1

· · · ·IN THE UNITED STATES DISTRICT COURT

· · · · FOR THE SOUTHERN DISTRICT OF OHIO

· · · · · · · · EASTERN DIVISION

· · · · · · · · · · - - - - -

Kevin C. Morgan II,· · · :

· · · · Plaintiff,· · · ·:

· · · · vs.· · · · · · · : Case No. 2:17-cv-00829

· · · · · · · · · · · · · ·Judge Marbley

City of Columbus,· · · · : Magistrate Judge Deavers

Ohio, et al.,

· · · · · · · · · · · · ·:

· · · · Defendants.

· · · · · · · · · · · · ·:

· · · · · · · · · · - - - - -

· · · · DEPOSITION OF KIMBERLEY K. JACOBS

· · · · · · · · · · - - - - -

· · · · ·Taken at Spectrum Reporting LLC

· · · · 400 South Fifth Street, Suite 201

· · · · · · · ·Columbus, OH 43215

· · · · · · July 22, 2019, 9:34 a.m.

· · · · · · · · · · - - - - -

· · · · · · ·Spectrum Reporting LLC

· · · · 400 South Fifth Street, Ste. 201

· · · · · · · Columbus, Ohio 43215

· · · · · 614-444-1000 or 800-635-9071

· · · · · · www.spectrumreporting.com

· · · · · · · · · · - - - - -

Case: 2:18-cv-00483-JLG-CMV Doc #: 15-48 Filed: 08/15/19 Page: 1 of 354 PAGEID #: 2358
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·1· · · · · · · · · ·A P P E A R A N C E S

·2

· · · ON BEHALF OF PLAINTIFF:

·3

· · · · · ·The Gittes Law Group

·4· · · · ·723 Oak Street

· · · · · ·Columbus, OH 43205

·5· · · · ·By Jeffrey P. Vardaro, Esq.

· · · · · · · Frederick M. Gittes, Esq.

·6

· · · · · · · ·and

·7

· · · · · ·Walton + Brown, LLP

·8· · · · ·395 E. Broad Street, Suite 200

· · · · · ·Columbus, OH 43215

·9· · · · ·By Sean L. Walton, Esq.

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· · · ON BEHALF OF DEFENDANTS:

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· · · · · ·City of Columbus Assistant City Attorney

12· · · · ·77 N. Front Street

· · · · · ·Columbus, OH 43215

13· · · · ·By Richard N. Coglianese, Esq.

14

15· · ALSO PRESENT:

16· · · · ·Kevin C. Morgan II

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·1· · · · · · · · · · · · ·Monday Morning Session

·2· · · · · · · · · · · · · July 22, 2019, 9:34 a.m.

·3· · · · · · · · · · · · ·- - - - -

·4· · · · · · · · · S T I P U L A T I O N S

·5· · · · · · · · · · · · ·- - - - -

·6· · · · ·It is stipulated by counsel in attendance that

·7· · the deposition of Kimberley K. Jacobs, a witness

·8· · herein, called by the Plaintiff for

·9· · cross-examination, may be taken at this time by

10· · the notary pursuant to notice and subsequent

11· · agreement of counsel that said deposition may be

12· · reduced to writing in stenotypy by the notary,

13· · whose notes may thereafter be transcribed out of

14· · the presence of the witness; that proof of the

15· · official character and qualification of the notary

16· · is waived.

17· · · · · · · · · · · · ·- - - - -

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·1· · · · · · · · · · · · ·I N D E X

·2· · Examination By· · · · · · · · · · · · · · · · · Page

·3· · Mr. Vardaro - Cross· · · · · · · · · · · · · · · · 5

·4

· · · Plaintiff's Exhibits· · · · · · · · · · · · · · Page

·5

· · · Exhibit 1 - Memo, 11-14-14 IAB· · · · · · · · · · 95

·6· · · · · · · · Database #201311-0235

·7· · Exhibit 4 - 6-10-14 Kirby· · · · · · · · · · · · 227

· · · · · · · · · IAB Database #201402-0067

·8

· · · Exhibit 8 - Chief's Hearing IAB #201402-0067· · ·231

·9

· · · Exhibit 9 - Memo, 7-9-14 IAB#201402-0067· · · · ·234

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· · · Exhibit 15 - Interview of Morgan, 9-25-14· · · · 147

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· · · Exhibit 19 - Chief's Hearing IAB #201311-0235· · 144

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· · · Exhibit 24 - Routing Sheet for Houseberg,· · · · 274

13· · · · · · · · ·5-15-14

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· · · (Exhibits retained by Spectrum Reporting LLC.)

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·1· · · · · · · · · · KIMBERLEY K. JACOBS

·2· · being first duly sworn, testifies and says as

·3· · follows:

·4· · · · · · · · · · CROSS-EXAMINATION

·5· · BY MR. VARDARO:

·6· · Q.· · · · ·Could you state your name for the

·7· · record.

·8· · A.· · · · ·Kim Jacobs.

·9· · Q.· · · · ·All right.· And I think we've been

10· · introduced before, but my name is Jeff Vardaro.

11· · I'm representing Kevin Morgan in this case.· And I

12· · will be asking you most if not all the questions

13· · today.

14· · A.· · · · ·Okay.

15· · Q.· · · · ·I know from another case we've been

16· · working on that you've been deposed fairly

17· · recently.· But just to try to refresh some of the

18· · ground rules for you -- well, first of all, have

19· · you been in any depositions since your deposition

20· · in the Carl Shaw case a few weeks ago?

21· · A.· · · · ·No.

22· · Q.· · · · ·Okay.· As I said, I'll be asking you

23· · most if not all the questions.· If I ask you a

24· · question and you don't understand the question,

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·1· · you understand that you can ask me to rephrase the

·2· · question?

·3· · A.· · · · ·I do.

·4· · Q.· · · · ·And you'll do that if you don't

·5· · understand it?

·6· · A.· · · · ·I will.

·7· · Q.· · · · ·And if you answer a question and you

·8· · don't ask me to rephrase it, I'm going to assume

·9· · you understood the question unless you tell me

10· · otherwise, okay?

11· · A.· · · · ·Okay.

12· · Q.· · · · ·The other thing is I'm going to be

13· · asking you some questions about different things

14· · that happened a few years ago.· And I understand

15· · that your memory, like everybody else's, is not

16· · perfect.· So if you realize in the middle of the

17· · deposition that you need to add something to what

18· · you said before or correct something that you got

19· · wrong, you understand you can do that even in the

20· · middle of a question if you need to.

21· · A.· · · · ·Okay.

22· · Q.· · · · ·And will you do that for me?

23· · A.· · · · ·Yes, I will.

24· · Q.· · · · ·Okay.· I'm going to assume no new

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·1· · medical conditions or drugs or medications that

·2· · you're on since the last deposition?

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·Okay.· No new criminal convictions

·5· · since then?

·6· · A.· · · · ·No.

·7· · Q.· · · · ·Okay.· And did you have an opportunity

·8· · to meet with counsel to prepare for this

·9· · deposition?

10· · A.· · · · ·I did.

11· · Q.· · · · ·When was that?

12· · A.· · · · ·Last week.

13· · Q.· · · · ·Okay.· Just the one time?

14· · A.· · · · ·I believe on Thursday.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·That's all I recall.

17· · Q.· · · · ·Okay.· And for about how long?

18· · A.· · · · ·Probably under two hours.

19· · Q.· · · · ·Okay.· Did you review any documents to

20· · prepare for the deposition?

21· · A.· · · · ·I did.

22· · Q.· · · · ·What did you review?

23· · A.· · · · ·I reviewed a copy of the investigation

24· · summary and the charges and some prior

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·1· · disciplinary decisions that might be brought up

·2· · as, you know, comparable or whatever.

·3· · Q.· · · · ·Okay.· So first of all, you said the

·4· · investigative summary.· You're talking about the

·5· · internal affairs summary of the Kevin Morgan

·6· · investigation?

·7· · A.· · · · ·I am.

·8· · Q.· · · · ·Okay.· And the charges against Kevin

·9· · Morgan is what you're referring to?

10· · A.· · · · ·Correct.

11· · Q.· · · · ·Okay.· Did you review any of the

12· · interview transcripts or hearing transcripts?

13· · A.· · · · ·No.

14· · Q.· · · · ·Okay.· Did you listen to any

15· · recordings?

16· · A.· · · · ·No.

17· · Q.· · · · ·Okay.· In terms of -- did you review

18· · the lawsuit in this case?

19· · A.· · · · ·No.

20· · Q.· · · · ·Have you ever seen it?

21· · A.· · · · ·I don't recall.

22· · Q.· · · · ·Okay.· In terms of the other

23· · disciplinary decisions, can you remember what they

24· · were, the ones that you said you reviewed?

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·1· · A.· · · · ·I reviewed many of the decisions that I

·2· · made as chief of police.

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·So back to 2012 forward that were

·5· · resulting in departmental charges or suspensions.

·6· · Q.· · · · ·Okay.· But you don't remember which

·7· · particular ones?

·8· · A.· · · · ·There's -- I don't know -- dozens of

·9· · them.

10· · Q.· · · · ·Okay.· So you reviewed dozens of

11· · investigations to prepare for this?

12· · A.· · · · ·Not investigations.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·A summary.

15· · Q.· · · · ·You reviewed dozens of internal affairs

16· · summaries of those?

17· · A.· · · · ·No.· No.

18· · Q.· · · · ·Oh, I'm sorry?

19· · A.· · · · ·We kept -- we posted a blurb on our

20· · division's intranet that explained what the

21· · charges were and gave a paragraph of what the case

22· · was about.

23· · Q.· · · · ·Okay.· Is there a name for that

24· · document in the department?

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·1· · A.· · · · ·The discipline database.

·2· · Q.· · · · ·The discipline database.

·3· · · · · · · ·Okay.· Is it also referred to as like a

·4· · disciplinary grid or something to that effect?

·5· · A.· · · · ·Maybe somebody does.

·6· · Q.· · · · ·Not by you?

·7· · A.· · · · ·No.· It's on the division's intranet.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·Under the Professional Standards Bureau

10· · discipline link.

11· · Q.· · · · ·Okay.· What information does it have on

12· · it for each case?

13· · A.· · · · ·Generally the officer's name, the rule

14· · of conduct that was violated, the chief's

15· · recommendation.· And then oftentimes the

16· · director's recommendation and then a summary of

17· · the case like I said and usually a paragraph or

18· · two.

19· · Q.· · · · ·Okay.· And that's just kept updated on

20· · a, like, sort of a rolling basis?

21· · A.· · · · ·Yeah.· The professional standards

22· · bureau.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·Discipline grievance lieutenants are

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·1· · responsible for keeping it up to date.

·2· · Q.· · · · ·Okay.· How far back does it go?

·3· · A.· · · · ·Well, I think at least until 2012, but

·4· · I don't know if it goes back further than that. I

·5· · was interested in making sure that our personnel

·6· · were informed of some of those decisions so that

·7· · they would have notice of what types of incidents,

·8· · about what type of thing to prevent rumors and

·9· · just to give notice.

10· · Q.· · · · ·Because officers might otherwise talk

11· · without information about what happened in a

12· · particular disciplinary case, is that the --

13· · A.· · · · ·That's part of it.

14· · Q.· · · · ·Okay.· Well, what's the other part?

15· · A.· · · · ·Just so that they understand that there

16· · are ramifications to behavior that is in violation

17· · of our rules.

18· · Q.· · · · ·Okay.· You want the consequences for

19· · misconduct to be clear and predictable for the

20· · officers I guess?

21· · A.· · · · ·I believe that it's a responsibility to

22· · give them real information rather than to just

23· · leave it out there and let word spread verbally

24· · rather than in written form.· And to let them know

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·1· · that if they want to know more, they can, you

·2· · know, find out.· But a lot of times things get

·3· · discussed and it's not based on the real facts, so

·4· · it's --

·5· · Q.· · · · ·Okay.· Well, I guess I'll go back to my

·6· · question, though.· You do want the consequences

·7· · for officers' misconduct to be clear and

·8· · predictable for officers so they know the

·9· · consequences of actions?

10· · A.· · · · ·I believe it's important for them to

11· · understand what the outcomes of certain cases

12· · were, which might lead them to understand what the

13· · consequences could be for similar behavior, yes.

14· · Q.· · · · ·Okay.· And I'm sorry for the pause, but

15· · I want to get a better understanding of this

16· · document, the disciplinary summary document that

17· · we were just talking about.· And I will say I have

18· · not printed out this document that we've been

19· · provided in discovery, but I have it on my

20· · computer here.

21· · · · · · · ·So for the record, I'm showing you a

22· · screen from my computer here, and I just want you

23· · to tell me whether this document that I'm showing

24· · you is the same as what you're describing or is it

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·1· · something different.· And if it's too small, you

·2· · can let me know.

·3· · A.· · · · ·It goes back to 2007.· Are there other

·4· · pages?

·5· · Q.· · · · ·There's multiple pages.

·6· · A.· · · · ·How do you page?

·7· · Q.· · · · ·I can --

·8· · A.· · · · ·I mean, that doesn't look like the

·9· · exact image of mine.

10· · Q.· · · · ·Okay.· Is there more information in

11· · yours about what the cases are about?

12· · A.· · · · ·I would say so.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·Yeah.· Yes.

15· · Q.· · · · ·When was it that you reviewed that

16· · summary?

17· · A.· · · · ·Yesterday and today.

18· · Q.· · · · ·Okay.· So you still have access to the

19· · division intranet?

20· · A.· · · · ·No.· No.· I had a printed out version

21· · from the professional standards.

22· · Q.· · · · ·Okay.· From when?· When was it printed

23· · out?

24· · A.· · · · ·Last week.

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·1· · Q.· · · · ·Oh, okay.· So the division provided it

·2· · to you --

·3· · A.· · · · ·After.

·4· · Q.· · · · ·-- in preparation for the deposition?

·5· · · · · · · ·I'll just say for the record I don't

·6· · think that's something we've been provided.

·7· · · · · · · ·MR. COGLIANESE:· I thought it was.· But

·8· · I can talk to Van and make sure you get a copy.

·9· · · · · · · ·MR. VARDARO:· It will be helpful as

10· · soon as possible.

11· · · · · · · ·MR. COGLIANESE:· Yeah.· I believe

12· · you've been provided a copy.

13· · · · · · · ·MR. VARDARO:· Okay.· I think I would

14· · have seen that in the file, but if you -- if you

15· · can point me to it, we'll deal with it after the

16· · deposition.

17· · BY MR. VARDARO:

18· · Q.· · · · ·Other than that summary that we were

19· · just talking about, did you review any other

20· · materials related to other cases besides Kevin

21· · Morgan's to prepare for this deposition?

22· · A.· · · · ·No.

23· · Q.· · · · ·Okay.· So you haven't for instance

24· · reviewed the internal affairs summary for the

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·1· · investigation of Sergeant Constable and Sergeant

·2· · Jones and some of the other sergeants?

·3· · A.· · · · ·I didn't review any materials from IA,

·4· · no.

·5· · Q.· · · · ·Okay.· So I think we listed the Morgan

·6· · internal affairs summary, the Morgan charges, that

·7· · disciplinary summary we were just talking about.

·8· · I don't think you mentioned, were there any other

·9· · documents that you reviewed?

10· · A.· · · · ·No.

11· · Q.· · · · ·Okay.· We went through the last time we

12· · did your deposition -- I won't go through the same

13· · kinds of things that we did with you as

14· · background, we'll just rely on what you told us

15· · previously.

16· · · · · · · ·But I do have a few more officers to

17· · ask about in terms of your personal or

18· · professional relationships.· And just to try to

19· · keep it relatively quick, I'm really just asking

20· · for each of these people whether you ever were

21· · their direct supervisor, whether you have a

22· · personal relationship with them, positive or

23· · negative outside of work, or whether they're a

24· · person you particularly didn't get along with, or

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·1· · if they're -- and I guess I'll add if there's any

·2· · reason that you have to believe that they're not

·3· · honest or trustworthy I guess.

·4· · · · · · · ·First one Sergeant Ray Meister?

·5· · A.· · · · ·I don't believe I've ever been his

·6· · direct supervisor.· I don't have a personal

·7· · relationship with him.· I don't have any reason to

·8· · believe he's not trustworthy.· What was the other

·9· · question?· Whether I --

10· · Q.· · · · ·Oh, any reason --

11· · A.· · · · ·-- I don't like him?

12· · Q.· · · · ·Any conflict or any, you know --

13· · A.· · · · ·No.

14· · Q.· · · · ·-- reason that you had to have a

15· · negative relationship with him?

16· · A.· · · · ·Not that I'm aware of.

17· · Q.· · · · ·Okay.· Sergeant I think it's Daniel

18· · Weaver.

19· · A.· · · · ·I don't have a personal relationship

20· · with him.· Don't believe I've ever been a direct

21· · supervisor of him.· Don't have any reason to not

22· · trust him at all.

23· · Q.· · · · ·Okay.· Sergeant Ken Decker?

24· · A.· · · · ·Same.

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·1· · Q.· · · · ·Okay.· Sergeant Babcock?

·2· · A.· · · · ·Never been his direct supervisor.

·3· · Don't have a personal relationship with him. I

·4· · don't have any evidence that I can't trust him.

·5· · Q.· · · · ·Okay.· You said that in a way that

·6· · makes me think -- do you have some?

·7· · A.· · · · ·Just a --

·8· · Q.· · · · ·Repeat --

·9· · A.· · · · ·Just an old, old, old case, you know, I

10· · wondered whether or not, you know, he got his

11· · facts right.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·But it's --

14· · Q.· · · · ·What was that about?

15· · A.· · · · ·About a kick to the head back in --

16· · well before 2010, I can't remember the date.

17· · Q.· · · · ·Okay.· Before you were chief?

18· · A.· · · · ·Yes.

19· · Q.· · · · ·Okay.· It was him that kicked somebody

20· · in the head?

21· · A.· · · · ·No.· It was just his -- his review of

22· · it and various other things.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·Like I said, I don't have any reason to

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·1· · say that I can't trust him.

·2· · Q.· · · · ·Was it a patrol officer that did the

·3· · kick?

·4· · A.· · · · ·Yes.

·5· · Q.· · · · ·Who was the officer?

·6· · A.· · · · ·Well, it was not sustained, so I can't

·7· · prove that it was.

·8· · Q.· · · · ·Okay.· But who was the officer?

·9· · A.· · · · ·I believe it was Norm Baldwin.

10· · Q.· · · · ·Okay.· And Sergeant Babcock had done

11· · some kind of review of that?

12· · A.· · · · ·Yeah.

13· · Q.· · · · ·And concluded that it either didn't

14· · happen or --

15· · A.· · · · ·Yeah.· I think he might have been at

16· · the scene or something along those lines.

17· · Q.· · · · ·Okay.

18· · A.· · · · ·I don't recall.

19· · Q.· · · · ·And you suspected that he was

20· · protecting the patrol officer or --

21· · A.· · · · ·I thought that might be a possibility.

22· · Q.· · · · ·Okay.· This was when you were in

23· · internal affairs or --

24· · A.· · · · ·No.· A deputy chief reviewing --

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·-- the investigation.

·3· · Q.· · · · ·Okay.· But despite your suspicion in

·4· · this case, you went along with the not sustained

·5· · recommendation because you didn't have any

·6· · evidence?

·7· · A.· · · · ·That's not the way that I would

·8· · describe it.

·9· · Q.· · · · ·Okay.· How would you describe it?

10· · A.· · · · ·The information that first came to me

11· · made me believe that the actual incident had

12· · occurred as alleged.· I wasn't satisfied that

13· · there was enough information to make my decision.

14· · I sent it back for more information.· And by the

15· · time it came back, the stories had been jumbled

16· · and the witnesses were no longer as certain as

17· · they were originally.· And so despite my concerns

18· · that it was in fact true, I could not find the

19· · evidence to sustain it.

20· · Q.· · · · ·Okay.· When you say "the witnesses,"

21· · were those police witnesses or civilian witnesses?

22· · A.· · · · ·Civilian.

23· · Q.· · · · ·Okay.· So they went back and reviewed

24· · -- interviewed the civilian witnesses again

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·1· · after --

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·-- and then their stories had either

·4· · changed or their memories had faded to that

·5· · effect?

·6· · A.· · · · ·Correct.

·7· · Q.· · · · ·Who was the chief at the time?

·8· · A.· · · · ·Probably Chief Distelzweig.

·9· · Q.· · · · ·Okay.· And the chief -- well, this was

10· · not sustained, so the chief didn't overrule that

11· · and sustained discipline against Officer Baldwin?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·Okay.· There was no video, I assume?

14· · A.· · · · ·Not to my recollection.

15· · Q.· · · · ·Okay.· Sergeant -- I'm going back to

16· · your relationships.

17· · A.· · · · ·Yeah.

18· · Q.· · · · ·Sergeant Richard Brooks?

19· · A.· · · · ·I don't believe I've ever been a direct

20· · supervisor.· I -- what was the other one?

21· · Q.· · · · ·Do you have a friendship outside of

22· · work?

23· · A.· · · · ·Oh, no.

24· · Q.· · · · ·Okay.· Never an enemyship outside of

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·1· · work?

·2· · A.· · · · ·No, not at all.· I -- I totally respect

·3· · Sergeant Brooks.

·4· · Q.· · · · ·Okay.· Officer Anthony or Tony Roberts?

·5· · A.· · · · ·I don't believe I've ever been a direct

·6· · supervisor.· I don't know him personally outside

·7· · of work.· And I have no reason to -- to not

·8· · believe that he's trustworthy.

·9· · Q.· · · · ·Okay.· Have you ever dealt with any

10· · disciplinary matters dealing with Tony Roberts?

11· · A.· · · · ·Potentially.· But I don't recall what.

12· · Q.· · · · ·Okay.· You have a memory that you might

13· · have dealt with discipline with him, but you don't

14· · remember what it was about?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·Okay.· A county prosecutor named Jeff

17· · Blake, do you know him?

18· · A.· · · · ·No.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·I mean I might have met him at some

21· · point in time.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·But I don't know him as a, you know,

24· · personal friend or anything like that.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·I've met a lot of prosecutors, so I

·3· · can't say that I haven't met him.

·4· · Q.· · · · ·Okay.· No particular recollection or

·5· · impression of Jeff Blake then?

·6· · A.· · · · ·No.

·7· · Q.· · · · ·Okay.· Officer Christopher Bond?

·8· · A.· · · · ·I don't believe I've ever directly

·9· · supervised him.· I don't have a personal

10· · relationship with him off duty.· And I trust him

11· · for --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·You know, I don't have any reason not

14· · to trust him at all.

15· · Q.· · · · ·Okay.· George Speaks?

16· · A.· · · · ·He was my boss.· I don't believe that

17· · we've -- well, of course I've never supervised

18· · him.

19· · Q.· · · · ·Sure.

20· · A.· · · · ·I don't think that we've done anything

21· · really socially.· We've done things off duty, you

22· · know, like get together for lunch or dinner or

23· · something like that maybe once or twice.

24· · Q.· · · · ·Uh-huh.

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·1· · A.· · · · ·But more of a celebratory, you know,

·2· · retirement kind of a thing or whatever else.

·3· · But --

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·-- I don't have any reason to not trust

·6· · him at all.

·7· · Q.· · · · ·Okay.· You consider him a friend?

·8· · A.· · · · ·A colleague.· I don't know.· He kind of

·9· · -- you know, what's a friend?· You know, I like

10· · him.

11· · Q.· · · · ·Uh-huh.

12· · A.· · · · ·I've dealt with him for many, many

13· · years.· So, yeah, I suppose you could call him a

14· · friend.· But I don't socialize with him.

15· · Q.· · · · ·All right.· So kind of a work friend?

16· · A.· · · · ·Correct.

17· · Q.· · · · ·Okay.· Van Irwin?

18· · A.· · · · ·I don't believe I've ever directly

19· · supervised him.· I don't have an off duty personal

20· · relationship with him.· I totally trust him.

21· · Q.· · · · ·Okay.· Van Irwin at least during the

22· · time we're talking about and maybe now was in

23· · professional standards?

24· · A.· · · · ·Correct.

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·1· · Q.· · · · ·What was his rank, lieutenant?

·2· · A.· · · · ·Lieutenant.

·3· · Q.· · · · ·Okay.· So is there a commander of

·4· · professional standards?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·Okay.· Who was the commander at the

·7· · time of this?· You don't remember.· Okay.

·8· · A.· · · · ·Potentially Commander Hyland.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·But I don't know.

11· · Q.· · · · ·Okay.· I had a misunderstanding of how

12· · professional standards works, but I think you

13· · cleared it up.

14· · · · · · · ·Same question for I think it's Jeff

15· · Lokai?

16· · A.· · · · ·Same.· Don't have a personal

17· · relationship with him.· Don't believe I've ever

18· · supervised him directly.· And I trust him.

19· · Q.· · · · ·Okay.· Kevin Morgan?

20· · A.· · · · ·Kevin Morgan?

21· · Q.· · · · ·Never his direct supervisor?

22· · A.· · · · ·Never supervised him.· Don't have a

23· · personal relationship with him.· And certainly I

24· · had concerns about being able to trust his word as

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·1· · a result of this investigation.

·2· · Q.· · · · ·Okay.· But no other reason?

·3· · A.· · · · ·No.

·4· · Q.· · · · ·Okay.· Had you had any prior dealings

·5· · with Kevin Morgan prior to this investigation?

·6· · A.· · · · ·Not that I recall.

·7· · Q.· · · · ·Okay.· Bronson Constable?

·8· · A.· · · · ·Never supervised him.· Don't have a

·9· · personal relationship with him.· And I don't

10· · really trust some of the things that he has said

11· · or done.

12· · Q.· · · · ·Okay.· Can you tell me the reason why

13· · you don't trust some of the things he's said or

14· · done?

15· · A.· · · · ·I'm aware of previous disciplinary

16· · issues that he's been involved in that lead me to

17· · believe that he's not always truthful.

18· · Q.· · · · ·Okay.· Multiple incidents?

19· · A.· · · · ·Uh-huh.

20· · Q.· · · · ·I'm sorry.· You have to say yes or no.

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Okay.· How about Doug Jones?

23· · A.· · · · ·Same.· I've never direct -- well, I

24· · don't think I've ever directly supervised him.

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·1· · Don't have a personal relationship with him.· And

·2· · pretty much the same, but not to the same level as

·3· · Bronson Constable.· He hasn't been involved in a

·4· · lot of other incidents that I'm aware of regarding

·5· · his truthfulness; it certainly came into question

·6· · in regards to one investigation.

·7· · Q.· · · · ·That's the time reporting, leave

·8· · reporting investigation he was involved in?

·9· · A.· · · · ·Correct.

10· · Q.· · · · ·Okay.· And we'll get into that later

11· · obviously.

12· · · · · · · ·Zane Kirby?

13· · A.· · · · ·Same with that.· But I -- I don't have

14· · any reason not to basically trust him.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·I think that he admitted what had gone

17· · on with him and acknowledged his misdeeds.

18· · Q.· · · · ·Okay.· And again we'll go a little

19· · deeper into that.

20· · · · · · · ·Denise Reffitt?

21· · A.· · · · ·Haven't personally supervised her.

22· · Don't have a personal relationship with her off

23· · duty.· Don't have any reason not to trust her.

24· · Q.· · · · ·Okay.· My understanding she was

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·1· · previously an internal affairs at some point?

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·But not while you were over internal

·4· · affairs?

·5· · A.· · · · ·Yes.· Yes, she was.

·6· · Q.· · · · ·But not your --

·7· · A.· · · · ·I was the commander and she was a

·8· · sergeant.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·There was lieutenant in between.

11· · Q.· · · · ·Okay.· Doug Williams?

12· · A.· · · · ·I don't believe I've ever supervised

13· · him.· Don't have a personal relationship with him.

14· · And certainly I have concerns sometimes about

15· · whether I can trust him or not.

16· · Q.· · · · ·Okay.· What concerns do you have about

17· · Doug Williams?

18· · A.· · · · ·There have been a number of incidents

19· · that he's been involved in or alleged to have been

20· · involved in where things have come up that I just

21· · don't know how truthful he's been on some of those

22· · things, but haven't been able to necessarily prove

23· · any of those types of things.

24· · Q.· · · · ·Okay.· He's never been charged with

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·1· · untruthfulness?

·2· · A.· · · · ·Not to my knowledge.

·3· · Q.· · · · ·Okay.· He's never had a sustained

·4· · charge of untruthfulness certainly?

·5· · A.· · · · ·Not to my knowledge.

·6· · Q.· · · · ·Okay.· Can you tell me anything about

·7· · any examples of those incidents where you felt

·8· · like he may not have been truthful?

·9· · A.· · · · ·Yeah.· I think that he's reported his

10· · gun being stolen two or three times, which is just

11· · very highly unusual.· And I don't have any more

12· · specifics.· It's just that he doesn't have the

13· · best reputation and I've --

14· · Q.· · · · ·Okay.

15· · A.· · · · ·-- decided that I need to, you know,

16· · deal with the facts on what I do know and what I

17· · don't.· But you asked me if I trust him, and I

18· · said no.

19· · Q.· · · · ·Okay.· David LaRoche, did you ever

20· · supervise him directly?

21· · A.· · · · ·No.· And I don't have a personal

22· · relationship with him.· And I don't have any

23· · reason to say I -- I think that he kind of fessed

24· · up to some of his misdeeds, if you will, rule

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·1· · violations.· But certainly there was questions

·2· · that were brought forth that made me wonder

·3· · whether you can always trust him, but that was

·4· · back -- back related to one investigation.

·5· · Q.· · · · ·Okay.· Joseph Houseberg?

·6· · A.· · · · ·Same thing with the first two.· The

·7· · third one there was a question about being able to

·8· · trust him, but it got resolved through the

·9· · disciplinary process.

10· · Q.· · · · ·Okay.· Zach Rosen?

11· · A.· · · · ·Same thing.· I would say that as far as

12· · trusting him, I think that he has made a lot of

13· · questionable decisions, and so I wouldn't

14· · necessarily put a lot of faith in some of his

15· · decision making.

16· · Q.· · · · ·You have questions about his judgment?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·But questions about his honesty?

19· · A.· · · · ·I don't have any indication that he's

20· · lied about stuff.

21· · Q.· · · · ·Okay.· Eric Moore?

22· · A.· · · · ·I have a lot of questions about his

23· · truthfulness.

24· · Q.· · · · ·Okay.· And I think we talked about your

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·1· · relationship in the previous --

·2· · A.· · · · ·Yeah.

·3· · Q.· · · · ·I don't remember whether we asked you

·4· · your relationship with Melissa McFadden.

·5· · A.· · · · ·I don't believe I've ever directly

·6· · supervised her.· I don't have a personal

·7· · relationship with her.· And I would say that I

·8· · question, you know, how much I can trust her.

·9· · Q.· · · · ·Okay.· Has she ever had a sustained

10· · untruthful?

11· · A.· · · · ·Not to my knowledge.

12· · Q.· · · · ·Okay.· All right.· I want to ask you

13· · some general questions about the way the

14· · disciplinary process worked.· And I will say I'm

15· · really talking about during the period when you

16· · were chief of police.

17· · A.· · · · ·Okay.

18· · Q.· · · · ·Well, first of all, actually, that

19· · raises an interesting one for me.

20· · · · · · · ·Do you feel like you made any changes

21· · in the way the disciplinary process worked when

22· · you became chief compared to chiefs before you?

23· · A.· · · · ·Well, I can't say for sure because I

24· · didn't see them in action all the time when they

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·1· · were making their previous decisions.· I tried to

·2· · make a point of being fair and informed.· You

·3· · know, sharing the information, I put notice out

·4· · when I felt it was appropriate to advise people of

·5· · changes perhaps in what discipline might be, the

·6· · outcome of certain things.· I worked with our

·7· · labor attorneys and HR officials to try to make

·8· · sure that we were making solid decisions.

·9· · Q.· · · · ·Okay.· But you didn't -- when you came

10· · into office as chief, you didn't sort of set out

11· · to make particular changes that you're -- that you

12· · can remember in terms of how disciplinary

13· · processes are handled or how discipline is meted

14· · out?

15· · A.· · · · ·Well, by saying "changes," I'm not sure

16· · again.

17· · Q.· · · · ·Uh-huh.

18· · A.· · · · ·But I can tell you that I was very

19· · determined to make the disciplinary process

20· · transparent and one that relied on just cause, one

21· · that, you know, took things into consideration

22· · that decision-makers have to have.· I think I

23· · documented more than previous chiefs.· But I had

24· · studied, you know, discipline philosophies and

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·1· · various other things and was determined to make

·2· · this process one that I felt could stand up to

·3· · scrutiny.

·4· · Q.· · · · ·Okay.· What did you do to study

·5· · discipline philosophies?

·6· · A.· · · · ·I read articles about discipline and,

·7· · you know, whether you post information, whether

·8· · you don't post information, how you do it.· We had

·9· · looked at what they call education based

10· · disciplinary systems.· I'd looked at matrixes that

11· · other agencies have used.· You know, I had done a

12· · lot of study about that when I was in internal

13· · affairs.· So going to training courses, reading

14· · articles, looking up things, like I said,

15· · consulting with experts, I felt like I had done a

16· · lot of research about how to manage the

17· · disciplinary process.

18· · Q.· · · · ·Okay.· In terms of the articles that

19· · you read, was there like one or two that stuck out

20· · as oh, here, this is what I wanted to do with the

21· · department?

22· · A.· · · · ·No, huh-uh.

23· · Q.· · · · ·Okay.· Were they typically articles

24· · circulated among chiefs of police like through

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·1· · organizations like International Association of

·2· · Chiefs of Police, or was it academic articles, or

·3· · what are we talking about?

·4· · A.· · · · ·I would say a combination of all of

·5· · that.· And then there's websites, AELE and various

·6· · other places that you can, you know, see

·7· · information about what's been done in other

·8· · government agencies not just police agencies.· So,

·9· · no, nothing -- not one thing in particular, but

10· · there was a compilation of a lot of different

11· · things.

12· · Q.· · · · ·Okay.· When you say the -- you

13· · mentioned that you looked at discipline matrices

14· · from other departments.· First of all, did the

15· · Columbus Division of Police have a discipline

16· · matrix when you were chief?

17· · A.· · · · ·No.

18· · Q.· · · · ·Has it ever had one to your knowledge?

19· · A.· · · · ·As far back as I know, no.

20· · Q.· · · · ·Okay.· What departments matrix or what

21· · department -- what different department's

22· · matrixes?

23· · A.· · · · ·Phoenix.

24· · Q.· · · · ·Okay.· Phoenix, Arizona you're talking

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·1· · about?

·2· · A.· · · · ·Yeah.· LA has done an education based

·3· · thing and they have come up with some standards.

·4· · But we have an agreement with the union that we

·5· · don't create a matrix without negotiating, so it

·6· · wasn't something that we were going to even try to

·7· · do.· I don't like the philosophy of a matrix

·8· · because it doesn't take into account the case by

·9· · case details that are different among things.

10· · Q.· · · · ·Sure.

11· · · · · · · ·What is education based discipline?

12· · A.· · · · ·The philosophically -- Lee Baca I

13· · believe from LA.

14· · Q.· · · · ·Is it the LA County Sheriff, former?

15· · A.· · · · ·He's in prison now I think.

16· · Q.· · · · ·Yeah.· I was going to say.· That's your

17· · guru?

18· · A.· · · · ·But he was touted as this, you know,

19· · great guy that, you know, came up with this

20· · philosophy about how to correct behavior through

21· · training.· And after our review of it, it seemed

22· · like their disciplinary process was even harsher

23· · than ours and they were backing off some of that

24· · really harshness.· So once again it didn't seem to

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·1· · be very relevant to our situation.

·2· · Q.· · · · ·Okay.· So education based discipline is

·3· · not necessarily the philosophy you were trying to

·4· · use?

·5· · A.· · · · ·Correct.

·6· · Q.· · · · ·You had mentioned that you were posting

·7· · notice about changes in discipline?

·8· · A.· · · · ·I would send out announcements. I

·9· · talked to FOP and said from here on out, you know,

10· · the disciplinary process for, for instance, a

11· · drunk driving situation will be 80 hours minimum,

12· · and that will be minimum based on behavior that

13· · may or may not accompany any of that.· Prior to my

14· · announcement, and prior to my being chief, the

15· · kind of standard for a drunk driving departmental

16· · charge was 40 hours suspension, and so I went

17· · along with that, but I grew very concerned that it

18· · wasn't sending the right message, so I wanted to

19· · change that.· And so I put out notice to everybody

20· · saying that if you get charged with drunk driving,

21· · it's going to be at least 80 hours if not more and

22· · up to termination.· We did the same thing for

23· · accidental discharges that could have been

24· · prevented if you had used the bullet trap at

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·1· · substations.

·2· · Q.· · · · ·What's a bullet trap?

·3· · A.· · · · ·It's basically a tube where you would

·4· · point the barrel of your shotgun so that if it

·5· · accidentally goes off, the discharge would go into

·6· · this barrel which is metal and would contain the

·7· · pellets rather than it blowing a hole in the wall

·8· · or hurting somebody.

·9· · Q.· · · · ·So this is a specifically about

10· · accidental discharges that happen inside a

11· · substation?

12· · A.· · · · ·Yes.

13· · Q.· · · · ·And it's about -- the discharge would

14· · happen when somebody is taking the shotgun off a,

15· · like --

16· · A.· · · · ·They exchange the shotgun from shift to

17· · shift to shift to shift, and so they're supposed

18· · to make the shotgun cruiser ready.· And by that,

19· · that means that you've unloaded it, reloaded it

20· · and you know what position it's in, whether the

21· · safety's on, and all that kind of stuff.· And some

22· · people got complacent about that, and a number of

23· · holes appeared in the substations.· And typical

24· · discipline in the past had been a written

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·1· · reprimand for all accidental discharges.

·2· · Q.· · · · ·Uh-huh.

·3· · A.· · · · ·And I was not convinced that that was

·4· · the way to go.· We had bullet traps that we made

·5· · available to everyone and I think the notice was

·6· · not just about the bullet trap but -- that was the

·7· · main focus of that, to try to get officers to use

·8· · the bullet trap in the substations but also

·9· · whenever you're emptying a weapon to do it in a

10· · safe manner and use whatever tools are available

11· · to ensure that it doesn't go off accidentally.

12· · Q.· · · · ·Okay.· Other than the bullet trap rule

13· · -- I'm going to call it a rule; I understand that

14· · there may be issues with the union about whether

15· · something is really a rule or not I guess.· But

16· · your rule of thumb or whatever you want to call it

17· · for accidental discharges and for drunk driving

18· · incidents, any other changes that you remember

19· · posting?

20· · A.· · · · ·Related to the drunk driving one, I

21· · believe I also included that if you lost your

22· · driver's privileges for a long period of time,

23· · that that would be taken into consideration as

24· · well.· If you've refused to blow and they took

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·1· · your driver's license -- in some counties they

·2· · took your driver's license for a year and no

·3· · occupational privileges, meaning that you cannot

·4· · perform the duties of a police officer for a year.

·5· · And I consider that to be serious misconduct.

·6· · Q.· · · · ·Would you say --

·7· · A.· · · · ·I don't remember anything else.

·8· · Q.· · · · ·I mean that the DUI or drunk driving

·9· · issue was a priority for you for any particular

10· · reason or --

11· · A.· · · · ·I had a lot of them --

12· · Q.· · · · ·And --

13· · A.· · · · ·-- come before me.

14· · Q.· · · · ·Okay.· And you felt like officers

15· · weren't taking it seriously enough or --

16· · A.· · · · ·I was very concerned that too many

17· · officers were getting intoxicated and driving.

18· · Q.· · · · ·Okay.

19· · A.· · · · ·And it -- you know, potentially has the

20· · -- you know, you could kill somebody.· But also

21· · just the damaging effects that it does on, you

22· · know, our reputation, their reputation, you know,

23· · it's financially damaging to whoever is involved.

24· · And then, you know, you've got to worry whether or

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·1· · not they're alcoholics and whether or not they're

·2· · abusing alcohol.· So I thought by making the

·3· · corrective action harsher that that might get

·4· · their attention and they might use, you know, a

·5· · ride sharing service or call a friend or something

·6· · else instead of being out there and driving.

·7· · Q.· · · · ·Okay.· You touched on a number of

·8· · things, I guess I'll come back to them in just a

·9· · minute.

