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February 17, 2019

UnionActive Police Newswire
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Updated: Feb. 16 (19:59)

Funeral Services for Retired Detective Medardo Ortiz Jr.
El Paso Municipal Police Officers' Association
EPPD Promotion/Achievement Ceremony
El Paso Municipal Police Officers' Association
Please Help a Retired Brother In Blue and His Family
El Paso Municipal Police Officers' Association
2019 St. Patrick's Day Law Enforcement Fundraiser
Massachusetts Municipal Police Coalition
Officer Down - Family Assistance Asked For
Colorado State Lodge F.O.P.
Police union president on Trump's El Paso comments: 'It was a slap in the face'
El Paso Municipal Police Officers' Association
A Reporters Guide To Rex Sinquefield
Brady v Maryland Employment Implications for Police Officers
Updated On: Dec 15, 2013

The Brady Impact

The National FOP recently produced a training seminar concerning “Brady” and how it impacts police officers (see training video below). If you are a law enforcement officer it would be in your interest to familiarize yourself with this subject. Truthfulness and the 1963 Brady decision have become hot topics in law enforcement circles. Although years went by without much concern with the Brady decision, recent U.S. Supreme Court decisions have enforced Brady to include evidence maintained in a police officer's personnel files. Under Brady, evidence affecting the credibility of the police officer as a witness may be exculpatory evidence and should be given to the defense during discovery.

Indeed, evidence that the officer has had in his personnel file a sustained finding of untruthfulness is clearly exculpatory to the defense. To remind the reader, in 1963 the Supreme Court ruled in Brady v. Maryland that the defense has the right to examine all evidence that may be of an exculpatory nature. This landmark case stands for the proposition that the prosecution will not only release evidence that the defendant might be guilty of a crime but also release all evidence that might show that the defendant is innocent as well.

Release of Personnel Files

By Rob Scott, Attorney – Illinois FOP Labor Council

The overwhelming majority of employers maintain personnel files on their employees and police officers are no exception. The question is; what rules govern these files and what, if any, is the importance of the information contained in them? The most obvious concern regarding the information contained in a personnel file is what impact it may have when an individual decides to change jobs. In many instances a potential employer will require an applicant to sign a waiver allowing contact with a former employee and this waiver may include a review of a personnel file. Illinois law does require that the applicant's waiver be in writing to be valid. 820 ILCS 40/7. While the signing of the waiver is the most common scenario it is not the only way a potential employer can obtain prior job information.

It should be noted that a failure to sign a waiver does not prohibit former employers from releasing personnel records to a potential employer but would simply require the former employer to provide written notice to the employee, pursuant to 820 ILCS 40/7, and to delete disciplinary information that was more than four years old, pursuant to 820 ILCS 40/8. The reality of these sections is that if a former employer wants to disseminate your personnel file to a potential employer it would be extremely difficult to stop them.

Does all this mean that if you are not seeking to change jobs you should have no concern regarding your personnel file? The answer to that question is no. There are other times when personnel file information can have an impact on an officer's career and an examination of the Personnel Record Review Act of Illinois and certain case law will demonstrate that there may be an even greater concern regarding your records than that associated with changing jobs.

In Illinois personnel files and the maintenance and dissemination of information contained in them is, as previously mentioned, generally governed by the Personnel Record Review Act, 820 ILCS 40/0.01, et al. This act governs state employers and any agency or political subdivision of the state. The act would therefore be applicable to the cities, villages and counties which employ police officers. As an employee of one of these entities, or for the state, an employee shall have the right to inspect any personnel documents which are, have been or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, with some exceptions. 820 ILCS 40/2. While the employer may attach certain requirements to viewing a personnel file, such as requiring a written request to do so, they may not thwart attempts to view files by sequestering them with another party off premises. Additionally, while an employer may charge for copies of a personnel file that charge can be no more than the actual costs of duplicating the information. 820 ILCS 40/3.

While viewing ones personnel file if an employee finds information contained in a personnel file which they disagree with what options does an employee have? In this situation an employee may ask the employer to make a correction to the file. In some situations this may remedy the issue. However, if an employee and an employer can not agree on a correction regarding the disputed information Illinois law allows an employee to submit a written statement explaining the employee's position which the employer must attach to the disputed portion of the record. The employee's explanation must be included any time the disputed portion of the personnel file is released to a third party. 820 ILCS 40/6. It is always in the best interest of an employee to submit such a statement if the employee is unable to correct the discrepancy in any other way. The importance of this right truly comes into play when considering who may have access to these files and for what purpose.

Illinois law indicates that an employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to a party who is not a part of the employer's organization, or to a party who is not a part of a labor organization representing the employee without written notice as provided in this section. 820 ILCS 40/7. Thus under Illinois law the only requirement an employer has prior to turning over your disciplinary history is to provide you with a written notice. However, there is an exception to this provision which can cause concern for law enforcement officers. Specifically, the prohibition on releasing personnel file information, including disciplinary history, does not apply if the disclosure is ordered to a party in a legal action or arbitration. Under these circumstances an employee may not even be notified that there personnel file has been turned over. In Illinois an employer is required to review personnel records before releasing information to a third party and, unless release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other disciplinary records that are more than four years old. 820 ILCS 40/8. The conclusion that can be reached from reading these sections together is that if your personnel file is sought as part of some legal preceding the material turned over may very well include your entire disciplinary history. For a police officer this is a very real concern. A discussion of case law will demonstrate the need to monitor one's personnel file and to protect its contents, as best as possible.

