I want to highlight a story of kindness and empathy of a police officer – something that is not seen often in the current news feed.  Ohio police officer Brian Bussell, a 25-year veteran, saw a homeless mother and her two children sleeping on chairs in Butler County Jail’s lobby.  After he was unsuccessful at getting the family into a shelter, he paid for a ten-day stay at a hotel for them out of his own pocket.  He also took the family shopping for clothes, shoes, and food.  This officer did not tell anyone at work he had done this, but the mother posted what he had done on Facebook.  The original story can be found here:  http://www.dailymail.co.uk/news/article-3246970/I-don-t-know-ve-Ohio-police-officer-pays-homeless-family-stay-hotel-spotting-sleeping-jail-lobby.html#ixzz3miWdMkfF

The lawyers at Sandulli Grace, P.C. often have occasion to work with our clients on various writing projects. Employees are often asked to write reports, statements and memoranda or fill out forms regarding incidents that may affect their employment conditions or lead to disciplinary action. In reviewing these documents, we have noticed that our clients, like most people, will occasionally make mistakes of grammar, spelling and usage that reduce the effectiveness of their writing. While we cannot guarantee that a well-written report will ensure that you will achieve your desired goal, we are certain that a document riddled with spelling or syntax errors will distract the reader from what you are trying to say and focus his or her attention on the way you are saying it.

In the hopes of improving our clients’ writing skills (and reminding ourselves – because lawyers make these mistakes too), we have developed a brief list of common writing errors for you to refer to when writing something that your employer may read.

To, Two and Too
Let’s start with an easy one, but one I see all the time. “Too” means also or excessively. “Two” means the number after one and before three. Any other meaning, spell it “to.” “He was driving too fast.” “Can I go too?” “This is too much food for one person.” “I saw two men in a two-door Chevy Malibu at two o’clock.” “Take me out to the ballgame.” “Give that to the Principal.” “Is this the way to the fair?” “I don’t know what to say.” “I have too many reports to write.” “To tell the truth, even two is too many.”

It’s and Its
If I had to pick the most common confusion between words, among all English-language writers, it has to be “it’s” and “its.” Yet the solution, once you memorize it, couldn’t be simpler. “It’s” is a contraction for “it is”, so if you can substitute “it is” without changing the meaning of the sentence, then ‘it’s’ is correct; if not, then ‘its’ is correct. Also remember that ‘its’ is a possessive adjective, which means it always modifies a noun. Examples: “The monster was so huge that it’s body blotted out the sun.” WRONG! Substituting “it is” gives us, “The monster was so huge that it is body blotted out the sun”, which makes no sense. “The monster was so huge that its body blotted out the sun” is correct. Other correct examples: “The monster is so huge that it’s impossible for me to see the sun”, “It’s too late baby, now it’s too late”, “The School Committee hasn’t released its budget yet” and “It’s obvious that your situation has its problems.”

Their, There and They’re
1. “Their” is a possessive adjective meaning ‘belonging to them” that always modifies a noun and refers to more than one person. “Their stereo is turned up too loud.” “Are you going to their party, too? “Has their daughter come home yet?”
2a. “There” is sometimes an adverb referring to a place: “I was there in February.” “Did you see the gun there under the car?” “The resource room is over there next to the auditorium.”

2b. “There” is sometimes used with the verb “to be” to indicate that something exists. “There is a mosquito on your nose.” “I heard there was a fight at the bar last night.” Here are both uses: “There is no way I’m going in there.”
2c. “There” is also used to say things like “Hi there!”, “There, there, don’t worry”, and “There – I told you I wasn’t lying!”
3. “They’re” is a contraction that is short for “they are.” “They’re coming – everybody hide!” “I’m trying to figure out what they’re doing in there.”

Affect and Effect
This one confuses even the best writers. The best way to understand them is to treat each word’s noun and verb forms separately.

2. Affect (verb): To change or have an impact on something. “That song always affects my mood.” “Spicy foods affect my digestion – and not in a good way.” “Trauma in his childhood has affected his ability to communicate.” “The bad economy really affected the value of my house.” (Secondary meaning: to pretend or put on airs: “Madonna sounds so affected when she uses a British accent.”)
   2. Affect (noun): This rarely-used word comes from psychology and refers to one’s emotional or behavioral state. “The child presented a flat affect – no expression of emotion at all.”
3. Effect (verb): To bring about, often with ‘change’. “In his speech, the Governor claimed the new program will effect real change in our state.”
   4. Effect (noun): A result or consequence. “The discipline had the effect of ruining morale in the workplace.” “The effects of the storm were visible everywhere we went.” “In effect, he told us to go jump in a lake.” “The law of cause and effect doesn’t always apply in this department.”
   NOTE: A sentence using the verb “affect” can usually be converted to a sentence using the phrase “have an effect on” and vice versa. Ex. “That thing really affected me” = “That thing really had an effect on me.”