10· · · · · · · ·But going back sort of to the general

11· · issues about how discipline was handled while you

12· · were chief, can you tell me once -- as I

13· · understand it, a disciplinary process might

14· · initiate with an internal affairs investigation or

15· · a chain of command investigation.· At some point

16· · in the process, there's a determination of whether

17· · there's going to be departmental charges against

18· · the officer, and we can talk about that in a

19· · minute.· But once there's been a departmental

20· · charge sustained against an officer, can you tell

21· · me -- can you give me an overview of how is the

22· · level of discipline for that charge determined?

23· · Yeah.· And, again, all of these questions I'm

24· · really asking about while you were chief.

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·1· · A.· · · · ·Okay.· There is no matrix as we've

·2· · previously discussed.· All of it is taken into

·3· · consideration with regard to the evidence before

·4· · me.· If there are any previous comparables for

·5· · this particular case or for that particular rule

·6· · of conduct, that's looked at.· You know, whether

·7· · or not somebody has accepted responsibility, their

·8· · tenure, you know, if they've had a -- well, we can

·9· · only look back four years.· But whether they've

10· · had a good disciplinary history, a good work

11· · history, the level of training that they've

12· · received, if they've had notice, did the

13· · investigation, you know, prove things, is it

14· · 51 percent preponderance of the evidence, is it

15· · clear and convincing, is it, you know, a greater

16· · standard.· And then just what -- ultimately for my

17· · recommendation, and understand I didn't always

18· · make the final decision, my recommendation based

19· · on what I think is appropriate for not only the

20· · rule violation but for what I believe is going to

21· · accomplish the appropriate corrective action, you

22· · know, for this particular officer, you know, and

23· · whether or not it may or may not be arbitrated is

24· · at least sometimes discussed.· And whether or not,

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·1· · you know, it can be through that process and stand

·2· · up to it is another one.

·3· · Q.· · · · ·Okay.· I want to talk about two

·4· · particular -- I have questions about I guess two

·5· · particular things on that list.· One is you said

·6· · their tenure, the officer's tenure?

·7· · A.· · · · ·Yeah.

·8· · Q.· · · · ·Do you literally just mean how many

·9· · years they've been in the department?

10· · A.· · · · ·It just calls for at least considering

11· · the officer's work performance and their years of

12· · service.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·I had a case where I'd recommended

15· · termination for somebody that I believe was

16· · stealing.· And the judge basically said they've

17· · been an outstanding employee for many years and

18· · you get them back.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·The arbitrator.

21· · Q.· · · · ·Who was that?

22· · A.· · · · ·The officer?

23· · Q.· · · · ·Yeah.

24· · A.· · · · ·Chad Knode.

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·1· · Q.· · · · ·Okay.· What did Chad Knode do?

·2· · A.· · · · ·He participated with another officer

·3· · who went to prison in --

·4· · Q.· · · · ·Oh, this was -- I think we've heard

·5· · about things this was stealing military surplus or

·6· · something like that?

·7· · A.· · · · ·Yes.· He took equipment that belonged

·8· · to either the City of Columbus or the military --

·9· · Q.· · · · ·Uh-huh.

10· · A.· · · · ·-- to scrap yards, scrapped it and took

11· · the cash and did not return that money to the City

12· · of Columbus.

13· · Q.· · · · ·Do you remember what his tenure was at

14· · the time?

15· · A.· · · · ·I think he had 20-something years.

16· · Q.· · · · ·Okay.· And did he have basically

17· · 20-something years of no prior discipline?

18· · A.· · · · ·Well, we're only allowed to look back

19· · four years.

20· · Q.· · · · ·Okay.

21· · A.· · · · ·And the records aren't kept beyond six

22· · years, so --

23· · Q.· · · · ·Okay.

24· · A.· · · · ·-- if there was disciplinary action.

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·1· · If there wasn't, then it was three years.

·2· · Q.· · · · ·Okay.· You said the level of training

·3· · the officer had?

·4· · A.· · · · ·Yeah.· Whether or not they've been

·5· · trained in this particular, you know, situation.

·6· · Q.· · · · ·In the sense that if it's something

·7· · that they may have never encountered before and

·8· · think just mishandled it, that would be treated

·9· · less seriously if they knew very well that what

10· · they were doing was wrong?

11· · A.· · · · ·If they weren't trained on it, then it

12· · would be the responsibility of the City or the

13· · division for not training them.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·Unless it was a violation of law and,

16· · you know --

17· · Q.· · · · ·Sure.

18· · A.· · · · ·They had it right in front of them do

19· · this do, you know.

20· · Q.· · · · ·Okay.

21· · A.· · · · ·Then that's the training, don't do

22· · this.

23· · Q.· · · · ·Okay.· And that's my -- that was going

24· · to be my first additional question here, which is

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·1· · whether the conduct is criminal, is that a factor

·2· · in terms of how serious it would be --

·3· · A.· · · · ·Well --

·4· · Q.· · · · ·-- treated for discipline?

·5· · A.· · · · ·-- certainly if it's criminal and we've

·6· · got a conviction, then we generally do a rule of

·7· · conduct violation regarding a conviction of some

·8· · sort.· I don't -- I mean, a lot of these cases

·9· · that are investigated criminally might not be

10· · criminal.· Some of them are, some of them aren't.

11· · Q.· · · · ·Uh-huh.

12· · A.· · · · ·So I guess that you could say that that

13· · is part of the consideration.

14· · Q.· · · · ·Okay.· I guess my question is I've seen

15· · a lot of investigations as we've reviewed these

16· · where everything is put on hold in terms of

17· · internal affairs while there's a criminal

18· · investigation conducted.· And then once the

19· · criminal investigation concludes, then the

20· · internal affairs administrative investigation

21· · starts.· And my question is why?· Why do you stop

22· · the process for the criminal investigation and

23· · then start it up again?

24· · A.· · · · ·I have legal advisors.

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·1· · Q.· · · · ·Okay.· Do you have an understanding of

·2· · why?

·3· · A.· · · · ·Yeah.· Generally we don't want to give

·4· · the appearance that we've treated one of our own

·5· · officers differently than we would a citizen by

·6· · not investigating things criminally.

·7· · Q.· · · · ·Uh-huh.

·8· · A.· · · · ·So if we believe a theft occurred, then

·9· · should we just say, well, they're an officer, we

10· · don't have to investigate it criminally.· And so

11· · there's a lot of concern that the appearance of

12· · not doing a criminal investigation looks like we

13· · have a bias towards our officer and are treating

14· · them differently.

15· · Q.· · · · ·Uh-huh.

16· · A.· · · · ·I get that.· And so I have agreed to do

17· · a number of investigations as a criminal

18· · investigation first.· My preference is to do

19· · concurrent investigations if we're going to do a

20· · criminal investigation as well.

21· · Q.· · · · ·Uh-huh.

22· · A.· · · · ·But there are a lot of concerns about

23· · ordering a participant to speak, you know, a focus

24· · officer to speak because that could then give the

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·1· · appearance that we've ordered them to talk and

·2· · maybe criminal charges shouldn't be filed, you

·3· · know, whether two investigations got mixed.

·4· · Q.· · · · ·Uh-huh.

·5· · A.· · · · ·And have violated their constitutional

·6· · right for, you know, self-defense, you know.

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·And yet there are sometimes when we

·9· · have moved forward administratively at the same

10· · time as a criminal investigation.· We've been

11· · successful that way, so in general it's listening

12· · to either the legal advice or the advice of the

13· · director of public safety or someone else to

14· · proceed criminally first and then do the

15· · administrative so there is no mixing.· We've had a

16· · number of challenges with regard to that.· And

17· · obviously, you know, the delay in getting the

18· · administrative thing done means that they've been

19· · on our payroll longer.· That officer that I

20· · referenced earlier, that investigation was

21· · conducted by the federal agencies for about three

22· · years, and the length of that criminal

23· · investigation was one of the reasons why I believe

24· · the arbitrator gave him his job back.

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·1· · Q.· · · · ·That's Knode?

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·Okay.· Is rank something that would be

·4· · taken into account in terms of the seriousness of

·5· · -- or not seriousness, but the degree of

·6· · discipline issued for an offense?

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·How is rank taken into account?

·9· · A.· · · · ·I believe the supervisors have more

10· · training, more responsibility, sometimes more

11· · opportunity to be autonomous.· Officers in general

12· · don't get to flex their hours, they don't get to,

13· · you know, be someplace else without a whole bunch

14· · of different approvals.· So a supervisor taking

15· · advantage of that autonomy is certainly something

16· · that I consider as part of their outcome, the

17· · outcome of the disciplinary action.

18· · Q.· · · · ·Okay.· And because of that, it's a more

19· · -- if an officer and a sergeant or a lieutenant

20· · commit essentially the same offense, you would

21· · take it -- it would be more discipline most likely

22· · for the higher ranking officer?

23· · A.· · · · ·It depends.

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · Q.· · · · ·I guess what I'm trying to get at is

·2· · the answer you just gave when I asked how is rank

·3· · taken into account is you're telling me the

·4· · supervisors have more training and more

·5· · responsibility, more autonomy.· And so it's

·6· · something you take into account in the outcome of

·7· · the disciplinary action.· I guess I -- if it's not

·8· · to make the discipline -- is it to make the

·9· · discipline less serious for a higher ranking

10· · officer?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·It all depends on the facts of the

13· · cases.· You know, was supervision at all related

14· · to that?· I mean drunk driving has nothing to do

15· · with supervision.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·So it's all based on the facts, what

18· · the charges are.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·Very rarely I've ever seen a case have

21· · the same exact fact pattern.

22· · Q.· · · · ·Of course.

23· · A.· · · · ·Of a serious nature.· A lot of people

24· · not wearing their hats, pretty similar.

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·1· · Q.· · · · ·Right.· Or shooting a hole in the wall

·2· · of a substation?

·3· · A.· · · · ·Some of them are.

·4· · Q.· · · · ·I guess.· I guess there could be

·5· · multiple ways that happens?

·6· · A.· · · · ·Uh-huh.

·7· · Q.· · · · ·When rank is taken into account in

·8· · discipline, it would be taken into account to make

·9· · it a more serious offense for the higher ranking

10· · officer?

11· · A.· · · · ·Potentially.

12· · · · · · · ·MR. COGLIANESE:· Objection.

13· · Q.· · · · ·Okay.· I would not think that there

14· · would be a situation -- you can correct me if I'm

15· · wrong -- where a higher ranking officer would

16· · receive less discipline because of their higher

17· · rank?

18· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

19· · A.· · · · ·I mean, you're talking about some

20· · theoretical that I don't have an example of.· So,

21· · you know, even with an OVI case, I can see an

22· · officer that was driving recklessly and all that

23· · kind of thing getting more discipline than a

24· · sergeant that was, you know, asleep at a stop

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·1· · sign.

·2· · Q.· · · · ·And I am asking you a hypothetical.

·3· · A.· · · · ·Yeah.

·4· · Q.· · · · ·I'm talking about all things being

·5· · equal, if the offense has something to do with

·6· · supervision let's say and there's a supervisor

·7· · being disciplined rather than an officer, you

·8· · would expect the supervisor to receive at least

·9· · equal to but most likely more discipline than the

10· · patrol officer?

11· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

12· · A.· · · · ·If all things are equal, then -- and it

13· · has to do with supervision, then, yes, I could say

14· · that that might be the case.· But, again, I'm not

15· · going to give an absolute because I just don't

16· · have any facts.

17· · Q.· · · · ·Okay.· You mentioned burdens of proof,

18· · I guess in terms of whether you're sort of

19· · 51 percent sure that the officer did it versus

20· · 99 percent sure.· How does that play into the

21· · discipline?

22· · A.· · · · ·I take it into consideration as to how

23· · strong the evidence is.

24· · Q.· · · · ·Okay.· Is that in terms of how strong

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·1· · the evidence is in your own mind or in terms of

·2· · how you think an arbitrator is going to look at

·3· · the strength of the evidence?

·4· · A.· · · · ·Mostly mine.· But I certainly do

·5· · consider at times whether or not I think that this

·6· · is a case that an arbitrator could find.· But, you

·7· · know, like our burden of proof for administrative

·8· · investigations is preponderance of the evidence.

·9· · Q.· · · · ·Uh-huh.

10· · A.· · · · ·Some arbitrators just decide that they

11· · want clear and convincing.

12· · Q.· · · · ·Uh-huh.

13· · A.· · · · ·So I don't try to go with clear and

14· · convincing just knowing that some arbitrators do

15· · that because I don't know which arbitrator is

16· · going to have the case.· And --

17· · Q.· · · · ·True.

18· · A.· · · · ·-- I don't know if that's the standard

19· · that they're going to use.· So I relied mostly on

20· · my judgment because that's the one thing that I

21· · have control over.

22· · Q.· · · · ·And if you feel convinced that an

23· · officer committed serious misconduct, would you

24· · rather recommend the serious discipline even if

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·1· · you -- it might be overturned by the arbitrator,

·2· · or would you rather issue discipline that you feel

·3· · like is definitely going to hold up?

·4· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·5· · A.· · · · ·If I believe that the officer needs to

·6· · have corrective action, I'm going to recommend

·7· · corrective action.

·8· · Q.· · · · ·Okay.· Even if there's a chance that an

·9· · arbitrator might send it back?

10· · A.· · · · ·I don't recall ever making a decision

11· · not to discipline somebody because an arbitrator

12· · might negate that.

13· · Q.· · · · ·Okay.· How about what's the rule of the

14· · union?· And I know this is a general question, so

15· · let me explain it.

16· · · · · · · ·But what's the role of the union in

17· · terms of that?· In terms of are there cases where

18· · the union is sort of more and less, you know,

19· · strenuously objecting to discipline for an

20· · officer, and if so does that get taken into

21· · account?

22· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

23· · A.· · · · ·I think that I could say that, yes,

24· · there are times when I feel like they are

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·1· · absolutely convinced that an officer is either

·2· · innocent or shouldn't be disciplined at a certain

·3· · level and they make their feelings known to me

·4· · and/or others.· And then there are other cases

·5· · where I think that they understand that

·6· · disciplinary action needs to take place, they're

·7· · not fighting it so strenuously.

·8· · Q.· · · · ·Okay.· And does that influence -- did

·9· · that influence your disciplinary recommendations

10· · or is it just a background fact?

11· · A.· · · · ·Well, I would say I certainly

12· · considered it.· You know, in particular, you know,

13· · some of our police involved shooting situations,

14· · they were very, very, you know, strenuous about

15· · some of their recommendations or fighting for a

16· · particular officer.· And I think they have been

17· · with some other officers as well.· But it's just I

18· · consider everything.

19· · Q.· · · · ·Uh-huh.· Okay.· So you're saying there

20· · are situations where you may have given lesser

21· · disciplinary recommendations because you felt the

22· · union was going to make a bigger issue of it?

23· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

24· · A.· · · · ·Well, the union objecting to it or not

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·1· · is sometimes coinciding with what I thought was

·2· · the appropriate level of discipline.· So I can't

·3· · say that -- go ahead and repeat the question

·4· · again.

·5· · Q.· · · · ·Are you saying there are situations

·6· · where you may have given lesser disciplinary

·7· · recommendations because you felt the union was

·8· · going to make a bigger issue of it than other

·9· · similar cases?

10· · A.· · · · ·I would say I probably did take that

11· · into consideration, yes.

12· · Q.· · · · ·Can you give me an example?

13· · A.· · · · ·Well, like you brought up Doug Williams

14· · before.· You know, I thought that his accidental

15· · discharge when he was wrestling around with a

16· · person and his gun was in his hand and he -- I

17· · mean, he came close to shooting this person.· And

18· · an 8-hour suspension seemed to me that that's not

19· · nearly enough, but it was beyond a written

20· · reprimand which was the standard, and I thought,

21· · well, at least I get my foot in the door with an

22· · 8-hour suspension.· And so I thought, yes, indeed

23· · they were going to object to that, and so I didn't

24· · go higher than an 8-hour suspension but I did go

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·1· · with the 8-hour suspension.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·So I would say that's probably an

·4· · example of where I knew that the union was going

·5· · to object, I still did what I thought was at least

·6· · somewhat appropriate if -- you know, it might have

·7· · been harsher, but I thought that that at least

·8· · made a statement.

·9· · Q.· · · · ·So the Doug Williams case was an

10· · example where you gave lesser discipline than you

11· · really wanted to because you felt the union would

12· · make an issue of it if you did more?

13· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

14· · A.· · · · ·I just can't say, you know, what else I

15· · would have done.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·I --

18· · Q.· · · · ·I mean, just my understanding of the

19· · Doug Williams case is that was by far the most

20· · discipline that had ever been given to an officer

21· · for an accidental discharge?

22· · A.· · · · ·I think at that time.

23· · Q.· · · · ·Okay.· And in fact there had been many

24· · prior cases involving accidental discharges in

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·1· · which the officers got a written reprimand?

·2· · A.· · · · ·Correct.

·3· · Q.· · · · ·Including some cases where the

·4· · discharge was near a civilian or during a scuffle

·5· · with a civilian?

·6· · A.· · · · ·I don't know those cases.· This was one

·7· · that came up while I was chief.· So I don't know

·8· · all of the different accidental discharges

·9· · circumstances, but I do know that this one

10· · concerned me.

11· · Q.· · · · ·Okay.· Did you take into account what

12· · you described earlier in terms of your sort of

13· · assessment of Sergeant Williams' reputation or

14· · trustworthiness?

15· · A.· · · · ·That wasn't about trustworthiness.

16· · That was about the circumstances that he -- even

17· · as a supervisor -- I mean, in the videotape that

18· · we had, we saw an officer that actually took

19· · control of the situation and handled his own

20· · weapon properly and Sergeant Williams did not.· So

21· · I took into consideration his status as a

22· · supervisor, his tenure.· But I didn't -- it wasn't

23· · a matter of trustworthiness at that point in time.

24· · Q.· · · · ·Okay.· Going back to the status of the

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·1· · supervisor thing, in addition to supervisors sort

·2· · of greater degree of autonomy and training and

·3· · that sort of thing, is it fair to say that it's

·4· · important for supervisors to set an example for

·5· · lower ranking officers than be held to a higher

·6· · standard of conduct in general?

·7· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·8· · A.· · · · ·I believe it's extremely important for

·9· · supervisors to lead by example.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·The higher standard is not something

12· · that is codified.· You know, I think all police

13· · officers should be held to a higher standard.

14· · And, you know, there are situations that apply

15· · just to supervisors for their behavior, so if

16· · that's a higher standard, then I guess that

17· · certainly applies.· But it doesn't say the same

18· · circumstances that they'll be treated differently

19· · for everything, you know.

20· · Q.· · · · ·Okay.· But just taking the example you

21· · gave about wearing your hat.

22· · A.· · · · ·Uh-huh.

23· · Q.· · · · ·Assuming the supervisor is in a

24· · position where they're required to wear their hat.

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·1· · If a supervisor's sort of flouting the rules about

·2· · hat wearing, that may be taken more seriously than

·3· · for a patrol officer because the supervisor is

·4· · sort of demonstrating to the lower ranking

·5· · officers that they don't have to follow the rules

·6· · since my supervisor is not following the rules?

·7· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·8· · A.· · · · ·Are you asking if it's taken more

·9· · seriously by me?

10· · Q.· · · · ·Yeah.

11· · A.· · · · ·I don't consider hat violations to be

12· · extremely important.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·Chief Jackson did.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·And I don't believe that he insisted

17· · that different levels of disciplinary action were

18· · taken for supervisors as opposed to officers on a

19· · regular basis.· It might have been on an

20· · intermittent or, you know, indeterminant basis.

21· · But I'm not aware of what his policy was on

22· · wearing the hat.

23· · · · · · · ·Certainly I think that if a supervisor

24· · is not wearing a hat, that it would be hard for

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·1· · them to expect their officers to always wear their

·2· · hat and that leading by example thing.· But I

·3· · don't think that it would necessarily result in

·4· · different discipline.· It's a DCC generally, and I

·5· · don't get involved in those decisions.

·6· · Q.· · · · ·Sure.

·7· · A.· · · · ·I didn't get involved.· I keep talking

·8· · as if this is the present, and I am not the chief

·9· · anymore.

10· · Q.· · · · ·Uh-huh.· You mentioned -- actually I

11· · think it was when you were talking about drunk

12· · driving, you mentioned the role of the division's

13· · public image?

14· · A.· · · · ·Uh-huh.

15· · Q.· · · · ·Is the division's public image

16· · something that would be taken into account in

17· · terms of handing out discipline?

18· · A.· · · · ·Yes, indeed.

19· · Q.· · · · ·Okay.· So things that officers do that

20· · are more likely to cause the division public

21· · humiliation or embarrassment would be taken more

22· · seriously?

23· · A.· · · · ·I don't know about more seriously.· You

24· · know, it --

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·1· · Q.· · · · ·It might?

·2· · A.· · · · ·It's a factor in whether or not that

·3· · rule is used and, you know, there are other things

·4· · that never come to anybody's attention that are

·5· · extremely serious.

·6· · Q.· · · · ·Uh-huh.

·7· · A.· · · · ·So I don't know about the more

·8· · seriously.

·9· · Q.· · · · ·And again for each of these factors I'm

10· · really talking about all other things being equal,

11· · if it's something that's embarrassing to the

12· · division, it might result in more discipline?

13· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

14· · A.· · · · ·Because there's a rule of conduct that

15· · says that you should not bring disrepute, then,

16· · yes, they're taught the potential is there.

17· · Q.· · · · ·Okay.· How about the degree of harm to

18· · the public, is that taken into account in

19· · discipline, harm or potential harm to the public?

20· · A.· · · · ·I'm not sure what you mean by "harm."

21· · Q.· · · · ·Things that are dangerous to members of

22· · the public or cause the public financial harm, are

23· · those taken more seriously than things that don't?

24· · A.· · · · ·Sure.

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·1· · Q.· · · · ·Are things that are physically

·2· · dangerous to officers and civilians taken more

·3· · seriously than things that aren't?

·4· · A.· · · · ·Can you give me an example?

·5· · Q.· · · · ·I think the example you used was that

·6· · the accidental discharge near a civilian might be

·7· · taken more seriously than one that happens in the

·8· · wall at the -- against the wall of a substation

·9· · for instance?

10· · A.· · · · ·Absolutely.

11· · Q.· · · · ·Okay.· Things that might cause somebody

12· · physical harm would generally be taken more

13· · seriously than things that are, you know, strictly

14· · an internal financial issue?

15· · A.· · · · ·No.· It depends.

16· · Q.· · · · ·No.· Can you explain?

17· · A.· · · · ·The best example that I could give is a

18· · use of force --

19· · Q.· · · · ·Okay.

20· · A.· · · · ·-- that is outside of policy.· A use of

21· · force that's outside of the policy is often done

22· · in the heat of the moment, split second decision

23· · making is going on, you know, the officer is in a

24· · volatile situation, might sense that there's some

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·1· · danger and act inappropriately.· I take all that

·2· · into consideration.· But somebody that

·3· · purposefully, you know, violates --

·4· · Q.· · · · ·Steals property?

·5· · A.· · · · ·-- our rules, steals property, violates

·6· · our rules, not necessarily harm to the public and

·7· · maybe it doesn't come to the attention of the

·8· · public.· But I consider it to be deceitful,

·9· · purposeful, and -- you know, whereas the officer's

10· · behavior is -- oftentimes may be negligent or

11· · reckless, not purposeful.· So their own

12· · culpability is extremely important.· And I can't

13· · say that the use of force is more serious than the

14· · other.

15· · Q.· · · · ·Okay.· What about a purposeful use of

16· · force against a civilian, intentionally doing

17· · something without cause versus intentionally

18· · stealing a piece of property from the division?

19· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

20· · A.· · · · ·It all depends on the facts and what

21· · the situation is.

22· · Q.· · · · ·Okay.· There's no division rule that a

23· · use of force against a civilian is a less serious

24· · offense than a theft of property for instance?

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·1· · There's no blanket rule like that?

·2· · A.· · · · ·No.

·3· · Q.· · · · ·Okay.· Exposing the division to

·4· · potential legal liability, does that make an

·5· · offense more serious in terms of discipline

·6· · potentially?

·7· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·8· · A.· · · · ·I mean, I can't say that it doesn't.

·9· · But, you know, an officer does an illegal search,

10· · you expose the city to, you know, legal liability,

11· · you know, financially.· But you go back to, you

12· · know, what was their mental state, you know, what

13· · was their purpose, all that kind of stuff.· And so

14· · there are -- certainly the potential is there if

15· · they expose the city to something.· But, you know,

16· · officers fail to control at a stop sign and get in

17· · a car accident and cost the city tens of thousands

18· · of dollars and they still get a DCC for, you know,

19· · perhaps their driving.· So it -- it's not one

20· · thing.

21· · Q.· · · · ·Okay.· And that applies even violations

22· · of peoples' constitutional or civil rights may be

23· · dealt with less seriously than things that don't?

24· · A.· · · · ·Depending --

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·-- on the circumstances.

·3· · Q.· · · · ·Okay.

·4· · · · · · · ·MR. GITTES:· Can we take a break?

·5· · · · · · · ·MR. VARDARO:· Can we wait a minute?

·6· · · · · · · ·MR. GITTES:· Sure.· Yeah.· Okay.

·7· · BY MR. VARDARO:

·8· · Q.· · · · ·I think you were getting at this

·9· · before.· But certainly if the offense involves the

10· · honesty and integrity of the officer, that would

11· · be dealt with more seriously than something that

12· · doesn't?

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · Q.· · · · ·All other things being equal?

15· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

16· · A.· · · · ·It depends on what that's all about. I

17· · mean --

18· · Q.· · · · ·Okay.· Well, we'll get back into that

19· · in a second.· Let's take 5 minutes?

20· · · · · · · ·(A short recess is taken.)

21· · BY MR. VARDARO:

22· · Q.· · · · ·Chief Jacobs, before we went on break,

23· · I was asking you about disciplinary infractions or

24· · misconduct that implicates the honesty and

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·1· · integrity of the officer involved.

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·And I guess you gave me -- you said

·4· · that -- whether that factors into the level of

·5· · discipline depends on what it's all about. I

·6· · guess what I'm asking is if misconduct that an

·7· · officer comits is dishonest or intentionally

·8· · untruthful, that's more serious than conduct that

·9· · isn't dishonest or untruthful, right?

10· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

11· · A.· · · · ·I would say in general, yes.

12· · Q.· · · · ·Well, I'm asking all these questions

13· · I'm asking you in general.· I mean, obviously

14· · we're going to talk about some specific things.

15· · A.· · · · ·Okay.

16· · Q.· · · · ·So the factors that I've heard you say

17· · in terms of what you took into account at the time

18· · you were chief for the level of discipline were

19· · the level of evidence in the case, how much

20· · evidence there was?

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Whether there were comparable prior

23· · cases?

24· · A.· · · · ·Yes.

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·1· · Q.· · · · ·Whether the officer accepted

·2· · responsibility for their actions?

·3· · A.· · · · ·Yes.

·4· · Q.· · · · ·And just in terms of that one, that's

·5· · sort of related to what we were just talking about

·6· · in terms of honesty and integrity, if the officer

·7· · has basically admitted that they did the thing

·8· · wrong versus continuing to claim that they didn't,

·9· · you take that into account?

10· · A.· · · · ·I would say yes in general.

11· · Q.· · · · ·Okay.· If the officer when they were

12· · asked, the officer said I didn't do it and then it

13· · turned out that they actually -- you could prove

14· · 100 percent they did do it, they would be charged

15· · with untruthfulness on top of the other charges,

16· · right?

17· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

18· · A.· · · · ·That depends.

19· · Q.· · · · ·I mean, if it's proven that the officer

20· · was untruthful?

21· · A.· · · · ·If it was proven --

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·-- that the officer was untruthful,

24· · yes.· That would certainly be a consideration.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·But sometimes they can deny something

·3· · and still not be in their mind's eye lying because

·4· · they believe it to be otherwise.

·5· · Q.· · · · ·Okay.· If the officer had a good -- the

·6· · other factors you've listed, the officer's prior

·7· · history in the department, their history of

·8· · service?

·9· · A.· · · · ·What's the question?

10· · Q.· · · · ·Whether that was a factor in the

11· · discipline?

12· · A.· · · · ·Yes.

13· · Q.· · · · ·Their past disciplinary acts or

14· · disciplinary history?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·The burden of proof for that particular

17· · type of discipline, whether it preponderance or

18· · clear and convincing?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·Well, I don't --

21· · Q.· · · · ·Well, you said that was something you

22· · didn't really take into account, your standard was

23· · preponderance, some arbitrators applied higher

24· · standards?

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·1· · A.· · · · ·The city's level of proof needed to

·2· · sustain the charges is a preponderance of the

·3· · evidence.· In the cases that I saw, it ranged from

·4· · 51 percent to 100 percent.

·5· · Q.· · · · ·Okay.· So if you're absolutely certain

·6· · that the officer conducted the misconduct, they're

·7· · likely to get a higher level of discipline than if

·8· · you were just pretty sure that they did it?

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·Not necessarily.

11· · Q.· · · · ·Okay.· So what did you mean when you --

12· · when you were talking about how sure you were that

13· · they did the misconduct being a factor in

14· · discipline?

15· · A.· · · · ·Well, it depends on what the charges

16· · are.· I mean, you know, I could be -- I could be

17· · preponderance of the evidence and 100 percent sure

18· · and still give the same level of discipline,

19· · depending on what the comparables were and what --

20· · everything else was involved.

21· · Q.· · · · ·I'm going by the list that you gave us

22· · in terms that you said the level of evidence, the

23· · level of proof was a factor in terms of how

24· · serious the disciplinary --

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·1· · A.· · · · ·I said it was one of the considerations

·2· · that I take into --

·3· · Q.· · · · ·Well, how would it be a consideration?

·4· · A.· · · · ·If I felt that -- I have to decide. I

·5· · think if it's 51 percent preponderance of the

·6· · evidence and then if I am very convinced then I'm

·7· · very convinced.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·It's a consideration that I --

10· · Q.· · · · ·And how does that play into the level

11· · of discipline that's handed out?

12· · · · · · · ·MR. COGLIANESE:· Objection.

13· · A.· · · · ·I can't give you a hypothetical answer

14· · without knowing what the facts are.

15· · Q.· · · · ·I guess I want to make sure you

16· · understand what I'm asking you.· What I'm asking

17· · you is once you've decided you're going to sustain

18· · a departmental charge against an officer, my

19· · question was about the factors that would be taken

20· · into account in terms of what level of discipline

21· · is given, whether they're terminated, whether

22· · they're suspended, how long a suspension, whether

23· · it's a reprimand or suspension, those kind of

24· · things.· You mentioned in response to that whether

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·1· · it's 51 percent or 100 percent being a factor in

·2· · those things.· And I guess I'm trying to figure

·3· · out in what direction?· I mean, I think it's a

·4· · pretty basic question.· If you're more sure,

·5· · you're more likely to give a higher level of

·6· · discipline; is that accurate?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I would say that that can happen, yes.

·9· · Q.· · · · ·Okay.· You mentioned the level of

10· · discipline needed to achieve the corrective

11· · action?

12· · A.· · · · ·I did.

13· · Q.· · · · ·What does that mean?

14· · A.· · · · ·Do I think that this is an appropriate

15· · level to prevent future similar conduct from

16· · occurring.

17· · Q.· · · · ·Okay.· You mentioned the risk of

18· · arbitration, and I think we talked about that,

19· · that's another factor, but maybe not one that you

20· · took particularly strongly into account?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·I considered it always.· Well, not

23· · always, I guess.· But I certainly considered it at

24· · times and took it into consideration.· I mean, I

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·1· · typically would discuss the outcome of a hearing

·2· · with the people that were present outside of the

·3· · FOP and then the focus officer and say what do you

·4· · think, and sometimes that would come up and

·5· · sometimes it wouldn't.

·6· · Q.· · · · ·Okay.· You mentioned a tenure of the

·7· · officer, that's one of the -- that was another

·8· · factor?

·9· · A.· · · · ·Yes.

10· · Q.· · · · ·The level of training the officer

11· · received was a factor?

12· · A.· · · · ·Yes.

13· · Q.· · · · ·Whether the conduct was criminal or not

14· · with a conviction?

15· · A.· · · · ·I don't know that I distinguished it

16· · being a conviction.· Certainly that goes into the

17· · charges that might come in and then that could add

18· · on.· But it could be a totally administrative

19· · case, not criminal and still be very serious.

20· · Q.· · · · ·Okay.· But if the officer committed a

21· · crime, that would be factored into the discipline?

22· · A.· · · · ·Yes.

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · Q.· · · · ·The officer's rank is a factor?

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·1· · A.· · · · ·Yes.

·2· · Q.· · · · ·The level of public embarrassment is a

·3· · factor?

·4· · A.· · · · ·Yes.

·5· · Q.· · · · ·And whether there's harm to the public

·6· · or the division is a factor?

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·And whether the conduct was intentional

·9· · or just reckless or negligent is a factor?

10· · A.· · · · ·Their culpability was a consideration.

11· · Q.· · · · ·Okay.

12· · A.· · · · ·Their known culpability.

13· · Q.· · · · ·Okay.· Other than those I think

14· · probably 14 or 15 different things that I just

15· · mentioned, any other factors generally that you

16· · can think of in terms of how serious the

17· · discipline handed out would be?

18· · A.· · · · ·I don't think we talked about

19· · aggravating circumstances, you know.

20· · Q.· · · · ·Yeah.· Let's talk about them.

21· · A.· · · · ·There's mitigating and aggravating

22· · circumstances.

23· · Q.· · · · ·Are there other things that aren't on

24· · that list that would be aggravated or mitigating

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·1· · circumstances?

·2· · A.· · · · ·I described earlier the mitigating for

·3· · an officer using unnecessary force, you know, a

·4· · volatile situation, you know, thinking that this

·5· · was necessary but it really wasn't or whatever,

·6· · that's a mitigating circumstance.· Aggravating is

·7· · where you've plotted, where you've, you know,

·8· · purposefully done something that you actually knew

·9· · what you were doing and continued to do it, so

10· · that's an aggravating circumstance.· Aggravating

11· · on an OVI.· You know, one thing is to, you know,

12· · fall asleep at the wheel with the car running,

13· · stopped at a stop sign.· Another one would be to

14· · maybe flee and not pull over right away and to,

15· · you know, fight with the arresting officer or to

16· · give them a hard time or try to get out of the

17· · situation by saying you're a cop.· Those would be

18· · aggravating circumstances.

19· · Q.· · · · ·Okay.· But a lot of that seems like

20· · it's bound up in the last factor that we talked

21· · about which is about whether the misconduct is

22· · purposeful or intentional or premedicated versus

23· · whether it's reckless or negligent.

24· · A.· · · · ·It's related to it.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·But not exclusively.

·3· · Q.· · · · ·Okay.· Are there other mitigating

·4· · factors that you haven't already mentioned?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·I can't think of any other examples

·7· · right now.

·8· · Q.· · · · ·Okay.· How about other aggravating

·9· · factors?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·I can't think of anything specific.

12· · Q.· · · · ·Okay.· How about just sort of how you

13· · value the officer in terms of their value to the

14· · department, is that something you take into

15· · account?

16· · A.· · · · ·Yeah.· I suppose if that's a judgment

17· · that I feel comfortable making, you know.· I don't

18· · always know, and I certainly can't predict, but

19· · you know if I believe that the corrective action

20· · is one in which is probably going to change

21· · behavior and that person can continue to be a

22· · productive police officer, whereas the corrective

23· · action isn't going to change anything and they

24· · might consider or might continue to be a problem,

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·1· · then that might be a factor that I can take into

·2· · consideration.· It might not be anything that I

·3· · can do anything about, though.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·Yeah.· Or accurately assess.

·6· · Q.· · · · ·Okay.· Any other factors that we

·7· · haven't talked about that you can think of in

·8· · general that you would have taken into account?

·9· · A.· · · · ·Not right offhand.

10· · Q.· · · · ·Okay.· I want to talk obviously about

11· · the Kevin Morgan investigation that resulted in

12· · his termination.· Fair to say the general time

13· · frame we're talking about is 2013 to 2015; does

14· · that sound right to you?

15· · A.· · · · ·Yes.

16· · Q.· · · · ·Okay.· In particular the misconduct he

17· · was alleged to have committed happened in 2013, he

18· · was terminated in 2015, and the investigation in

19· · various forms went on in between those times?

20· · A.· · · · ·Correct.

21· · Q.· · · · ·Okay.· What was the first thing that

22· · you heard about it when -- like when in the

23· · process would you have heard about it?

24· · A.· · · · ·I don't recall specifically. I

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·1· · sometimes was informed of the initiation of

·2· · investigations and sometimes I wasn't.· I would

·3· · assume this one was shortly after it initiated

·4· · because he was relieved of duty.· And in general I

·5· · was advised of those kinds of circumstances and/or

·6· · why.

·7· · Q.· · · · ·Okay.· Typically there would be a

·8· · routing sheet at least that would go up to you, to

·9· · your level when somebody was relieved of duty?

10· · A.· · · · ·Not necessarily, no.

11· · Q.· · · · ·Okay.

12· · A.· · · · ·But, you know, whether it was a routing

13· · sheet or somebody verbally told me, in general I

14· · was advised of serious allegations and relief of

15· · duties.

16· · Q.· · · · ·Okay.· Do you have any independent

17· · recollection of what the first thing you would

18· · have heard about Kevin Morgan's case was?

19· · A.· · · · ·Along the lines of working special duty

20· · employment and I think it referred to his double

21· · dipping.· But, you know, basically getting paid

22· · for being two places at the same time, which

23· · obviously shouldn't happen.

24· · Q.· · · · ·What was your involvement in the

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·1· · investigation as it was going on?

·2· · A.· · · · ·I don't recall any specific --

·3· · Q.· · · · ·Okay.· Commander --

·4· · A.· · · · ·-- involvement.

·5· · Q.· · · · ·Commander Jennifer Knight was in charge

·6· · of internal affairs during this time period.· Does

·7· · that sound right?

·8· · A.· · · · ·I don't know the dates of her tenure

·9· · there.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·I had at least four different internal

12· · affairs commanders in seven years, so I don't know

13· · what the tenure of hers was.

14· · Q.· · · · ·Commander Knight, do you remember

15· · Commander Knight keeping you generally informed

16· · and updated about this investigation?

17· · A.· · · · ·She may have.

18· · Q.· · · · ·Okay.· Do you remember having any

19· · discussions with Ray Meister the sergeant

20· · investigating Kevin Morgan?

21· · A.· · · · ·I don't remember any specific

22· · conversation that I had with him.· He might have

23· · been at the hearing --

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·-- ultimately and we might have talked

·2· · then.· But I don't remember during the pendency of

·3· · the case.

·4· · Q.· · · · ·Okay.· Having reviewed the

·5· · investigative summary in the last -- you said you

·6· · reviewed it in the last week or so?

·7· · A.· · · · ·Uh-huh.

·8· · Q.· · · · ·Sorry.· You have to say yes.

·9· · A.· · · · ·Yes.

10· · Q.· · · · ·You also remember Ken Decker was

11· · involved in the investigation?

12· · A.· · · · ·I believe he was one of the IA

13· · sergeants that helped with some interviews.

14· · Q.· · · · ·Okay.· Did you have any involvement in

15· · assigning Sergeant Decker to assist Sergeant

16· · Meister or was that completely within internal

17· · affairs?

18· · A.· · · · ·Not to my knowledge.

19· · Q.· · · · ·Okay.· Do you have any understanding of

20· · why Sergeant Decker was assisting Sergeant Meister

21· · with the investigation?

22· · A.· · · · ·No.

23· · Q.· · · · ·Okay.· Did you have discussions at

24· · executive staff meetings about the progress of

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·1· · this case as it was going on?

·2· · A.· · · · ·I would assume we did.· I generally

·3· · tried to be kept apprised of relief of duty

·4· · status.· And if we're doing a criminal

·5· · investigation, then I would have asked to be kept

·6· · advised of what was the status of the criminal

·7· · investigation.

·8· · Q.· · · · ·Okay.· What would be the general nature

·9· · of those status reports or --

10· · A.· · · · ·Where does it stand, you know, what's

11· · going on, do we have anything new, do we have any,

12· · you know, reason to put him back to work or not.

13· · You know, general questioning about where the

14· · investigation stood.

