 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov