Rediscovering home: Court decides Brady dispute

Micah Allard’s personnel file will remain expunged of the allegations that led to his firing by the former Mineral County sheriff, according to a court ruling filed last Wednesday at 6:15 p.m. (Judge Shane Vannatta was working late.)

The court ruled that the allegation against Allard was not sufficient to be disclosed under the Brady doctrine. The ruling came in the case filed by Sheriff Ryan Funke against the county commissioners for failing to process his rehiring of deputy Allard.  The county has since relented, and the case came down to whether a settlement agreement stood with the county that expunged (eliminated) the allegations from his personnel file.  

Allard and the county reached the settlement where he dropped his suit in exchange for $40,000 and the county’s agreement to expunge his record.  The county attorney had argued it needed to void the non-disclosure provisions so it could release Brady information to defendants in cases involving Allard. The sheriff asked the court to rule that Brady did not apply.   

Recall that the U.S. Supreme Court in the Brady case ruled that prosecutors must turn over information likely to be favorable to the defense, including information regarding the credibility of a law enforcement officer who may testify at trial.   

The issue of the validity of the nondisclosure provisions was also the subject of an Oct. 2 hearing in the related case, where criminal defendants sued the county attorney, and the court issued a writ ordering the release of Brady information in recently closed and then pending cases. (I had missed that the defendants also obtained a writ ordering the sheriff to hire qualified deputies. That writ has been dismissed as resolved.)   

Counsel debated in the October hearing a motion by the counsel for the criminal defendants to compel the county attorney to produce any Brady information that it purportedly had on Allard and Funke. The county attorney argued in the hearing that the non-disclosure provisions in settlement agreements had to be voided before it could release the information demanded by the motion to compel.  No ruling had been filed in that case as of Friday afternoon. 

In his ruling on Allard, Judge Vannatta concluded the allegations, even if true, had “little evidentiary value in any criminal case where Allard may testify,” and, thus, was not required to be disclosed under Brady.  

Ironically, much of the information about the allegations was divulged in Allard’s suit against the county for wrongful termination, as well as in the judge’s decision itself. Allard was accused by the sheriff of intentionally failing to attend a mandatory meeting and then not being honest about it. The county did expunge his personnel file, but Police Officer Standards and Training (POST) kept a copy, which was provided back to Mineral County via a subpoena in the case.  

The judge relied on an investigation by POST in his determination. POST sustained the allegations that Allard did not attend the training held by a speed gun salesperson and stating he was “untouchable” and couldn’t be disciplined for the failure to attend, as well as that he referred to a deputy by offensive names. POST added it believed the employer’s action “sufficiently addressed this conduct,” and no further action was necessary. 

However, POST determined two other allegations “unsustained,” as it failed to discover sufficient evidence to prove or disprove the allegations that he “refused to attend the training” or that he referred to himself as “untouchable” as far as being disciplined for purposely not attending.   

The court based its ruling on three reasons: 

1) The “substantial” materials taken in the cases showed “no clear indication . . . that Micah Allard lied or was otherwise untruthful in responses” during an internal investigation.  While Allard may have failed to recollect specific conversations, the judge said this was “not uncommon,” specifically in periods of stress, and “does not create a lie by omission or result in ‘untruthfulness.” 

2) POST did not sustain the allegation that Allard intentionally did not attend the training.   

3) The allegations did not present material “reasonably likely to ‘undermine confidence’ in the fairness of the trial or sentencing.” Allard’s failure to attend, intentional or not, and his “untouchable” comments did not demonstrate a character for untruthfulness, as required by law. 

“Rather, if true, they indicate poor decision-making regarding an employer’s directives, and bravado inappropriate to a law enforcement setting.  To be sure, our democratic society places great trust in the truth and professionalism of our law enforcement officers.”  The court did not condone Allard’s action in either investigation but added law enforcement officers are like other public officials – “they are human and prone to mistakes.”  The court noted that Brady requires a pattern of misconduct not found here.  

4) The allegations that he lied or was untruthful are “far from clear-cut,’ according to the ruling. As Brady information is not necessarily admissible, a “mini-trial” of his failure to attend the training would be necessary to determine admissibility. The court doubted any other court would allow such a “tortured inquiry into this resolved disciplinary event.” 

The ruling seems to take care of the motions regarding the nondisclosure/expungement provisions of Allard’s agreement. However, the county attorney’s motion also sought to void the nondisclosure provisions of a settlement agreement between Sheriff Funke and his former employer, Lake County.  It is unclear if or when the court might rule on Funke. 

While Funke’s agreement is attached to the county attorney’s motion, it is sealed so the public cannot read it.  The motion says the agreement contains a provision that its terms would be confidential.  The county attorney got the agreement pursuant to a court order, but not for public disclosure.  It has also obtained through subpoenas information not in Funke’s personnel file, including the Lake County attorney’s investigation and apparently a separate investigation by “Investigator Max Muller.” 

Though the case was not directly one seeking public access to police records, the motion noted that Montana’s right to know law favors disclosure of such information. Montana “has been inclined to release the records of law enforcement officers that may be averse to their reputation, noting the position of public trust held by police officers.” Officers have a right to privacy, but the Montana Supreme Court has held that it is “not a strong right.” The court has said that “it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct was sufficiently reprehensible to merit discipline.” The court added, “The public health, safety and welfare are closely tied to an honest police force. . . if they engage in conduct resulting in discipline for misconduct in the line of duty, the public should know.” 

The county attorney also argued that confidentiality in settlement with officers also “serves as a revolving door for potentially untruthful and corrupt law enforcement to skip from county to county without notice.”   

Ending the practice, the motion says, would “provide confidence to the public that their law enforcement officers are reputable, truthful and upstanding in Montana.” It is unclear to me if or when the Court will issue a ruling on the county attorney’s motion. 

The motion points to the turmoil caused by the internal dispute, and states the office “would appreciate the court’s input to avoid any finger pointing toward retaliation or on the other hand a finger of collusion with law enforcement that may be asserted from the public. An independent review would be reassuring to the public.” 

Throughout my career in journalism and in the legal business, I have seen many disputes like this. They often start over a legitimate disagreement, but then grow into a “take no prisoners” battle, where you are either for me or “agin” me.  It is hard for anyone involved to stay neutral.  Resolving the court battles will not end the issue.  Repair work is still necessary.  

On a personal note, I will get an up-close look at our District Court as I report for jury duty on Dec. 13.  I was the first attorney in Laramie County, Wyoming, history to serve on a jury. When I first started practicing, they never called attorneys as it was feared they would have outsized influence on the verdict.  Despite my objections, I was elected jury foreman.   

We have been here about a year, and my wife, my son and myself have all been called for jury service.  New meat for the courts, I suppose.  My wife missed her trial in justice court and has to appear before the judge to explain herself.  It was largely my fault as I was used to jurors getting a call on the Friday before if they were to show for a trial the following week, and advised her incorrectly. I have some making up to do.