15· · Q.· · · · ·Okay.· I want to talk -- I want to jump

16· · back for a second and talk in general about what

17· · is -- when Officer Morgan was relieved of duty,

18· · which was shortly after this investigation

19· · started --

20· · A.· · · · ·Uh-huh.

21· · Q.· · · · ·-- he was assigned to something called

22· · 580.· What does that mean when an officer is

23· · relieved of duty and assigned to 580?

24· · A.· · · · ·They're relieved of their badge and gun

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·1· · and told not to perform any police duties,

·2· · activities.· And then 580 is the patrol

·3· · administrative office, and they find work for our

·4· · personnel there to answer the phones, to help

·5· · people coming into the office find things, do

·6· · things, they organize and distribute subpoenas,

·7· · basically whatever work the patrol administrative

·8· · sergeant feels needs to be done during that shift.

·9· · Q.· · · · ·Okay.· How many officers are typically

10· · on relieved of duty status at one time and

11· · assigned a 580?

12· · A.· · · · ·It fluctuates.

13· · Q.· · · · ·Okay.· What's the range?

14· · A.· · · · ·As far as being relieved of duty,

15· · probably one or two because everybody knew during

16· · my tenure that I tried to minimize the number of

17· · people that were, you know, relief of duty status.

18· · It was something that I purposefully tried to

19· · shorten the time in a relief of duty status if

20· · possible.

21· · Q.· · · · ·Why?

22· · A.· · · · ·Because if the officer could still do

23· · some work that we trusted could be done in the

24· · right way and it wasn't a termination case, then

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·1· · they could go back to work and wait out the

·2· · pendency.· But if you are facing a termination

·3· · case, if it's about untruthfulness, if it's about

·4· · I don't trust you to do the job in the way that

·5· · needs to be done, then you would generally stay

·6· · off.· I didn't always get involved in all of those

·7· · decisions.· But the ones that came to my

·8· · attention, I tried to monitor the status of.

·9· · Certainly something the union had complained about

10· · and I told them and did make some changes to

11· · monitor how long people were in a relief of duty

12· · status so that we weren't neglecting to pay

13· · attention to that status.

14· · Q.· · · · ·Okay.· For officers relieved of duty,

15· · the sergeant had a fair amount of discretion in

16· · terms of what they were actually doing?

17· · A.· · · · ·The patrol administrative sergeant?

18· · Q.· · · · ·Yes.

19· · A.· · · · ·As far as I know, yes.

20· · Q.· · · · ·Okay.· I mean they could be located in

21· · various different places within the 580 office?

22· · They could be doing various different kinds of

23· · what I would call make work duties?

24· · A.· · · · ·Well, there was always work to be done.

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·1· · I worked there for four years as a sergeant and

·2· · there was always work to be done.· But if you had

·3· · 10 people, then I suppose you might have to find

·4· · something for them to do.

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·But, yeah, I -- I mean I didn't tell

·7· · the sergeant to tell them what to make them do if

·8· · that's what you mean.

·9· · Q.· · · · ·I mean during this time period that

10· · we're talking about, I mean Officer Morgan was in

11· · 580 from roughly November 2013 until September

12· · 1st, 2015 when he was terminated.· So almost two

13· · years, right?· That sounds right?

14· · A.· · · · ·That sounds like an almost two-year

15· · period of time.

16· · Q.· · · · ·Okay.· And during the same period of

17· · time Bronson Constable was in 580 for almost that

18· · whole period of time if not longer?

19· · A.· · · · ·I don't know what the dates for

20· · sergeant was.

21· · Q.· · · · ·Okay.· But it was the same general time

22· · frame that the Constable Jones investigation was

23· · going on?

24· · A.· · · · ·You have that information.· I don't

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·1· · have it in front of me.

·2· · Q.· · · · ·Okay.· My understanding was you just

·3· · reviewed this?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · Q.· · · · ·A whole list of these cases?

·6· · A.· · · · ·Didn't have that kind of information in

·7· · it.

·8· · Q.· · · · ·Okay.· No time frames?

·9· · A.· · · · ·I don't have one for him.

10· · Q.· · · · ·Okay.· The Constable and Jones were in

11· · 580 during the pendency of their investigation

12· · though, right?

13· · A.· · · · ·I don't recall.

14· · Q.· · · · ·Okay.· You don't remember whether they

15· · were or not?

16· · A.· · · · ·I don't know where they were assigned.

17· · I don't know how long they may have been relieved

18· · of duty.

19· · Q.· · · · ·Okay.· How about officer -- we

20· · mentioned Officer Kirby before when he was under

21· · investigation.· Was he relieved of duty?

22· · A.· · · · ·Potentially.

23· · Q.· · · · ·Okay.· There was an officer -- was

24· · officer -- along with -- well, you don't know that

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·1· · one, okay.

·2· · · · · · · ·There's an Officer Randall Lyons who

·3· · was relieved of duty during this time frame.· Does

·4· · that ring a bell?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·I don't know what time frame it was.

·8· · But I know that he was relieved of duty because he

·9· · was disciplined for time problems while he was

10· · relieved of duty.

11· · Q.· · · · ·Right.· So we're talking -- I mean,

12· · assuming that I'm correct that all of those

13· · officers were investigated during this time frame

14· · and all of those officers were relieved of duty

15· · during the investigation we're talking about, at

16· · least five or six officers assigned in 580 during

17· · that time frame?

18· · A.· · · · ·What's the question?

19· · Q.· · · · ·I'm just asking you whether you agree

20· · that that's -- that would be an unusually large

21· · number of officers to be assigned to 580 at the

22· · same time --

23· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

24· · Q.· · · · ·-- based on what you told me.

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·1· · A.· · · · ·I can't say unusual or not because I

·2· · don't keep track of the numbers or --

·3· · Q.· · · · ·You said it would usually be one or

·4· · two?

·5· · A.· · · · ·That's my guess.

·6· · Q.· · · · ·Okay.· And this was probably three

·7· · times that many during this --

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·Okay.

10· · Q.· · · · ·-- during this two-year time frame.

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·Okay.

13· · Q.· · · · ·So that's more?

14· · A.· · · · ·Okay.

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · Q.· · · · ·All right.· Aside from -- well, who do

17· · you consider -- who did you consider at the time

18· · to be your executive staff, was it just the deputy

19· · chiefs or were there other people?

20· · A.· · · · ·General -- executive staff is the six

21· · deputy chiefs and the public standards bureau

22· · commander.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·That's how we describe executive staff.

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·1· · Q.· · · · ·Okay.· So aside from talking about the

·2· · status of Officer Morgan's case with your

·3· · executive staff, did you have discussions -- and

·4· · potentially with whoever the commander of internal

·5· · affairs was, did you have conversations with

·6· · anybody else about Officer Morgan's case as it was

·7· · going on?

·8· · A.· · · · ·I would assume that I had conversations

·9· · with the internal affairs commander.· My immediate

10· · staff sat in on executive staff meetings, so they

11· · might have been present when that was discussed.

12· · Q.· · · · ·Okay.· Who was that?

13· · A.· · · · ·My secretary, Tina Hundley.· I don't

14· · know which sergeant I had back then.· It might

15· · have been Sergeant Wellday.

16· · Q.· · · · ·When you say which sergeant you had,

17· · what do you mean?· What role did that person play?

18· · A.· · · · ·My aide.

19· · Q.· · · · ·Oh, you had an aide, a sergeant who was

20· · just your aide?

21· · A.· · · · ·Yes.· And he was in my office when I

22· · became chief, but he left I can't remember what

23· · year it was.

24· · Q.· · · · ·Okay.· How about Lieutenant Irwin or

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·1· · Lieutenant Lokai, did you have discussions with

·2· · either of them as the Morgan investigation was

·3· · proceeding?

·4· · A.· · · · ·I don't recall.

·5· · Q.· · · · ·Okay.· Would that have been typical?

·6· · A.· · · · ·Not generally.

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·Not during the investigation.

·9· · Q.· · · · ·Because you would usually go through

10· · the commander of ESB rather than the lieutenants?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·Well, the PSB commander sat in

13· · executive staff.

14· · Q.· · · · ·But the lieutenant did not?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·And they would -- they would get

18· · involved in the case as it was wrapping up.

19· · Q.· · · · ·Okay.· Basically at the point when it

20· · was time to determine whether there would be

21· · departmental charges and then during the hearing

22· · process?

23· · A.· · · · ·I asked the PSB lieutenants to review

24· · investigations for just cause and to -- and for

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·1· · the deputy chiefs.· And then if they believe there

·2· · was just cause, then they would talk to the deputy

·3· · chief about a recommendation that they could make

·4· · to me about whether it's critical -- of a critical

·5· · nature and whether or not it should be a written

·6· · reprimand or departmental charges.

·7· · Q.· · · · ·Okay.· But that would usually be the

·8· · first involvement of professional standards is

·9· · after the internal affairs summary is complete?

10· · A.· · · · ·From my point of view, I don't know

11· · what other people reach out to them for.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·And they may.

14· · Q.· · · · ·There's a person named Jeff Furbee?

15· · A.· · · · ·He's the city attorney's office legal

16· · advisor to the division police.

17· · Q.· · · · ·Okay.· What was the role of Mr. Furbee

18· · in termination of an investigation process?

19· · · · · · · ·MR. COGLIANESE:· And I am going to

20· · instruct you not to answer as to any questions you

21· · had with Mr. Furbee.

22· · Q.· · · · ·Okay.· And I am not asking you the --

23· · necessarily the content of conversations, but just

24· · whether or not you would have had conversations

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·1· · with him during this investigation?

·2· · A.· · · · ·Because this was a criminal

·3· · investigation, I would say that that might very

·4· · well have occurred.

·5· · Q.· · · · ·Okay.· How about once the criminal

·6· · investigation was over?

·7· · A.· · · · ·Not that I recall.

·8· · Q.· · · · ·Okay.· Once the internal affairs

·9· · investigation had concluded, what was your role at

10· · that point?· Did you -- well, first of all, let me

11· · ask, did you read the internal affairs summary

12· · once it was completed at the time?

13· · A.· · · · ·To the best of my recollection.

14· · Q.· · · · ·Okay.· That would have been typical of

15· · your --

16· · A.· · · · ·Correct.

17· · Q.· · · · ·Sorry.· You answered before I could

18· · even think of the word I was going to use.

19· · A.· · · · ·My method.

20· · Q.· · · · ·Your methods.· You would particularly

21· · in a case where termination was a possibility, you

22· · would certainly read the internal affairs summary?

23· · A.· · · · ·Correct.

24· · Q.· · · · ·And the interviews, the interview

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·1· · transcripts?

·2· · A.· · · · ·Are you asking if I read them?

·3· · Q.· · · · ·Yeah.

·4· · A.· · · · ·I don't recall.

·5· · Q.· · · · ·You don't remember whether you read

·6· · Kevin Morgan's interviews in this case?

·7· · A.· · · · ·I don't recall.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·I'm not saying I didn't.· I just don't

10· · recall specifically reading them.

11· · Q.· · · · ·Okay.· It's possible that you

12· · recommended his termination as an officer without

13· · reading his internal affairs interview?

14· · A.· · · · ·I mean it's certainly possible.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·I don't know that it's probable, but --

17· · Q.· · · · ·Okay.· You just don't remember one way

18· · or the other though?

19· · A.· · · · ·Correct.

20· · Q.· · · · ·Okay.· Do you remember whether you

21· · listened to any recordings of interviews?

22· · A.· · · · ·I don't recall.

23· · Q.· · · · ·Okay.· Was it typical of your process

24· · to listen to recordings of internal affairs

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·1· · reviews?

·2· · A.· · · · ·I would say it's not typical.

·3· · Q.· · · · ·Okay.· Did you have any questions once

·4· · you read the summary where you asked for any

·5· · follow-up investigation or further work by the

·6· · investigators?

·7· · A.· · · · ·Not that I recall.

·8· · Q.· · · · ·Okay.· Did you review a draft of the

·9· · internal affairs summary before it was submitted

10· · or just the final version?

11· · A.· · · · ·I don't recall reviewing a draft.

12· · Q.· · · · ·Okay.· Was it typical to see a draft or

13· · not?

14· · A.· · · · ·No.

15· · Q.· · · · ·Okay.· Once you got the internal

16· · affairs investigative summary, who did you discuss

17· · it with?

18· · A.· · · · ·I don't recall specifically.· I can

19· · only say what I would typically do, and that's to

20· · talk to the discipline grievance lieutenants, the

21· · deputy chief that made the ruling.

22· · Q.· · · · ·In this case that was Deputy Chief

23· · Kuebler, does that sound right?

24· · A.· · · · ·You know more than I do on that.

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·1· · Q.· · · · ·Okay.· So you don't remember

·2· · discussions with Deputy Chief Kuebler about this

·3· · particular --

·4· · A.· · · · ·Nothing specific.· Not at this time,

·5· · no.

·6· · Q.· · · · ·Okay.· Who else?· Besides the -- when

·7· · you say the disciplinary and grievance

·8· · lieutenants, you're talking about the lieutenants

·9· · in professional standards --

10· · A.· · · · ·I don't remember --

11· · Q.· · · · ·You don't remember?

12· · A.· · · · ·-- if they were the ones that dealt

13· · with this case or not.

14· · Q.· · · · ·Do you remember any discussions with

15· · Irwin or Jeff Lokai about this case?

16· · A.· · · · ·I don't remember any specific

17· · conversations, no.

18· · Q.· · · · ·Okay.· Besides the disciplinary

19· · grievance lieutenants and the deputy chief, who

20· · would you typically discuss an internal affairs

21· · investigation with once it was complete?

22· · A.· · · · ·Once it was complete, typically not

23· · very many other people.· Once I had made the

24· · decision, had a departmental charges hearing then

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·1· · as I said before, often whoever came to the

·2· · hearing I would talk to after the hearing itself.

·3· · Q.· · · · ·Okay.· Prior to the hearing, did you

·4· · have any discussions with anyone from the FOP

·5· · about this case?

·6· · A.· · · · ·I don't recall.

·7· · Q.· · · · ·Would you typically?

·8· · A.· · · · ·I don't know that "typical" is the

·9· · right way to describe it.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·But certainly there were some

12· · incidental conversations that we had at times

13· · bumping into each other in the hallway or there

14· · for a grievance hearing and they say, hey, can I

15· · talk to you afterwards.· But I don't recall any

16· · specific conversation about this particular case,

17· · but it could have happened.

18· · Q.· · · · ·Okay.· Who would you typically talk to

19· · from the FOP along those lines?

20· · A.· · · · ·Generally would have been either the

21· · grievance chairman or one of the assistant

22· · grievance representatives.

23· · Q.· · · · ·Okay.· Who would those have been at the

24· · time?

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·1· · A.· · · · ·Or the president of the union,

·2· · depending on, you know, who's there.

·3· · Q.· · · · ·Who was the president at that point?

·4· · A.· · · · ·In 2000 what?

·5· · Q.· · · · ·2015 roughly, early 2015?

·6· · A.· · · · ·I'm not sure if Jason was in there then

·7· · or not.

·8· · Q.· · · · ·Jason Pappus?

·9· · A.· · · · ·Yeah.· Jim Gilbert was the union

10· · president when I became chief in 2012.· I don't

11· · remember when he left.

12· · Q.· · · · ·Okay.· But you don't remember any

13· · particular conversations with the union about this

14· · case?

15· · A.· · · · ·Nothing specific, no.

16· · Q.· · · · ·Okay.· How about with the safety

17· · director's office, did you give them a heads up

18· · that a case might be coming to them or anything

19· · like that?

20· · A.· · · · ·I wouldn't generally do that.· I did

21· · occasionally, but that happened more so after

22· · Mayor Ginther came into office, which was 2016,

23· · because he wanted to be advised, and I had monthly

24· · meetings with him.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·I had some occasional meetings with

·3· · Mayor Coleman, but not maybe as regularly.

·4· · Q.· · · · ·So you had monthly meetings with the

·5· · Mayor, not necessarily the safety director would

·6· · be in the meetings or what?

·7· · A.· · · · ·Most of the time, yes.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·And they were called monthly meetings,

10· · but they didn't happen every month.

11· · Q.· · · · ·Okay.· There's a notation -- well, I'll

12· · just show it to you.

13· · · · · · · ·MR. VARDARO:· Do you have the exhibits,

14· · previous exhibits?

15· · · · · · · ·THE REPORTER:· Give me one second.

16· · · · · · · ·(A short recess is taken.)

17· · BY MR. VARDARO:

18· · Q.· · · · ·I'm handing you what's been previously

19· · marked as Plaintiff's Exhibit 1, which is the

20· · internal affairs summary for Kevin Morgan,

21· · including a cover sheet at the top.· This is what

22· · you reviewed last week?

23· · A.· · · · ·Yep.

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·Well, I don't -- I don't recall that I

·2· · saw --

·3· · Q.· · · · ·The cover sheet?

·4· · A.· · · · ·Yeah.

·5· · Q.· · · · ·It would have started with just the

·6· · report?

·7· · A.· · · · ·I think I -- I don't remember seeing

·8· · this, but --

·9· · Q.· · · · ·Okay.· You've seen it at some point,

10· · though?

11· · A.· · · · ·Yeah.

12· · Q.· · · · ·Okay.· If you look at the first page,

13· · the cover sheet --

14· · A.· · · · ·Uh-huh.

15· · Q.· · · · ·-- there's a notation right above the

16· · exhibit sticker --

17· · A.· · · · ·Yep.

18· · Q.· · · · ·-- about "Allegation II:· Officer

19· · Morgan accepted payment for special duty shifts he

20· · did not work."

21· · A.· · · · ·Correct.

22· · Q.· · · · ·There's a list of charges that are

23· · typed in from internal affairs.

24· · A.· · · · ·Yes.

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·1· · Q.· · · · ·And then there's the deputy chief's

·2· · determination which is sustained.· And the

·3· · corrective action says, "Departmental charge."

·4· · And then there's a notation under there that's

·5· · handwritten that says, "plus ROC 1.04 per chief."

·6· · And is that your initials?

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·Did you write that?

·9· · A.· · · · ·It looks like my handwriting.

10· · Q.· · · · ·Okay.· What's ROC 1.04?

11· · A.· · · · ·Rule of conduct 104.

12· · Q.· · · · ·Yeah.· What is that rule of conduct?

13· · A.· · · · ·Cause for dismissal, I believe.

14· · Q.· · · · ·Okay.· Do you recall why you wrote in

15· · cause for dismissal?

16· · A.· · · · ·Because I wanted to add that charge.

17· · Q.· · · · ·Okay.· Why?

18· · A.· · · · ·Because I thought it was appropriate.

19· · Q.· · · · ·Why?

20· · A.· · · · ·Because I thought that the behavior was

21· · something that couldn't be tolerated.· That meant

22· · that it was strong enough behavior done with

23· · enough culpability to warrant termination.

24· · Q.· · · · ·Okay.· And the second page, the back of

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·1· · that same sheet you wrote the same thing in for

·2· · Allegation III?

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·Which was, "accepted full payment for

·5· · special duty jobs when he failed to work the full

·6· · shift, due to arriving late...or leaving...early."

·7· · So same answer, that's why you wrote that in?

·8· · A.· · · · ·Yes.

·9· · Q.· · · · ·Okay.· In order to reach a decision to

10· · terminate Kevin Morgan, he didn't need to be

11· · charged with Rule of Conduct 1.04, right?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·And officers have been terminated

14· · certainly in the past without being charged with

15· · Rule of Conduct 1.04?

16· · A.· · · · ·Is that a question?

17· · Q.· · · · ·Yeah.· I'm asking you.

18· · A.· · · · ·Yes.

19· · Q.· · · · ·Okay.· Do you recall other cases where

20· · you handwrote in 1.04 on a charging sheet like

21· · this?

22· · A.· · · · ·Not specifically, no.

23· · Q.· · · · ·Okay.· Do you think you did it in any

24· · other cases while you were chief?

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·1· · A.· · · · ·I believe that I did it in the Randy

·2· · Mayhew case.

·3· · Q.· · · · ·What's the Randy Mayhew case?

·4· · A.· · · · ·He was charged with violating our rules

·5· · with regard to -- I believe that he solicited

·6· · prostitutes for sex for money while he was on

·7· · duty, and I believe that I added that charge. I

·8· · don't know if I wrote it on this particular sheet.

·9· · But this particular rule of conduct is not

10· · something that is, like, listed as an allegation

11· · by internal affairs typically.· They investigate

12· · the allegation and then they try to determine what

13· · rule violations occurred, but they don't generally

14· · look at is this cause for dismissal.· That's

15· · something that comes from my perspective.

16· · Q.· · · · ·Okay.· Other than the Randy Mayhew

17· · case, can you think of any other ones where you

18· · added it?

19· · A.· · · · ·I believe that there are probably

20· · others, I just don't recall what they are.

21· · Q.· · · · ·Okay.

22· · A.· · · · ·I just was testifying last week about

23· · Randy Mayhew, that's why I remember it.

24· · Q.· · · · ·Okay.· I'll come back to that.

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·1· · · · · · · ·You recall that in this case there was

·2· · a criminal investigation prior to the

·3· · administrative investigation?

·4· · A.· · · · ·In the Kevin Morgan case, yes.

·5· · Q.· · · · ·Yes.

·6· · · · · · · ·And the determination of the criminal

·7· · investigation was that criminal charges would not

·8· · be filed?

·9· · A.· · · · ·Correct.

10· · Q.· · · · ·Okay.· And in particular the prosecutor

11· · was Jeff Blake.· I don't know if you -- if that's

12· · listed.

13· · A.· · · · ·I remember seeing that name in the

14· · investigation summary.

15· · Q.· · · · ·Yes.· You knew that the prosecutor told

16· · internal affairs there were several reasons why

17· · prosecution would not be pursued in the case?

18· · A.· · · · ·I believe there were more than one,

19· · yeah.

20· · Q.· · · · ·Okay.· And the reasons included the

21· · property manager, the company that was involved in

22· · the apartment complex didn't want to pursue

23· · criminal charges?

24· · A.· · · · ·Because she didn't want to have to go

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·1· · to court and testify, yeah.

·2· · Q.· · · · ·The property manager said in the

·3· · criminal investigation that she actually wanted

·4· · the officers who were working security at the

·5· · apartment complex to vary their hours so that the

·6· · people who were around the apartment complex would

·7· · sort of be on their toes?

·8· · A.· · · · ·I believe that was one of the listed

·9· · reasons.

10· · Q.· · · · ·Okay.· And that because of that and

11· · because of Officer Morgan's likely explanation

12· · that he was working alternative hours to the ones

13· · that he was assigned, that it would be difficult

14· · to prove the case?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·I don't know the specific words used,

17· · but --

18· · Q.· · · · ·That was the gist of it, though?

19· · A.· · · · ·Yeah.· I'll take your gist.

20· · Q.· · · · ·Okay.· In the internal affairs summary,

21· · do you remember that Sergeant Meister who wrote

22· · the summary indicated that the only reasons that

23· · Officer Morgan was not criminally prosecuted for

24· · the charge of theft in office was because the

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·1· · property manager didn't want to prosecute and

·2· · because he himself had not given an interview?

·3· · A.· · · · ·I think that what Meister listed was

·4· · different than what Jeff Blake was quoted as.

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·But it was in the investigative

·7· · summary.

·8· · Q.· · · · ·Okay.· But the investigative summary --

·9· · I mean, the fact that what he listed was different

10· · than what the prosecutor himself had listed in

11· · terms of why he wasn't prosecuted, was that a

12· · concern for you?

13· · A.· · · · ·Well, the information from Jeff Blake

14· · was in there, so it wasn't like an omission there.

15· · I -- it wasn't a concern of mine with regard to my

16· · decision on the outcome of the disciplinary case.

17· · If it was a concern of mine with regard to how

18· · well he did an investigative summary and justified

19· · his own thing, that's usually not something that I

20· · dwelled on because that -- or the sergeant has a

21· · lieutenant, a commander to address deficiencies if

22· · there are any in the way that they summarize a

23· · case.

24· · Q.· · · · ·Did it suggest to you any problems with

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·1· · the objectivity of the investigation?

·2· · A.· · · · ·It did not give me any concerns that

·3· · affected the evidence.· I didn't -- you know, it

·4· · didn't strike me, no, as, oh, I can't trust what

·5· · Sergeant Meister has said because he left out a

·6· · couple of things here in his own.

·7· · Q.· · · · ·Uh-huh.

·8· · A.· · · · ·Because I have said for many, many,

·9· · many years that, you know, you don't have to

10· · repeat information to justify your own stance.· If

11· · it's already spelled out, then it's all there.

12· · Q.· · · · ·Uh-huh.

13· · A.· · · · ·If it had been an omission, then that

14· · would be, you know, more concerning.· But I don't

15· · always go down the path of, well, they left that

16· · out, therefore they're not objective.· Because if

17· · it's already stated someplace else, I don't always

18· · expect them to repeat that.

19· · Q.· · · · ·Okay.· Did you follow up with anybody

20· · when you realized in reviewing this that he had

21· · overstated the criminal case against Officer

22· · Morgan that he needed to be -- you know, that

23· · Sergeant Meister needed to understand that this

24· · was not something that should be done?

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·1· · A.· · · · ·I don't recall that.

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · Q.· · · · ·Okay.· Because you don't recall it, do

·4· · you think it didn't happen or do you just -- you

·5· · don't remember one way or another whether you gave

·6· · any feedback on the investigative summary?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I don't recall.· I don't recall giving

·9· · any feedback.

10· · Q.· · · · ·Okay.· But does that mean that you

11· · think that you didn't give any feedback?

12· · A.· · · · ·I don't -- I can't speculate as to

13· · that.

14· · Q.· · · · ·Okay.· You just don't remember?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·Okay.· Do you have any recollection of

17· · why Officer Morgan remained relieved of duty after

18· · the prosecution was refused?

19· · A.· · · · ·Because I still viewed it as a

20· · potential termination case.

21· · Q.· · · · ·Okay.· Do you recall about this

22· · investigation that Officer Morgan's basic

23· · explanation was that he had worked his -- the

24· · hours that he was -- the number of hours he was

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·1· · supposed to work on the job but he didn't do it on

·2· · the days that he was expected to do them?

·3· · A.· · · · ·I recall that that was part of his

·4· · explanation, yes.

·5· · Q.· · · · ·Okay.· If you had believed that that's

·6· · what he was actually doing, would you still have

·7· · viewed it as a termination case?

·8· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·9· · A.· · · · ·That wasn't the facts.

10· · Q.· · · · ·Okay.· I mean you didn't believe that,

11· · that was your -- your termination decision was

12· · based on the premise that Officer Morgan was not

13· · actually working the number of hours he was

14· · supposed to work?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·Not just that he was not working the

17· · days he was supposed to work?

18· · A.· · · · ·Correct.

19· · Q.· · · · ·If it was just a matter of he was

20· · switching days without proper authorization, that

21· · would not have risen to the level of termination?

22· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

23· · A.· · · · ·That's a possibility.

24· · Q.· · · · ·Okay.· There's some possibility that he

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·1· · would have been terminated just for working on

·2· · Tuesdays instead of Wednesdays or Thursdays

·3· · instead of Tuesdays or something like that?

·4· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·5· · A.· · · · ·It depends on the responses that he

·6· · would have given and various other factors that

·7· · might have played out differently had he had some

·8· · proof of that or other evidence.· He had some

·9· · evidence, but then he had no evidence of some of

10· · the other stuff that seemed like there's, you

11· · know, a reason why there's no evidence because he

12· · didn't have the evidence.· So it's still

13· · theoretical.

14· · Q.· · · · ·I guess I don't really understand what

15· · you're telling me.· So you're saying that there's

16· · some scenario, some hypothetical scenario where

17· · Officer Morgan could have been terminated even if

18· · he had worked all the hours he was supposed to

19· · work just because he worked them on different

20· · days?

21· · A.· · · · ·Are you saying if there's evidence of

22· · that?

23· · Q.· · · · ·Yeah.· Well, let's say that he

24· · convinced you that he actually was -- you know, he

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·1· · was supposed to work Wednesdays, but he worked

·2· · Sundays instead, same number of hours.· Didn't get

·3· · any money that he didn't earn, just shifted days

·4· · without authorization.· Is there a scenario where

·5· · that still would have resulted in his termination?

·6· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·7· · A.· · · · ·Based on just -- just that, and that he

·8· · wasn't actually getting paid for not working and I

·9· · had proof of that and was convinced that that was

10· · the case, then that -- yeah, that's a possibility

11· · that he might have been, you know, given

12· · corrective action that wouldn't have resulted in

13· · termination.

14· · Q.· · · · ·The bottom line conclusion of Sergeant

15· · Meister's internal affairs summary was that he

16· · couldn't confirm or disprove that Officer Morgan

17· · was working other days than the ones that he was

18· · assigned; isn't that right?

19· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

20· · A.· · · · ·I don't recall that I read all of his

21· · -- his explanation.· But I don't believe that

22· · there was any evidence to confirm or to deny that

23· · he hadn't switched his days because there wasn't

24· · any evidence.

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·1· · Q.· · · · ·Okay.· I'm just asking in terms of

·2· · Sergeant Meister's report, his basic conclusion

·3· · was Morgan says that he was working other days

·4· · than the ones that he was assigned and he worked

·5· · all of his hours.· I can't -- I can't prove that,

·6· · I can't disprove that.

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · Q.· · · · ·That's basically the gist of his

·9· · report.

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·I -- I don't recall what he --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·How he described it.

14· · Q.· · · · ·Can you take a look?

15· · A.· · · · ·I can read it.

16· · Q.· · · · ·In Exhibit 1 there's the investigative

17· · summary is paginated at the top of every page.

18· · Can you take a look at page 62 of his report.· And

19· · on the -- I think it's about -- well, I'll find

20· · it.

21· · A.· · · · ·The last paragraph.

22· · Q.· · · · ·The last paragraph says, "Most of

23· · Officer Morgan's claims regarding dates and times

24· · he allegedly worked could not be confirmed or

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·1· · proven false."· Do you see that?

·2· · A.· · · · ·Yes, I do.

·3· · Q.· · · · ·That's consistent -- I mean, that's

·4· · what's in Sergeant Meister's report is most of

·5· · these situations he just didn't have proof one way

·6· · or the other?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·The sentence says, "Most of Officer

·9· · Morgan's claims regarding dates and times he

10· · allegedly worked could not be confirmed or proven

11· · false."

12· · Q.· · · · ·Okay.· That's consistent with your

13· · understanding at the time?

14· · A.· · · · ·Yeah.

15· · Q.· · · · ·Okay.· I mean, you didn't read that

16· · last week and you were like, oh, I didn't remember

17· · that?

18· · A.· · · · ·Correct.

19· · Q.· · · · ·And the basic problem in the

20· · investigation was there were documents that

21· · basically confirmed that he wasn't there on

22· · Wednesdays from 9:00 p.m. until 1:00 a.m., which

23· · was the expectation?

24· · A.· · · · ·Documents?

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·1· · Q.· · · · ·There were -- you know, like, there was

·2· · certain times when he was working at a Giant Eagle

·3· · supermarket during some portion of that particular

·4· · shift?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·So there was -- you know, you could

·7· · essentially prove he wasn't there on Wednesdays

·8· · from 9:00 until 1:00 a.m.?

·9· · A.· · · · ·The proof was strong --

10· · Q.· · · · ·Yeah.

11· · A.· · · · ·-- that there were definitely

12· · Wednesday --

13· · Q.· · · · ·And he -- and Officer Morgan was

14· · admitting --

15· · · · · · · ·MR. COGLIANESE:· Go ahead.

16· · Q.· · · · ·I'm sorry.· Go ahead.

17· · · · · · · ·MR. COGLIANESE:· If you would like to

18· · finish your answer, go ahead.· Don't let Jeff cut

19· · you off.

20· · A.· · · · ·There was definitely proof that he was

21· · not working from 9:00 p.m. until 1:00 a.m. on

22· · Wednesday nights on a number of occasions.

23· · Q.· · · · ·Okay.· And it wasn't even really

24· · disputed.· I mean Officer Morgan was not saying,

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·1· · yes, I was there every Wednesday from 9:00 p.m.

·2· · until 1:00 a.m.?

·3· · A.· · · · ·His explanation was that, yes, he had

·4· · changed his shifts.

·5· · Q.· · · · ·Right.· But you didn't have

·6· · documentation confirming every time he did that?

·7· · A.· · · · ·Correct.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·He did not submit any.

10· · Q.· · · · ·Right.· And there was -- Officer

11· · Roberts, Tony Roberts was the coordinator, the

12· · special duty coordinator for this assignment, the

13· · Stratford Lakes assignment?

14· · A.· · · · ·That is correct.

15· · Q.· · · · ·And he had some calendars showing when

16· · the officers were supposed to be there and

17· · sometimes when they had switched their shift, but

18· · even he did not keep those calendars during the

19· · entire period of this investigation?

20· · A.· · · · ·That's what I recall.

21· · Q.· · · · ·And even the ones that he did -- and

22· · that was because in fact the property manager had

23· · actually asked him to stop submitting calendars at

24· · a certain point because it was just paperwork she

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·1· · didn't need?

·2· · A.· · · · ·I recall reading that.

·3· · Q.· · · · ·And then even for the period of time

·4· · when Officer Roberts did keep and submit the

·5· · calendar, some of them were not accurate to his

·6· · own records because Officer Morgan was informing

·7· · him I'm switching to a different day because of

·8· · some conflict and Officer Roberts acknowledged

·9· · that he got those communications but he didn't

10· · actually change it on the calendar?

11· · A.· · · · ·Yes.

12· · Q.· · · · ·Do you remember that?

13· · A.· · · · ·Because they are postdated basically

14· · and he didn't go back and correct dates that had

15· · previously occurred.

16· · Q.· · · · ·Okay.· But he acknowledged, Officer

17· · Roberts acknowledged that he had some calendars

18· · that weren't even accurate to the times that

19· · Officer Morgan told him?

20· · A.· · · · ·I believe so.

21· · Q.· · · · ·Okay.· Do you remember whether there

22· · was any effort to review for comparison sake

23· · Officer Roberts' time and marking in service logs

24· · for this assignment?

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·1· · A.· · · · ·I do not.

·2· · Q.· · · · ·Or anybody else's?

·3· · A.· · · · ·I don't recall.

·4· · Q.· · · · ·Okay.· Did you ask for them to do that?

·5· · A.· · · · ·Not that I recall.

·6· · Q.· · · · ·Okay.· I mean it was clear from your

·7· · review of this investigation that the timekeeping

·8· · for this job was pretty haphazard?

·9· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

10· · A.· · · · ·The timekeeping --

11· · Q.· · · · ·By this --

12· · A.· · · · ·-- by whom?

13· · Q.· · · · ·By Officer Roberts, by Officer Morgan,

14· · by the property manager?

15· · A.· · · · ·I don't know whose responsibility

16· · you're referring to as far as timekeeping. I

17· · mean, obviously there was some notation going in

18· · as an invoice that said pay him for Wednesday from

19· · 9:00 to 1:00.

20· · Q.· · · · ·And even sometimes the invoices were

21· · submitted by a different officer than the person

22· · who actually submitted -- who actually --

23· · A.· · · · ·I don't recall.

24· · Q.· · · · ·-- did the work?

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·1· · A.· · · · ·I don't recall that fact.

·2· · Q.· · · · ·Okay.· Would you dispute it?

·3· · A.· · · · ·No.

·4· · Q.· · · · ·Okay.· Do you disagree with the

·5· · assertion that basically the timekeeping in

·6· · general for this job was pretty haphazard?

·7· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·8· · A.· · · · ·Maybe some aspects of it.· But I mean I

·9· · -- I mean, that's a generalization for every --

10· · every particular person.· And he was getting paid,

11· · so that part of it wasn't haphazard.

12· · Q.· · · · ·Okay.· Do you remember that there was

13· · actually an issue in terms of getting paid for

14· · this job, that sometimes it would be delayed

15· · significantly?· The apartment complex was not

16· · doing a particularly great job of paying the --

17· · paying timely?

18· · A.· · · · ·I don't recall that fact.

19· · Q.· · · · ·Okay.· But you wouldn't dispute it?

20· · A.· · · · ·No.

21· · Q.· · · · ·Okay.· As a general matter when an

22· · allegation against an officer can't be proven or

23· · disproven based on documents and the officer

24· · denies the misconduct, isn't it the division's

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·1· · practice to mark those -- to conclude those

·2· · allegations as not sustained?

·3· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·4· · A.· · · · ·The definition for not sustained is

·5· · when it can't be proven or disproven.

·6· · Q.· · · · ·So that's a yes?

·7· · A.· · · · ·Well, you asked about the division.

·8· · And many, many people have different opinions

·9· · about the same evidence.· So the division has a

10· · guidance on what would amount to a not sustained

11· · and that is the guidance.

12· · Q.· · · · ·Okay.· So when an allegation can't be

13· · proven or disproven based on documents and the

14· · officer denies a charge, that would fit within the

15· · guidance of not sustained?

16· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

17· · A.· · · · ·Yes.· With that being that it's a

18· · person's opinion not the division.· You know, the

19· · division has guidance to give to people who read

20· · an investigation and decide whether they believe

21· · that that's the case.

22· · Q.· · · · ·Okay.· Besides the guidance, it's the

23· · practice of the -- when you were the chief it was

24· · the practice of the chain of command that when

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·1· · their opinion was that the documents didn't prove

·2· · or disprove the allegation and the officer was

·3· · denying the charge, they would conclude that as

·4· · not sustained?

·5· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·6· · A.· · · · ·If their opinion was that it couldn't

·7· · be proven or disproven, then that was what they

·8· · should write down.

·9· · Q.· · · · ·Okay.· That included you?

10· · A.· · · · ·Yeah.

11· · Q.· · · · ·Okay.· Given that there were no

12· · documents proving or disproving Officer Morgan's

13· · claim that he was switching days, another way to

14· · confirm whether or not he was telling the truth

15· · about that would be to talk to eyewitnesss, right?

16· · A.· · · · ·Yes.

17· · Q.· · · · ·Okay.· Do you remember that in this

18· · investigation Officer Morgan actually presented

19· · several potential witnesses, some of them by name,

20· · some of them by just sort of identifying

21· · information who might be able to prove that he was

22· · working this job on days other than the ones he

23· · was assigned?

24· · A.· · · · ·I only recall one.· But I --

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·I know that he gave reference to, hey,

·3· · I talked to people, I, you know -- I checked them

·4· · out.· But I don't remember anything other than one

·5· · specific name, and that was a person that he had a

·6· · relationship with.

·7· · Q.· · · · ·Okay.· But that's the security officer

·8· · from the Kroger?

·9· · A.· · · · ·I believe that's where he worked.

10· · Q.· · · · ·Do you remember what the relationship

11· · was?

12· · A.· · · · ·I think he served as a mentor or friend

13· · or something along those lines to this particular

14· · security guard.

15· · Q.· · · · ·What was the significance to you of the

16· · fact that he had a relationship with him?

17· · A.· · · · ·That they might have talked about, you

18· · know, do you ever remember seeing me.· And

19· · sometimes when you have these kinds of

20· · conversations, it leads people to believe that

21· · that might be what they actually experienced.· The

22· · research that I've done on memory and recollection

23· · says that, you know, people can be easily

24· · influenced by having a conversation about

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·1· · particulars and prompting people to remember

·2· · something and might not actually have occurred,

·3· · but it's a consideration.

·4· · Q.· · · · ·So it's something that would lessen the

·5· · weight of that witness's recollection?

·6· · A.· · · · ·It has the potential to lessen that

·7· · weight.

·8· · Q.· · · · ·Okay.· Do you recall that in that --

·9· · first of all, do you remember what the -- what

10· · that was all about, the security guard's --

11· · A.· · · · ·I just recall that the security guard

12· · saw him working in October of 2013 on a particular

13· · date that I don't -- I don't believe was a

14· · scheduled work date for Officer Morgan.

15· · Q.· · · · ·Right.· And that would corroborate

16· · Officer Morgan's recollection or claim that he was

17· · working other days than the ones that he was

18· · assigned?

19· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

20· · A.· · · · ·One day.

21· · Q.· · · · ·Okay.· Do you remember that in Officer

22· · Morgan's interview he indicated that the security

23· · officer had records confirming the incident that

24· · he was talking about?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·2· · A.· · · · ·Not specifically, but --

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·-- I mean, it could very well be in

·5· · there.

