Article About Lying Still Rings True After a Decade

Ten years ago, I wrote an article for the Massachusetts Coalition of Police’s Roll Call publication about a recent decision by the Supreme Judicial Court with important implications about police officers accused of untruthfulness. In the intervening decade, the predictions I made in 2005 have unfortunately come to pass. More and more Police Chiefs and municipalities are relying on this case and others that followed to discharge police officers found to have been untruthful. So it was extremely good timing when, at MassCOP’s annual convention in Hyannis last week, former MassCOP business agent Tom Smith mentioned the article, called “The Truth About Lying” and told the conventioneers that he made copies of it to give to police officers under investigation for misconduct. I recently reread the article and found that while the case it mentions is 10 years old, the advice is still timely. As a service to those who didn’t get the Roll Call in 2005, we have reprinted the article below.

 THE TRUTH ABOUT LYING

Recent SJC Decision Puts Spotlight on Police Officer Untruthfulness

By John M. Becker

Sandulli Grace, P.C.

“We can defend the truth, but we can’t defend a lie.” – Tom Smith, MCOP Business Agent (ret.)

From the point of view of your union representatives and attorneys, the hardest thing to defend is a lie. When an officer engages in misconduct and lies when confronted or questioned about it, either orally or in writing, or leaves damaging facts out of a report in a situation when they normally should be recorded, the officer has made the job of the union rep and lawyer many times more difficult and has jeopardized his job security that much more. It is always easier to defend the misconduct than to defend the officer’s decision to lie about it. Many arbitrators agree with the oft-repeated refrain of management that a police officer’s credibility is essential to his ability to do his job, which involves testifying in court. So, while arbitrators may apply normal principles of progressive discipline and disparate treatment to most misconduct cases, they are more likely to treat a police untruthfulness case with a higher standard.

If anyone doubted Tom Smith’s words of wisdom quoted above, they should be persuaded by a recent decision of the Massachusetts Supreme Judicial Court that says an arbitrator could not put a police officer who lied back on the job. (The case is City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005).) In the case, the Boston Police Department fired an officer for alleged misconduct during an encounter with two citizens who were in a double-parked car. The union grieved the discipline and took it to arbitration. The arbitrator decided that the officer lied about what happened when he wrote his police report, when he filed for criminal charges against the citizens, when he spoke to internal affairs investigators, when he testified at a Departmental hearing and when he testified at the arbitration. But the arbitrator ordered the officer reinstated with a one-year suspension, primarily because there was evidence of disparate treatment: other officers had committed similar or worse misconduct and had received only suspensions. The City appealed the decision to court – the Superior Court and Appeals Court upheld the arbitrator, but the Supreme Judicial Court overruled the lower courts and overturned the arbitrator’s award. The SJC found that it violated public policy to force the City to reinstate this officer, after the arbitrator found that he misused his official position to file false police reports and take out false criminal charges against innocent civilians and then told his false version of the story again and again to investigators, hearing officers and the arbitrator herself. The court noted that lying on a police report, filing criminal charges and lying under oath are all felonies and there is a law saying convicted felons cannot be police officers. So, even though the officer was never charged with any felony, the court said that reinstating him would violate a public policy against allowing someone who commits these kinds of acts from working as a police officer. The disparate treatment evidence was irrelevant in this kind of a case, the court said. Unless you have evidence that the Department discriminated against the officer because of his race or sex or some other protected category, you could bring in evidence of two dozen other cases of more lenient discipline, or non-enforcement of the rules against other officers and it would not make a difference. Cases like these, the court said, are evaluated on their own and without regard to what happened to other officers in the past.

The case was shocking to many because courts so rarely overturn arbitrator’s awards. Most observers agree that what so angered the court was the fact that the case involved an untruthful police officer. It would be wrong to generalize too much from the case – it does not mean that every termination for untruthfulness will be upheld on appeal, nor does it mean that every allegation of acts that could be the basis for a felony charge will lead to a discharge. But the case does mean that when a police officer is disciplined for misconduct that involves untruthfulness, arbitrators and courts are going to be much more likely to uphold the discipline. So if it was hard to defend a lie before, now it will be even harder.

Psychologists tell us that everybody lies. But most of the lying we do falls into the category of ‘white lies.’ Charles V. Ford, Ph. D., an expert on lying, describes five categories of lies:

• White lies are used to make social interactions more comfortable. They include self-protective lies (“Sorry, I can’t go to the party, I’m feeling sick”) and altruistic lies (“Nice haircut”; “You’ll be fine.”)
• Humorous lies are harmless exaggerations used to embellish a story or joke. In these cases, what matters isn’t the truth, but whether the story is funny or not.
• Defensive lies are the most dangerous lies and are almost never harmless. “I didn’t do it.” “I wasn’t there.” “I didn’t see anything.”
• Aggressive lies are the stuff of rumormongers and bad guys in the movies – you’re not just defending yourself, you’re attacking someone else. “I saw him do it.” “Did you know that he is a [fill in the blank].”
• Pathological lies are those told for no rational purpose, but just because the person can’t seem to stop himself. “They’re going to build a movie theater in that lot – sometime next summer.”

There is a sixth category – lies of omission.            Although the experts don’t like to call these lies technically, they are just as dangerous for your job. When you have an obligation to speak up and you remain silent, that is a type of untruthfulness. These can be divided into at least two categories – silence on your own behalf (you did it but you aren’t admitting it) and on behalf of someone else (you know who did it but you won’t say). Both types of silent lies can subject you to disciplinary action.

Note that lies that seem harmless in some contexts can turn serious when told in an employment context. “I can’t go to the party because I’m sick” may be a white lie, but “I can’t come to work because I’m sick” can subject the officer to disciplinary action. Exaggerations when you’re describing the fish that got away are fine, but work-related exaggerations or downplaying can lead to discipline (“he was yelling at the top of his lungs” “she hit me several times” “the car was going about 90 miles an hour” “I barely touched it” “I did not raise my voice”).

The time to stop the lying is at the beginning, because the more you lie about the misconduct, the harder it is to tell the truth about it. The psychologists tell us that liars are often trying to convince themselves that they did not commit the misconduct – it is much easier to lie convincingly to others if you’ve already convinced yourself that the lie is true. According to Doctor Ford, “the lie facilitates self-deception; people lie to others in order to lie to themselves.” If you find yourself telling people, “I know it’s hard to believe, but …” take a step back and ask if maybe it’s hard to believe because it’s not true. Don’t become the victim of your own deception.

Knowing that many of us have a tendency to lie in our own defense when we do something wrong is not an excuse. Instead, it should put us on notice that, when we engage in misconduct, the temptation to lie will be strong. We should be prepared to fight it. Remember: almost no one who tells a lie believes that they will be caught, yet think of how many lies are exposed on a regular basis. Knowing the wrongdoers have a tendency to lie in their own defense also means that those investigating the misconduct will be looking for signs of lying and self-deception, just as you do when investigating crimes. So, if you screw up, ‘fess up. You may take a hit, but your union and your union attorneys will do our best to see that you get a fair shake. If you screw up and lie about it too, you’re not avoiding the pain, you’re only postponing it, while making it much harder for us to defend you.