FORT SMITH (KFSM) – The fired officer accused of lying after releasing the details of an undercover officer’s arrest of a prostitute appealed his case to Circuit Court his week, saying he did not break any department policies and deserves his job back.
Police deny any wrongdoing and say the fired sergeant put an undercover officer's identity at risk and lied about it during an internal investigation.
Sgt. Don Paul Bales was fired Oct. 20 from the Fort Smith Police Department after Chief Kevin Lindsey found he violated several department rules and regulations. The department concluded Bales shared a photo of a confidential probable cause affidavit with his attorney and lied about it. Bales had been concerned the April 2013 arrest of a prostitute may have violated police procedure because the undercover officer engaged in sexual acts with the suspect before arresting her.
The police department subsequently fired Bales after his attorney placed a redacted version of the probable cause affidavit on his web blog. The unredacted version of the affidavit shows the undercover officer’s name, meaning Bales shared the name of an undercover officer with his attorney, someone who is not a law enforcement officer, the police department contends.
Now Bales is suing to get his job back, saying any sharing of a probable cause affidavit with his attorney is part of attorney-client privilege, and that the officer’s identity was not compromised by the version of the arrest report that appeared on his attorney’s web blog.
He also states in the lawsuit, filed in Sebastian County Circuit Court on Monday (Jan. 12), that he is required by department policy to report professional concerns about other officers’ misconduct to supervisors, and thus did nothing wrong by reporting the actions of the undercover officer.
A police department spokesman said the most concerning issue is that Bales lied about giving the confidential affidavit to his attorney during an internal investigation. The police department became aware confidential information had leaked to Matthew Campbell, Bales' attorney, when Campbell filed a public records request for the probable cause affidavit and included the undercover officer's name in the request, police said.
Following his termination, Bales appealed the case to the Fort Smith Civil Service Commission. The commission upheld the chief’s firing of Bales, and a subsequent appeal by Bales also failed, according to Bales’ lawsuit.
The Fort Smith Police Department listed eight rules Bales broke during the situation. The Civil Service Commission upheld the decision on seven of those eight rule violations, including not being truthful (Rule 703), giving false testimony during a hearing (Rule 705), revealing confidential information to unauthorized people (Rule 714), releasing an official report without approval by the police chief (Rule 717), failure to cooperate with the Office of Professional Standards (Policy 1104.03), not treating supervisors, subordinates and associates with respect (Rule 304) and impairing the operation of the police department (Rule 305). An additional alleged violation of Rule 306---embarrassing or belittling someone---was not sustained by the commission, court documents state.
Bales said he received a photograph last April of a probable cause affidavit on a prostitution arrest involving an undercover Fort Smith Street Crimes Unit officer with the initials “J.B.” The probable cause affidavit states the undercover officer contacted a woman through Backpage.com, a website often known for illegal prostitution advertisements. The report states J.B. met the woman at the Season’s Inn motel in Fort Smith and agreed on a deal for the prostitute’s services at $150 per hour.
The prostitute then told the officer to “get comfortable,” after which he got naked, according to the report. J.B. said the prostitute then began performing a sex act on him, after which he arrested her on suspicion of misdemeanor prostitution.
The affidavit states the officer took his clothes off “because he believed that such action was necessary to gather the proof needed to convict the person for violating the prostitution statute.” The officer went on to state his actions were needed in order to obtain the proper probable cause to make a legal arrest. Police said the extra effort was needed because the suspect was posing as a masseuse.
The lawsuit states the police chief and the city Civil Service Commission believe the probable cause affidavit should have remained confidential. They believe the disclosure of the police tactics used by the undercover officer could put other prostitution investigations in jeopardy, since criminals may not know a police officer can legally disrobe during an undercover prostitution arrest, according to the lawsuit.
While the probable cause affidavit was being filed at the Sebastian County Detention Center, Fort Smith Officer Carson Addis took a photograph of the report with his cell phone and sent it to several police department employees, including Bales, the lawsuit states.
After seeing the affidavit, Bales believed the actions of the undercover officer violated a department rule prohibiting sexual conduct while on-duty, a violation punishable by termination. The lawsuit states the police chief later concluded the officer did not violate that rule because he was engaging in sexual conduct only to obtain evidence as part of an arrest.
Bales’ lawsuit against the department states he felt bound to follow policy after reading the arrest report, and reported it to his supervisor, Capt. Ed Smalley. Bales said department policy requires employees to report to supervisors any potential instances of employee misconduct, which Bales believed the situation to reflect.
Smalley allegedly told Bales he did not believe the arrest violated any department policies.
Bales later provided a copy of the undercover officer’s arrest report to his attorney, who allegedly redacted parts of the report and put the affidavit on his web blog, The Blue Hog Report. Bales said the version that was viewable to the public does not identify the undercover officer. Campbell later received a redacted version of the report from the Sebastian County Prosecutor's Office, according to the police department.
Police said they believe Campbell may have been trying to cover the leak by Bales, by requesting the probable cause affidavit through official channels after already posting the story, thus pretending he gained information from a public records request rather than through Bales.