·6· · Q.· · · · ·Okay.· Do you remember that he

·7· · described the incident in terms of basically that

·8· · the Kroger officer had called him for help with a

·9· · potential theft at the Kroger and that he was able

10· · to help because he was at the Stratford Lakes

11· · complex?

12· · A.· · · · ·That sounds familiar.

13· · Q.· · · · ·Okay.· And do you remember reading in

14· · the summary that Sergeant Meister had actually

15· · followed up with the security officer and the

16· · security officer had confirmed what Officer Morgan

17· · was --

18· · A.· · · · ·I believe so.

19· · Q.· · · · ·-- reporting?· And he confirmed the

20· · particular day?

21· · A.· · · · ·Could be.

22· · Q.· · · · ·Okay.· Nothing in the internal affairs

23· · summary as I've reviewed it indicates any effort

24· · to get the records that Officer Morgan described.

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·1· · Does that -- do you remember that?

·2· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·3· · A.· · · · ·No, not particularly.

·4· · Q.· · · · ·Okay.· Would you have expected internal

·5· · affairs to try to find the records if there were

·6· · any?

·7· · A.· · · · ·If it was something that -- yeah, if

·8· · the sergeant felt like it got confirmed and there

·9· · wasn't any reason not to, then he could have just

10· · put it in there and says sounds -- sounds good,

11· · you know.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·If he had enough information to say

14· · that, yeah, that particular day, you know, I

15· · agree.· You know, there's one of those things

16· · where we've already talked about the pendency of

17· · this case taking a long time and does that delay

18· · it another week, another month, you know, two

19· · months?· So choices have to be made.· So I can't

20· · give you a blanket answer that, yeah, you know,

21· · you should get those records, but if it's going to

22· · take another six months, then no, you shouldn't

23· · get those records.

24· · Q.· · · · ·Okay.· I'm handing you what's

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·1· · previously been marked as Plaintiff's 15, which

·2· · I'll represent to you is the second part of Kevin

·3· · Morgan's investigative interviews with internal

·4· · affairs.· He was interviewed on two different

·5· · dates.· This contains interview material from the

·6· · second date.

·7· · A.· · · · ·Okay.

·8· · Q.· · · · ·And I'm going to direct you -- there's

·9· · actually -- there's numbers at the bottom of each

10· · page and there's numbers at the top of each page.

11· · A.· · · · ·Okay.

12· · Q.· · · · ·And the pagination at the top is a

13· · little bit hard to follow only because there were

14· · two parts of his investigation that -- of his

15· · interview that day.· They interviewed him for such

16· · a long period of time that they ran out of tape

17· · and then they had to start another interview.

18· · A.· · · · ·Okay.

19· · Q.· · · · ·So the first 100 pages of that are

20· · paginated and then there's a second set of pages.

21· · So if you could turn to page 100 of the first

22· · part.

23· · A.· · · · ·At the top?

24· · Q.· · · · ·And then find the start of the second

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·1· · part, basically.· At the top, yes.

·2· · A.· · · · ·Okay.· Is this it?

·3· · Q.· · · · ·So then you're -- if you can find the

·4· · first page of the next part and then flip from

·5· · there to page 5 at the top, which I believe is 153

·6· · at the bottom.

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·Okay.· I'll flip with you.· Can you

·9· · take a look at -- the very bottom of the page

10· · Officer Morgan says, "I know I worked on the

11· · 13th."· Do you see that part?

12· · A.· · · · ·Yes.

13· · Q.· · · · ·Okay.· Can you read from there and then

14· · through the next couple pages to the bottom of

15· · 155, which is page 7 at the top.· And just tell me

16· · when you are ready to answer questions about that.

17· · A.· · · · ·How far did you want me to read?

18· · Q.· · · · ·I think you're past it.

19· · A.· · · · ·Okay.

20· · Q.· · · · ·This confirms that Officer Morgan

21· · stated to the investigating officers that he

22· · believed Kyle DeGoey, the security officer, had

23· · records if his company that showed that this

24· · incident occurred as described?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·2· · Q.· · · · ·The bottom of 154.· Says he's got

·3· · records from the security company or the security

·4· · company has records.

·5· · A.· · · · ·Officer Morgan said that the company

·6· · would have documentation for the security guard's

·7· · records I guess.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·He didn't say that he -- that the

10· · security company would have documentation of his

11· · behavior, I don't --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·I don't believe.· But --

14· · Q.· · · · ·At least highlighted that there might

15· · be some documentation that they could look at?

16· · A.· · · · ·Correct.· Correct.

17· · Q.· · · · ·Okay.· And you knew that Sergeant

18· · Meister followed up with Corporal DeGoey?

19· · A.· · · · ·That was in the investigative summary.

20· · Q.· · · · ·Yeah.· I mean, he conducted an

21· · interview with DeGoey and had an audio file for

22· · that interview.· Do you recall whether you

23· · listened to the audio?

24· · A.· · · · ·I do not recall.

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·1· · Q.· · · · ·Okay.· It was clear from the

·2· · investigative summary -- well, first of all,

·3· · there's nothing in the investigative summary, I

·4· · think we covered, that has any documentation from

·5· · the security company or from DeGoey?

·6· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·7· · A.· · · · ·Is that a question?

·8· · Q.· · · · ·Yeah.· I'm asking you.· Did you mean --

·9· · well, let me put it this way:· When you reviewed

10· · the investigative summary last week and probably

11· · at the time, did you -- what was your impression

12· · of the interview of DeGoey?

13· · A.· · · · ·I believe that there was an example

14· · that Officer Morgan had probably worked on a

15· · different date than the date that he was

16· · scheduled.

17· · Q.· · · · ·Okay.· And that date occurred prior to

18· · any suspicion being raised about him not working

19· · his assigned hours?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · Q.· · · · ·And it occurred a couple weeks before

22· · any report --

23· · A.· · · · ·I can't say when anybody else had

24· · suspicions but before it was brought to our

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·1· · attention.

·2· · Q.· · · · ·Okay.· And to your knowledge before it

·3· · was brought to Officer Morgan's attention that

·4· · anybody suspected this?

·5· · A.· · · · ·I don't know.

·6· · Q.· · · · ·Okay.· I mean, at the very beginning of

·7· · the investigative summary, if you look at

·8· · Exhibit 1, page -- well, I don't -- we can go back

·9· · and confirm the dates.· But taking my word for a

10· · moment that October 13th was prior to any report

11· · being made to the department, that Officer Morgan

12· · wasn't there when he was supposed to be?

13· · A.· · · · ·I don't recall when the property

14· · manager let Officer Roberts know.· But I believe

15· · that there had been some conversation as early as

16· · September that Officer Roberts had with Officer

17· · Morgan, but I can't recall specifically what that

18· · was about.· But I could be wrong.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·I think it's in there.

21· · Q.· · · · ·But assuming for the moment that

22· · Officer Morgan had not been confronted about not

23· · being where he was supposed to be when he was --

24· · A.· · · · ·By whom?

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·1· · Q.· · · · ·By anybody.

·2· · A.· · · · ·I don't know when he was confronted.

·3· · Q.· · · · ·Okay.· I'm asking you to make an

·4· · assumption with me for a second just for the

·5· · purpose of the question.

·6· · A.· · · · ·What kind of an assumption do you want

·7· · me to make?

·8· · Q.· · · · ·Do you know what an assumption is?

·9· · · · · · · ·MR. COGLIANESE:· Objection.· Come on,

10· · Jeff.

11· · · · · · · ·MR. VARDARO:· Well, Rich, I'm sorry.

12· · You're here sighing deeply, and Chief Jacobs is

13· · sitting here saying, well, what do you want me to

14· · assume, what do you want me to assume?

15· · Q.· · · · ·I'm asking you to assume for the moment

16· · for the purpose of the question that October 13th

17· · was prior to Officer Morgan being accused of or

18· · suspected or confronted about the idea that he was

19· · not working the hours that he was supposed to

20· · work.· Can you assume that for the moment?

21· · A.· · · · ·Well, it certainly could be an

22· · assumption, but I don't have any proof that it --

23· · he wasn't --

24· · Q.· · · · ·That's not my question.

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·1· · A.· · · · ·-- notified by --

·2· · Q.· · · · ·I'm just asking you to make the

·3· · assumption.

·4· · A.· · · · ·-- anybody before that.

·5· · Q.· · · · ·Can you make the assumption for me?

·6· · A.· · · · ·I thought I mentioned earlier that I

·7· · thought he had had a conversation with Officer

·8· · Roberts in September or something like that.· I'm

·9· · not sure what I'm recollecting, but I -- I just

10· · don't know.· So, yeah, I mean, I can make an

11· · assumption, but I'm not going to say that it's

12· · foolproof.

13· · Q.· · · · ·Okay.· I'm just asking you to make the

14· · assumption.

15· · A.· · · · ·Okay.

16· · Q.· · · · ·And that's the premise for the

17· · question.

18· · A.· · · · ·Okay.

19· · Q.· · · · ·Okay.· Assuming that was the case and

20· · there was an example confirming that Officer

21· · Morgan was working a different day than the one he

22· · was assigned, wouldn't that make it more likely

23· · that he was telling the truth about his practice

24· · of working different days to make up the hours

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·1· · that he wasn't working on Wednesdays?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·It corroborates one example.

·4· · Q.· · · · ·Okay.· Doesn't corroborating that one

·5· · example prior to the suspicion being raised to

·6· · Officer Morgan make it more likely that he was

·7· · telling the truth in general?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·Not necessarily.· It corroborates one

10· · example.· He could have made it up about every

11· · other time but knew that he had one corroborating

12· · example.· I don't know.· I mean, I certainly

13· · considered that that was corroborated.

14· · Q.· · · · ·Okay.· Did you know that Corporal

15· · DeGoey also indicated that he had seen Officer

16· · Morgan on other dates, he couldn't name the dates,

17· · but he had seen him at other times that were not

18· · Wednesdays during this time frame?

19· · A.· · · · ·If it was in the investigation, I would

20· · have --

21· · Q.· · · · ·Well, I'll say it's not in the

22· · investigative summary.· I'm asking you whether you

23· · knew that other than from reading the

24· · investigative summary?

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·1· · A.· · · · ·Not that I recall.

·2· · Q.· · · · ·Okay.· Assuming that DeGoey had told

·3· · that to Sergeant Meister, would you have expected

·4· · it to appear in the summary?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·Potentially if -- if there were other

·7· · dates, yes.

·8· · Q.· · · · ·If DeGoey had offered or indicated to

·9· · Sergeant Meister that he had his own documentation

10· · confirming that this incident occurred, would you

11· · have expected that to appear in the summary?

12· · A.· · · · ·On the 13th?

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · Q.· · · · ·Yes.

15· · A.· · · · ·It could have been added, yeah,

16· · certainly.

17· · Q.· · · · ·Okay.· I mean, the -- if he said it and

18· · it wasn't added, would that raise a concern in

19· · your mind about the nature of the summary?

20· · A.· · · · ·Well, I already told you that, you

21· · know, if it was a readily available document,

22· · then, yeah.· But I'm not going to wait another

23· · month or so just to get a document if there's no

24· · reason to believe that it's not accurate.

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·1· · Q.· · · · ·Okay.· But in this case there was a

·2· · reason to believe that it might not be accurate,

·3· · right?· You told me the reason which was the prior

·4· · relationship and the conversation?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·I don't think that there was much

·7· · dispute about whether or not that particular

·8· · incident was true.

·9· · Q.· · · · ·Okay.· So you took it as a given that

10· · this one happened as described?

11· · A.· · · · ·Well, at least on that date, yeah.

12· · Q.· · · · ·Okay.· Can you take a look at page 15

13· · of Exhibit 1, the investigative summary?· Page 15

14· · of the investigative summary?

15· · A.· · · · ·Number 15 at the top?

16· · Q.· · · · ·Yeah.

17· · A.· · · · ·Okay.

18· · Q.· · · · ·If you could just read the

19· · investigative summary of DeGoey's interview.· It

20· · starts in the middle of page 15 and goes onto the

21· · next page.

22· · A.· · · · ·Okay.

23· · Q.· · · · ·If you could assume for a moment that

24· · in Sergeant Meister's conversation with Corporal

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·1· · DeGoey, Corporal DeGoey actually volunteered to

·2· · Sergeant Meister that he had a prior relationship

·3· · with Officer Morgan, and they had had a recent

·4· · conversation about this incident, and that it

·5· · wasn't in response to Sergeant Meister asking him

·6· · how he remembered things with such vivid detail.

·7· · Would you agree with me that this investigative

·8· · summary is not accurate?

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·I'm not sure I understand the question.

11· · Q.· · · · ·In his actual interview with Corporal

12· · DeGoey, it was Corporal DeGoey that mentioned

13· · first that he had talked to Kevin Morgan about

14· · this incident recently and that they had a prior

15· · relationship through their church.· But in the

16· · investigative summary, Sergeant Meister describes

17· · it as if he -- the investigator was puzzled as to

18· · how Corporal DeGoey remembered this with such

19· · vivid detail, and it was only then that he

20· · mentioned this conversation with Officer Morgan

21· · and their prior relationship.· And I am asking

22· · you:· Assuming the version that I just told you is

23· · true, that makes this investigative summary

24· · inaccurate?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·I don't know that it makes it

·3· · inaccurate.· He could have followed up with a

·4· · question and still accurately wrote down that he

·5· · asked him how he remembered.

·6· · Q.· · · · ·Okay.· But if he didn't do that, that

·7· · would make this inaccurate?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·He didn't do what?

10· · Q.· · · · ·Ask him how he remembered this with

11· · such vivid detail?

12· · A.· · · · ·Well, yeah, if he didn't ask him a

13· · question about it, then that would be inaccurate.

14· · Q.· · · · ·Okay.· Assuming that Corporal DeGoey

15· · told -- well, first of all, assuming Corporal

16· · DeGoey told Sergeant Meister that the reason he

17· · could remember this so vividly was because he was

18· · sending text messages about the incident as it was

19· · happening and he had them on his phone, would you

20· · have expected that to go into this summary?

21· · A.· · · · ·That would have been beneficial.

22· · Q.· · · · ·And it would have made the summary

23· · pretty different in terms of its tone?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · A.· · · · ·Tone?· I didn't get the impression that

·2· · the sergeant disbelieved this date.

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·So --

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·It could have been phrased differently,

·7· · certainly, yes.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·But I didn't read from this that he was

10· · disbelieving the corporal about that particular

11· · one because he said that was the date that he

12· · could testify to and it didn't sound as if he was

13· · disputing that.

14· · Q.· · · · ·Okay.· In response to the question

15· · about whether he had testified about any other

16· · specific dates if Corporal DeGoey told Sergeant

17· · Meister that his hours at Kroger were Fridays and

18· · Sundays during this time period and that he

19· · remembered Officer Morgan coming in on multiple

20· · occasions to the Kroger and using the bathroom or

21· · getting coffee or something like that, considering

22· · that Officer Morgan was only assigned to Stratford

23· · Lakes on Wednesdays, would you have expected that

24· · information to go into this summary?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·Certainly it could have been explored

·3· · more.· I also know that Officer Morgan was working

·4· · at another special duty location and/or two.

·5· · Q.· · · · ·Uh-huh.

·6· · A.· · · · ·So I don't know that Corporal DeGoey

·7· · would have clarified with him, hey, are you

·8· · working at Stratford tonight or Briar Hill tonight

·9· · or Giant Eagle tonight?· So I don't know that him

10· · saying that I saw him on a Friday or what did you

11· · say, Sunday?

12· · Q.· · · · ·Sunday.

13· · A.· · · · ·Necessarily proved that he was working

14· · at a place that he said he was --

15· · Q.· · · · ·Uh-huh.

16· · A.· · · · ·-- in his own testimony, so --

17· · Q.· · · · ·I mean you remember the Kroger was

18· · across the street from Stratford Lakes?

19· · A.· · · · ·Okay.

20· · Q.· · · · ·I'll represent to you that Kroger was

21· · across the street from Stratford Lakes.· If

22· · Corporal DeGoey said the reason why he called

23· · Officer Morgan on this particular occasion was

24· · that he had seen him on prior nights at the Kroger

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·1· · and that Officer Morgan had recognized them from

·2· · their past acquaintance at the church and told

·3· · him, hey, I'm working across the street on this

·4· · special duty assignment, would you have expected

·5· · that to go into the summary?

·6· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·7· · A.· · · · ·I think that you have to decide what

·8· · should be in a summary or not.· And I go back to I

·9· · don't take from here that he was disputing that

10· · particular date and time.· If he felt that it was

11· · relevant, he should have put it in.

12· · Q.· · · · ·I mean, it would have been relevant,

13· · right?· It would be further corroboration --

14· · A.· · · · ·Potentially, yes.

15· · Q.· · · · ·-- of Officer Morgan's basic exact

16· · defense to these charges, which was he was

17· · regularly working different hours than the ones he

18· · was assigned on a repeated basis?

19· · A.· · · · ·It could have, yes.

20· · Q.· · · · ·And considering that there was no

21· · documentation one way or the other about the vast

22· · majority of the instances involved, having an

23· · eyewitness who saw him on multiple occasions at a

24· · location right by the special duty assignment

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·1· · would have been pretty important corroboration of

·2· · Officer Morgan's account?

·3· · A.· · · · ·It would have been --

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·-- more information.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·Yeah.

·8· · Q.· · · · ·And it would be important because

·9· · that's basically the only information that Officer

10· · Morgan would have had to offer?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·Well, he could have had other

13· · information.

14· · Q.· · · · ·Yeah.· He could have done a better job

15· · of documenting --

16· · A.· · · · ·Correct.

17· · Q.· · · · ·-- his time for sure?

18· · A.· · · · ·Correct.

19· · Q.· · · · ·There's no -- I don't think anybody

20· · disputes that.· I think even Officer Morgan said

21· · it to you in his chief's hearing.

22· · A.· · · · ·Correct.

23· · Q.· · · · ·But if there was an eyewitness who

24· · said, oh, yeah, I saw him on a pretty regular

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·1· · basis at a location that made it pretty likely

·2· · that he was working the special duty assignment

·3· · and it wasn't on Wednesdays, that would be

·4· · important to include in the investigative report?

·5· · A.· · · · ·I would say --

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·-- that I consider important to include

·8· · all relevant information that we have.

·9· · Q.· · · · ·And that would be relevant information?

10· · A.· · · · ·It sounds like it could be.

11· · Q.· · · · ·Yeah.

12· · · · · · · ·I mean, is there some question in your

13· · mind about whether it would be relevant?

14· · A.· · · · ·I would just go back to specific dates

15· · and times are always more important than I think I

16· · remembered him on --

17· · Q.· · · · ·Uh-huh.

18· · A.· · · · ·-- some of these days.

19· · Q.· · · · ·But in the absence of a specific date,

20· · a general, yeah, I saw him on a regular basis

21· · would be valuable information in the

22· · investigation?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·It would be something to consider, yes.

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·1· · Q.· · · · ·Besides just Corporal DeGoey, Officer

·2· · Morgan gave to the investigators and to you

·3· · information about other people who could similarly

·4· · corroborate his claim that he was doing this job,

·5· · just on different days.

·6· · A.· · · · ·I didn't hear a question.

·7· · Q.· · · · ·Do you remember that?

·8· · A.· · · · ·Go ahead and ask it again then.

·9· · Q.· · · · ·Do you remember that Officer Morgan

10· · offered other potential people who might be able

11· · to corroborate his account that he was working

12· · this assignment on a regular basis?

13· · A.· · · · ·Not specifically.· I don't remember

14· · names and specific persons.

15· · Q.· · · · ·I'm not saying he gave names.· I'm just

16· · saying do you remember that he offered that there

17· · were other people who he would come into contact

18· · that the investigators might be able to follow-up

19· · with?

20· · A.· · · · ·I believe that he said that he had had

21· · other contacts with people while he was working at

22· · Stratford.· But I don't remember him giving us any

23· · information that -- who that was, where it was and

24· · all of that.

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·1· · Q.· · · · ·I mean it wasn't just that he said I

·2· · saw people.· He said I saw this one guy who lived

·3· · in this particular type of location and you can

·4· · try and find him?

·5· · A.· · · · ·He potentially could have said that and

·6· · I just don't recall it.

·7· · Q.· · · · ·Okay.· So you don't remember one way or

·8· · another whether he said that?

·9· · A.· · · · ·I don't recall right now, no.

10· · Q.· · · · ·Okay.· Do you -- if he had said that to

11· · the investigators, would you have expected them to

12· · make an effort to try to figure out who those

13· · people were?

14· · A.· · · · ·If there was enough information that

15· · they could have followed up on to get that, again,

16· · it goes back to specific dates and times.· So I

17· · don't know if they could have corroborated that

18· · information or not.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·And it just depends on the amount of

21· · information that was available to try to --

22· · accomplish that.

23· · Q.· · · · ·I mean -- I'm sorry.· I'll let you --

24· · A.· · · · ·Yeah.

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·1· · Q.· · · · ·I mean, it's not your position that if

·2· · Officer Morgan -- given that Officer Morgan didn't

·3· · have, you know, organized documentation showing I

·4· · was there on this date, I was there on this date,

·5· · I was there on this date, it's not your position

·6· · that the only way he could corroborate his account

·7· · was by having people say, yes, I saw him at 9:30

·8· · p.m. on Friday, October whatever?· He could -- he

·9· · could at least make his account more likely by

10· · presenting witnesses who said, well, I worked late

11· · on Fridays and I would come back to my apartment

12· · and I would see him stationed at the Stratford

13· · Lakes apartment where he would have no other

14· · reason to be.· That would make it more likely that

15· · he was telling the truth?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·More likely telling the truth that he

18· · -- that he worked different days than Wednesdays?

19· · Q.· · · · ·Yes.

20· · A.· · · · ·Yes.

21· · Q.· · · · ·And more likely that he was working

22· · times at Stratford Lakes when he wasn't marking in

23· · service on the radio?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · Q.· · · · ·Since they didn't have a lot of -- they

·2· · didn't have marked in service information showing

·3· · that he had marked in.

·4· · A.· · · · ·What was the question?

·5· · Q.· · · · ·Well, for example, I'll go back to the

·6· · DeGoey example.· On October 13th, it's pretty

·7· · clear that Officer Morgan was working the

·8· · Stratford Lakes assignment but he hadn't marked in

·9· · service.

10· · A.· · · · ·Okay.

11· · Q.· · · · ·And his failure to mark in service was

12· · one of the main sources of evidence that he wasn't

13· · working the assignment.

14· · A.· · · · ·It was one of the factors, yes.

15· · Q.· · · · ·Okay.· So Corporal DeGoey's testimony

16· · didn't just show that there was a date that

17· · Officer Morgan worked other than the one he was

18· · assigned, it also showed that on at least one

19· · occasion he worked the assignment but he didn't

20· · mark in service?

21· · A.· · · · ·Correct.

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · Q.· · · · ·Okay.· So if there were other witnesses

24· · who also said I saw him on a Friday or I saw him

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·1· · on a Sunday or I saw him on a Tuesday, it would

·2· · corroborate two aspects of Officer Morgan's

·3· · account.· One would be that he worked other days

·4· · than the ones he was assigned and that he worked

·5· · -- he was working at Stratford Lakes during time

·6· · periods when he had not marked in service.

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · Q.· · · · ·Right?

·9· · A.· · · · ·It could, yes.

10· · Q.· · · · ·Okay.· And that would not just depend

11· · on the concept of a witness somehow remembering,

12· · you know, a year or more after the fact I saw him

13· · on such and such a date at such and such a time,

14· · it could also be at least somewhat corroborated by

15· · a witness saying I saw him regularly at this

16· · apartment complex or I was accustom to seeing him

17· · on Fridays when I came home from work or something

18· · along those lines.

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·I already answered that.· What --

21· · Q.· · · · ·I'm just saying --

22· · A.· · · · ·What's the difference?

23· · Q.· · · · ·-- not just that he was working other

24· · days but that he was working days that he had not

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·1· · marked in service.

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · Q.· · · · ·Do you remember having a chief's

·4· · hearing for Officer Morgan's discipline?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·Do you remember Officer Morgan telling

·7· · you that there were specific people that he saw at

·8· · the apartment complex who might be able to

·9· · corroborate his account in response to your

10· · questions?

11· · A.· · · · ·I don't recall any names being given.

12· · But I'm not saying --

13· · Q.· · · · ·I'm not asking you about names.· I'm

14· · saying there were, like, individual people that he

15· · remembered seeing.

16· · A.· · · · ·He might very well have said that.

17· · Q.· · · · ·Okay.· Having reviewed the

18· · investigative summary, there were no other

19· · interviews that the officers conducted or no other

20· · indication that the internal affairs sergeants had

21· · tried to find any people like that, right?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·There's -- I don't recall any other

24· · names of people that they interviewed, yes.· And I

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·1· · don't know what lengths they went to to track down

·2· · people that were unnamed by Officer Morgan.

·3· · Q.· · · · ·Okay.

·4· · · · · · · ·MR. VARDARO:· I'm going to need 19.

·5· · BY MR. VARDARO:

·6· · Q.· · · · ·I'm handing you what's been marked as

·7· · Plaintiff's Exhibit 19.· This is -- well, first of

·8· · all, can you tell me, does this appear to be your

·9· · chief's hearing for Officer Morgan?

10· · · · · · · · · · · · ·- - - - -

11· · · · · · ·Thereupon, Plaintiff's Exhibit 19 is

12· · marked for purposes of identification.

13· · · · · · · · · · · · - - - - -

14· · A.· · · · ·It appears to be a transcript of it,

15· · yes.

16· · Q.· · · · ·Okay.· Can you take -- there's pages at

17· · the bottom.· I'm actually not sure what the

18· · pagination is based on.· But it starts at page 55.

19· · A.· · · · ·Yes.

20· · Q.· · · · ·P55.

21· · A.· · · · ·Yeah.

22· · Q.· · · · ·Can you take a look at P65?· Do you see

23· · toward the end of the hearing -- well, actually, I

24· · will say this does look like it's towards the end

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·1· · of the hearing because there are only a couple

·2· · more pages after that, right?

·3· · A.· · · · ·Yep.

·4· · Q.· · · · ·So toward the end of the hearing at the

·5· · bottom of that page you say, "Did you talk to

·6· · people?"· And he says, "Yes ma'am."· And you say,

·7· · "You know, did you do anything to make it clear

·8· · that" --

·9· · A.· · · · ·Wait.· Wait.· Where are you?

10· · Q.· · · · ·I'm at the bottom of page P65.

11· · A.· · · · ·Okay.

12· · Q.· · · · ·Do you see those questions, where that

13· · starts?

14· · A.· · · · ·Okay.

15· · Q.· · · · ·And then if you flip over to the next

16· · page, do you see in the first long paragraph of

17· · his response you've asked him, "Was there somebody

18· · that you checked in with; who did you talk to?"

19· · A.· · · · ·Uh-huh.

20· · Q.· · · · ·And he lists a person who is not

21· · employed by Stratford but did extra work in the

22· · office and who would know that he was around and

23· · was doing the work.· And then there's another

24· · person who -- a male black truck driver who lived

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·1· · where he parked at and would comment come home at

·2· · 1:00 or 2:00 in the morning and would come over

·3· · and talk to him while he was in his truck -- I'm

·4· · sorry.· His mom would come down the steps and come

·5· · over and talk to him?· Do you remember Officer

·6· · Morgan telling you these things during the chief's

·7· · hearing?

·8· · A.· · · · ·Well, I see it there, so.

·9· · Q.· · · · ·Okay.· Did you do anything after this

10· · to ask the sergeants to try to find these people

11· · and see whether Officer Morgan was telling the

12· · truth about them?

13· · A.· · · · ·No.

14· · Q.· · · · ·Okay.· Why not?

15· · A.· · · · ·I believe that the evidence that we had

16· · at that time was sufficient, that he'd had an

17· · opportunity prior to this to give that

18· · information.· If it wasn't followed up when he

19· · gave it, if he gave it prior to that.· Your

20· · opportunity to give us information is -- is, you

21· · know, long before you get to the chief's hearing.

22· · Q.· · · · ·Uh-huh.

23· · A.· · · · ·And unless -- unless I feel like there

24· · is not enough evidence or that this is totally

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·1· · brand-new evidence that actually could persuade me

·2· · in a different direction.· But just based on this,

·3· · you know, that it doesn't -- you know, I never --

·4· · I never came to the conclusion that he was never

·5· · at Stratford Lake.· You know, there were

·6· · definitely times when he was at Stratford Lake.

·7· · So trying to match up dates with people that had

·8· · seen him after the fact more than a year, two

·9· · years later wasn't going to change my opinion that

10· · we had evidence that these rule violations had

11· · occurred.· That did not sound to me that it was

12· · going to be the kind of information that would

13· · change the facts that I had in front of me.

14· · Q.· · · · ·Can you take a look at Exhibit 15, it's

15· · the -- I think it's this one.· Yeah.· I'll just

16· · flip to the page for you if you don't mind, save a

17· · little bit of time.· And for the record, I'm

18· · flipping to the twelfth page of the second part of

19· · this exhibit, which has number 160 at the bottom.

20· · · · · · · ·Just the first thing you said was, you

21· · know, the chief's hearing is obviously not the

22· · time when you come up with for the first time new,

23· · you know, potentially exculpatory information.

24· · Looking at the top of this page, this confirms the

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·1· · chief's hearing wasn't the first time he mentioned

·2· · the truck driver guy, right?

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·He told that to the sergeants, so if

·5· · you had followed up with the sergeants after the

·6· · chief's hearing and said, hey, did he mention this

·7· · at the time, that would have confirmed at least

·8· · that, oh, yeah, he mentioned it, we just didn't

·9· · ever try to find this guy.· Would that have raised

10· · a concern with you?

11· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

12· · Q.· · · · ·For you I should say?

13· · A.· · · · ·So what was the question?

14· · Q.· · · · ·If you had gone to Sergeant Meister --

15· · is that the -- Sergeant Meister is at the chief's

16· · hearing, right?· The IA sergeant would typically

17· · be at the chief's hearing?

18· · A.· · · · ·He was.· Yeah, they usually are but not

19· · always.

20· · Q.· · · · ·So if you had pulled Sergeant Meister

21· · aside after the chief's hearing and said, hey,

22· · he's talking about a potential witness here, did

23· · you try to -- did he ever mention that to you or

24· · is this just brand new information, presumably

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·1· · Sergeant Meister would have said, oh, yeah, he

·2· · mentioned it at some point.· And then would you

·3· · have -- you know, do you remember any conversation

·4· · like that for instance?

·5· · A.· · · · ·Could have occurred.

·6· · Q.· · · · ·Okay.· I mean if Sergeant Meister

·7· · had --

·8· · A.· · · · ·Those --

·9· · · · · · · ·MR. COGLIANESE:· Hold on.

10· · A.· · · · ·-- conversations aren't recorded.· So I

11· · cannot remember something that happened that long

12· · ago specifically about this particular thing.

13· · Q.· · · · ·I understand.· I'm just saying assuming

14· · that you would have had a conversation like

15· · that --

16· · A.· · · · ·Uh-huh.

17· · Q.· · · · ·-- and Sergeant Meister said, oh, yeah,

18· · he mentioned it, and you said, you know, well, did

19· · you talk to this person.· And he said no, we never

20· · even bothered to try to find this person who he

21· · said could potentially corroborate his account.

22· · Would that raise a concern for you about the

23· · investigation?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · A.· · · · ·It would depend on the type of answer

·2· · that I got, yes.

·3· · Q.· · · · ·Okay.· I will represent -- you know, I

·4· · don't want to go find all the portions of the

·5· · interview again on your time, because it's -- I

·6· · don't think it's reasonably in dispute.

·7· · · · · · · ·But Officer Morgan mentioned at least a

·8· · couple of other people who he says he told Officer

·9· · Tony Roberts to talk to to confirm that he was

10· · actually working this assignment, including this

11· · sort of part-time volunteer property manager

12· · person and someone who he calls the African guy

13· · who he doesn't really specify, but he makes it

14· · clear that Tony Roberts knew who the African guy

15· · was.· And the officers -- the sergeants first of

16· · all don't ask any follow-up questions about who

17· · Officer Morgan might be talking about.· And second

18· · don't indicate at all that they went to try to

19· · find or identify or talk to Tony Roberts about.

20· · Does that raise a concern for you about the

21· · investigation?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·If they believed that they could get

24· · information that would follow-up on some of his

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·1· · statements, then certainly I think that that would

·2· · be information worth knowing.· I don't know what

·3· · their considerations were.· I don't know what

·4· · direction they may or may not have been given by

·5· · the internal affairs chain of command with regard

·6· · to following up, getting more information, whether

·7· · they felt like let's focus on this instead of

·8· · that.

·9· · Q.· · · · ·Yeah.

10· · A.· · · · ·So looking at it, you know, without

11· · knowing all of that in the context in which it was

12· · done, yeah, you could say it looks like, you know,

13· · it could have been better.· But I don't know all

14· · the considerations that were in play at the time.

15· · Q.· · · · ·I mean just looking at the

16· · investigation, it seems as if these sergeants,

17· · particularly Sergeant Meister, did a ton of

18· · legwork to find information about Officer Morgan's

19· · potential misconduct?

20· · A.· · · · ·But we're not just the sergeant --

21· · Q.· · · · ·Within the department -- not just?· I'm

22· · sorry.

23· · A.· · · · ·Not just the sergeant.· Chris Bond did

24· · a great investigation.

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·1· · Q.· · · · ·Yeah.

·2· · A.· · · · ·You know.

·3· · Q.· · · · ·The criminal investigation, which took

·4· · place before Officer Morgan provided any --

·5· · A.· · · · ·Correct.

·6· · Q.· · · · ·-- information because he was advised

·7· · to not give a voluntary criminal interview?

·8· · A.· · · · ·Correct.

·9· · Q.· · · · ·Which is typical of officers, right? I

10· · mean, the FOP attorneys usually tell them don't

11· · give an interview in a criminal investigation

12· · because you're -- you don't have your guaranteed

13· · protections?

14· · A.· · · · ·I would say that's more often than not.

15· · Q.· · · · ·You certainly don't hold it against an

16· · officer in a disciplinary investigation that they

17· · didn't participate in the criminal investigation?

18· · A.· · · · ·That would be true.

19· · Q.· · · · ·Illegal?· It would be illegal if you

20· · did that, correct?

21· · A.· · · · ·Correct.

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · Q.· · · · ·So you don't do it?

24· · A.· · · · ·Correct.

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·1· · Q.· · · · ·So Officer Bond certainly didn't have

·2· · an opportunity to follow-up on witnesses on behalf

·3· · of Officer Morgan because Officer Morgan wasn't

·4· · participating in it?

·5· · A.· · · · ·Those that he brought up, yes.

·6· · Q.· · · · ·And he didn't have, for instance, the

·7· · information about Corporal DeGoey and the incident

·8· · at the Kroger?

·9· · A.· · · · ·To my knowledge.

10· · Q.· · · · ·Okay.· But all of these, Officer Bond,

11· · Sergeant Meister, Sergeant Decker, they did a lot

12· · of digging to find documents that showed Officer

13· · Morgan was not working on the Wednesday nights

14· · when he was assigned.· But I haven't identified

15· · virtually anything that they did to follow-up on

16· · information that might corroborate Officer

17· · Morgan's account other than calling Corporal

18· · DeGoey.· And so my -- I mean, I guess you

19· · mentioned well, it depends on how long it would

20· · have taken to do this or it depends on how long it

21· · would have taken to do that.· The investigation

22· · all told took almost two years.· Would it really

23· · have been a consideration of, oh, it's going to

24· · take an extra day to go over to Stratford Lakes

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·1· · and try to find this person?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·That's not my -- that's not my call

·4· · back when the investigation is underway.

·5· · That's --

·6· · Q.· · · · ·You were the chief of police.

·7· · A.· · · · ·I don't have the day-to-day chronology

·8· · of what a case is doing.· So that's the call of

·9· · the lieutenant and the commander in internal

10· · affairs to say go follow-up on that.· They read

11· · this back and forth, back and forth, they -- they

12· · prepare a draft, they send it back, they go say go

13· · do this, go do that.· So it's not something that

14· · is brought to my attention should we follow-up on

15· · that, should we follow-up on that.· That's --

16· · Q.· · · · ·During --

17· · · · · · · ·MR. COGLIANESE:· Hold on.· She's not

18· · done.

19· · Q.· · · · ·I'm sorry.· I'm not doing it on

20· · purpose, Rich.· Go ahead.

21· · A.· · · · ·It's just the way that the structure of

22· · internal affairs is set up to provide guidance

23· · with regard to how the investigation should be

24· · conducted.· And then if they feel like there's a

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·1· · gap or anything else, then they would direct them

·2· · to close that gap.· If they felt that there was a

·3· · bias, they -- you know, they should, you know,

·4· · point that out and try to make sure that there is

·5· · no bias.· That's all part of the internal affairs

·6· · chain of command review process.

·7· · Q.· · · · ·During your term as chief, who did the

·8· · commander of internal affairs report to?

·9· · A.· · · · ·I think for the entire time that was

10· · me.

11· · Q.· · · · ·And that was a change that came in?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·Prior to that there had been a layer of

14· · command in between you and --

15· · A.· · · · ·Deputy chief, yeah.

16· · Q.· · · · ·Okay.· And at the end of the internal

17· · affairs process once the conclusions came in and

18· · once things came from a chain of command, you

19· · certainly had the authority as chief to say I'm

20· · not satisfied with this investigation, and in this

21· · particular respect, please go do some follow-up?

22· · A.· · · · ·That depended.· If it was a citizen

23· · complaint, then I couldn't oftentimes ask for more

24· · investigation because of time limits.· And if it

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·1· · was an internal investigation such as this, then

·2· · that depended on whether or not I felt that there

·3· · was something that was, you know, important to the

·4· · outcome.· But I don't -- I don't recall too many

·5· · instances where by the time it got to me, that I

·6· · would have sent it back and said, you know, this

·7· · is lacking something that I need to have.

·8· · Q.· · · · ·The only thing that you saw that was

·9· · lacking at the end of this investigation was there

10· · wasn't a charge of 1.04 for cause for dismissal?

11· · A.· · · · ·I would --

12· · · · · · · ·MR. COGLIANESE:· Objection.

13· · A.· · · · ·I would not say that.

14· · Q.· · · · ·Okay.· Was there something else

15· · lacking?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·I don't recall specifically having some

18· · of the concerns that you've raised about not

19· · following up with some of these particular persons

20· · or not, I could have very well brought that up in

21· · the chief's hearing afterwards to get it

22· · addressed.· But, you know, I always -- not always.

23· · There are a number of times when I think an

24· · investigation could have gone in a different

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·1· · method, manner, asked better questions, followed

·2· · up with more people.· I've very -- I don't

·3· · remember ever seeing a perfect investigation.

·4· · Q.· · · · ·Okay.· In your time when you were

·5· · commander for IAB, if you had been confronted with

·6· · this investigative summary and the interview of

·7· · Kevin Morgan raising these potential corroborating

·8· · witnesses, would you have instructed the

·9· · investigators to do some additional work to try to

10· · find the witness?

11· · A.· · · · ·I would have asked --

12· · · · · · · ·MR. COGLIANESE:· Objection.

13· · A.· · · · ·-- what the -- I mean, if it got to me

14· · and it came to my attention, I would have asked

15· · what their thought process was on more follow-up.

16· · Q.· · · · ·Okay.· And if their thought process was

17· · we just didn't do anything to try to identify

18· · these witnesses, including even asking Officer

19· · Morgan for more information, would you have

20· · directed them to do something more?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·I -- it's hypothetical.· I don't -- I

23· · don't know what I would have done.

24· · Q.· · · · ·You don't know what you would have done

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·1· · if the officers had been presented with potential

·2· · corroborating witnesses and had done nothing in

·3· · response to follow-up on that?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·If there was reason to believe that

·6· · they actually had corroborating material then,

·7· · yes, I believe that I would have said try to find

·8· · them.

·9· · Q.· · · · ·And in this case there was reason to

10· · believe that they might have had corroborating

11· · material because literally the officers were

12· · asking Officer Morgan if there was anybody who

13· · might have corroborating material and these were

14· · the people that he listed?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·He listed without names and dates and

17· · times and place, yes.

18· · Q.· · · · ·But with some locations and even some

19· · roles within the apartment complex?

20· · A.· · · · ·It could have been done, yes.