In 1963 the United States Supreme Court ruled that a prosecutor has a constitutional duty to disclose favorable evidence to a defendant. This case, Brady vs. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), involved a proceeding for post-conviction relief and would lay a foundation for the current case law. In Brady the prosecution had withheld the confession of an accomplice to a crime despite the defenses request for such material during the discovery process. While the Supreme Court did not overturn the conviction of the defendant, because the withheld confession would not have impacted a finding of guilt or innocence, the Court did establish the basic guiding principle for future court cases when it held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to quilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 1197.

You may ask what the accomplice's confession in the Brady case has to do with your personnel file and it would be a legitimate question. The answer lies in the decisions of the United States Supreme Court that flowed from the Brady decision; those which helped to define what evidence may be considered to be favorable to the defendant.

One such case was Giglio vs. U.S., 405 U.S. 150, 92 S.Ct. 763 (1972). In Giglio a defense attorney filed a motion for a new trial based on newly discovered evidence; evidence which indicated that a prosecution witness had been told that if he cooperated he would not be prosecuted. The Court used this case to expand on the Brady concept by holding that "when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility" may violate due process. Giglio vs. U.S. at 155. The court further stated that the evidence must be of sufficient materiality to have affected the outcome of the trial. The result of this case was to require the prosecution to consider whether or not they were in possession of any material which may adversely affect the credibility of any witness they intend to call, including police officers. Since a police officers personnel file is not in the possession of the prosecutor Giglio would seem to cause little problem for either the prosecutor or an officer. However, as is often the case, the United States Supreme Court continued to flesh out this concept and did so in a manner which should raise an officer's awareness regarding their personnel file.

In 1995 the United States Supreme Court took additional action which would again expound on the realm of the original Brady decision. The case was Kyles vs. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995). In Kyles a convicted murderer filed in federal court a petition for habeas corpus claiming in part that the State had failed to disclose certain evidence which was favorable to him and had thus obtained his conviction in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). In Kyles the government failed to provide; six eyewitness statements taken by police following the murder, records of a potential suspect's call to the police, tape recordings of conversations involving the possible suspect, a typed and signed statement given by the potential suspect, a computer printout of license plate numbers of vehicles in the crime scene area, an internal memo regarding seizure of evidence and finally, evidence linking the potential suspect to other crimes in the area of the murder. In the Kyles case there was an overwhelming abundance of evidence that was not turned over and the point regarding what the prosecution had knowledge of would be dealt with succinctly. The Court erased any possible future claim regarding a prosecutor being unaware of exculpatory evidence by ruling that an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles vs. Whitley at 437. Further, the Court made it abundantly clear that in the Court's opinion "the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." Id. at 438.

The result of these cases is to place an affirmative duty on the prosecutor to actively seek out any favorable material evidence, even evidence in the possession of others working at the direction of the government. This would, as indicated in Kyles, include the police department, which could in turn include an officer's personnel file if it, as indicated in Giglio, included "evidence affecting credibility" of a prosecution witness.

There is already anecdotal information indicating the type of problem this can cause for a police officer. The Illinois Fraternal Order of Police Labor Council represented a police officer from a downstate unit who had this type of issue. The officer developed a disciplinary issue which the Illinois F.O.P. Labor Council and the Employer were able to work out. Just prior to the parties making the agreed upon joint recommendation for a brief suspension to the Board of Fire and Police Commissioners the City was somehow informed that two local State's Attorneys would be extremely reluctant to prosecute cases the officer was materially involved in. While the Union strongly contested whether or not the information regarding the officer was actually something that could be used to impeach him the Prosecutors were unwavering; claiming that the information would have to be provided pursuant to Brady and the officer was therefore tainted. Unfortunately the end result was that the Board of Fire and Police Commissioners terminated an officer with numerous years of experience and many commendations for his work.

It is for these reasons that an officer must take care regarding what type of discipline or information is contained in a personnel file and why it is so important to ensure that the information is correct. If an officer is involved in a disciplinary matter and the charges or the resolution of the matter involves or calls into question the officer's honesty and integrity this may cause problems for the officer. If a prosecutor is compelled to err on the side of caution and turn over any information that may detract from an officer's credibility at trial how willing will a prosecutor be to pursue that officer's cases? If the prosecutor knows the police witness is going to be subject to an attack on his or her credibility every time they go to Court what impact will that have? Taking these concerns to the extreme isn't possible that a prosecutor may refuse to prosecute a particular officer's cases, and if this happens can the officer now carry out the necessary functions of his position in a manner which would assure his or her continued employment? While the answer to this question may only be decided on a case by case basis, with each prosecutor making a judgment call regarding a police officer's personnel file, anything an officer can do to prevent getting in such a situation seems to be a good idea. To that end an officer should always look with caution upon any charges involving dishonesty of any sort and if such charges are brought an officer should attempt to resolve them in a manner that does not involve any admission of dishonesty by that officer. To do otherwise could put an officer's career in jeopardy.

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