Conscious and Conscience
1. ‘Conscious’ means you’re not in a coma.

2. ‘Conscience’ is your sense of right and wrong.

   Accept, Except and Expect
   1. Accept (verb): “I accept your apology.”

3. Except (preposition): “I understand everything except why you didn’t tell me sooner.”
4. Expect (verb): “I don’t expect you to understand.”

   Alot, A lot and Allot
   1. ‘Alot’ is not a word. Ever. Always write ‘a lot’ instead.
   2. ‘Allot’ is a word meaning to give out or distribute. “We allotted five minutes for each candidate to speak.”

   Cite, Sight and Site
   1. ‘Cite’ means to quote or provide a reference. “The Union president cited Robert’s Rules of Order.” “Did you cite your sources on this paper?” Special meaning: To give a traffic citation: “You can see that I’ve cited you for having a broken taillight.”

5. ‘Sight’ means the ability to see; something seen. “You are a sight for sore eyes.” “I went to Italy and saw all the sights.” “The child experienced a temporary loss of sight.”
6. ‘Site’ refers to a specific location. “I visited the site of the shooting.” “They need a detail at the construction site.”

   Lead and Led
   I often see writers using ‘lead’ when they mean ‘led.’
   1. ‘Lead’ (noun): “Get the lead out.” “This heavy object must be made of lead.”

7. ‘Lead’ (verb, present tense) “She took the lead early in the race.” “If you lead, I will follow.”
8. ‘Led’ (verb, past tense) “I think you led us down the garden path.” “What led you to believe I was following you?”

Lose and Loose

1. ‘Lose’: To misplace; to fail to win: “With you on our team, how can we lose?” “I tend to lose things if they’re not nailed down.”
2. ’Loose’: Not tight (adj.); let go (v): “Loose lips sink ships.” “I let the dogs loose and I haven’t seen them since.” “I have a loose tooth.”

   Breath and Breathe
   1. ‘Breath’ (noun): “He took his last breath.” “Don’t waste your breath.” “How long can you hold your breath?”
   2. ‘Breathe’ (verb): “All I need is the air that I breathe.” “Breathe deep the gathering gloom.”

Council and Counsel
1. ‘Council’: “I am meeting with the City Council next week.”

2. ‘Counsel’: “Attorney Jones is the new Town counsel; she will be counseling the town on legal matters.”

   Complement and Compliment
   1. ‘Complement’: something that fits with something else: “This rug complements the décor nicely – it really pulls the room together.” “The yin and yang symbols truly complement one another.”

3. ‘Compliment’: a flattering statement: “Thanks for the compliment!” “Compliments of the chef.”

Active and Passive Voice
Every writing instructor will tell you that you should write in the active voice unless there is a good reason to use the passive voice. What’s the difference? In the active voice, the verb normally identifies an action that the subject is performing; in the passive voice, the verb indicates an action that is being performed by someone or something on the subject.
Active (better): The quick brown fox jumped over the lazy dog. (Subject: Fox; Verb: Jumped Over)

Passive: The lazy dog was jumped over by the quick brown fox. (Subject: Dog: Verb: Was Jumped Over)

Passive: John Q. Public was arrested by Officer Jones and Officer Smith.

Active (better): Officers Smith and Jones arrested John Q. Public.

Passive: Over 10,000 students were educated in the District’s schools over the past decade.

Active (better): The District’s schools educated over 10,000 students over the past decade.

Sometimes you need to reword the sentence, adding and subtracting, in order to make a passive into an active sentence:

Passive: Large numbers of aliens were seen in the vicinity of Grover’s Mills, New Jersey.

Active (better): Residents reported seeing large numbers of aliens in the vicinity of Grover’s Mills, New Jersey (adding the words “Residents reported”).

Sometimes it is appropriate to use the passive voice, such as when your emphasis is on the recipient or product of an action, you want to avoid vague attributions or rewriting it into active voice muddies your meaning. “My car was stolen” (passive) sounds better than “Someone stole my car” (active). “The building was renovated in 1997” (passive) sounds better than “The J&M Construction Company renovated the building in 1997” (active) (unless you are writing for the Construction Company’s website). “Following the ceremony, refreshments will be served in the church basement” (passive). Unfortunately, many bureaucracies and large organizations of all kinds have propagated a mind-numbing writing style for annual reports and other documents that relies heavily on the passive voice. Many of us are so used to reading and hearing such turgid prose that it now sounds normal to us. Please try to resist this impulse in your writing. The active voice is usually the best choice for clear, well-organized prose, no matter what the document.

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.

We join the entire nation in mourning the murder of NYPD Officers Rafael Ramos and Wenjian Liu.  As police union lawyers, we have continually worked with our unions to try to find ways to protect officers.  We have bargained for officers’ rights to defend themselves, for body armor when appropriate, to protect against Continue reading →