21· · Q.· · · · ·Okay.· And it should have been done?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I don't know that I can say that

24· · because I don't know what the context of that

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·1· · information was.· I don't know if they were told

·2· · not to by a lieutenant or a commander for some

·3· · specific reason.· So without knowing more about

·4· · that thought process, if it was even a thought

·5· · process, I can't say.· If they were told not to do

·6· · something, if they were said, you know, we did

·7· · look and try but we couldn't find anything, I --

·8· · you know.· It would have been nice to have some

·9· · reference to it, but I don't know that it wasn't

10· · documented somewhere or discussed somewhere.

11· · Q.· · · · ·Well, part of the context was this was

12· · an officer who everybody knew his job was

13· · potentially on the line or at the very least

14· · serious discipline was on the line, right?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·And you certainly believed that this

17· · was an important question since you asked it at

18· · the chief's hearing?

19· · A.· · · · ·Yes.

20· · Q.· · · · ·Okay.· And now at least you know that

21· · the sergeants asked it in their investigation and

22· · got an answer from Officer Morgan, and then

23· · apparently did nothing at all to follow-up on it,

24· · including asking Officer Morgan for more

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·1· · information, asking Officer Roberts who apparently

·2· · also knew these people for more information or

·3· · going to the apartment complex and just trying to

·4· · find them.· Does that -- I mean, doesn't that tell

·5· · you that this is work, investigative work that

·6· · should have been done as part of this

·7· · investigation?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·It would have been beneficial.

10· · Q.· · · · ·And it should have been done?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·As I said before, I don't know what the

13· · circumstances were whether it was discussed,

14· · reviewed and decided upon.

15· · Q.· · · · ·Okay.· Assuming that Commander Knight

16· · didn't tell these sergeants not to do it and there

17· · were no other circumstances that would have

18· · prevented them from doing it, it should have been

19· · done?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·An attempt could have been made, yes.

22· · Q.· · · · ·And it should have been made?

23· · · · · · · ·MR. COGLIANESE:· Objection.· Asked and

24· · answered.

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·1· · · · · · · ·MR. VARDARO:· No.· She hasn't answered

·2· · it.· I keep saying should they have done it and

·3· · she keeps saying they could have done it.· I'm

·4· · just asking for a simple yes or no.

·5· · · · · · · ·MR. COGLIANESE:· On a hypothetical

·6· · question.

·7· · · · · · · ·MR. VARDARO:· Should they have done

·8· · this investigative work?

·9· · · · · · · ·MR. COGLIANESE:· Jeff, move on.

10· · Q.· · · · ·Should they have done this

11· · investigative work given the circumstances that

12· · you're aware of?

13· · · · · · · ·MR. COGLIANESE:· Move on.· Objection,

14· · asked and answered.

15· · Q.· · · · ·You can go ahead and answer the

16· · question.

17· · · · · · · ·MR. COGLIANESE:· If you want to answer

18· · it for the twelfth time, you're free to.· If you

19· · don't feel like answering it for a twelfth time,

20· · you don't have to.

21· · A.· · · · ·I want to get to the facts of the case

22· · that's relevant to statements.· There were other

23· · factors involved in this particular case that

24· · certainly I considered to be very relevant with

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·1· · regard to the rule violations.· Having that

·2· · information and it not being a question, yes, now

·3· · I can say we could have had that and then we would

·4· · have known instead of not knowing.

·5· · Q.· · · · ·But you can't say, yes, it should have

·6· · been done?

·7· · · · · · · ·MR. COGLIANESE:· Objection.· That's the

·8· · thirteenth time that's been asked.

·9· · A.· · · · ·I don't know the circumstances under

10· · which that decision was made.

11· · Q.· · · · ·Based on the circumstances that you do

12· · know, should they have followed up and tried to

13· · find these potential corroborating witnesses?

14· · · · · · · ·MR. COGLIANESE:· That's it.· That is

15· · the last time that question is going to be asked.

16· · · · · · · ·MR. VARDARO:· Do you want to call the

17· · judge?· Let's call the judge.

18· · · · · · · ·MR. COGLIANESE:· You've asked him how

19· · many times.

20· · · · · · · ·MR. VARDARO:· She hasn't answered it,

21· · yet, Rich.

22· · · · · · · ·MR. COGLIANESE:· She has, you just

23· · don't like the answer.

24· · · · · · · ·MR. VARDARO:· Please stop making

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·1· · speaking objections.· If you don't want her to

·2· · answer the questions, let's try to get on the

·3· · phone with the judge.

·4· · · · · · · ·MR. COGLIANESE:· She has answered the

·5· · question.· Chief, if you want to answer it again,

·6· · go ahead.· Jeff, move on.

·7· · A.· · · · ·Not knowing anything else but knowing

·8· · that this is an issue right now, then, yes, I can

·9· · say it should have been done so that we don't have

10· · this issue.

11· · Q.· · · · ·Okay.· Do you want to take a break for

12· · -- do you need lunch or --

13· · · · · · · ·MR. COGLIANESE:· Let's go off the

14· · record.

15· · · · · · · ·(A short recess is taken.)

16· · BY MR. VARDARO:

17· · Q.· · · · ·Okay.· You mentioned an officer named

18· · Mayhew who had been terminated or recommended for

19· · termination at some point?

20· · A.· · · · ·I did.

21· · Q.· · · · ·I think you said that you had testified

22· · about his case sometime in the last few weeks?

23· · A.· · · · ·Arbitration hearing last week.

24· · Q.· · · · ·Oh, okay.· So his case is still in

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·1· · arbitration?

·2· · A.· · · · ·Yeah.

·3· · Q.· · · · ·Okay.· I didn't know.· When was he

·4· · terminated?· Do you know what, I'll withdraw it.

·5· · A.· · · · ·I think it was 2016, but I'm not sure.

·6· · Q.· · · · ·Okay.· During the Morgan investigation,

·7· · Officer Morgan's union attorney Ron Snyder was

·8· · sitting in on his interviews.· Do you remember

·9· · that at all?

10· · A.· · · · ·I saw reference to it.

11· · Q.· · · · ·Okay.· At some point Mr. Snyder had

12· · recommended checking the walkie log to see whether

13· · Officer Morgan had any walkie-talkie activity

14· · during the times when he was supposed to be at

15· · Stratford Lakes or during other times that could

16· · confirm that he was on duty.· Do you remember

17· · that?

18· · A.· · · · ·Not specifically, no.

19· · Q.· · · · ·Okay.· I'll represent to you that both

20· · Mr. Snyder and Sergeant Decker during the

21· · interview acknowledged that that could show some

22· · evidence of Officer Morgan being on duty during

23· · the time -- during this time period, but nothing

24· · -- there's no indication that anybody actually

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·1· · followed up and pulled that data from the

·2· · division.· Do you have any knowledge of why that

·3· · would be?

·4· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·5· · A.· · · · ·Not that I recall, no.

·6· · Q.· · · · ·Okay.· There is a statement in the

·7· · internal affairs summary that Officer Morgan

·8· · consistently marked in service for his other

·9· · special duty assignments but not for the Stratford

10· · Lakes assignment.· Do you remember that from

11· · reading it?

12· · A.· · · · ·I remember that there were notations

13· · that -- I don't know about the word

14· · "consistently."· But if you -- if that's what's

15· · there, then it is.· But I remember that there were

16· · instances where he did mark with the radio room

17· · and that there were other instances in some of

18· · them at least, not more of them, when there

19· · weren't any radio transmissions or marking in I

20· · should say were related to his work at Stratford

21· · Lakes.

22· · Q.· · · · ·Okay.· Was that something you relied on

23· · in terms of your determination that Officer Morgan

24· · was being un -- or being not actually making up

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·1· · his hours at Stratford Lakes?

·2· · A.· · · · ·I consider it to be a violation of our

·3· · rules when you don't mark in service, so, yes.

·4· · Q.· · · · ·Well, you -- I'll break it into two

·5· · separate things.· First, he was disciplined with a

·6· · DCC for not marking in service on a number of

·7· · occasions --

·8· · A.· · · · ·I believe that's true.

·9· · Q.· · · · ·-- related to this investigation.

10· · That's not what he was terminated for though?

11· · A.· · · · ·Correct.

12· · Q.· · · · ·My question is did you rely on Sergeant

13· · Meister's assertion that Officer Morgan was

14· · marking in service for all of his other

15· · assignments but not for the Stratford Lakes

16· · assignment in determining whether or not Officer

17· · Morgan was actually working the Stratford Lake

18· · assignment?

19· · A.· · · · ·I considered it.· I wouldn't say that I

20· · relied on it, but I considered it.

21· · Q.· · · · ·Okay.

22· · · · · · · ·(A short recess is taken.)

23· · BY MR. VARDARO:

24· · Q.· · · · ·I'm going to move onto a different

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·1· · subject.

·2· · · · · · · ·At the chief's hearing -- well, my

·3· · understanding is during chief's hearings for

·4· · discipline during your time as chief, there would

·5· · be some form of presentation from professional

·6· · standards lieutenant, whoever was the lieutenant

·7· · attending that hearing about comparable cases?

·8· · A.· · · · ·Not during the hearing.

·9· · Q.· · · · ·Not during the hearing.· When would

10· · that be?

11· · A.· · · · ·After we had the hearing, went off the

12· · record, excused the focus officer and the

13· · representatives, then we would talk about what was

14· · presented.· And if it was something that I wasn't

15· · already aware of, then we would talk about

16· · comparables.

17· · Q.· · · · ·Okay.· When you say it was something

18· · you weren't already aware of, do you mean if it

19· · was comparables you weren't already aware of?

20· · A.· · · · ·Sometimes going into a hearing, I would

21· · have already asked for the comparables.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·And the lieutenants might have already

24· · provided that to me.

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·1· · Q.· · · · ·Okay.· Do you remember which it was in

·2· · Officer Morgan's case, whether you got the

·3· · comparables before or after the hearing?

·4· · A.· · · · ·I don't recall.

·5· · Q.· · · · ·Okay.· When you would get a list of

·6· · comparables before or after the hearing, was it

·7· · provided to you in writing or was it just a verbal

·8· · summary from the lieutenant?

·9· · A.· · · · ·It varied.· Sometimes it was in writing

10· · and sometimes it was verbal.

11· · Q.· · · · ·Okay.· Do you remember what form,

12· · whether you got a verbal or a written summary of

13· · comparables from the PSB lieutenant in Officer

14· · Morgan's case?

15· · A.· · · · ·No.

16· · Q.· · · · ·Okay.· Do you remember which PSB

17· · lieutenant gave you the list?

18· · A.· · · · ·No.

19· · Q.· · · · ·Okay.· Can you describe to me what the

20· · discussion was after the -- after you went off the

21· · record in Officer Morgan's chief's hearing?

22· · A.· · · · ·I don't have any specific recollections

23· · of the discussion.

24· · Q.· · · · ·How about generally?

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·1· · A.· · · · ·I would have to -- to guess, because I

·2· · don't have a specific memory of it.· But, you

·3· · know, typically we would say what do you think of

·4· · the presentation of the information?· Are there --

·5· · is there enough evidence here.· I would generally

·6· · ask the deputy chief present to say what they

·7· · think before I do so that, you know, I don't give

·8· · them an idea of where I might be going.· I would

·9· · sometimes ask the people that aren't the deputy

10· · chief what they thought.· If I had any questions

11· · of the IA investigator, I would ask.· I just don't

12· · remember any specific conversation in this

13· · particular case.

14· · Q.· · · · ·Okay.· Is there anything you could look

15· · at that could remind you of the conversation?

16· · A.· · · · ·Not that I am aware of.

17· · Q.· · · · ·Okay.· No notes, no minutes, nothing

18· · like that?

19· · A.· · · · ·No.

20· · Q.· · · · ·Okay.· Do you remember which deputy

21· · chief was in attendance?

22· · A.· · · · ·Well, based on this, I would assume

23· · that it was Chief Kuebler.

24· · Q.· · · · ·Okay.· What gives you that --

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·1· · A.· · · · ·Well, he was the deputy chief that

·2· · signed off on this.

·3· · Q.· · · · ·Okay.· Do you remember in particular

·4· · whether Chief Kuebler presented a point of view in

·5· · terms of this case and the strength of the

·6· · evidence or anything like that?

·7· · A.· · · · ·I don't recall that it was different

·8· · than mine --

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·-- of it being sustained and --

11· · Q.· · · · ·Okay.· Do you remember --

12· · A.· · · · ·-- that the evidence was there.

13· · Q.· · · · ·Okay.· Do you remember any difference

14· · of opinion among anybody involved?

15· · A.· · · · ·Not that I recall.

16· · Q.· · · · ·Okay.· Do you remember what any of the

17· · comparable cases were?

18· · A.· · · · ·I don't know that we had too many that

19· · were comparable about, you know, being accused of

20· · taking pay for that.· There's one old case that

21· · ended up getting criminally charged, went into

22· · diversion program and got expunged from the

23· · record, so it's sealed records and there's no

24· · information that's available.

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·1· · Q.· · · · ·Okay.· Was that officer terminated?

·2· · A.· · · · ·No.· No.

·3· · Q.· · · · ·Do you remember who the officer was?

·4· · A.· · · · ·Yeah.· I know who it was.

·5· · Q.· · · · ·Are you not able to tell me because of

·6· · the --

·7· · A.· · · · ·I don't believe I'm allowed to.

·8· · Q.· · · · ·So you're not going to tell me?

·9· · A.· · · · ·It's a sealed record.

10· · Q.· · · · ·It's a sealed record?

11· · A.· · · · ·It's not even -- the -- without naming

12· · the officer, you know, it was about a case where

13· · an officer was working special duty for a bank and

14· · hadn't worked there for -- or was accused of not

15· · having worked there for quite sometime, and the

16· · records indicated that that was true, he

17· · acknowledged it at some point in time.· He was

18· · charged criminally with a felony and the bank kind

19· · of backed out on the prosecution's side of, you

20· · know, going after it very hard so they agreed to

21· · the diversion program.· Somebody in CPD agreed to

22· · diversion program unbeknownst to the chief of

23· · police and so he was allowed to go through that

24· · program.· After a year, he was allowed to have the

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·1· · record sealed.

·2· · Q.· · · · ·Okay.· That was before you were chief?

·3· · A.· · · · ·It was when I was in internal affairs

·4· · and/or part of internal affairs and maybe another

·5· · assignment after that.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·So --

·8· · Q.· · · · ·Was the officer disciplined?

·9· · A.· · · · ·I don't recall.

10· · Q.· · · · ·Was there some aspect of the criminal

11· · diversion program that was binding on the division

12· · of police?

13· · A.· · · · ·Well, the conviction went away, so I --

14· · I believe there was also contractual issue, I

15· · think that they said that there was -- a violation

16· · of 814, I believe, which was something to do with

17· · it extending beyond 180 days and no discipline or

18· · something like that.· Citizen complaint kind of a

19· · thing whether it was or wasn't.

20· · Q.· · · · ·Uh-huh.

21· · A.· · · · ·So I think contract -- and there might

22· · have been a disciplinary process.· It's just that

23· · I was a commander at the time and I don't recall

24· · all the details of what happened after it was

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·1· · outside of my bailiwick.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·I just remembered that that was an

·4· · accusation of being paid for special duty and not

·5· · being there.

·6· · Q.· · · · ·Okay.· Were there any comparables

·7· · presented where the officer was terminated?

·8· · A.· · · · ·I can't remember anything that was that

·9· · close.

10· · Q.· · · · ·Okay.· Were there any other comparables

11· · presented that -- where the officer wasn't

12· · terminated?

13· · A.· · · · ·Not that I recall.· I mean like I said,

14· · I don't recall the specific conversation.· And I

15· · don't recall another instance where the allegation

16· · was that you're getting paid and you weren't

17· · there.

18· · Q.· · · · ·Okay.· Is it your recollection in

19· · general that there was only one comparable

20· · presented, or do you think there were more

21· · comparables and you just can't remember what they

22· · were?

23· · A.· · · · ·I don't even know if that other one was

24· · presented as much as I remember it.

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·1· · Q.· · · · ·Okay.· So is it possible there were no

·2· · comparables presented?

·3· · A.· · · · ·Well, we always try to, you know, see

·4· · if anything else will be called a comparable.· And

·5· · so we might have discussed other instances where

·6· · people have been paid for work not performed.

·7· · Q.· · · · ·Uh-huh.

·8· · A.· · · · ·I know that we've had a lieutenant that

·9· · -- a lieutenant that was suspected of abusing

10· · overtime.· And he I believe resigned before he got

11· · to the -- I think I made a recommendation of

12· · termination, but I think he might have resigned

13· · before he was fired.

14· · Q.· · · · ·Was that Troy --

15· · A.· · · · ·Troy Casner.

16· · Q.· · · · ·-- Casner, yeah.

17· · A.· · · · ·Yeah.

18· · Q.· · · · ·Okay.· In that case, the lieutenant was

19· · also alleged to have tampered with the

20· · investigation, right?

21· · A.· · · · ·Oh, by talking to people.· I think that

22· · was -- yes.

23· · Q.· · · · ·He was talking to his subordinate about

24· · the investigation --

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·1· · A.· · · · ·I believe that that's --

·2· · Q.· · · · ·-- and trying to compare stories with

·3· · them?

·4· · A.· · · · ·I think that's it, yes.

·5· · Q.· · · · ·I'm sorry.· We're talking over each

·6· · other.

·7· · A.· · · · ·Or tell them what he wanted them to

·8· · remember.

·9· · Q.· · · · ·Right.

10· · A.· · · · ·Correct.

11· · Q.· · · · ·And that was a -- that was sustained

12· · against him --

13· · A.· · · · ·Yes.

14· · Q.· · · · ·-- in addition to the time issue?

15· · A.· · · · ·I don't recall what the allegations

16· · were.· But I remember that it was about time and

17· · that, yes, he was accused of talking to people.

18· · Q.· · · · ·Okay.· Do you remember whether or not

19· · that was brought up as a comparable in the Kevin

20· · Morgan discussion or are you just sort of trying

21· · to remember other similar cases?

22· · A.· · · · ·Yeah.· The latter.

23· · Q.· · · · ·The second.· Okay.

24· · · · · · · ·Is there anything that you could look

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·1· · at to remind you of what the comparable cases

·2· · would have been that you discussed?

·3· · A.· · · · ·Like I said, I just don't remember that

·4· · there was anything that I would describe as a

·5· · close comparable.

·6· · Q.· · · · ·Okay.· Well, can you remember what the

·7· · reasoning was discussed whether it was your

·8· · reasoning or the reasoning presented by others as

·9· · to why Officer Morgan was terminated in this case?

10· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

11· · A.· · · · ·I could only tell you that I was

12· · convinced that there was some critical misconduct

13· · that had occurred that was of a criminal nature,

14· · theft.· I considered it to be that he was asked to

15· · work four hours a week and could not prove that he

16· · had worked four hours a week.· I believe that the

17· · evidence showed that there was at least some type

18· · of deception or deceit going on with regard to

19· · implying that he was working Wednesday nights from

20· · 9:00 to 1:00 because that's what the invoices were

21· · for, that he was in two places or, you know,

22· · thought to be in two places at the same time, that

23· · he was expected to work four-hour shifts and

24· · sometimes worked less than four-hour shifts but

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·1· · still accepted the payment for the entire four

·2· · hours.· His -- his answers, his reasoning, his

·3· · defense was not credible enough to make me believe

·4· · that those facts weren't true.

·5· · Q.· · · · ·Anything else?

·6· · A.· · · · ·Not that I recall.

·7· · Q.· · · · ·Okay.· You knew that the invoices for

·8· · the jobs were going out the same way every week

·9· · regardless of which actual days the officers on

10· · this assignment were working?

11· · A.· · · · ·I understood that he was being paid to

12· · work Wednesday nights from 9:00 to 1:00 and that's

13· · what the invoices were being paid for.

14· · Q.· · · · ·Okay.· But that was true even during

15· · the time when Officer Morgan was switching days

16· · with the knowledge and authorization of Officer

17· · Roberts?

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · A.· · · · ·I don't know about prior to that break

20· · off point where he got a set schedule.

21· · Q.· · · · ·Okay.· Assuming for the moment that the

22· · invoices were basically going out as Wednesdays

23· · even when his special duty coordinator knew that

24· · he was working a different schedule, would that

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·1· · suggest to you that -- it still suggests to you

·2· · that it was deceptive for him to invoice for

·3· · Wednesdays when he was working on Fridays or

·4· · Sundays or something like that?

·5· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·6· · Q.· · · · ·Or was the deceptive part that he

·7· · wasn't working the actual number of hours claimed?

·8· · A.· · · · ·I would say both.· I don't believe that

·9· · he was working the hours claimed.· And the fact

10· · that prior to he was giving actual hours and then

11· · stopped giving actual hours in my opinion is very

12· · damaging with regards to accountability.· You

13· · know, why would you stop?· If you were told this

14· · is the schedule, work that schedule, you don't do

15· · that and you don't provide any of the former --

16· · formerly provided dates and times, then to me

17· · that's a big absence and omission that could lead

18· · to the likelihood that you're deceiving.

19· · Q.· · · · ·Well, you understood there was a

20· · difference of recollection between Officer Morgan

21· · and Officer Roberts in terms of Officer Roberts

22· · said, yeah, I told him just work Wednesdays from

23· · now on and Officer Morgan said I'm generally going

24· · to work Wednesdays but there may be days when I

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·1· · have to switch?

·2· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·3· · A.· · · · ·I mean I don't specifically recall

·4· · that.· But I knew that they had given somewhat

·5· · different statements, yes.

·6· · Q.· · · · ·Okay.· You just chose to believe

·7· · Officer Roberts rather than Officer Morgan in this

·8· · particular instance?

·9· · A.· · · · ·Well, I believe that the indications

10· · are that Officer Roberts had no reason to make

11· · something up and that Officer Morgan certainly had

12· · a reason to remember things differently if it was

13· · in his favor because he was the one being accused

14· · of not doing things the right way.

15· · Q.· · · · ·Okay.· So when two officers --

16· · A.· · · · ·Officers --

17· · · · · · · ·MR. COGLIANESE:· Well --

18· · Q.· · · · ·I'm sorry.· I didn't realized you

19· · weren't done.

20· · A.· · · · ·Officer Roberts gave a statement that

21· · indicated that this is what he had been told by

22· · management and that he was passing that

23· · information along, and so I didn't have any reason

24· · to disbelieve what he had indicated.· You know, I

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·1· · -- I know that everybody's memory as we've noted a

·2· · number of times is not perfect.· And so it's not

·3· · the question always of accusing somebody of lying

·4· · or not, it's just that's how they remember things.

·5· · And so I didn't have a reason to believe that

·6· · Officer Roberts was remembering it, you know,

·7· · wrong and I -- I do know that Officer Morgan had a

·8· · reason to say, no, it's okay, you know, I'm

·9· · allowed to flex my hours, you know, I had a deal,

10· · they were aware of it.

11· · Q.· · · · ·Because --

12· · A.· · · · ·It could be true, but it could be made

13· · up.

14· · Q.· · · · ·Because he was under investigation, he

15· · had a reason to make it up?

16· · A.· · · · ·Absolutely.

17· · Q.· · · · ·So one officer is under investigation

18· · and the other officer isn't, that's a basis for

19· · concluding that the one officer is being truthful

20· · and the other one isn't?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·That's not the only factor that's taken

23· · into consideration.· But certainly if you're the

24· · one under investigation, there's kind of an

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·1· · automatic motive to lie.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·I've taught that for years, and said

·4· · that, you know, why do we trust an officer when

·5· · you say you ran a red light?· And we believe him

·6· · up and down, right?· But then when somebody makes

·7· · a complaint and says, well, they were rude to me,

·8· · now -- now the officer is accused.· They didn't

·9· · change, there's just a inbuilt motivation to deny,

10· · that every, every person that talks about

11· · credibility will teach you that.

12· · Q.· · · · ·Okay.· But typically in a CPD

13· · investigation if one officer is saying this

14· · officer committed misconduct and the officer who

15· · is being accused says no, I didn't, here's what

16· · actually happened, the investigator, the chain of

17· · command, they don't generally take that as

18· · anything -- as a, you know, well, this officer is

19· · less credible because he's under investigation,

20· · that's not -- I can't say I've ever seen that

21· · cited as a factor in an investigation, that's why

22· · I'm asking you about it.

23· · A.· · · · ·I'm not sure what the -- what the

24· · question is.

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · Q.· · · · ·Your testimony is when one CPD officer

·3· · makes an allegation against another CPD officer,

·4· · the complaining officer is automatically more

·5· · credible than the focus officer?

·6· · A.· · · · ·I didn't say that.

·7· · Q.· · · · ·In a sort of he-said-she-said?

·8· · A.· · · · ·I didn't say that.

·9· · Q.· · · · ·Okay.· In the Roberts/Morgan situation,

10· · Roberts -- if Roberts said, yeah, I told him to

11· · show up every Wednesday 9:00 to 1:00 and Morgan

12· · said 9:00 to -- Wednesday 9:00 to 1:00 was the

13· · baseline, but I told him that I might not be able

14· · to make it every Wednesday and I would work

15· · different days, did -- that's a he-said-she-said.

16· · By itself, that would be a he-said-she-said type

17· · situation.

18· · A.· · · · ·Well, what he said --

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·-- was plausible.· He went to look for

21· · him on a Wednesday night.· Why would you look for

22· · him on a Wednesday night if you thought that he

23· · was allowed to work differing shifts and, you

24· · know, follow-up on what had been told by

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·1· · management who didn't see him on a Wednesday

·2· · night.· Why would he look for him on a Wednesday

·3· · night?· So it's based on what he said, not just

·4· · he's the complaining --

·5· · Q.· · · · ·It's based on what they each said and

·6· · then some of the surrounding circumstances is what

·7· · you're saying?

·8· · A.· · · · ·Yeah.

·9· · Q.· · · · ·Okay.· Officer Morgan was not charged

10· · with or nor did he have a sustained allegation of

11· · untruthful conduct in this situation, correct?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·Once you recommended termination --

14· · well, first of all, let me ask a basic question.

15· · Your recommendation for discipline in this

16· · situation was a 240-hour suspension I believe and

17· · termination?

18· · A.· · · · ·I believe so.

19· · Q.· · · · ·What's the purpose of that?· Sort of --

20· · I mean, obviously a six week suspension doesn't

21· · really mean a whole lot if the officer is also

22· · being terminated, right?

23· · A.· · · · ·Yep.· That was something that I saw

24· · being done by previous chiefs and there wasn't a

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·1· · lot of explanation for that in the past.· But I

·2· · had never been given any guidance not to do that

·3· · by the safety director.

·4· · Q.· · · · ·Just sort of tradition?

·5· · A.· · · · ·It was a little bit of tradition.· Also

·6· · just that, you know, in case an arbitrator or

·7· · somebody decided or even the safety director

·8· · decided that termination wasn't, you know --

·9· · wasn't appropriate.· Okay, but if you don't do

10· · that, then do this.

11· · Q.· · · · ·Uh-huh.

12· · A.· · · · ·Because if it's either, you know --

13· · Q.· · · · ·It's just --

14· · A.· · · · ·If it's either no termination or

15· · scot-free, then I think that there should be some

16· · type of corrective action.· So it's my way and I

17· · think previous chiefs way of saying I believe it's

18· · very strong corrective action that's necessary.

19· · And if you don't go for the termination, then, you

20· · know, at least give them a suspension.

21· · Q.· · · · ·Okay.· Did you attend a director's

22· · hearing in Kevin Morgan's case?

23· · A.· · · · ·No.

24· · Q.· · · · ·Do you ever attend director's hearings?

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·1· · A.· · · · ·No.

·2· · Q.· · · · ·Okay.· Did you have any discussion with

·3· · -- at the time it was Director Speaks who did

·4· · Kevin Morgan's director's hearing.· Did you have

·5· · any discussion with Director Speaks about this

·6· · case?

·7· · A.· · · · ·Not that I recall.

·8· · Q.· · · · ·Would you typically?

·9· · A.· · · · ·No.

10· · Q.· · · · ·Okay.· Did you have any discussions

11· · with the union about trying to resolve Kevin

12· · Morgan's case based on his suspension or something

13· · less than a termination?

14· · A.· · · · ·Not that I recall.

15· · Q.· · · · ·Okay.· Would you typically have a

16· · discussion with the union about that?

17· · A.· · · · ·Not that I recall, no.

18· · Q.· · · · ·Okay.· Did you have any role in Kevin

19· · Morgan's arbitration?

20· · A.· · · · ·I might have very well testified. I

21· · just don't specifically remember.

22· · Q.· · · · ·Okay.· Do you remember that in Kevin

23· · Morgan's case he -- the City attempted to deprive

24· · Officer Morgan of his arbitration right because he

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·1· · had filed a charge with the EEOC or the civil

·2· · rights commission?

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · A.· · · · ·I think I'm aware of that.

·5· · Q.· · · · ·Did you have any opinion or input into

·6· · that decision?

·7· · A.· · · · ·That's not my call.

·8· · Q.· · · · ·Okay.· Do you know of an officer named

·9· · Ricky Anderson?

10· · A.· · · · ·Yeah.

11· · Q.· · · · ·Was he terminated or disciplined at

12· · some point for a time -- like, misreporting time

13· · incident?

14· · A.· · · · ·Could be.

15· · Q.· · · · ·Okay.· Was he ever mentioned as a

16· · comparable in Kevin Morgan's case?

17· · A.· · · · ·I don't know.

18· · Q.· · · · ·Okay.· Was that a special duty

19· · situation?

20· · A.· · · · ·I don't know.· I don't recall what

21· · you're talking about, so I can't --

22· · Q.· · · · ·Okay.· You recalled making a

23· · disciplinary recommendation in the case involving

24· · Bronson Constable and Doug Jones and some other

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·1· · officers regarding misreporting leave?

·2· · A.· · · · ·Yes.· I remember a case involving him

·3· · and Sergeant Jones and I'm not sure who else.

·4· · Q.· · · · ·Would you differ with me if I said that

·5· · your recommendation in the Constable and Jones

·6· · case came within a few months of Officer Morgan's

·7· · case?

·8· · A.· · · · ·Would I what?

·9· · Q.· · · · ·Would you disagree with that general

10· · timeline?

11· · A.· · · · ·I don't recall specifically.· But I

12· · wouldn't have the facts to disagree with you.

13· · Q.· · · · ·Okay.· Do you remember which case

14· · happened first?

15· · A.· · · · ·Not really.

16· · Q.· · · · ·Okay.· The findings in the Constable

17· · and Jones case were very similar to Officer

18· · Morgan's case, right?

19· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

20· · A.· · · · ·What do you mean by "findings"?

21· · Q.· · · · ·The findings -- the disciplinary

22· · findings against the officers, a similar rule of

23· · conduct, it was a similar circumstance?

24· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

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·1· · A.· · · · ·It could be.· I just don't remember the

·2· · specific charges.

·3· · Q.· · · · ·Okay.· The officers in those -- first

·4· · of all, those are two sergeants, right?· Bronson

·5· · Constable and Doug Jones?

·6· · A.· · · · ·Correct.

·7· · Q.· · · · ·There was also a Sergeant Fox, I

·8· · believe it was, under investigation?

·9· · A.· · · · ·Yeah, that sounds familiar.

10· · Q.· · · · ·And Sergeant Knight, who was Jennifer

11· · Knight's husband?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·As well as their lieutenant, whose name

14· · escapes me at the moment was --

15· · A.· · · · ·Spears.

16· · Q.· · · · ·Spears was investigated for failure to

17· · supervise?

18· · A.· · · · ·Uh-huh.

19· · Q.· · · · ·Sorry.· You have to say yes or no.· You

20· · said uh-huh.

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Okay.· And those are all white

23· · officers?

24· · A.· · · · ·Yes.

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·1· · Q.· · · · ·Okay.· The allegation -- I want to

·2· · focus particularly on Constable and Jones because

·3· · I think the other officers were exonerated or

·4· · found to have committed less serious conduct.· But

·5· · the findings as to -- the investigative findings

·6· · as to Constable and Jones was that they had failed

·7· · to report to work on a number of occasions as

·8· · patrol sergeants for their regular duty and had

·9· · not submitted leave slips for those hours.· Does

10· · that sound right?

11· · A.· · · · ·Correct.

12· · Q.· · · · ·Okay.· This is another investigation I

13· · assume you were kept updated by Commander Knight

14· · or whoever was in charge of IAB at the time?

15· · A.· · · · ·Yes.

16· · Q.· · · · ·The allegations against those sergeants

17· · was sustained and recommended for departmental

18· · charges?

19· · A.· · · · ·I know some were.· I don't know if

20· · everything was.· But, yes, I do know that some

21· · were, yes.

22· · Q.· · · · ·Well, one difference actually in this

23· · case was those two officers, those two sergeants

24· · were alleged to have been untruthful during their

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·1· · investigations.· Does that ring a bell?

·2· · A.· · · · ·I don't specifically recall it, but

·3· · I --

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·It could very well be.

·6· · Q.· · · · ·If I said --

·7· · A.· · · · ·Were they charged with untruthfulness?

·8· · Q.· · · · ·I will represent to you they were --

·9· · there was an allegation of untruthfulness brought

10· · up during the investigation by internal affairs,

11· · and the internal affairs recommendation was not

12· · sustained but the investigator indicated that it

13· · was a close call.· Does that -- is any of this

14· · refreshing your recollection or you just don't

15· · remember this investigation?

16· · A.· · · · ·No, I remember --

17· · Q.· · · · ·Okay.

18· · A.· · · · ·-- the investigation as a whole.· But I

19· · don't remember a lot of specific details.

20· · Q.· · · · ·Okay.· Do you remember that in the

21· · Constable and Jones case that Bronson Constable

22· · had sustained allegations against him that he had

23· · failed to take leave for 19 full days that he had

24· · not reported to work?

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·1· · A.· · · · ·It could be that.

·2· · Q.· · · · ·Sounds like that ball park?

·3· · A.· · · · ·Number, uh-huh.

·4· · Q.· · · · ·It was a total of 152 hours of working

·5· · time.

·6· · A.· · · · ·Okay.

·7· · Q.· · · · ·And Sergeant Jones it was 23 days and

·8· · 184 hours.· Does that sound about right?

·9· · A.· · · · ·Could be, yeah.

10· · Q.· · · · ·Okay.· And it was -- I've seen some

11· · news reports, I haven't done the calculations

12· · myself.· But I've seen some news reports

13· · indicating that the time that was not taken --

14· · that leave wasn't taken for was worth seven or

15· · eight thousand dollars for each officer?

16· · A.· · · · ·Okay.

17· · Q.· · · · ·Does that sound about right?

18· · A.· · · · ·I have no idea what their pay rate was

19· · or what the amount of money that could have been,

20· · but --

21· · Q.· · · · ·Do you recall from reading Officer

22· · Morgan's investigation that he was being alleged

23· · to have failed to report for 11 four-hour shifts?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · A.· · · · ·Say that again.

·2· · Q.· · · · ·The allegations against Officer Morgan

·3· · consisted of -- the ones where he was alleged not

·4· · to have shown up at all for shifts at Stratford

·5· · Lakes was for 11 four-hour shifts?

·6· · A.· · · · ·Well, you said alleged.· I mean, I -- I

·7· · don't know that that number represents all the

·8· · allegations.

·9· · Q.· · · · ·Those are the sustained allegations.

10· · A.· · · · ·Okay.

11· · Q.· · · · ·The sustained allegations were 11

12· · four-hour shift and then a few partial?

13· · A.· · · · ·You didn't say sustained before.

14· · Q.· · · · ·I'm sorry.· I refer to them as alleged

15· · because Officer Morgan does not --

16· · A.· · · · ·But I think there were other dates that

17· · were alleged as well, so.

18· · Q.· · · · ·Sure.· So for these purposes, I'm

19· · talking about the sustained allegations confirmed

20· · by the division of police, consisted of 11

21· · four-hour shifts and then a few partial shifts?

22· · A.· · · · ·That sounds right.

23· · Q.· · · · ·Okay.· And so roughly -- so if you take

24· · that as, you know -- anyway, bottom line is it was

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·1· · a much fewer number of hours than Constable and

·2· · Jones overall?

·3· · A.· · · · ·However you want to describe much,

·4· · it's --

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·-- a difference.

·7· · Q.· · · · ·I mean about a quarter?

·8· · A.· · · · ·And smaller.

·9· · Q.· · · · ·It's about a quarter, right?· I mean --

10· · A.· · · · ·Eleven and nineteen are not a quarter.

11· · Q.· · · · ·I guess I would say a third.· Well, but

12· · it's 11 four-hour shifts versus 19 eight-hour

13· · shifts?

14· · A.· · · · ·Okay.

15· · Q.· · · · ·So you're talking about a far less -- a

16· · far lower amount of time?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · Q.· · · · ·Do you disagree with that

19· · characterization?

20· · A.· · · · ·Amount of time, it's definitely a

21· · difference, yes.

22· · Q.· · · · ·Yeah.· The amount of time and money at

23· · stake in the Constable and Jones case was much

24· · more than the amount of time and money at stake in

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·1· · the Morgan case?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·You can characterize it that way if

·4· · you'd like.

·5· · Q.· · · · ·Okay.· Well, would you characterize it

·6· · that way?

·7· · A.· · · · ·There was a difference.· Yes.

·8· · Q.· · · · ·And it was a fairly -- I mean, in terms

·9· · of proportions, it was a fairly large difference?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·I don't know what the numbers are.· But

12· · yeah, it was smaller.

13· · Q.· · · · ·Okay.· Does it matter in an

14· · investigation -- like in terms of the discipline

15· · whether an officer failed to report for one shift

16· · or 20 shifts?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Okay.· So quantity of time and money

19· · being, you know, misreported or stolen matters?

20· · A.· · · · ·Yeah.· I don't look at it as the money

21· · because pay rates are different and all that kind

22· · of stuff.· I mean, certainly I need to be

23· · conscious of the fact that, you know, the

24· · taxpayers are paying our salaries.· Special duty

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·1· · employers are paying special duty employee

·2· · salaries.· But it's the act of misrepresenting or

·3· · not being present or not being on time that is

·4· · most relevant.

·5· · Q.· · · · ·Okay.· But the quantity matters, too,

·6· · in terms -- for instance, an officer comes into

·7· · work 20 minutes late 10 days in a row versus the

·8· · officer just skips 10 shifts in a row, that's a

·9· · different volume of misconduct, right?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·There's a different amount, but it

12· · doesn't mean that the behavior is less serious.

13· · Q.· · · · ·Okay.· So you can see disciplining two

14· · officers the same for one of them shows up late 10

15· · days in a row and one of them just doesn't show up

16· · 10 days in a row?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·It depends on the circumstances. I

19· · mean, were they ordered to be here the next day,

20· · you know, were they, you know -- I mean, the facts

21· · of each case matter.· And I can't theoretically

22· · say one is different than the other without

23· · knowing what each situation is and calls for and

24· · what the responses would be and who was aware and

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·1· · all of that.

·2· · Q.· · · · ·Okay.· So you can't tell me whether

·3· · skipping 20 minutes of a shift is the same as

·4· · skipping the shift?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·There's a difference.· But as far as

·7· · the outcome of a disciplinary decision, it still

·8· · depends on what the facts are.

·9· · Q.· · · · ·Okay.· Assuming every other fact about

10· · the case is the same, there's no special order or

11· · no, you know -- anything like that, wouldn't you

12· · expect that the disciplinary recommendation all

13· · the way up the chain and including yourself would

14· · be more for the officer who skips an entire shift

15· · than the officer who skips 20 minutes of a shift?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·If every single thing is the same, the

18· · defense is the same, there might be a difference.

19· · Q.· · · · ·Okay.· Do you remember -- first of all,

20· · it was Daniel Weaver that did the investigation of

21· · Constable and Jones.· Does that ring any bells?

22· · A.· · · · ·Sounds likely.

23· · Q.· · · · ·Okay.· Do you remember -- first of all,

24· · the officers, Sergeant Jones, Sergeant Constable

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·1· · never admitted any of their alleged misconduct?

·2· · A.· · · · ·Well, Sergeant Jones came forward after

·3· · Constable was accused and said I might have

·4· · misreported some of my time, so he in one sense

·5· · came forward with potential errors, but ultimately

·6· · he denied that he had stolen time.

·7· · Q.· · · · ·And Constable said that he never did

·8· · anything wrong and he submitted leave slips for

·9· · every hour of time that he missed?

10· · A.· · · · ·Well, I think that's the gist of that,

11· · yeah.

12· · Q.· · · · ·And in Sergeant Jones's case the fact

13· · that he came forward with additional leave slips

14· · that he had not previously submitted was actually

15· · pretty strong evidence of his other misconduct

16· · that he didn't admit?

17· · A.· · · · ·It didn't help him at all.

18· · Q.· · · · ·In fact, it made it appear that he was

19· · being purposefully dishonest?

20· · A.· · · · ·Well, misleading at least, yeah.

21· · Q.· · · · ·Because he had come forward with leave

22· · slips for time that he had not reported missing,

23· · and it happened that every single new leave slip

24· · he came up with he had in fact not previously

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·1· · submitted leave for and he had no way to know that

·2· · without knowing that he hadn't done it.

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · A.· · · · ·I don't remember all that specific.

·5· · Q.· · · · ·Well, does that sound familiar?

·6· · Basically he had no way to know which time he had

·7· · missed that he had reported leave for and which

·8· · time he hadn't reported leave for within a

·9· · particular pay period?

10· · A.· · · · ·That could be.

11· · Q.· · · · ·And yet he somehow guessed which days

12· · he had and hadn't reported?

13· · A.· · · · ·That could be.

14· · Q.· · · · ·Do you remember that Sergeant Weaver

15· · had done some sort of back-of-the-envelope

16· · calculations and come up with, you know, that it

17· · was sort of extremely unlikely that somebody would

18· · randomly guess correctly on those?

19· · A.· · · · ·I don't remember that.

20· · Q.· · · · ·It was discussed at the chief's

21· · hearing, so I didn't -- it was like a 1 and 256

22· · chance or something.· I'm --

23· · A.· · · · ·I'm --

24· · Q.· · · · ·I'm just asking your memory.

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·1· · A.· · · · ·I'm saying I don't recall it.

·2· · Q.· · · · ·Okay.· But it was something along those

·3· · lines, that it was the fact that he had come up

·4· · with those leave slips made it seem more likely

·5· · that he was intentionally failing to submit leave?

·6· · A.· · · · ·Yeah.

·7· · Q.· · · · ·Which he did not admit to?

·8· · A.· · · · ·Yes.· To the best of my recollection,

·9· · neither one of them accepted responsibility for

10· · any errors.

11· · Q.· · · · ·Okay.· And certainly not for any

12· · intentional misconduct?

13· · A.· · · · ·Correct.

14· · Q.· · · · ·The allegations against those officers

15· · were widely reported in the media, it was an

16· · embarrassment for the department.

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Do you remember seeing and knowing

19· · about the news articles at the time?

20· · A.· · · · ·I can't imagine that I wasn't.

21· · Q.· · · · ·Okay.· In both of their cases the

22· · allegations against the officers were submitted

23· · for criminal investigation, just like in Morgan's

24· · case.

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·1· · A.· · · · ·Is that a question?

·2· · Q.· · · · ·Yeah.

·3· · A.· · · · ·Yes.

·4· · Q.· · · · ·Okay.· And the officer who did the

·5· · criminal investigation, do you remember who that

·6· · was?

·7· · A.· · · · ·No.

·8· · Q.· · · · ·Okay.· But you remember it wasn't

·9· · prosecuted criminally?

10· · A.· · · · ·Correct.

11· · Q.· · · · ·Do you recall that it was prosecutor

12· · Jeff Blake that made that decision?

13· · A.· · · · ·I thought Ron O'Brien had weighed in on

14· · that.

15· · Q.· · · · ·Do you remember that the reason for the

16· · lack of prosecution was extremely similar to the

17· · reasoning that we talked about earlier for not

18· · prosecuting Officer Morgan?

19· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

20· · A.· · · · ·No.· What I recalled was that the

21· · reasons were is that our recordkeeping system was

22· · such a mess that because we had records of people

23· · actually doing the opposite, you know, they were

24· · actually at work when we didn't have a record of

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·1· · them being at work and vice versa, that our

·2· · recordkeeping system was such a mess that we

·3· · couldn't successfully prove that leave slips had

·4· · not been turned in.· And so I thought that the

·5· · opinion was such that damaged even our

·6· · administrative case because of the opinion of -- I

·7· · thought it came from Ron O'Brien but maybe it

·8· · didn't.· I don't know.

·9· · Q.· · · · ·What you're describing to me sounds a

10· · lot like what Jeff Blake said in Officer Morgan's

11· · case, which was there weren't very good records of

12· · the special duty assignment that Officer Morgan

13· · was participating in.· And the -- the property

14· · manager for the department complex herself had

15· · said that she wanted the officers to vary their

16· · hours and be a little unpredictable and keep

17· · people on their toes.· That -- you think that you

18· · see those as very different explanations for not

19· · prosecuting?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·I -- that's kind of a convoluted

22· · statement there.· The systems both might have had

23· · errors, not the same kind of error.· We had a

24· · leave slip request system in place that is nothing

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·1· · like what Officer Morgan is accused of.· You know,

·2· · you requested leave by putting a slip in the

·3· · supervisor's tray.· The supervisor is supposed to

·4· · sign it, take it into payroll and it gets

·5· · processed.· That has nothing to do with Officer

·6· · Morgan's case.· He wasn't requesting leave.· He

·7· · wasn't saying, hey, I'm going to be off this day

·8· · or anything like that.· So I don't see a

·9· · similarity in the timekeeping process.

10· · Q.· · · · ·In both cases --

11· · A.· · · · ·Both.

12· · Q.· · · · ·I'm sorry.· Go ahead.

13· · A.· · · · ·Both of them, you know, relied on

14· · peoples' integrity to a large degree.· And both

15· · systems ended up being abused in my opinion by

16· · people that were less than integrity [sic].

17· · Q.· · · · ·Okay.· So it sounds to me like you're

18· · agreeing with me that in both cases what the

19· · prosecutor's office reported was it would be

20· · difficult to prove or disprove the officer's

21· · claims who are under investigation and there

22· · weren't going to be records that could sort of

23· · demonstratively discredit or be used to prove the

24· · criminal investigation.

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·I think that was part of the decision

·3· · making.· Not all of it for each one, they each had

·4· · different factors, but, yeah.

·5· · Q.· · · · ·You mentioned the taxpayers and the

·6· · private companies that pay for special duty --

·7· · taxpayers pay your salaries for the police

·8· · officers, and in special duty cases you're talking

·9· · about private companies paying for the services?

10· · A.· · · · ·Of a special duty officer.

11· · Q.· · · · ·Yeah.

12· · A.· · · · ·Correct.

13· · Q.· · · · ·Does that make one or the other more or

14· · less important in terms of discipline?

15· · A.· · · · ·It goes back to the act itself.· You

16· · know, is it stealing, is it deception, is it

17· · double dipping, all of that.

18· · Q.· · · · ·I guess I'm asking if you make a

19· · distinction between those things or whether

20· · they're all just wrong.

21· · A.· · · · ·I don't consider it to be a big

22· · difference, no.

23· · Q.· · · · ·Would you agree with me that the

24· · investigation of Constable and Jones was more

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·1· · thorough than the investigation in Morgan's case?

·2· · A.· · · · ·I don't have any basis to say that.

·3· · Q.· · · · ·Well, do you remember that an officer

·4· · in the Constable and Jones case, they didn't just

·5· · check the duty roster and compare it to their

·6· · leave slips, they actually went through and they

·7· · examined the officer's radio logs and walkie

·8· · records and ID swipes, they went so far as to look

·9· · through all the officer's e-mails to see whether

10· · they might have been sending e-mails on the days

11· · when they weren't on the duty roster to see if

12· · they could fill in any of the time for the

13· · officers?· Do you remember any of that stuff?

14· · A.· · · · ·I would say I remember that it seemed

15· · like it was taking forever.· And when I kept

16· · saying, you know, where is it, where is it, where

17· · is it, they said, well, we're out of the records

18· · warehouse going through records or something along

19· · those lines.· And so I do remember that I was

20· · constantly being told that there were more records

21· · that they were searching and more records that

22· · they were searching, and so whether that amounts

23· · to more thorough, you know, it certainly sounds

24· · like there were a lot of records that were

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·1· · checked.

·2· · Q.· · · · ·Okay.· And a lot of the records that I

·3· · just mentioned were actually ways that could have

·4· · been used to corroborate Sergeant Constable or

·5· · Sergeant Jones' claims that they might have been

·6· · in the workplace rather than absent without leave?

·7· · A.· · · · ·Well, I mean it's just to get to the

·8· · facts.· Whether -- purpose -- you're alluding that

·9· · there's a purpose in it.· In my opinion it's to

10· · try to check the records that are available to see

11· · what it tells us.

12· · Q.· · · · ·Right.

13· · A.· · · · ·It's getting to the facts.

14· · Q.· · · · ·But the purpose is to rule out the

15· · possibility or rule in the possibility that the

16· · officers were actually working as opposed to

17· · missing time without leave.

18· · A.· · · · ·Well, it's to determine whether or not

19· · there's any evidence that says that they were at

20· · work or not.

21· · Q.· · · · ·Okay.

22· · A.· · · · ·I mean, it's --

23· · Q.· · · · ·In every single one of the cases, in

24· · every single date that was at issue, the starting

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·1· · point for the investigation was Sergeant Constable

·2· · and Sergeant Jones were not on the duty roster

·3· · that was kept for the patrol sergeants, but they

·4· · had also not submitted a leave slip, and it was

·5· · not the case in this investigation that sergeant

·6· · Weaver just said, okay, well, the evidence is

·7· · you're not on the duty roster, so you're not at

·8· · work, let's see if there's a leave slip, end of

·9· · story.· He went further and said, okay, maybe they

10· · weren't on the duty roster but maybe they sent an

11· · e-mail, maybe they swiped their badge, maybe they

12· · did this.· All of those methods were ways to

13· · determine whether or not the officers were on duty

14· · beyond just the initial evidence that they

15· · weren't, right?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·Yeah.· I mean, it's to find out what --

18· · what happened, if they were working, if they

19· · weren't working, if there was any evidence that

20· · supported it one way or the other.

21· · Q.· · · · ·In addition to all of those methods,

22· · Sergeant Weaver also pulled all of the leave slips

23· · and duty rosters for the other sergeants in the

24· · same unit.· Do you remember that?

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·1· · A.· · · · ·Yeah.· I know that other sergeants were

·2· · looked at and that's how I believe Fox and Knight

·3· · got looked at.· I don't know who he considered to

·4· · be the unit, but, yeah.

·5· · Q.· · · · ·So I mean Knight for instance was the

·6· · complaining officer; do you remember that?

·7· · A.· · · · ·Correct.

·8· · Q.· · · · ·And he ended up getting disciplinary

·9· · allegations against him, they were ultimately

10· · exonerated.· But he became a focus --

11· · A.· · · · ·Yes.

12· · Q.· · · · ·-- because Sergeant Weaver decided to

13· · pull all of the records for the other officers?

14· · A.· · · · ·Yes.

15· · Q.· · · · ·Which was not -- that was not done in

16· · Officer Morgan's case for the Stratford Lakes job,

17· · for instance?· You're not aware of any other

18· · officers --

19· · A.· · · · ·No.

20· · Q.· · · · ·-- whose time for marking in service

21· · was pulled for that job?

22· · A.· · · · ·Correct.

23· · Q.· · · · ·You knew -- I think we alluded to this

24· · before, but you knew Bronson Constable had a prior

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·1· · untruthfulness on his record?

·2· · A.· · · · ·I was aware of that.

·3· · Q.· · · · ·Because he was on the 1010 or Brady

·4· · list of officers who are -- probably shouldn't

·5· · testify in criminal proceedings?

·6· · A.· · · · ·Well, it --

·7· · Q.· · · · ·It would have to be disclosed?

·8· · A.· · · · ·Yes.· Yes.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·Yeah.· Whether they should testify or

11· · not is as opinion.· But they need to disclose that

12· · they've been found to be untruthful in the past.

13· · Q.· · · · ·Okay.· Which is a serious problem for

14· · an officer's career?

15· · A.· · · · ·Yes, it is.

16· · Q.· · · · ·Okay.· In that investigation, do you

17· · remember input whether you got input from

18· · professional standards before the -- before the

19· · chief's hearing or after the hearing about

20· · comparables?

21· · A.· · · · ·Specifically what investigation are you

22· · referring to?

23· · Q.· · · · ·The Constable and Jones and Fox and

24· · Knight?

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·1· · A.· · · · ·Oh, I thought you might have been

·2· · referring to the 1010 one.

·3· · Q.· · · · ·No.· I'm sorry.· The 1010 investigation

·4· · you had no involvement with, I assume?

·5· · A.· · · · ·No.

·6· · Q.· · · · ·Okay.· In fact, in -- but you're aware

·7· · -- I've seen the 1010 list, we can pull it out if

·8· · you want.· But it says on the 1010 list he had

·9· · three sustained allegations of untruthful against

10· · him.

11· · A.· · · · ·That might be, I --

12· · Q.· · · · ·1010 list --

13· · A.· · · · ·-- I don't remember the number.

14· · Q.· · · · ·The 1010 list is one of the records in

15· · the department that stays as long as the officer

16· · is in the department -- in the division, as

17· · opposed to other things that are required to be

18· · expunged over time.

19· · A.· · · · ·Now, yeah.· We didn't have that policy

20· · in the contract prior to 20 -- what -- '13 or '12,

21· · something like that.

22· · Q.· · · · ·Okay.· But at the time we're talking

23· · about, the 1010 list was permanent?

24· · A.· · · · ·Now it is, yes.

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·1· · Q.· · · · ·Right.· Now and in the 2013

·2· · renegotiation or whatever year it was you're

·3· · talking about.

·4· · A.· · · · ·Yeah, as far as I know.

·5· · Q.· · · · ·Okay.· Certainly during ties frame that

·6· · I am that we're talking about, the 2014-2015.

·7· · A.· · · · ·As far as I know, yes.· There was a lot

·8· · of negotiation back and forth about the creation

·9· · of that list and who should be on it.

10· · Q.· · · · ·And Bronson Constable was on it?

11· · A.· · · · ·I believe so.

12· · Q.· · · · ·Okay.· But I'm -- so in terms of the

13· · theft of time, misreporting leave investigation of

14· · Constable and Jones and the other officers, I

15· · assume there was a chief's hearing?

16· · A.· · · · ·Yes.

17· · Q.· · · · ·And do you remember whether you got

18· · comparables before the hearing or after the

19· · hearing?

20· · A.· · · · ·No.

21· · Q.· · · · ·Okay.

22· · A.· · · · ·Not specifically.

23· · Q.· · · · ·Do you remember whether it was in

24· · writing or verbally?

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·1· · A.· · · · ·No.

·2· · Q.· · · · ·Do you remember whether there were any

·3· · comparables presented?

·4· · A.· · · · ·I assume that we talked about similar

·5· · cases that had, you know -- and I just don't

·6· · remember the timing.· I don't know if Officer

·7· · LaRoche or Kirby were prior to or after. I

·8· · just --

·9· · Q.· · · · ·I think they were both prior to.

10· · A.· · · · ·Okay.· So they probably would have come

11· · up.

12· · Q.· · · · ·You think they were probably discussed?

13· · A.· · · · ·Yeah.

14· · Q.· · · · ·Do you think Officer Morgan's case came

15· · up?

16· · A.· · · · ·Like I said before, I don't know

17· · which --

18· · Q.· · · · ·It was like three-month --

19· · A.· · · · ·-- occurred first.

20· · Q.· · · · ·-- difference in the hearing.

21· · A.· · · · ·Who was first?

22· · Q.· · · · ·Morgan.

23· · A.· · · · ·Okay.· So in Jones and Constable, I

24· · would have already made a decision on Kevin's.

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·1· · Q.· · · · ·Morgan's.· Yes.

·2· · A.· · · · ·Yeah.· It very well -- I mean, there's

·3· · a good chance that it could have been discussed,

·4· · yes.

·5· · Q.· · · · ·Okay.· Why did you impose -- you

·6· · remember you imposed 240 hours suspensions for

·7· · Bronson Constable and Doug Jones?

·8· · A.· · · · ·I'm sorry.

·9· · Q.· · · · ·I'm sorry.· You recommended 240 hours

10· · suspensions for Bronson Constable and Doug Jones.

11· · A.· · · · ·Yes.

12· · Q.· · · · ·Not termination.

13· · A.· · · · ·Correct.

14· · Q.· · · · ·Not demotion to officer.

15· · A.· · · · ·Correct.

16· · Q.· · · · ·Why that disciplinary recommendation

17· · and not termination or demotion?

18· · A.· · · · ·I thought that termination was

19· · certainly on the table.· I was appalled.· I did

20· · not like the fact that they didn't take any

21· · responsibility for it.· I didn't trust Sergeant

22· · Constable, as I stated before.· But I felt that

23· · the evidence was not as strong I guess if we're

24· · comparing these two cases.· The criminal

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·1· · investigation and the comments about our leave

·2· · keeping system were pretty damaging to the

·3· · evidence.· And I thought that a 240-hour

·4· · suspension was probably the best that was going to

·5· · be able to happen out of this.· And if I thought

·6· · that I could have gotten a termination, I probably

·7· · would have recommended a termination.· This was

·8· · one of those I think where the FOP was as we

·9· · discussed earlier fighting very strenuously to

10· · defend their honor, if you will, that they had

11· · some.· So that was at least some line of the

12· · reasoning that I had.· You know, I was sure that

13· · it had happened, but I thought the evidence was

14· · not the best.

15· · Q.· · · · ·Well, first of all, was there any

16· · difference of opinion in the -- after the chief's

17· · -- discussion after the chief's hearing about

18· · whether they should go to termination?

19· · A.· · · · ·Difference of opinion.

20· · Q.· · · · ·Yeah.· Did Deputy Chief Kuebler make a

21· · different recommendation, did anyone else?

22· · A.· · · · ·I don't recall.

23· · Q.· · · · ·What was the nature of the FOP's

24· · advocacy in this situation that led you to believe

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·1· · they were defending their honor more?

·2· · A.· · · · ·They just wanted to believe that it was

·3· · all the fault of the leave keeping system --

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·-- the correspondence system.· And it

·6· · was a very large loophole if you will that had

·7· · been pointed out by the prosecutor's office.· And

·8· · that not -- not their fault for, you know, putting

·9· · a piece of paper in a tray and it never getting

10· · processed, so they were -- what I recall -- and I

11· · don't even remember who they were.· But I just

12· · remember that it was pretty adamant that we didn't

13· · have the evidence, period, let alone, you know,

14· · 51 percent.

15· · Q.· · · · ·After getting that notification from

16· · the prosecutor's office, didn't Sergeant Weaver

17· · address that potential loophole by comparing

18· · Constable and Jones' time with the other officers

19· · and sort of getting a baseline for the potential

20· · errors in the system?

21· · A.· · · · ·I don't remember any timing on that

22· · particular thing.· But I --

23· · Q.· · · · ·Well, the criminal investigation was

24· · over before the administrative investigation

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·1· · started as almost always happens, right?

·2· · A.· · · · ·Well, oftentimes there's some

·3· · administrative investigation occurring during the

·4· · pendency of the criminal investigation but for

·5· · interviews of the focus officer.· So I don't know

·6· · when that was, but I don't consider it to be -- it

·7· · might very well have been that with that

·8· · information he did further investigation.

·9· · Q.· · · · ·Okay.· You remember by the end of the

10· · investigation Sergeant Weaver felt it was -- the

11· · charges against the officers could be sustained

12· · based on the fact that it was extremely unlikely,

13· · if not impossible that these two sergeants and

14· · only these two sergeants would have a much, much

15· · larger number of missing leave slips than anybody

16· · else in the unit?

17· · A.· · · · ·He convinced me that they were guilty

18· · of the charges.

19· · Q.· · · · ·And none of that information to your

20· · knowledge was used by or presented to Ron

21· · O'Brien's office prior to their determination?

22· · A.· · · · ·I don't know.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·I don't -- I don't know what was

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·1· · presented to the prosecutor's office.

·2· · Q.· · · · ·Okay.· Have you seen arbitration

·3· · proceedings where a letter from the prosecutor

·4· · declining criminal prosecution -- or criminal

·5· · charges was used in the arbitration?

·6· · A.· · · · ·I don't remember any specific

·7· · arbitration hearing that went like that.

·8· · Q.· · · · ·Okay.· I had asked previously about the

·9· · FOP's advocacy, and I guess I just want to

10· · clarify.· I understand what the substance of their

11· · advocacy was.· I'm just asking you what was the

12· · nature of their advocacy.· Like did somebody from

13· · the FOP come talk to you about these cases?

14· · A.· · · · ·Not that I recall.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·It's their defense in the hearing.

17· · Q.· · · · ·At the chief's hearing?

18· · A.· · · · ·I mean, sometimes their -- either their

19· · attorney or the FOP members are pounding their

20· · first and, arg, you can't find this person guilty,

21· · you know, da-da, da-da, da-da.

22· · Q.· · · · ·Just louder?

23· · A.· · · · ·Maybe, yeah.

24· · Q.· · · · ·Okay.· The suspensions that you

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·1· · recommended against Constable and Jones were

·2· · concurrent, two concurrent 240-hour suspensions

·3· · for each of them.· Do you remember that?

·4· · A.· · · · ·That sounds familiar.

·5· · Q.· · · · ·Okay.· What's the purpose of a

·6· · concurrent six-week suspension?

·7· · A.· · · · ·Well, six weeks is the max.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·So you can't do more than that.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·So you could say 12 weeks, but it's not

12· · going to be 12 weeks.· It's going to be six weeks,

13· · that's the max.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·But in general I try to give a level of

16· · disciplinary recommendation for each charge.· So

17· · that -- I believe in this case that we're talking

18· · about today, you know, there might be departmental

19· · charges, but not everything would warrant

20· · termination.· But by stating what it would be, at

21· · least you're on record as to what this would have

22· · been but for a suspension of longer term or, you

23· · know, termination or something like that.· But

24· · because my disciplinary recommendations are often

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·1· · compared to each other by other people, I want to

·2· · be on record with different charges.· You know, if

·3· · it was a stand-alone charge, this is what it would

·4· · be, you know, that kind of thing.· Does that make

·5· · sense?

·6· · Q.· · · · ·I guess I'm not going to render an

·7· · opinion on that.

·8· · · · · · · ·What's the practical consequence for

·9· · the officer?· Is there any?

10· · A.· · · · ·If the director would decide on a

11· · 240-hour suspension, it would still be a six-week

12· · suspension --

13· · Q.· · · · ·But --

14· · A.· · · · ·-- whether it's concurrent or not.

15· · Q.· · · · ·Okay.· But two concurrent 240-hours

16· · suspensions has the same practical impact on the

17· · officer as one?

18· · A.· · · · ·They would lose six weeks of pay.

19· · Q.· · · · ·Either way?

20· · A.· · · · ·Correct.

21· · Q.· · · · ·Okay.· Do you recall that this case was

22· · settled prior to the safety director's

23· · determination?

24· · A.· · · · ·I remembered that it was settled. I

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·1· · just don't know the timing.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·I don't know if they had had a hearing,

·4· · if they hadn't had a hearing, but I know that it

·5· · was settled.

·6· · Q.· · · · ·Okay.· Do you remember that the outcome

·7· · of the settlement was that they reduced the

·8· · suspension for each officer from two concurrent

·9· · 240-hour suspensions to one 240-hour suspension?

10· · A.· · · · ·I just remembered a 240-hour

11· · suspension.

12· · Q.· · · · ·Okay.· But that was -- I mean, your

13· · recommended discipline was 240 hours twice at the

14· · same time, concurrent, right?

15· · A.· · · · ·Yeah.

16· · Q.· · · · ·And the settlement of the suspension

17· · was one 240-hour suspension?

18· · A.· · · · ·Correct.

19· · Q.· · · · ·Do you have any explanation for what

20· · possible benefit the officers would get from

21· · agreeing to a settlement like that?

22· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

23· · A.· · · · ·Benefit to the officers?

24· · Q.· · · · ·Yeah.· There was no practical impact;

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·1· · we just talked about that; they lose the same

·2· · amount of pay either way.

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·Is there -- there's no -- so what's the

·5· · point?· What was the point of the settlement like

·6· · that?

·7· · A.· · · · ·You'd have to ask them.

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · Q.· · · · ·Okay.· Did you have any discussions

10· · with the safety director about the settlement of

11· · that charge?

12· · A.· · · · ·Not that I recall.

13· · Q.· · · · ·Okay.· Could the safety director have

14· · terminated these officers despite your

15· · recommendation of suspension?

16· · A.· · · · ·Absolutely.

17· · Q.· · · · ·Okay.· Do you remember whether these

18· · officers were charged with a Rule 1.4 -- 1.04

19· · charge?

20· · A.· · · · ·I don't recall specifically.

21· · Q.· · · · ·Okay.

22· · A.· · · · ·I don't think so.

23· · Q.· · · · ·Do you remember writing in a 1.04 for

24· · these officers?

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·1· · A.· · · · ·I don't remember that.

·2· · Q.· · · · ·Okay.· Kevin Morgan's case at least

·3· · until the filing of his lawsuit did not appear in

·4· · any media coverage.· Are you aware of any that I'm

·5· · not?

·6· · A.· · · · ·I don't recall.

·7· · Q.· · · · ·Okay.· You don't have the same

·8· · recollection that it was a widely reported sort of

·9· · public issue?

10· · A.· · · · ·I don't remember it being widely

11· · reported.

12· · Q.· · · · ·Okay.· Did the safety director have to

13· · agree to a settlement with Constable and Jones, do

14· · you know?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · Q.· · · · ·Is that typically what the nature of

17· · the settlement is?

18· · A.· · · · ·They're the only ones that can approve

19· · one.

20· · Q.· · · · ·Okay.· You can't settle cases?

21· · A.· · · · ·I cannot.

22· · Q.· · · · ·Okay.· And you were not involved in the

23· · settlement discussions at all?

24· · A.· · · · ·No.

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·1· · Q.· · · · ·Okay.· Do you remember Zane Kirby's

·2· · case?· I think we mentioned it a little earlier.

·3· · A.· · · · ·Somewhat.

·4· · Q.· · · · ·Okay.· Do you remember his -- first of

·5· · all, Kirby was charged like Officer Morgan and

·6· · like Sergeant Constable and Sergeant Jones with

·7· · receiving pay for hours that he didn't work or

·8· · receiving --

·9· · A.· · · · ·His was about --

10· · Q.· · · · ·-- credit for --

11· · A.· · · · ·His was about not being at work when he

12· · was supposed to be, yes.

13· · Q.· · · · ·Right.· But he was paid for those

14· · hours?

15· · A.· · · · ·Yes.

16· · Q.· · · · ·His case was not investigated by

17· · internal affairs, it was investigated by his own

18· · chain of command.· Do you remember that?

19· · A.· · · · ·Yes.

20· · Q.· · · · ·Do you have an explanation for why that

21· · would be?

22· · A.· · · · ·It seemed like it was a fairly

23· · straightforward case.· He admitted to behavior at

24· · some point in time it seems like it was fairly,

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·1· · fairly quick.· It wasn't in my opinion an

·2· · extensive number of dates.· And Sergeant Reffitt

·3· · was a former internal affairs supervisor or

·4· · investigator, so we knew that she had the ability

·5· · to get it done.· And I'm always about trying to

·6· · get it done as quickly as possible when possible.

·7· · If there's, you know, good reasons to get them

·8· · over with as quickly as possible.

·9· · Q.· · · · ·Okay.· No criminal investigation of

10· · Kirby's case?

11· · A.· · · · ·I don't think there was, no.

12· · Q.· · · · ·Why not?

13· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

14· · A.· · · · ·Because I generally prefer that there

15· · not be criminal investigations.· And because of

16· · the number of days being fairly short, I thought

17· · it was prudent to get this done.

18· · Q.· · · · ·Okay.

19· · A.· · · · ·With the number of criminal

20· · investigations that we've had that have not

21· · resulted in charges, you know, I continue to be

22· · confident that that's going to be a rare

23· · occurrence when we get a charge filed against an

24· · officer with such charges, allegations.

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·1· · Q.· · · · ·Okay.· Officer Kirby originally claimed

·2· · in response to Sergeant Reffitt's investigative

·3· · interview questions that he -- there was a

·4· · particular day out of the days when he was being

·5· · investigated for where he was not receiving pay

·6· · for time he hadn't worked but he had actually

·7· · worked from them.· Do you remember that?

·8· · A.· · · · ·That sounds familiar.

·9· · Q.· · · · ·And he claimed that he was installing a

10· · particular kind of surveillance software that he

11· · was using in his investigative work?

12· · A.· · · · ·I think that sounds familiar.

13· · Q.· · · · ·Okay.· And then in a second interview

14· · after Sergeant Reffitt had started asking

15· · questions of some of his fellow officers about

16· · that software, he came in and admitted that in

17· · fact he did not work from home on that date and he

18· · just was overwhelmed with -- he was exhausted from

19· · working a long week and he just took the day off

20· · without permission?

21· · A.· · · · ·Uh-huh.

22· · Q.· · · · ·I'm sorry.· You have to say yes or no.

23· · A.· · · · ·Yes.

24· · Q.· · · · ·And then in a third interview with

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·1· · Sergeant Reffitt when Sergeant Reffitt was

·2· · instructed to ask him about why he had lied about

·3· · that day, he admitted that he had purposefully

·4· · lied but that he -- he admitted to the lie because

·5· · he realized he had been caught and he was

·6· · concerned about the consequences.· Does that all

·7· · sound familiar?

·8· · A.· · · · ·Yes.

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·It's starting to trigger my memories.

11· · Q.· · · · ·And then do you remember at the chief's

12· · hearing in Officer Kirby's case you asked him

13· · about working from home on that date and he

14· · actually told you in the chief's hearing that he

15· · had worked from home installing the same software

16· · that he had falsely claimed to Sergeant Reffitt?

17· · A.· · · · ·I don't recall the specific comments,

18· · no.

19· · Q.· · · · ·Okay.· Can I get 8.

20· · · · · · · ·While they're looking for that, I want

21· · to ask you, I mean, you understood prior to the

22· · chief's hearing that Officer Kirby had been

23· · purposefully dishonest during the investigation of

24· · his time theft investigation, right?

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·1· · A.· · · · ·I would have to assume if that was

·2· · included in the investigation that I was aware of

·3· · it, yes.

·4· · Q.· · · · ·I mean, not only was it included in the

·5· · investigation but the deputy chief, I think it was

·6· · Deputy Chief Gray -- oh, no, Deputy Chief Bash had

·7· · actually repeatedly had to ask Sergeant Reffitt to

·8· · go back and do follow-up to figure out why he had

·9· · been untruthful and delve further into that pretty

10· · serious charge.· You don't remember any of that?

11· · A.· · · · ·No.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·I have no specific memory of that.

14· · Q.· · · · ·Okay.· But certainly if it was in with

15· · the packet that you were presented prior to the

16· · chief's hearing, you would have known at the time

17· · the events that I just described where he

18· · originally claimed he worked from home.

19· · A.· · · · ·If it was spelled out, I would have

20· · been aware of it.

21· · Q.· · · · ·If it was spelled out.

22· · · · · · · ·One of the charges prior to the chief's

23· · hearing was untruthfulness, so certainly that

24· · would have been one of the things you were

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·1· · focusing on.

·2· · A.· · · · ·Okay.

·3· · Q.· · · · ·I'm asking you.

·4· · A.· · · · ·I don't know what the charges were.

·5· · Q.· · · · ·Okay.· Give me 4.· Well, actually, give

·6· · me 9.· Might as well get 4, too.· I'm handing you

·7· · what's previously been marked as Plaintiff's

·8· · Exhibit 4.· And when I say "previously," I mean we

·9· · premarked it; it hasn't been used previously.· And

10· · I am just going to call your attention to the

11· · first couple pages.· These are the charges that

12· · were issued to Sergeant Kirby prior to the chief's

13· · hearing, right, the first page and the second and

14· · the third?

15· · A.· · · · ·Yes.

16· · Q.· · · · ·Charge II, specification I is that on

17· · December 10th, 2013, he was untruthful to Sergeant

18· · Denise Reffitt during an administrative interview

19· · when he stated that he performed his December 6th,

20· · 2016 tour of duty by working from home, and he

21· · knew at the time he made these statements that

22· · they were untruthful.· Right?

23· · A.· · · · ·Yes.

24· · Q.· · · · ·And if you take a look at -- if you

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·1· · flip through Exhibit 4, the first -- fairly early

·2· · on in this packet, the first interview is marked

·3· · for December 10th, 2013.· If you flip a few pages.

·4· · A.· · · · ·What page is it?

·5· · Q.· · · · ·The exhibit isn't paginated, but if you

·6· · go about 10 or 15 pages in, you'll start to see at

·7· · the top.

·8· · A.· · · · ·What am I looking for?

·9· · Q.· · · · ·December 10th, 2013 interview.

10· · · · · · · ·MR. COGLIANESE:· And why don't you

11· · count the pages and tell her where you're at so

12· · that way you guys are on the same page.

13· · Q.· · · · ·If you hand it to me, I'll find it for

14· · you.

15· · · · · · · ·So here's the start of the December

16· · 10th interview.· Do you see that at the top?

17· · A.· · · · ·Uh-huh.

18· · Q.· · · · ·And there's pages numbers for each

19· · page --

20· · A.· · · · ·Yes.

21· · Q.· · · · ·-- of the interview.· Can you flip to

22· · page 14 of that interview?

23· · A.· · · · ·Okay.

24· · Q.· · · · ·And on this page 14 she's asking him

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·1· · about December 6th.· Do you see that at the top?

·2· · Or toward the top?

·3· · A.· · · · ·On page 14?

·4· · Q.· · · · ·Yeah.

·5· · A.· · · · ·I see November 22nd being referenced

·6· · there.

·7· · Q.· · · · ·And then she says, "So, I'm looking at

·8· · December 6th, why nobody saw you, there are no

·9· · card swipes for that day."

10· · A.· · · · ·Yes, I see that.

11· · Q.· · · · ·Okay.· And then a few responses down he

12· · says, "I don't know if this counts, but I'm going

13· · to throw it out there.· Chris Kline...I worked

14· · from home that day, Sarge."· I'm not sure what the

15· · Chris Kline is.· Do you see that?

16· · A.· · · · ·I do.

17· · Q.· · · · ·Okay.· So he's saying he worked from

18· · home on December 6th, and his answer a couple

19· · answers down is that he was installing software on

20· · a laptop used for scanning Wi-Fi networks?

21· · A.· · · · ·Correct.

22· · Q.· · · · ·Then I'll flip a few more pages in here

23· · for you.· This is page 5 of his second interview

24· · with Sergeant Reffitt which was on February 5th of

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·1· · 2014.· And at the very bottom of the page Sergeant

·2· · Reffitt says, "Okay, alright, on December 6th you

·3· · did not report to work.· That's a Friday.· What's

·4· · your explanation?"

·5· · A.· · · · ·I see it.

·6· · Q.· · · · ·And his answer is, "On that Friday I

·7· · had, that week was a busy week as well.· Um, and I

·8· · had worked over my 8 hour tour several days that

·9· · week.· When Friday came, I was exhausted. I

10· · stayed at home and needed a break."

11· · · · · · · ·And Sergeant Reffitt says, "So you

12· · didn't work from home...you just took the day?"

13· · And he says "Correct."

14· · · · · · · ·And she goes further on in that page,

15· · you can see she's specifically saying, "previously

16· · you have told me...you worked from home.· So, I

17· · take it that was not correct."· And he says the

18· · reality was he was exhausted and he didn't work.

19· · Do you see all that?

20· · A.· · · · ·I do.

21· · Q.· · · · ·Okay.· And then I'll flip for you one

22· · more time if you hand it back to me.· The third

23· · interview from April of 2014, the very bottom of

24· · the fifth page of that interview, Sergeant Reffitt

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·1· · asks him why he was untruthful in the first

·2· · interview and why he admitted it in the second

·3· · interview.· And his answer was that he panicked.

·4· · And then if you look at the second answer down on

·5· · page 6, he says in terms of why he was truthful in

·6· · the second time, he said I knew that I had been

·7· · caught.· Do you see that?

·8· · A.· · · · ·Uh-huh.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·Yes.

11· · Q.· · · · ·This was all information that you would

12· · have had at the time that the chief's hearing was

13· · scheduled and the charges were issued?

14· · A.· · · · ·Correct.

15· · Q.· · · · ·So now I'm going to hand you what's

16· · been marked as Plaintiff's Exhibit 8, which is a

17· · transcript of the chief's hearing.· And if you

18· · could turn to the third page of that, oops, I

19· · should be following along.· Do you see at the top

20· · of the page 3, in the middle of his answer he says

21· · December 6th, which was a Friday, do you see that

22· · part?

23· · A.· · · · ·Uh-huh.· Yes.

24· · Q.· · · · ·He says December 6th -- and that's the

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·1· · same date that we were just talking about in those

·2· · three prior interviews, right?

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·So "December 6th, which was a Friday, I

·5· · stayed home.· I worked on a program known as

·6· · Flying Squirrel."· And he then describes the same

·7· · software that's supposedly used for intercepting

·8· · Wi-Fi signals or something like that.· Do you see

·9· · that?

10· · A.· · · · ·Yeah.

11· · Q.· · · · ·So in the chief's hearing he's going

12· · back to the original untruthful explanation that

13· · he gave to Sergeant Reffitt in his first

14· · interview.· He's not saying he's exhausted, he's

15· · not saying he just missed work.· He's saying, oh,

16· · no, I worked from home, I installed this software,

17· · the same answer he gave in the first interview.

18· · A.· · · · ·He gave a similar explanation as he did

19· · in the first interview.

20· · Q.· · · · ·The one that he later admitted to

21· · Sergeant Reffitt was false.

22· · A.· · · · ·Correct.

23· · Q.· · · · ·And I don't know if you remember this

24· · from the investigation, but it turned out that

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·1· · what he was describing doing while he was working

·2· · from home was not actually possible on his

·3· · computer.

·4· · A.· · · · ·I don't recall that.

·5· · Q.· · · · ·Okay.· I mean it's in the investigative

·6· · packet, we can -- I don't want to spend the time

·7· · going through it.

·8· · A.· · · · ·Okay.

·9· · Q.· · · · ·But the reason why his lieutenant

10· · concluded, lieutenant -- I think it was Lieutenant

11· · Springer maybe had -- the reason his lieutenant

12· · had concluded that he was purposefully untruthful

13· · and not just sort of confused or something was

14· · that he only came forward and admitted lying about

15· · working from home once he realized that Sergeant

16· · Reffitt was going around and asking other people

17· · about this software, and that it would have been

18· · obvious that he could not have done what he

19· · described doing.· Is any of that ringing a bell?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · Q.· · · · ·No.

22· · A.· · · · ·No.

23· · Q.· · · · ·I guess my question is do you remember

24· · at the end of this investigation what charges you

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·1· · sustained against Officer Kirby?

·2· · A.· · · · ·Not specifically, no.

·3· · Q.· · · · ·Okay.· Would you disagree with me if I

·4· · told you you did not sustain his untruthfulness

·5· · charge?

·6· · A.· · · · ·Well, it's in writing, so.

·7· · Q.· · · · ·Okay.· Here, I'll just hand you what's

·8· · been marked as Exhibit 9, and you can look at the

·9· · first page for yourself.· But the finding of

10· · untruthful is not sustained.· Do you see that?

11· · · · · · · · · · · · ·- - - - -

12· · · · · · ·Thereupon, Plaintiff's Exhibit 9 is marked

13· · for purposes of identification.

14· · · · · · · · · · · · - - - - -

15· · A.· · · · ·I do.

16· · Q.· · · · ·Okay.· Do you have any explanation for

17· · how you could not sustain an untruthfulness charge

18· · against an officer who admitted that he was

19· · untruthful and then repeated his untruthfulness in

20· · a hearing in front of you?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·Do I have an explanation for it?· Is

23· · that what you asked?

24· · Q.· · · · ·Yeah.· Well, I'll withdraw that

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·1· · question for a second.

·2· · · · · · · ·First of all, Officer Kirby is a white

·3· · officer.

·4· · A.· · · · ·Yes.

·5· · Q.· · · · ·Okay.· Do you have an explanation for

·6· · why Officer Kirby was not -- why you issued a not

·7· · sustained finding for Officer Kirby on

·8· · untruthfulness?

·9· · A.· · · · ·I can't remember what I was thinking at

10· · the exact moment when I decided to do that.· But I

11· · felt that this officer very clearly exhibited some

12· · signs of being under great stress.· He cried I

13· · believe during the hearing.· If you've listened to

14· · the tape, then you might have heard that. I

15· · believe that he was very upset, rambling, offering

16· · things.· He didn't have a representative to the

17· · best of my recollection, so he presented on his

18· · own behalf.

19· · Q.· · · · ·That's something he chose to do, right?

20· · A.· · · · ·Yeah.

21· · Q.· · · · ·He could have had a representative if

22· · he wanted to?

23· · · · · · · ·MR. COGLIANESE:· Let her finish the

24· · answer.

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·1· · Q.· · · · ·I'm sorry.· Were you not done?

·2· · A.· · · · ·No.· I was still describing --

·3· · Q.· · · · ·Okay.· I'm sorry.· Go ahead.

·4· · A.· · · · ·-- what I recall of the hearing.

·5· · Q.· · · · ·Uh-huh.

·6· · A.· · · · ·I don't recall everything.

·7· · Q.· · · · ·Uh-huh.

·8· · A.· · · · ·But I remember that he was very upset.

·9· · He had been working in a very, very, very

10· · difficult assignment that plays on your motions

11· · and creates an awful lot of -- of I think turmoil

12· · perhaps when you see children and others being

13· · abused and you can't really do everything that you

14· · want to to deal with it.· He was emotional,

15· · apologetic.· And as I said before, I haven't read

16· · my entire transcript here.· But I think that I

17· · might have recommended that he seek some

18· · counseling.

19· · Q.· · · · ·Were you aware at the time -- I'm

20· · sorry.· I'll let you keep going.

21· · A.· · · · ·Feeling that he was suffering from a

22· · significant amount of stress and burnout.

23· · Q.· · · · ·Okay.· Do you remember whether he had

24· · been diagnosed with any kind of condition?

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·1· · A.· · · · ·Not to my knowledge.

·2· · Q.· · · · ·Okay.· His job -- what was his job?

·3· · A.· · · · ·He worked in the Internet crimes

·4· · against children unit.

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·I believe.

·7· · Q.· · · · ·Is that a job where it's important for

·8· · officers to be truthful?

·9· · A.· · · · ·Every job that we have is.

10· · Q.· · · · ·Okay.· Not sustaining the allegation of

11· · untruthfulness against Officer Kirby meant that he

12· · did not go on the 1010 list, right?

13· · A.· · · · ·Correct.

14· · Q.· · · · ·So criminal defendants who were being

15· · investigated by Officer Kirby would have no

16· · automatic basis to know that he had lied about

17· · reporting for duty and admitted lying because he

18· · had been caught in the lie.

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·Well, the requirement is that you

21· · report that to the prosecutor.· The prosecutor

22· · then decides who needs to know what.

23· · Q.· · · · ·Okay.· You didn't report anything, you

24· · had no -- nothing to report to the prosecutor on

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·1· · Officer Kirby because you issued not sustained for

·2· · the untruthfulness.

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·Even though he admitted that he was

·5· · untruthful?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·I don't recall the words admitted that

·8· · I was untruthful.· He gave different statements.

·9· · I don't -- did he say I admit that I lied?

10· · Q.· · · · ·I think he did.

11· · A.· · · · ·Okay.· I'm just saying I can't -- I

12· · can't tell you what the word was.

13· · Q.· · · · ·I mean it was clear that he was

14· · untruthful, right?· There was really no dispute

15· · about it at the point at least prior to the

16· · chief's hearing?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·He gave two different stories, so one

19· · of them is not true, yes.

20· · Q.· · · · ·And then he explained why he was

21· · untruthful by saying the reason he was untruthful

22· · was because he was caught and he was concerned

23· · about the consequences.

24· · A.· · · · ·Correct.

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·1· · Q.· · · · ·We just read through that.

·2· · · · · · · ·And then he lied again in the chief's

·3· · hearing to you about working from home.

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·He very well could have.· I don't know

·6· · what he did while he was at home, whether he, you

·7· · know, picked that up for five minutes or not.· But

·8· · I -- he certainly gave two different statements

·9· · about the same day.

10· · Q.· · · · ·And one of which he admitted was a lie,

11· · but that -- I guess so you're saying that you

12· · issued a not sustained on Officer Kirby because

13· · you felt he was stressed out from his job and he

14· · was emotional about his conduct.

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·I said I don't remember all of the

17· · things that I took into consideration, but that

18· · was part of it.

19· · Q.· · · · ·Okay.· Why not just sustain the finding

20· · but issue him a less serious discipline for that

21· · finding?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·It's what I chose to do.

24· · Q.· · · · ·Okay.· His suspension overall for three

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·1· · instances of absence without leave was three

·2· · 16-hour suspensions, so a total of 48 hours.· Do

·3· · you remember what -- why that level of discipline

·4· · and not a greater or lesser level?

·5· · A.· · · · ·I thought that was what was appropriate

·6· · for those circumstances.

·7· · Q.· · · · ·Okay.· Officer Kirby's discipline was

·8· · issued prior to Officer Morgan's.· Do you remember

·9· · whether Kirby's case came up as a potential

10· · comparable for Morgan?

11· · A.· · · · ·It may have been discussed as an

12· · example with similar rule violation.

13· · Q.· · · · ·Okay.· Officer Morgan and pretty much

14· · every other officer that I think we're going to

15· · discuss today also worked in high stress jobs. A

16· · police officer is a pretty high stress job, right?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Certainly Officer Morgan's job working

19· · patrol is a more dangerous job than Officer

20· · Kirby's job doing computer investigations of child

21· · pornographers.

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·Well, that's an opinion.· I mean

24· · dangerous to physical health, dangerous to mental

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·1· · health.

·2· · Q.· · · · ·I meant physically.

·3· · A.· · · · ·Yes.· They're all dangerous.

·4· · Q.· · · · ·I meant physically dangerous.

·5· · A.· · · · ·Okay.· You didn't -- you did not say

·6· · that.

·7· · Q.· · · · ·Would you agree it's more physically

·8· · dangerous than what Officer Kirby was doing?

·9· · A.· · · · ·The potential certainly there, yes.

10· · Q.· · · · ·Okay.· Did you ask Officer Morgan or

11· · any of his chain of command whether Officer Morgan

12· · may have been under any kind of stress during this

13· · time period?

14· · A.· · · · ·I don't recall asking that question.

15· · Q.· · · · ·Okay.· Officer Morgan was fairly

16· · apologetic in his chief's hearing.· He didn't --

17· · obviously, he didn't admit to doing the conduct

18· · that he was being accused of, but he did apologize

19· · to you for the inconvenience caused by his shoddy

20· · recordkeeping.

21· · A.· · · · ·I do believe so.

22· · Q.· · · · ·Did he seem concerned about the charges

23· · during his chief's hearing?

24· · A.· · · · ·Officer Morgan?

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·1· · Q.· · · · ·Yeah.

·2· · A.· · · · ·Yeah.

·3· · Q.· · · · ·He was at least pretty stressed out

·4· · during the hearing?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·He was like Officer Kirby was sort of

·7· · throwing things out there like potential witnesses

·8· · who could corroborate his story, for instance,

·9· · documents that he felt like he could have been

10· · able to provide, things like that?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·I'm not sure what the question is.

13· · Q.· · · · ·It's okay.

14· · · · · · · ·He did admit to some misconduct in the

15· · chief's hearing, including the failure to mark in

16· · service.

17· · A.· · · · ·Yes.

18· · Q.· · · · ·He was apologetic about it?

19· · A.· · · · ·I believe so.

20· · Q.· · · · ·He sort of asked you for another chance

21· · so that he could, you know, improve his

22· · organization and that kind of thing?

23· · A.· · · · ·If it's in the transcript, then, yes.

24· · Q.· · · · ·Why didn't you ask Officer Morgan about

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·1· · his stress level and his emotional state?

·2· · A.· · · · ·I don't even remember that I didn't, so

·3· · I -- I wouldn't have a reason for not doing it or

·4· · a reason for doing it.

·5· · Q.· · · · ·Officer Kirby unlike Officer Morgan had

·6· · a prior issue of some issues about his attendance,

·7· · right?

·8· · A.· · · · ·Say that again.

·9· · Q.· · · · ·Officer Kirby had issues previously

10· · about his attendance, he had been repeatedly

11· · warned about being more careful about his

12· · attendance and leave time?

13· · A.· · · · ·Maybe.

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·I don't recall.

17· · Q.· · · · ·And his chain of command noted -- it

18· · was actually Lieutenant Gardener -- I said the

19· · wrong name.· But Lieutenant Gardener had noted

20· · during the investigation that Officer Kirby had

21· · expressed concerns about being overworked and they

22· · had sort of bent over backwards to make sure that

23· · it wouldn't keep happening prior to this incident.

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · Q.· · · · ·Do you remember that?

·2· · A.· · · · ·No.· Not specifically.

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·But that could be.

·5· · Q.· · · · ·Okay.· I think we talked a little

·6· · earlier about a black officer named Randall Lyons.

·7· · Do you remember Randall Lyons?

·8· · A.· · · · ·Yes.

·9· · Q.· · · · ·He's a current CPD officer, right?

10· · A.· · · · ·Yes.· I believe so.

11· · Q.· · · · ·I think the most recent thing I saw in

12· · the news about him was that he had, like, helped

13· · pull a child out of a pond or something like that

14· · and saved the child's life or helped to do that.

15· · A.· · · · ·He was there, yes.· I don't think they

16· · ultimately were able to pull him out.· He -- he

17· · got cold and got pulled out himself before he

18· · actually saved the child, but --

19· · Q.· · · · ·Okay.

20· · A.· · · · ·-- he attempted to.

21· · Q.· · · · ·Okay.· Do you remember there being an

22· · issue between you and -- that your executive staff

23· · about whether you were willing to congratulate

24· · Officer Lyons about that, about his attempted act

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·1· · of heroism at least?

·2· · A.· · · · ·What do you mean by "congratulate"?

·3· · Q.· · · · ·That you had to be pressured by people

·4· · in your chain of command to actually give Officer

·5· · Lyons a call to thank him for his service in that

·6· · instance.

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I remember that I was told that he was

·9· · very upset that I hadn't called him.· And I don't

10· · know that I ever did call him.· I -- I don't know

11· · who might have tried to -- maybe my PIO or

12· · somebody tried to tell me that I should call him,

13· · reach out to him or something like that because he

14· · was upset.

15· · Q.· · · · ·Okay.· You didn't -- I mean why not

16· · just -- I mean, it was a pretty high profile

17· · incident, he had done something fairly heroic,

18· · jumping into a pond to try to save a kid at risk

19· · to himself.

20· · A.· · · · ·I --

21· · Q.· · · · ·Wouldn't it be routine to call an

22· · officer in that situation?

23· · A.· · · · ·It's not routine.

24· · Q.· · · · ·No?

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·1· · A.· · · · ·No.

·2· · Q.· · · · ·Okay.· Randall Lyons had his own time

·3· · reporting issue.· I think you alluded to it

·4· · earlier.

·5· · A.· · · · ·I did.

·6· · Q.· · · · ·In that situation he had actually been

·7· · in 580 on administrative duty, had been relieved

·8· · of duty at the time.

·9· · A.· · · · ·I don't think that he was working in

10· · the patrol office.· I think he was assigned to

11· · work in the telephone reporting unit.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·But he --

14· · Q.· · · · ·He was relieved of duty and put on

15· · administrative assignment of some kind.

16· · A.· · · · ·Correct.

17· · Q.· · · · ·He reported to supervisors in that role

18· · that he was extremely uncomfortable in the

19· · assignment that he was given because it was, like,

20· · very confined and had limited lighting or

21· · something like that.· Is any of this ringing a

22· · bell?

23· · A.· · · · ·I don't recall that specific

24· · information.· I --

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·1· · Q.· · · · ·Would you deny it?

·2· · · · · · · ·MR. COGLIANESE:· Hold on.· Let her

·3· · finish.

·4· · Q.· · · · ·I'm sorry.· Go ahead.

·5· · · · · · · ·MR. VARDARO:· Rich, I'm just trying to

·6· · move things along.· I'm not trying to interrupt

·7· · her, but she's got these long pauses.

·8· · A.· · · · ·I'm trying to recall things that

·9· · happened years ago.

10· · Q.· · · · ·I'm not purposefully trying to

11· · interrupt you.· I thought you were just sort of

12· · done with that part of your answer.· So go ahead.

13· · A.· · · · ·I don't recall what concerns that he

14· · might have had.· I just know that he wasn't

15· · working in the patrol office and that he was

16· · working in the telephone reporting unit which is a

17· · more out of the public eye place.· I don't recall

18· · if that was by choice or by -- you know, by design

19· · by the supervisor.

20· · Q.· · · · ·Okay.

21· · A.· · · · ·I just don't recall that.

22· · Q.· · · · ·And you don't remember that Officer

23· · Lyons had reported to supervisors that because of

24· · a severe psychological condition he had, he was

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·1· · really struggling in the assignment that he was on

·2· · and that he was actually experiencing suicidal

·3· · thoughts?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·I think when he came to see me, he

·6· · expressed how troubled he was.· I don't remember

·7· · it being suicidal, but --

·8· · Q.· · · · ·You were aware -- I'm sorry.· Go ahead.

·9· · A.· · · · ·Go ahead.

10· · Q.· · · · ·You were aware that Officer Lyons was a

11· · military veteran and had some psychological

12· · conditions related to that service?

13· · A.· · · · ·I might have been at the time.

14· · Q.· · · · ·Okay.· Actual, unlike Officer Kirby's

15· · situation, actual diagnosed psychological

16· · conditions?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·If that was brought to my attention,

19· · then I was aware of it at the time.

20· · Q.· · · · ·Okay.· And his explanation for why he

21· · had stopped coming to work in his administrative

22· · assignment was that he was unable to cope with the

23· · assignment psychologically and was experiencing

24· · suicidal thoughts.· Wasn't that his defense?

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·1· · A.· · · · ·It could be.· I --

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·-- just don't recall.

·4· · Q.· · · · ·Officer Lyons received an 80-hour

·5· · suspension for the time issue related to his

·6· · issue, right?

·7· · A.· · · · ·Sounds familiar.

·8· · Q.· · · · ·Okay.· Do you remember why he received

·9· · a greater suspension than Officer Kirby?

10· · A.· · · · ·I don't recall enough of the specific

11· · facts and numbers and all that kind of thing to do

12· · that.· He had been involved in another incident

13· · involving judgment and decision making and all

14· · that that made -- may have played into that.· But

15· · I don't -- I don't recall any specific reason.

16· · Q.· · · · ·Okay.· Do you remember whether Kirby's

17· · case was brought up as a competitor for Lyon's?

18· · A.· · · · ·If it had happened prior to then, it

19· · might very well have.

20· · Q.· · · · ·I talked a little bit previously about

21· · David LaRoche.

22· · A.· · · · ·Uh-huh.

23· · Q.· · · · ·He's a white officer?

24· · A.· · · · ·Uh-huh.

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·1· · Q.· · · · ·I'm sorry.· You've got to give yeses or

·2· · nos.

·3· · A.· · · · ·Yes.

·4· · Q.· · · · ·Doug Williams was his supervisor during

·5· · the time when his disciplinary issue came up.

·6· · Does that sound familiar?

·7· · A.· · · · ·Maybe.· Yeah.· I think that was the

·8· · case.

·9· · Q.· · · · ·It was in SRB?

10· · A.· · · · ·Yes.

11· · Q.· · · · ·There was an incident somewhat similar

12· · to Officer Morgan's situation in the sense that

13· · there was an incident where somebody was looking

14· · for LaRoche during the time when he was supposed

15· · to be on duty and couldn't find him.

16· · A.· · · · ·Okay.

17· · Q.· · · · ·I'm asking you whether you remember

18· · this stuff.· I --

19· · A.· · · · ·I --

20· · Q.· · · · ·I'm sorry that I don't put question

21· · marks at the end of all of them.

22· · A.· · · · ·Rarely.

23· · · · · · · ·I don't recall the specific, you know,

24· · facts.

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·1· · Q.· · · · ·I'll just give you a description of it

·2· · and you can tell me whether this jogs your memory.

·3· · LaRoche was supposed to be working a surveillance,

·4· · the other officers working surveillance couldn't

·5· · find him.· And then because of that, Sergeant

·6· · Williams started surveilling him and trying to

·7· · keep track of when he was coming in and leaving

·8· · versus when he was reporting coming in and leaving

·9· · over several weeks.

10· · A.· · · · ·Sounds familiar.

11· · Q.· · · · ·And it turned out that in fact some

12· · days he wasn't coming in, that some days he was

13· · coming in very late or leaving early and reporting

14· · different hours than he was actually working, much

15· · -- many more hours than he was actually working

16· · during that several week period.

17· · A.· · · · ·Yes.· I remember there were several

18· · instances that he couldn't find him.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·For at least some periods of the time.

21· · Q.· · · · ·And there was an administrative

22· · investigation and it was clear during the

23· · investigation that -- first of all, he did not

24· · admit to any misconduct.· Do you remember him

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·1· · admitting to any misconduct?

·2· · A.· · · · ·I don't recall the specifics.

·3· · Q.· · · · ·Okay.· The deputy chief reported to you

·4· · -- this was Deputy Chief Quinlan, Deputy Chief

·5· · reported to you that his behavior was done with

·6· · deliberate intent and it was not the result of

·7· · carelessness or negligence and involved reporting

·8· · overtime that wasn't worked and that it occurred

·9· · over a lengthy time period.· Any of that --

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · Q.· · · · ·-- sound familiar?

12· · A.· · · · ·I don't remember the overtime part of

13· · it.· But I'm not disputing any of that.

14· · Q.· · · · ·Officer LaRoche received an 88-hour

15· · suspension as a result of that investigation.· Do

16· · you remember why that suspension and not something

17· · more severe?

18· · A.· · · · ·Just based on the information that I

19· · had available and other comparables as we've

20· · discussed, you know, all of the other factors that

21· · I take into consideration, I felt that was an

22· · appropriate level of corrective action.

23· · Q.· · · · ·Unlike with Officer Morgan, in Officer

24· · LaRoche's case there was no effort to go back

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·1· · through prior time records and figure out whether

·2· · he had committed actually more misconduct than was

·3· · immediately witnessed by Sergeant Williams.· Do

·4· · you have any knowledge of why that was?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·No.

·7· · Q.· · · · ·Do you remember sort of understanding

·8· · as part of the LaRoche discipline that the actual

·9· · number of times that he reported late or left

10· · early was most likely sort of the tip of the

11· · iceberg, because all of the surveillance happened

12· · after a particular time when he was essentially

13· · caught and not being on duty, and there was no

14· · effort to go back in time and trying to figure out

15· · whether there were other instances like that?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·I accept the fact that, you know, if

18· · what we see is happening that it could have

19· · happened before.

20· · Q.· · · · ·Okay.· Do you remember whether you

21· · added cause for dismissal as one of the charges

22· · against Officer LaRoche?

23· · A.· · · · ·I don't believe I did.

24· · Q.· · · · ·I think I may have asked this already.

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·1· · LaRoche is white, right?

·2· · A.· · · · ·I believe so.· Yeah.

·3· · Q.· · · · ·Do you remember discussing LaRoche's

·4· · case with the safety director?

·5· · A.· · · · ·I don't recall any conversations like

·6· · that.

·7· · Q.· · · · ·Okay.· How about with the union other

·8· · than just directly in the chief's hearing?

·9· · A.· · · · ·Not that I recall.

10· · Q.· · · · ·And I'm sorry.· Fred pointed this out

11· · for me.· The LaRoche case was resolved by

12· · suspension in July of 2014, about nine months

13· · before your determination in Officer Morgan -- or

14· · your recommendation in Officer Morgan's case.· Do

15· · you remember whether the LaRoche case came up as a

16· · potential comparable for Morgan?

17· · A.· · · · ·If the rule number is the same, then,

18· · yes, it probably did.

19· · Q.· · · · ·Does it matter the specific rule

20· · number?· Is that the whole -- is it only

21· · comparable if it's the specific -- same specific

22· · rule number?

23· · A.· · · · ·Well, that's the starting point.

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·You know, it's easier -- not everybody

·2· · always agrees on the right rule of conduct number.

·3· · But generally that's where we're going to look for

·4· · any other instances that were charged under the

·5· · same rule.

·6· · Q.· · · · ·Okay.· Do you remember there being any

·7· · discussion about why the Morgan investigation was

·8· · so much more extensive in terms of its scope than

·9· · the LaRoche investigation?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·I don't remember any discussions along

12· · those lines.

13· · Q.· · · · ·Do you remember why LaRoche wasn't

14· · investigated criminally?

15· · A.· · · · ·I don't recall a specific date,

16· · reasoning or anything like that.· I told you

17· · before that my preference is to not do criminal

18· · investigations when we think that that's still,

19· · you know, going to take care of the situation as

20· · best.

21· · Q.· · · · ·Okay.

22· · · · · · · ·MR. COGLIANESE:· Jeff, let's take a

23· · break when you --

24· · Q.· · · · ·I was going to say five minutes would

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·1· · probably be good for everybody at this point.

·2· · · · · · · ·(A short recess is taken.)

·3· · BY MR. VARDARO:

·4· · Q.· · · · ·In terms of the LaRoche investigation

·5· · we were just talking about, there was no, like,

·6· · loophole or problem with the evidence like you

·7· · were mentioning with the Constable and Jones

·8· · situation, right?

·9· · A.· · · · ·Not that I recall.

10· · Q.· · · · ·I mean, in that case, Sergeant Williams

11· · had essentially directly observed LaRoche stealing

12· · time, so there wasn't really much doubt to the

13· · whole thing?

14· · A.· · · · ·I think LaRoche claimed that he had

15· · submitted some slips, but I'm not sure about that.

16· · Q.· · · · ·Okay.· He was claiming that he was

17· · submitting leave slips during a period of time

18· · when Sergeant Williams was actively surveilling

19· · him for failing to show up for work which made it

20· · a really unlikely claim, right?

21· · A.· · · · ·I was convinced that he had done it,

22· · that's why I sustained the charge.

23· · Q.· · · · ·Okay.· Do you remember an officer named

24· · White -- Freudian slip.· His name was not White

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·1· · Slaughter.· Brett Slaughter.

·2· · A.· · · · ·I remember a case involving Brett

·3· · Slaughter.

·4· · Q.· · · · ·White officer?

·5· · A.· · · · ·I believe he is.

·6· · Q.· · · · ·Okay.· He was alleged to have claimed

·7· · overtime or regular duty time of some kind that he

·8· · had not worked while he was on an ATF task force.

·9· · A.· · · · ·I don't recall a whole lot about the

10· · overtime part of it.· But I think I remember the

11· · most was that they didn't think that he was

12· · working the hours that they expected him to in the

13· · ATF office.

14· · Q.· · · · ·"They" meaning the ATF?

15· · A.· · · · ·Well, the division expects you to work

16· · an 8-hour tour.· ATF was his supervisor at the

17· · time.· So it came to light that he might have been

18· · shorting his days and was investigated for that.

19· · Q.· · · · ·Okay.· That similar to the LaRoche

20· · situation it came to light because someone at the

21· · ATF was essentially looking for him while he was

22· · supposed to be there and he wasn't there, right?

23· · A.· · · · ·That sounds familiar.

24· · Q.· · · · ·Okay.· And his shorting of hours or

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·1· · theft of time or whatever you want to call it was

·2· · discovered directly through basically surveillance

·3· · after the initial report.

·4· · A.· · · · ·I believe so.

·5· · Q.· · · · ·Okay.· Do you remember how much time he

·6· · was alleged to have stolen?

·7· · A.· · · · ·No.

·8· · Q.· · · · ·Do you remember that during the

·9· · investigation there was additional misconduct

10· · discovered, there was some kind of pornographic

11· · material or something like that discovered in his

12· · office that he wasn't supposed to have?

13· · A.· · · · ·I remember that they found pornographic

14· · material.· I don't remember if it resulted in an

15· · actual allegation of misconduct.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·Because I don't remember if we could

18· · prove that it was his or -- I just remember that

19· · they found that material.

20· · Q.· · · · ·Was officer --

21· · A.· · · · ·I don't remember the outcome.

22· · Q.· · · · ·Oh, I'm sorry.· Was Officer Slaughter

23· · terminated?

24· · A.· · · · ·No.

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·1· · Q.· · · · ·What was his discipline?

·2· · A.· · · · ·He was removed from that assignment.

·3· · And I don't recall what the outcome of the

·4· · disciplinary case was.

·5· · Q.· · · · ·Was there a suspension?

·6· · A.· · · · ·I don't -- I just said I don't recall.

·7· · Q.· · · · ·You don't remember.· Oh, I'm sorry. I

·8· · just meant like, you know, you could not remember

·9· · whether it was a DCC or a written reprimand or

10· · something?

11· · A.· · · · ·I don't recall.

12· · Q.· · · · ·You just don't remember at all what the

13· · level of discipline was?

14· · A.· · · · ·I'm sure you have the record.

15· · Q.· · · · ·I actually don't.

16· · A.· · · · ·Oh.

17· · Q.· · · · ·Do you remember any discussions with

18· · professional standards or the safety director

19· · about the level of discipline in this case?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·I don't have any recall of it.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·When was the hearing?

24· · Q.· · · · ·I believe 2018 maybe.

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·1· · A.· · · · ·Well, I was gone for a significant

·2· · portion of 2018.

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·So --

·5· · Q.· · · · ·Do you think you were involved in

·6· · Slaughter's discipline?

·7· · A.· · · · ·It's not ringing any bells.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·I might have been.· I remember being

10· · told about the case, but I don't remember holding

11· · the disciplinary hearing.

12· · Q.· · · · ·Do you remember what deputy chief he

13· · would have been reporting up to through ATF?

14· · A.· · · · ·I'm pretty sure it was Deputy Chief

15· · Becker.

16· · Q.· · · · ·Okay.· Is there anything else you can

17· · tell me about that case?· Everything we just

18· · discussed is basically everything you remember?

19· · A.· · · · ·I remember that the ATF was highly

20· · embarrassed by their lack of oversight over him

21· · and we threatened to not give them another task

22· · force officer because we didn't want that kind of

23· · behavior to be allowed.· They admitted that they

24· · had done a very poor job of monitoring time in the

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·1· · office and/or whatever.· I believe that in that

·2· · particular case there was some surveillance, yes.

·3· · But it was surveillance that said you're not in

·4· · the office, but I can't prove that you are not

·5· · doing some other type of work, you know, that

·6· · originated outside the office and you were just

·7· · late getting there.· That was a -- I believe an

·8· · evidence problem in that particular case, and

·9· · really poor oversight by the ATF.

10· · Q.· · · · ·But at the end of the day, the CPD's

11· · conclusion was that Slaughter was guilty of some

12· · misconduct conduct related to this.

13· · A.· · · · ·I don't recall.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·I'm not sure if I even had the hearing

16· · because I didn't work the last two months of the

17· · year, and I was gone for almost all of August, and

18· · I don't recall when that was resolved.

19· · Q.· · · · ·Okay.· Other than the officers that we

20· · have discussed today, are you aware of any white

21· · Columbus Division of Police officers who were

22· · terminated for misreporting their hours worked or

23· · receiving pay or leave credit for hours that they

24· · didn't work?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

·2· · A.· · · · ·I can't remember exactly what the

·3· · charges were, but Lieutenant Brian Lance was

·4· · charged with a lot of different leave issues, not

·5· · being at work when he said he was at work. I

·6· · believe I made a recommendation of 240-hour

·7· · suspension, termination and demotion on him.

·8· · Q.· · · · ·Okay.· That was his -- I'm sorry.· Go

·9· · ahead.

10· · A.· · · · ·And I believe that he might have

11· · resigned prior to being fired.

12· · · · · · · ·I already talked about Troy Casner.

13· · Sergeant Moore, as you know, I believe I made a

14· · recommendation of termination and suspension for

15· · him with regard to abuse of overtime and basically

16· · stealing money that he didn't earn, didn't work.

17· · Q.· · · · ·And a lot of other things as well.

18· · A.· · · · ·And a lot of other things.· As far as

19· · related to leave and time and overtime and theft.

20· · Officer Knode is white, I recommended termination

21· · for him for theft.

22· · Q.· · · · ·But not for theft of time?

23· · A.· · · · ·No.· Money.· Those are the ones that I

24· · recall.· There may be -- well, no.· I take that

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·1· · back.· I had a number of male white officers that

·2· · got in trouble with being at work.· Joe Hern,

·3· · Steve Franchini, Richard Ptak.· They basically

·4· · abandoned their jobs to a large degree.· But they

·5· · had medical conditions so they were being covered

·6· · by sick leave and/or, you know, maybe they were

·7· · time -- leave without pay time, but they were

·8· · marked off sick I believe.· I think both Ptak and

·9· · Franchini might have died after they left

10· · employment.· I think they were both fired.· Hern

11· · might have resigned because he was under

12· · investigation a number of times.· Josh Wagner was

13· · I don't think related to time, but he had several

14· · different issues going on.

15· · · · · · · ·Sergeant -- but, yeah, Franchini and

16· · Ptak and Hern all I believe were somewhat similar

17· · in the sense that they were probably abusing sick

18· · leave and not coming to work and therefore being

19· · -- and I don't even know if -- what paid status

20· · they were in, but it was potentially under the

21· · same rule of conduct or something similar.

22· · Q.· · · · ·What time frame are we talking about?

23· · A.· · · · ·During my time as chief.

24· · Q.· · · · ·Okay.· And these were all guys who had

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·1· · legitimate medical conditions -- you don't know?

·2· · A.· · · · ·Well, I think two of them were

·3· · alcoholics.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·And just weren't able to get their life

·6· · turned around well enough.· Hern I don't know that

·7· · he had a medical problem or not.· I -- I just

·8· · don't remember the circumstances well enough.· I'd

·9· · have to go back through the -- well, if they still

10· · exist.· But --

11· · Q.· · · · ·I guess I'm -- I've got to figure out

12· · what you're saying about Franchini and Ptak.· Were

13· · they terminated because they had basically run out

14· · of unpaid sick leave that they could take or were

15· · they terminated because they were found to have

16· · abused sick leave?

17· · A.· · · · ·Well, we have rules that say that you

18· · have to, you know, stay in touch.· If you are on

19· · medical leave, you have to at lease call HR every

20· · two weeks to say, hey, I'm still on medical leave

21· · and this is my condition and give us an update.

22· · And they were failing to follow orders.· So at

23· · some point in time HR gets involved and starts

24· · talking to them to see if they're dealing with

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·1· · their issues and yet they still can't violate the

·2· · orders to, you know, stay in touch or to stay in

·3· · paid status if they can and various other things.

·4· · And so they weren't fired because they have a

·5· · medical condition.· They were I believe fired

·6· · because they were failing to follow the orders

·7· · related to staying -- of following orders.

·8· · Q.· · · · ·They basically just stopped coming to

·9· · work and then nobody could get in touch with them

10· · to figure out --

11· · A.· · · · ·Correct.

12· · Q.· · · · ·-- what was going on.

13· · A.· · · · ·Yeah.

14· · Q.· · · · ·And they abandoned their jobs?

15· · A.· · · · ·We went out to do home visits, and, you

16· · know, either they weren't home or they were home

17· · and they weren't answering the door, you know.

18· · Q.· · · · ·So it wasn't about officers trying to

19· · get paid for work they weren't doing or something

20· · like that.· It was basically officers who just

21· · weren't coming to work anymore and weren't --

22· · A.· · · · ·Well, I don't recall.· At some point in

23· · time they might have been trying to get paid for

24· · not working.· But I just don't remember the

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·1· · timeline.· You know, oftentimes you -- if it goes

·2· · that long, you were on paid time for a while and

·3· · then you get off of it.

·4· · Q.· · · · ·Okay.· Was it the same with Hern as

·5· · with Franchini and Ptak, or is that something

·6· · different?

·7· · A.· · · · ·No.· It's different.

·8· · Q.· · · · ·What was Hern doing?

·9· · A.· · · · ·I don't recall.· There was some

10· · misconduct on his part.

11· · Q.· · · · ·About abuse of sick leave or --

12· · A.· · · · ·I can't remember.

13· · Q.· · · · ·Okay.· And Hern resigned under

14· · investigation but hadn't actually been recommended

15· · for termination at that point.

16· · A.· · · · ·I believe so.

17· · Q.· · · · ·And Franchini and Ptak were terminated,

18· · but it was basically like --

19· · A.· · · · ·As far as I recall.

20· · Q.· · · · ·Did they contest the termination or did

21· · they just basically disappear?

22· · A.· · · · ·I don't believe that they contested it

23· · much.

24· · Q.· · · · ·Was there a chief's hearing?

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·1· · A.· · · · ·To be terminated you would have to have

·2· · a chief's hearing.

·3· · Q.· · · · ·Did they show up for the chief's

·4· · hearing?

·5· · A.· · · · ·I just don't know that.

·6· · Q.· · · · ·Okay.· You said somebody named Wagner.

·7· · Did you say that that wasn't related at the time?

·8· · A.· · · · ·Yeah.· I don't think that that's

·9· · related to leave time.

10· · Q.· · · · ·Okay.· I'm going to jump back to the

11· · ones that I think are a little bit more closely

12· · related maybe -- maybe you think those are closely

13· · related.· But Casner we talked about a little bit.

14· · There was an additional allegation about tampering

15· · with the investigation or talking to other

16· · officers about the investigation.· But in addition

17· · to that, do you recall he had had also a DUI

18· · within the time frame of the lookback?

19· · A.· · · · ·It was prior to that behavior being

20· · discovered.

21· · Q.· · · · ·Right.· But it was within the four-year

22· · window of being able to be included in

23· · disciplinary decisions?

24· · A.· · · · ·Yeah.· I don't think that he received

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·1· · any discipline out of the DUI.· Did he?

·2· · Q.· · · · ·Oh, really?· I --

·3· · A.· · · · ·I don't think that he did.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·They were -- they were -- he was found

·6· · not guilty I believe in court, and so that made it

·7· · really difficult to proceed administratively.

·8· · Q.· · · · ·Okay.· The one you mentioned, Brian

·9· · Lance that you recall he was terminated on this

10· · third incident of AWOL.

11· · A.· · · · ·I think he was terminated.· I don't

12· · think he resigned.

13· · Q.· · · · ·Well, I mean he resigned in lieu of

14· · termination, I guess.

15· · A.· · · · ·Okay.

16· · Q.· · · · ·But your recommendation for his

17· · termination was after his third indent of AWOL,

18· · right?

19· · A.· · · · ·All within a short period of time, yes.

20· · Q.· · · · ·But they were separately investigated

21· · like they had actually disciplined him for AWOL

22· · previously twice before he was recommended for

23· · termination.

24· · A.· · · · ·Yeah.· I believe so.

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·1· · Q.· · · · ·Are you -- other than the officers we

·2· · already mentioned, are you aware of any black

·3· · officers who had a sustained allegation of time

·4· · reporting issues that were not terminated?

·5· · A.· · · · ·Do you mean --

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·-- besides Randall Lyons?

·8· · Q.· · · · ·Yes.

·9· · A.· · · · ·Not that I recall specifically.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·I mean, understand that, you know,

12· · discipline could happen for being late by the

13· · immediate supervisor and I wouldn't know about it.

14· · Q.· · · · ·In terms of discipline that was in

15· · front of you, though, you can't think of any other

16· · ones?

17· · A.· · · · ·That's correct.

18· · Q.· · · · ·Okay.· How about white officers who had

19· · discipline in front of you who were not terminated

20· · for time reporting infractions besides the ones

21· · we've talked about?

22· · A.· · · · ·Not that I recall.

23· · Q.· · · · ·Okay.· Do you remember I think we

24· · talked about Joseph Houseberg at the very

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·1· · beginning in terms of your relationship?· Do you

·2· · remember an investigation of Houseberg related to

·3· · special duty?

·4· · A.· · · · ·Yes.

·5· · Q.· · · · ·Houseberg was found to have made a

·6· · false report regarding his special duty assignment

·7· · about contact he had with a civilian; is that

·8· · right?

·9· · A.· · · · ·Yes.

10· · Q.· · · · ·All right.· And it was the kind of

11· · report that it somehow caused the apartment

12· · complex involved to mistakenly believe that

13· · somebody had violated a protection order or

14· · something and they had actually started to

15· · initiate civil litigation about it; does that

16· · sound familiar?

17· · A.· · · · ·Not a protection order.· I think it was

18· · just a stay away order.

19· · Q.· · · · ·Stay away order?

20· · A.· · · · ·Uh-huh.

21· · Q.· · · · ·Okay.· And first of all, he was

22· · immediately fired from that special duty

23· · assignment by the apartment complex, right?

24· · A.· · · · ·I believe so.

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·1· · Q.· · · · ·Okay.· And the same report that he

·2· · filed actually amounted to improper use of OHLEG

·3· · data from the law enforcement Gateway.

·4· · A.· · · · ·It contained information from that,

·5· · yes.

·6· · Q.· · · · ·And he had given that information to a

·7· · civilian, to the apartment complex.

·8· · A.· · · · ·Yes.

·9· · Q.· · · · ·Which was improper.

10· · A.· · · · ·Correct.

11· · Q.· · · · ·And a felony.

12· · A.· · · · ·Well --

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · A.· · · · ·-- if it's prosecuted, then it's a

15· · felony.

16· · Q.· · · · ·Well, it's a felony whether it's

17· · prosecuted or not.· But if he was found guilty of

18· · it, he would be guilty of a felony, right?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · Q.· · · · ·I'll withdraw that question.

21· · · · · · · ·Improper use of -- impair sharing of

22· · OHLEG data with a civilian by a police officer is

23· · a fifth degree felony in the State of Ohio?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · A.· · · · ·There is a law like that.

·2· · Q.· · · · ·Okay.· In particularly I mean there's

·3· · -- I don't know if you've seen the reporting

·4· · recently, there was a chief of police out of

·5· · Buckeye Lake that was just indicted for a couple

·6· · of those.· Do you remember seeing that?

·7· · A.· · · · ·I don't.

·8· · Q.· · · · ·Okay.· The luxury of not having to read

·9· · the papers I guess when you're not the chief

10· · anymore.

11· · · · · · · ·In the packet, the internal affairs

12· · packet and the chain of command materials for the

13· · Houseberg investigation there's a notation that

14· · said that after consulting with Jeff Furbee, there

15· · was an indication that this was not the kind of

16· · OHLEG violation that would likely to be

17· · prosecuted.· Do you remember that?

18· · A.· · · · ·Not specifically.· But I don't doubt

19· · that you've read that.

20· · Q.· · · · ·Do you remember that there was no

21· · actual criminal investigation of Joe Houseberg?

22· · A.· · · · ·I don't recall a criminal investigation

23· · being conducted by anybody about that particular

24· · violation.

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·1· · Q.· · · · ·Okay.· And he admitted to the

·2· · violation, I mean it was clear that there was no

·3· · question that he had shared OHLEG data with a

·4· · civilian.

·5· · A.· · · · ·Correct.

·6· · Q.· · · · ·Okay.· He received a sustained

·7· · allegation of untruthful after your chief's

·8· · hearing; is that right?

·9· · A.· · · · ·After my chief's hearing?

10· · Q.· · · · ·You sustained -- there was a charge of

11· · untruthful against him.

12· · A.· · · · ·You said after my hearing.

13· · Q.· · · · ·And then after your hearing you

14· · sustained -- you recommended sustaining the

15· · charge.

16· · A.· · · · ·I thought I changed the rule of

17· · conduct.

18· · Q.· · · · ·Okay.· Can I get 24.

19· · · · · · · ·Let me ask before we get into that.· Do

20· · you remember why you would have changed the rule

21· · of conduct?

22· · A.· · · · ·Because I thought that was the most

23· · appropriate way of handling that particular

24· · situation.

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·1· · Q.· · · · ·Okay.· What did you change it --

·2· · A.· · · · ·He was classified as making a

·3· · misrepresentation of the information on the report

·4· · rather than untruthfulness.

·5· · Q.· · · · ·Okay.· Is that a less serious charge?

·6· · A.· · · · ·It was handled as a less serious rule

·7· · of conduct.· With a 136, there's -- that's the

·8· · unbecoming conduct.· He was untruthful to the

·9· · people that he worked for at the apartment

10· · complex.· It wasn't a matter of being untruthful

11· · to the Division of Police.

12· · Q.· · · · ·Okay.· But before we go further down

13· · this line, let me just give you the packet.· This

14· · has been marked as Plaintiff's Exhibit 24.· If you

15· · flip, one, two -- about three pages in is your

16· · recommendation to Director Speaks on Houseberg's

17· · case.· Do you see it?

18· · · · · · · · · · · · ·- - - - -

19· · · · · · ·Thereupon, Plaintiff's Exhibit 24 is

20· · marked for purposes of identification.

21· · · · · · · · · · · · - - - - -

22· · A.· · · · ·Yes.

23· · Q.· · · · ·On the second page it appears to me

24· · that you -- the charge says, "You are hereby

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·1· · charged with violating Rule 1:15(A)(5) General

·2· · Requirements, which states, 'Division personnel

·3· · shall be truthful at all times.'"· And it says,

·4· · "Specification I+II:· Sustained."· Is that not a

·5· · sustained untruthful?

·6· · A.· · · · ·Well, you have to keep reading.

·7· · Q.· · · · ·Okay.· What does that mean, the next

·8· · notation?

·9· · A.· · · · ·It says my recommendation is that it's

10· · an 80-hour suspension for violating rule of

11· · conduct 1.36.

12· · Q.· · · · ·Okay.· So basically you're saying he

13· · did the thing that he was accused of, but the rule

14· · of conduct is as you described.

15· · A.· · · · ·Yeah.

16· · Q.· · · · ·It's different in your mind -- well,

17· · first of all, do you know, does a finding like

18· · this get an officer put on a 1010 list?

19· · A.· · · · ·No.

20· · Q.· · · · ·Okay.· In your view, it's different for

21· · the officer to falsely report something to his

22· · special duty employer than it is to falsely report

23· · it to the division.

24· · A.· · · · ·Well, there's a distinction.

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · Q.· · · · ·Okay.· Less serious to report it to a

·3· · private person than to the public.

·4· · A.· · · · ·It's serious any time it's -- you know,

·5· · the rule is to be truthful at all times, it

·6· · doesn't specify just to division personnel.· We

·7· · hope that you're honest and have integrity in all

·8· · cases.· But in this particular case, he ended up

·9· · giving bad information to his special duty

10· · employer.

11· · Q.· · · · ·False information.

12· · A.· · · · ·Yeah.

13· · Q.· · · · ·Information that wasn't just bad, he

14· · knew it was not true.

15· · A.· · · · ·Well, I don't know if he knew that it

16· · -- yeah.

17· · Q.· · · · ·Do you remember what the report was

18· · about?

19· · A.· · · · ·He said that he talked to somebody, so,

20· · yes, that was wrong.

21· · Q.· · · · ·Yeah.· He said that he -- rather than

22· · just seeing somebody drive by, he had actually

23· · stopped the car and done some work that he didn't

24· · actually do which is to stop the car and --

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·1· · A.· · · · ·Yeah.

·2· · Q.· · · · ·-- talk to the person.

·3· · A.· · · · ·Yeah.

·4· · Q.· · · · ·And confirm their identity.

·5· · A.· · · · ·I remember that now.

·6· · Q.· · · · ·Okay.· So obviously something that he

·7· · intentionally lied about within the report.

·8· · A.· · · · ·Correct.

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · Q.· · · · ·And again as with the Kirby case, this

11· · is a situation where you've got an officer who's

12· · found in an investigation to have lied, but in

13· · terms of the prosecutor's obligation to inform

14· · criminal defendants of untruthfulness, a criminal

15· · defendant being investigated by Officer Houseberg

16· · would not be provided with the information.

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·What was the question?

19· · Q.· · · · ·This is another situation where you

20· · have an officer who you know lied but you're not

21· · informing the prosecutor of that?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · Q.· · · · ·Right?

24· · A.· · · · ·I wouldn't describe it that way. I

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·1· · decided not to sustain a charge of untruthfulness.

·2· · It's not a matter of me not telling the

·3· · prosecutor.

·4· · Q.· · · · ·Okay.· Did you tell the prosecutor

·5· · about this one?

·6· · A.· · · · ·I don't believe that I did.

·7· · Q.· · · · ·Okay.· And you didn't put him on the

·8· · 1010 list?

·9· · A.· · · · ·Correct.

10· · Q.· · · · ·Okay.· Why wasn't Officer Houseberg

11· · terminated?

12· · A.· · · · ·Because I didn't think that that was

13· · the level of discipline that was appropriate for

14· · this instance.

15· · Q.· · · · ·Why not?

16· · A.· · · · ·Because I didn't think it was

17· · appropriate.

18· · Q.· · · · ·Okay.· No reasoning, no, you know,

19· · nothing -- what makes this case less serious than

20· · Officer Morgan's case in your mind?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·Well, to start off with, this was a

23· · one-time incident.· It was giving the wrong

24· · information -- untruthful information if you will

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·1· · in one particular instance.

·2· · Q.· · · · ·Okay.· Do you know whether in this

·3· · investigation anybody pulled the rest of Officer

·4· · Houseberg's reports to this special duty employer

·5· · to determine whether they may have been other

·6· · similar instances?

·7· · A.· · · · ·I do not know.

·8· · Q.· · · · ·Okay.· Unlike in Officer Morgan's case

·9· · where all of his time was pulled?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·I don't know.

12· · Q.· · · · ·Okay.· Do you know -- first of all, is

13· · Officer Houseberg a white officer?

14· · A.· · · · ·Yes.

15· · Q.· · · · ·Okay.· Do you remember an officer named

16· · Andrew Hawkins?

17· · A.· · · · ·I know of -- I know of him.

18· · Q.· · · · ·Okay.· White officer?

19· · A.· · · · ·Yes.

20· · Q.· · · · ·Okay.· Do you recall that there was an

21· · investigation of Officer Hawkins related to an

22· · off-duty stop of civilians?

23· · A.· · · · ·Well, I don't know about calling it a

24· · stop.· But there was an incident involving him off

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·1· · duty and civilian.

·2· · Q.· · · · ·Okay.· Well, what do you remember about

·3· · that incident?

·4· · A.· · · · ·His wife called him very upset about

·5· · something that had happened while she was I

·6· · believe shopping.· And he misconstrued it it

·7· · sounds like or she gave him bad information, I'm

·8· · not sure which.· But he believed that she was in

·9· · some sort of danger or, you know, facing harm or

10· · some type of a volatile situation, and he

11· · responded to her location and found I think two

12· · men that he thought were involved with her

13· · situation.· And I believe that he, you know,

14· · threatened them.· I'm not sure if he -- he might

15· · have pulled his gun and tried to keep them there

16· · until -- I think maybe he might have called the

17· · Sheriff's Office or something like that, but I

18· · don't remember all the particulars.

19· · Q.· · · · ·Okay.· Do you remember that the actual

20· · incident that his wife was calling him about was

21· · she was in the parking lot and the guys had opened

22· · their car door and dinged her car door with their

23· · door and then drove away without exchanging

24· · information?

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·1· · A.· · · · ·I remember that it was something that

·2· · was totally blown up.· And I don't remember what

·3· · she told him.· But I remember that he perceived it

·4· · as something far worse than it actually was.

·5· · Q.· · · · ·Okay.· And do you remember that he told

·6· · Sergeant Decker, who conducted his internal

·7· · affairs investigation, that he believed his wife

·8· · might have been kidnapped and that this somehow

·9· · justified him stopping these civilians on the

10· · road?

11· · A.· · · · ·I can't remember what words he used

12· · exactly.· But I know that he felt that she was in

13· · some sort of danger.

14· · Q.· · · · ·Okay.· And Sergeant Decker's conclusion

15· · was that was not a reasonable reaction to this

16· · situation, considering that there was, like, 30 or

17· · 40 seconds between him getting the call from his

18· · wife and coming into contact with these guys?

19· · There wasn't, like, possibly enough time for

20· · somebody to grab her and put her in a car or

21· · something like that?

22· · A.· · · · ·I don't remember Sergeant Decker's

23· · words to that effect.· But I think that most of us

24· · felt that.

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·1· · Q.· · · · ·Yeah.· And in particular, also there

·2· · was reason to believe that even Officer Hawkins

·3· · didn't actually believe that his wife had

·4· · potentially been kidnapped or harmed because he

·5· · was yelling at these guys about doing a hit skip

·6· · or a hit and run, not about kidnapping somebody or

·7· · hurting somebody.

·8· · A.· · · · ·Is that a question?

·9· · Q.· · · · ·I'm asking you whether you remember

10· · that?

11· · A.· · · · ·Not particularly.

12· · Q.· · · · ·Okay.· But you wouldn't dispute it?

13· · A.· · · · ·No.

14· · Q.· · · · ·Okay.· Do you remember that this was a

15· · very widely reported incident in the media?

16· · A.· · · · ·I don't remember how widely.

17· · Q.· · · · ·There was news coverage, though.

18· · A.· · · · ·Okay.

19· · Q.· · · · ·Right?

20· · A.· · · · ·I can't remember anything specific on

21· · that.

22· · Q.· · · · ·Okay.· Do you remember that Officer

23· · Hawkins pled guilty to criminal charges based on

24· · this incident?

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·1· · A.· · · · ·That sounds familiar, maybe a

·2· · disorderly conduct or something.

·3· · Q.· · · · ·I think it was actually an attempted

·4· · unlawful restraint.· Does this sound right or --

·5· · A.· · · · ·Could be.· You've got the paperwork.

·6· · Q.· · · · ·Do you remember that once Officer

·7· · Hawkins -- well, I'll just represent to you once

·8· · Officer Hawkins pled guilty to the charges against

·9· · him, he was immediately restored to active duty

10· · after having been relieved of his assignment prior

11· · to that.

12· · A.· · · · ·Do I recall that?

13· · Q.· · · · ·I'm representing to you that that

14· · happened.· I'm just asking do you recall being

15· · involved in that or aware of that?

16· · A.· · · · ·No.

17· · Q.· · · · ·Okay.· Can you explain why he would be

18· · restored to active duty before the investigation

19· · was concluded?

20· · A.· · · · ·What is --

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·-- the -- what is the level of

23· · conviction?

24· · Q.· · · · ·It was a misdemeanor.· Does that

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·1· · matter?

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·So if it's a misdemeanor and not a

·4· · felony, that's automatically back to duty.

·5· · A.· · · · ·Well, if it's a felony, he can't be a

·6· · police officer.

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·So it's an automatic.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·If it's a misdemeanor, then it's taken

11· · into consideration.· But we've had any number of

12· · officers charged with M1s that have not been

13· · fired.· OVI, for instance.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·So there's no reason to believe

16· · necessarily that a conviction of a misdemeanor

17· · would be resulting in a termination.

18· · Q.· · · · ·Okay.· Officer Hawkins received a

19· · 40-hour suspension for this incident.· Do you have

20· · recollection of why that level of discipline was

21· · chosen compared to something more serious or

22· · termination?

23· · A.· · · · ·It's a misdemeanor conviction, so I

24· · look at what other misdemeanor convictions we have

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·1· · and the circumstance of the case.· And I know

·2· · previously mentioned Officer Lyons had been

·3· · involved in an off-duty incident, pulling a gun

·4· · and pointing it at a citizen and scaring her half

·5· · to death and waiving it in front of her children.

·6· · And I don't remember what the outcome of his case

·7· · was, but I know that that was something that was

·8· · taken into consideration.

·9· · Q.· · · · ·Just to remind you, Officer Lyons got

10· · 80 hours --

11· · A.· · · · ·Okay.

12· · Q.· · · · ·-- double the suspension that Officer

13· · Hawkins got.· Does that tell you any more about

14· · why you gave Hawkins what you gave him or

15· · recommended what you recommended?

16· · A.· · · · ·Well, I based it based on the fact that

17· · I thought that the 40 hours was appropriate for

18· · the circumstances, just like I did for Officer

19· · Lyons.

20· · Q.· · · · ·The Lyons situations that you just

21· · mentioned, Officer Lyons had actually been

22· · directly involved in the accident that resulted in

23· · the stop that he made, right?

24· · A.· · · · ·What are you asking?

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·1· · Q.· · · · ·Officer Hawkins, he was told about an

·2· · incident and then basically chased these guys down

·3· · without proper authority to do that.· Whereas,

·4· · Officer Lyons personally witnessed a potential

·5· · crime and therefore had authority to make the

·6· · stop, right?

·7· · A.· · · · ·That was his interpretation --

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·-- of it, yes.

10· · Q.· · · · ·Okay.· That was also Jeff Furbee's

11· · interpretation of it, right?

12· · · · · · · ·MR. COGLIANESE:· Objection.· Don't --

13· · don't answer what Furbee told you.

14· · · · · · · ·MR. VARDARO:· It's been -- I mean, it's

15· · in the public records that we were provided about

16· · Officer Lyons.

17· · · · · · · ·MR. COGLIANESE:· You're asking her to

18· · tell you what Furbee told her.

19· · · · · · · ·MR. VARDARO:· The department's already

20· · disclosed it in public records.

21· · A.· · · · ·I don't recall the conversation.

22· · Q.· · · · ·Officer Lyons wasn't subjected to a

23· · criminal investigation unlike Hawkins who was

24· · criminally convicted, right?

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·1· · A.· · · · ·You have better records than I do.

·2· · Q.· · · · ·Okay.· You just don't remember.

·3· · A.· · · · ·I don't remember.

·4· · Q.· · · · ·Okay.· Do you remember that the Officer

·5· · Lyons situation was he was driving with a woman

·6· · and a child in his car and the person that he was

·7· · accused of this conduct toward had actually run

·8· · into his car and he believed that it might have

·9· · been on purpose?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · Q.· · · · ·Clipped his mirror or something like

12· · that.

13· · A.· · · · ·I think that was the claim.

14· · Q.· · · · ·Okay.· And it was confirmed that there

15· · was contact between the cars at least.

16· · A.· · · · ·Could be.

17· · Q.· · · · ·Okay.· Officer Lyons I'll represent to

18· · you was never charged with anything, never

19· · convicted of anything in terms of the criminal

20· · process.· He was relieved of duty for the entire

21· · course of his investigation, unlike Officer

22· · Hawkins.· Can you explain that?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·I don't know what the reasoning was.

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·1· · Q.· · · · ·Okay.· Was it your reasoning --

·2· · A.· · · · ·But I don't know that I made that

·3· · decision.

·4· · Q.· · · · ·Okay.· Who would have made the

·5· · decision?

·6· · A.· · · · ·Immediate supervisors have the ability

·7· · to relieve somebody of duty and deputy chiefs can

·8· · put somebody back to work after being relieved of

·9· · duty, sometimes commanders can.· So I don't know

10· · where that decision was made.

11· · Q.· · · · ·Okay.· Officer Lyons had made quite an

12· · issue of the fact that he was being kept in

13· · administrative duty for as long as he was, right?

14· · I mean, it had been grieved through the union, it

15· · resulted in a federal lawsuit.· Is any of this

16· · ringing a bell?

17· · A.· · · · ·Now that you say something about that,

18· · I think that he and Jones and Constable are all

19· · part of one.· But I haven't heard much about that

20· · particular lawsuit.

21· · Q.· · · · ·Okay.· But at the time, you don't

22· · remember being aware of a controversy over Lyons

23· · being kept in an administrative duty as long as he

24· · was?

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·1· · A.· · · · ·I'm saying I don't recall that now.

·2· · Q.· · · · ·Okay.· Do you also remember an

·3· · investigation of Officer Hawkins while he was

·4· · under investigation for the improper -- for that

·5· · -- the situation we just described where he

·6· · improperly handled an OVI arrest?

·7· · A.· · · · ·You're going to have to refresh my

·8· · memory on that one.

·9· · Q.· · · · ·He was a field training officer, and he

10· · and his trainee had been called in to help with an

11· · OVI situation involving a Hispanic male and ended

12· · up -- he ended up being removed from the field

13· · training officer program as a result of it.

14· · A.· · · · ·I don't remember the details about

15· · that.

16· · Q.· · · · ·I'll tell you a little bit more about

17· · it, see if I can jog your memory.

18· · · · · · · ·He actually failed to investigate the

19· · guy for OVI, even though it was obvious that he

20· · was the person driving the car and he was

21· · extremely intoxicated and had been involved in a

22· · hit and run.· They put the guy in the back of the

23· · cruiser without putting his seat belt on and he

24· · was flailing all around the cruiser and falling

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·1· · down and stuff while they were driving.· He ended

·2· · up vomiting and defecating in the cruiser, and

·3· · Hawkins was accused of taking pictures of it and

·4· · distributing it to other officers.· Does any of

·5· · that familiar?

·6· · A.· · · · ·Was he departmentally charged?

·7· · Q.· · · · ·I -- that, I don't know.

·8· · A.· · · · ·Was he given a written reprimand?

·9· · Q.· · · · ·I'm asking you whether you remember it.

10· · A.· · · · ·I don't remember dealing with the

11· · disciplinary case involving that --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·-- set of circumstances.· I'm not

14· · saying I didn't, I just don't recall it.

15· · Q.· · · · ·If it happened during the course of the

16· · stop investigation, the investigation resulting in

17· · his criminal charge or resulting from his criminal

18· · charge, would you have been informed of it at the

19· · time of your chief's hearing in terms of his

20· · active discipline?

21· · · · · · · ·MR. COGLIANESE:· Objection.· Go ahead.

22· · A.· · · · ·I don't know.· I can't recall.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·It's just not sounding familiar to me.

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·1· · Q.· · · · ·You do remember the Eric Moore

·2· · investigation, the one where he was terminated and

·3· · then brought back after arbitration?

·4· · A.· · · · ·I do.

·5· · Q.· · · · ·Okay.· And you remember also

·6· · recommending the termination of Melissa McFadden

·7· · related to EEO violations?

·8· · A.· · · · ·I do.

·9· · Q.· · · · ·Okay.· Officer Moore, Sergeant Moore a

10· · white officer.· McFadden was black, correct?

11· · A.· · · · ·Yes.

12· · Q.· · · · ·Both officers were investigated for

13· · allegedly making racially inappropriate remarks,

14· · right?

15· · A.· · · · ·Not -- Sergeant Moore's allegation of

16· · making racially charged remarks was different than

17· · Lieutenant McFadden's.· And Lieutenant McFadden

18· · was alleged to have engaged in a pattern of that.

19· · Q.· · · · ·Okay.· But they were both accused of

20· · making racially inappropriate remarks.

21· · A.· · · · ·No.

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I believe that Lieutenant McFadden was

24· · charged with making discriminatory -- not just

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·1· · racially inappropriate, but discriminatory

·2· · remarks.

·3· · Q.· · · · ·But the remarks were also racially

·4· · inappropriate.· I mean, depending on -- the label

·5· · is fair to put on that in addition to whatever

·6· · other label you want to add to it.

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · Q.· · · · ·Let me put it this way before you

·9· · answer:· I understand there are differences

10· · between the two cases and I want to ask those

11· · differences.

12· · A.· · · · ·Okay.

13· · Q.· · · · ·I'm just asking about a similarity.

14· · Both of these supervisors were alleged to have

15· · made racial remarks of some kind, right?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·That's one way of phrasing it if you

18· · want to.· But there's a great distinction between

19· · the behavior that they each were accused of.

20· · Q.· · · · ·Okay.· Well, Sergeant Moore's remarks

21· · that he was alleged to have made involved making

22· · violent threats toward black officers, right?

23· · A.· · · · ·That was an allegation that was not

24· · sustained.

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·1· · Q.· · · · ·Okay.· But it was clear in reviewing

·2· · the investigation that there were corroborated

·3· · allegations of him if not making death threats

·4· · towards these officers, at least threatening to

·5· · beat them up.

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·The allegation was not sustained.

·8· · Q.· · · · ·Okay.· But you read the investigation,

·9· · right?· You read it pretty recently.· We had a

10· · deposition about this last month.

11· · A.· · · · ·The allegation was not sustained.

12· · Q.· · · · ·You're allowed to overrule and not

13· · sustain allegations, right?

14· · A.· · · · ·Yes.

15· · Q.· · · · ·Okay.· You decided not to sustain the

16· · allegation based on the recommendation of your

17· · chain of command and IA, right?

18· · A.· · · · ·Based on all the evidence.

19· · Q.· · · · ·Okay.· The evidence included multiple

20· · officers confirming that Sergeant Moore used

21· · racial slurs and used them in a context of

22· · threatening to beat up or further harm black

23· · officers.

24· · A.· · · · ·I'm not going to agree to that --

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·-- depiction of that.

·3· · Q.· · · · ·Okay.· The allegations against

·4· · lieutenant --

·5· · · · · · · ·(A discussion is held off record.)

·6· · BY MR. VARDARO:

·7· · Q.· · · · ·The allegations against Lieutenant

·8· · McFadden did not involve any allegation that she

·9· · had made any threat of violence toward any

10· · officers based on race, not even alleged.

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·Not that I recall.

13· · Q.· · · · ·Okay.· You do remember that there were

14· · officers who told internal affairs that they

15· · directly heard Eric Moore make violent threats

16· · toward black officers.

17· · A.· · · · ·I know that the allegation was made.

18· · Q.· · · · ·Okay.· And you know that multiple

19· · officers who Sergeant Decker interviewed confirmed

20· · that allegation.

21· · A.· · · · ·I don't know what you mean by

22· · "multiple," so --

23· · Q.· · · · ·Well, officer --

24· · A.· · · · ·More than one?

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·1· · Q.· · · · ·Yes, more than one.· That's what

·2· · multiple means.

·3· · A.· · · · ·I believe that that might be the case

·4· · that there was more than one.

·5· · Q.· · · · ·Okay.· Is there a difference between

·6· · multiple officers saying the same type of thing

·7· · and corroboration?

·8· · A.· · · · ·It is not necessarily the same, but it

·9· · can be.

10· · Q.· · · · ·Okay.· Well, in this case Officer

11· · Serrell accused Eric Moore of making violent

12· · threats toward black officers and using racial

13· · slurs in that conversation.· And another officer

14· · said he wasn't sure if it was a death threat, but

15· · he definitely used a racial slur and said that he

16· · was going to beat up a black officer named Cornett

17· · who was black.

18· · A.· · · · ·What's the question?

19· · Q.· · · · ·I'm asking you whether you agree with

20· · that.

21· · A.· · · · ·Whether I agree --

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·-- with what?

24· · Q.· · · · ·The fact that another officer confirmed

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·1· · Officer Serrell's allegation that Sergeant Moore

·2· · made a violent threat toward Eric Cornett, a black

·3· · officer.

·4· · A.· · · · ·I'm not denying anything that was in

·5· · the investigation --

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·-- that was said.

·8· · Q.· · · · ·Well, the reason I'm asking it is I

·9· · asked you whether there was a corroborated

10· · allegation of a violent racial threat by Eric

11· · Moore, and you said you weren't going to admit to

12· · that because you didn't sustain the allegation.

13· · A.· · · · ·I don't think that's how you phrased

14· · it.

15· · Q.· · · · ·Okay.· So if I phrase it that way, then

16· · that is accurate in terms of the Moore

17· · investigation?

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · A.· · · · ·Corroboration in my opinion means that

20· · the stories match and are contributory towards

21· · believing that a certain thing did occur.· Stories

22· · that are similar that may or may not match up on

23· · certain times may or may not be corroborative.· So

24· · it's just that word that I'm, you know --

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·I don't know -- like I said, statements

·3· · are the statements, the investigation is there.

·4· · Q.· · · · ·Okay.· So you agree with me that

·5· · multiple officers reported in the Eric Moore

·6· · investigation that Eric Moore made violent racial

·7· · threats toward another CPD officer?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·The investigation has statements from

10· · those people that alleged what they said.

11· · Q.· · · · ·Is that a yes?· Can you answer my

12· · question yes or no?

13· · A.· · · · ·Well, the investigation contains all of

14· · that information, so --

15· · Q.· · · · ·Including information that multiple

16· · officers --

17· · A.· · · · ·I --

18· · Q.· · · · ·-- reported that --

19· · A.· · · · ·I don't --

20· · Q.· · · · ·-- Eric Moore made violent racial

21· · threats toward another CPD officer.

22· · A.· · · · ·I don't recall what they specifically

23· · said.· So if I have to take your word for what it

24· · says specifically, then you can read it to me or

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·1· · point it to me and then I'll say yes.· But I don't

·2· · recall exactly what was said in that investigation

·3· · and by how many people.

·4· · Q.· · · · ·Okay.· I mean I assume, I hope, you

·5· · haven't had too many investigations where your

·6· · officers are accusing another officer of making

·7· · violent racial threats toward another officer.

·8· · · · · · · ·MR. COGLIANESE:· Objection.· Jeff, come

·9· · on.

10· · · · · · · ·MR. VARDARO:· Please stop with the

11· · speaking off objections, Rich.· I'm trying to

12· · move --

13· · · · · · · ·MR. COGLIANESE:· Please stop haranguing

14· · the witness.

15· · A.· · · · ·What's the question?

16· · Q.· · · · ·Is there some reason that you can't

17· · remember this investigation?· We talked about it a

18· · month ago --

19· · A.· · · · ·It happened a long time ago.

20· · Q.· · · · ·-- in great detail.

21· · · · · · · ·Sergeant Moore's conduct also involved

22· · directly taking employment action against black

23· · officers because they participated in internal

24· · affairs investigation against him, correct?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·I don't recall what you're talking

·3· · about.

·4· · Q.· · · · ·Do you remember that he confronted

·5· · Whitney Lancaster, a black officer, about not

·6· · taking a narcotics job, and he had made some

·7· · threatening statements and text messages about

·8· · Carl Shaw about the same narcotics job, and he

·9· · admitted in the internal affairs investigation

10· · that he did that because they had called him a

11· · racist in an internal affairs investigation?

12· · · · · · · ·MR. COGLIANESE:· Objection.

13· · A.· · · · ·That sounds familiar, yeah.

14· · Q.· · · · ·Okay.· There was no allegation that

15· · Lieutenant McFadden had directly taken action

16· · against a white officer because of some racial --

17· · some conduct that they engaged in during the

18· · internal affairs investigation?

19· · A.· · · · ·Not --

20· · Q.· · · · ·Or a black officer?· She didn't

21· · retaliate against anybody for participating in her

22· · investigation that you know of?

23· · A.· · · · ·Correct.

24· · Q.· · · · ·And as I said, Sergeant Moore admitted

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·1· · that retaliation, Lieutenant McFadden didn't admit

·2· · to any misconduct.

·3· · A.· · · · ·Correct.

·4· · Q.· · · · ·There was evidence that Sergeant Moore

·5· · may have violated some federal weapons laws during

·6· · his investigation.· Do you remember that?

·7· · A.· · · · ·I remember that coming up.

·8· · Q.· · · · ·Okay.· And that nothing like that

·9· · involved in Lieutenant McFadden's investigation.

10· · A.· · · · ·Correct.

11· · Q.· · · · ·Sergeant Moore was directly untruthful

12· · to you about his involvement in a hiring process

13· · for that same narcotics job about who had passed

14· · on the job and who hadn't.

15· · A.· · · · ·Say that again.

16· · Q.· · · · ·Sergeant Moore was directly untruthful

17· · to you about the narcotics position that he was

18· · hiring for.

19· · A.· · · · ·In what way?

20· · Q.· · · · ·He told you that all of the officers

21· · involved in the hiring process had passed on the

22· · job.

23· · A.· · · · ·Did he tell me that?

24· · Q.· · · · ·Yes.· In a report to you.

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·1· · A.· · · · ·Yeah.· I think that's how he

·2· · represented it.· I -- I can't remember very well.

·3· · Q.· · · · ·Well, it turned out not to be true.· He

·4· · was actually told in particular Carl Shaw could

·5· · not have passed to him because he was supposed to

·6· · not even be talking to Carl Shaw about it.

·7· · A.· · · · ·Okay.

·8· · Q.· · · · ·Lieutenant McFadden was not charged

·9· · with untruthfulness or accused in any

10· · untruthfulness in her investigation, right?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·During the investigation of the EEO

13· · stuff, there was no allegation brought forward

14· · about an untruthfulness.

15· · Q.· · · · ·Sergeant Moore was found to have

16· · violated a direct report related to the

17· · investigation, the no contact order with respect

18· · to Whitney Lancaster.· Do you remember that?

19· · A.· · · · ·I believe that's true.

20· · Q.· · · · ·Lieutenant McFadden had no

21· · insubordination or charge against her in her

22· · investigation.

23· · A.· · · · ·I believe that's true.

24· · Q.· · · · ·Right.· Sergeant Moore was never

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·1· · relieved of his assignment or relieved of duty

·2· · until his sustained IA investigation concluded,

·3· · correct?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·I believe that's been addressed.

·6· · Q.· · · · ·And that's correct, right?· I mean --

·7· · A.· · · · ·I take your word for it.

·8· · Q.· · · · ·Okay.· I mean, you know that he was not

·9· · relieved of duty until after the IA investigation

10· · was over.

11· · A.· · · · ·I don't recall that specifically.· I've

12· · been told that a number of times by you and

13· · others.

14· · Q.· · · · ·Okay.· You have no reason to doubt it.

15· · A.· · · · ·No.

16· · Q.· · · · ·Okay.· Lieutenant McFadden you removed

17· · from supervision before her first interview in the

18· · internal affairs investigation.

19· · A.· · · · ·She was not relieved of duty.

20· · Q.· · · · ·I didn't say relieved of duty.

21· · A.· · · · ·I know, but she wasn't relieved of

22· · supervision.· She was relieved of assignment.

23· · Q.· · · · ·Immediately before her first internal

24· · affairs interview, correct?

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·1· · A.· · · · ·Shortly after the allegations came

·2· · forth, she was relieved of her assignment.

·3· · Q.· · · · ·Right.

·4· · A.· · · · ·Not relieved of supervision.

·5· · Q.· · · · ·Well, she wasn't supervising anybody

·6· · any more because she was working in the

·7· · property room.

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · Q.· · · · ·Right?

10· · A.· · · · ·She wasn't relieved of her

11· · responsibility as a supervisor.

12· · Q.· · · · ·But she was relieved of the practical

13· · responsibility of supervising any human being?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·I wouldn't say that.

16· · Q.· · · · ·Who was she supervising in the property

17· · room?

18· · A.· · · · ·Any officer that came in there would be

19· · subject to whatever supervisory decision that she

20· · made.

21· · Q.· · · · ·Okay.· She didn't have any direct

22· · reports anymore?

23· · A.· · · · ·To my knowledge, that's correct.

24· · Q.· · · · ·Okay.· Sergeant Moore never faced any

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·1· · departmental charges for any of his racial

·2· · remarks, all the departmental charges were about

·3· · his property allegations, correct?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·I believe that's correct.· I don't

·6· · recall if it was a departmental charge that got

·7· · dropped down to a written reprimand for the one

·8· · that was sustained.

·9· · Q.· · · · ·Okay.· Lieutenant McFadden you

10· · recommended for termination.

11· · A.· · · · ·Correct.

12· · Q.· · · · ·All right.· The safety director

13· · overtured it.

14· · A.· · · · ·Correct.

15· · Q.· · · · ·Okay.· You remember an officer named

16· · Jesse Perkins?

17· · A.· · · · ·I do.

18· · Q.· · · · ·White officer?

19· · A.· · · · ·Uh-huh.· Yes.

20· · Q.· · · · ·He was found through an internal

21· · affairs -- actually, through a -- yeah, through an

22· · internal affairs investigation to have used

23· · excessive force against a civilian, hit him over

24· · the head with a baton, right?

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·1· · A.· · · · ·Yes.

·2· · Q.· · · · ·And he lied about it directly to his

·3· · sergeant after the incident.

·4· · A.· · · · ·Right after the incident.

·5· · Q.· · · · ·Okay.· And he later admitted to the

·6· · untruthfulness.

·7· · A.· · · · ·Within a couple hours.

·8· · Q.· · · · ·Okay.· His allegation -- his misconduct

·9· · involved likely a violation of constitutional

10· · rights of the civilian.

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · Q.· · · · ·Right?

13· · A.· · · · ·Say that again.

14· · Q.· · · · ·Hitting somebody over the head with a

15· · baton without cause, without proper cause would

16· · violate that person's constitutional rights to be

17· · free of excessive force.

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · A.· · · · ·If it was found to be unconstitutional

20· · use of force, yes.

21· · Q.· · · · ·Okay.· I mean your department concluded

22· · and you agreed that this was an excessive use of

23· · force against a civilian, right?

24· · A.· · · · ·Correct.

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·1· · Q.· · · · ·And that violated -- that likely

·2· · violated that person's constitutional rights.

·3· · · · · · · ·MR. COGLIANESE:· Objection.· Legal

·4· · conclusions.· Come on.

·5· · Q.· · · · ·You --

·6· · A.· · · · ·We don't find people guilty of

·7· · violating the constitutional right.· We find them

·8· · guilty of violating our rules of conduct.

·9· · Sometimes those coincide.

10· · Q.· · · · ·Okay.· You've been trained extensively

11· · in constitutional rights of civilians in your long

12· · police career, correct?

13· · A.· · · · ·Yeah.· However you want to describe

14· · extensively.

15· · Q.· · · · ·I mean, all of your officers in the

16· · division of police are trained in what does and

17· · doesn't violate the constitutional rights of

18· · civilians with respect to searches, with respect

19· · to seizures --

20· · A.· · · · ·Sure.

21· · Q.· · · · ·-- with respect to excessive force, all

22· · of that stuff, that training is given as a basic

23· · element of police procedure, right?

24· · A.· · · · ·Yes.

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·1· · Q.· · · · ·So you know that using excessive force

·2· · against a civilian violates their constitutional

·3· · rights.

·4· · · · · · · ·MR. COGLIANESE:· Objection.· She's not

·5· · a lawyer.

·6· · Q.· · · · ·Don't you --

·7· · A.· · · · ·I know that it could be a

·8· · constitutional violation.· It's not always

·9· · perceived that way based on the circumstances.

10· · And just because we rule it to be outside doesn't

11· · always mean that it would be found to be

12· · unconstitutional in a court of law.

13· · Q.· · · · ·Okay.· Is there any doubt in this

14· · situation involving Jesse Perkins that his use of

15· · excessive physical force against this civilian

16· · would have violated this person's constitutional

17· · rights?

18· · · · · · · ·MR. COGLIANESE:· Objection.· This calls

19· · for a legal conclusion.

20· · A.· · · · ·Ask the question again.

21· · Q.· · · · ·Did you have any doubt that this use of

22· · force by Officer Perkins violated that civilian's

23· · constitutional rights?

24· · · · · · · ·MR. COGLIANESE:· Objection.

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·1· · Q.· · · · ·To hit them over the head with a baton

·2· · in a situation that didn't call for it.

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · A.· · · · ·It certainly could be perceived that

·5· · way.

·6· · Q.· · · · ·You're aware there was a lawsuit about

·7· · that use of force.

·8· · A.· · · · ·I'm not recalling that part.

·9· · Q.· · · · ·Okay.· In Officer Perkins' case when

10· · the departmental charges came to you for your --

11· · prior to the chief's hearing, did you add cause

12· · for dismissal to the charges against Officer

13· · Perkins?

14· · A.· · · · ·Not that I'm aware of.

15· · Q.· · · · ·Okay.· Any reason why?

16· · A.· · · · ·No.

17· · Q.· · · · ·Okay.· Officer Perkins was recommended

18· · for termination -- Officer Perkins was recommended

19· · for termination by you and then was brought back

20· · to work with a 240-hour suspension by the safety

21· · director; does that sound right?

22· · A.· · · · ·Uh-huh.· Yes.

23· · Q.· · · · ·Do you have any understanding of why

24· · that case was settled?

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·1· · A.· · · · ·I believe that it was determined that

·2· · it would be possible to allow him to continue his

·3· · career.

·4· · Q.· · · · ·Okay.· How was that determined?

·5· · A.· · · · ·Well, by the director of public safety.

·6· · Q.· · · · ·Okay.· Well, where did you get the

·7· · understanding I guess is what I'm sort of asking

·8· · you?

·9· · A.· · · · ·If he didn't fire him, he must have

10· · thought that he had some value.

11· · Q.· · · · ·Well, does Director Speaks consult with

12· · you about that, returning that officer to your

13· · employment?

14· · A.· · · · ·I don't remember if I had direct

15· · communication with him or not.· I might very well

16· · have.

17· · Q.· · · · ·Okay.· I mean, it would be your

18· · typical --

19· · A.· · · · ·I don't know if I reached out to him or

20· · I reached out --

21· · · · · · · ·MR. COGLIANESE:· Hold on.· She's added

22· · to her answer, Rich.

23· · · · · · · ·MR. VARDARO:· I'm not intentionally

24· · doing it.

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·1· · · · · · · ·MR. COGLIANESE:· You seem to be doing a

·2· · lot of it.· Whether it's intentional or not, just

·3· · let her finish her answers.

·4· · BY MR. VARDARO:

·5· · Q.· · · · ·Do you remember any situations while

·6· · you were chief of police where you recommended

·7· · somebody for termination and the safety director

·8· · settled the case or overruled you where you were

·9· · not at least informed in advance if not consulted

10· · before that decision was made?

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·You have to ask that one again.

13· · Q.· · · · ·Do you remember any situations while

14· · you were chief of police where you recommended

15· · somebody for termination and the safety director

16· · settled the case or overruled you where you were

17· · not at least informed in advance if not consulted

18· · before that decision was made by the safety

19· · director?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·Just for termination?

22· · Q.· · · · ·Yeah.

23· · A.· · · · ·I don't recall whether or not he told

24· · me before he made the decision on Lieutenant

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·1· · McFadden.

·2· · Q.· · · · ·Do you remember that your

·3· · recommendation on McFadden was forwarded to the

·4· · safety director and then there was a long delay

·5· · between the safety director's hearing and the

·6· · determination in McFadden's case because he was

·7· · waiting for you to come back for vacation or leave

·8· · of some kind?

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·I don't recall what the reasoning was

11· · for the delay.· It may have well have been, but I

12· · don't recall.

13· · Q.· · · · ·Okay.· And you don't remember whether

14· · or not he told you before he made that decision?

15· · A.· · · · ·I believe the decision had already been

16· · made by the time I found out about it --

17· · Q.· · · · ·Okay.

18· · A.· · · · ·-- from the director.

19· · Q.· · · · ·In Perkins' case, you just can't

20· · remember whether there was consultation or not

21· · about the settlement.

22· · A.· · · · ·I don't remember who any contact was

23· · made -- made between.

24· · Q.· · · · ·Did you disagree with the decision to

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·1· · bring him back?

·2· · A.· · · · ·No.

·3· · Q.· · · · ·Okay.· Why not?

·4· · A.· · · · ·I thought that Officer Perkins made a

·5· · very bad decision to not be truthful about the

·6· · circumstances of that particular incident.· It was

·7· · done kind of in the heat of the moment in my

·8· · opinion, after a volatile situation.· I think that

·9· · he realized very quickly that he had made a very

10· · bad mistake and went to his supervisor and

11· · confessed that he had not told him the truth and

12· · that he was remorseful about that and honest about

13· · that mistake.· And I thought that he might have

14· · the potential for more value within the division

15· · of police.

16· · Q.· · · · ·Okay.· I assume you remember a white

17· · officer named Zach Rosen.

18· · A.· · · · ·I remember him.

19· · Q.· · · · ·Okay.· I want to ask you about two

20· · different investigations involving Officer Rosen.

21· · First of all, he was investigated for a -- for

22· · allegedly kicking a civilian in the head while he

23· · was handcuffed.· Do you remember that?

24· · A.· · · · ·I do.

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·1· · Q.· · · · ·Okay.· And he was also investigated and

·2· · disciplined for a retaliatory stop of a civilian

·3· · who had yelled at him.· Do you remember that one?

·4· · A.· · · · ·I believe that it was a civilian

·5· · complaint that had come in from a traffic violator

·6· · that had gotten a ticket from him.· I don't

·7· · remember what the allegation was because it did

·8· · not come to me for a resolution.

·9· · Q.· · · · ·Okay.· No departmental charges in that

10· · situation?

11· · A.· · · · ·It wasn't brought to me for those --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·-- charges.

14· · · · · · · ·They had decided to do a DCC without

15· · consulting with me.

16· · Q.· · · · ·Okay.· Do you remember becoming aware

17· · that the deputy chief had actually issued some

18· · discipline or counseling to the chain of command

19· · beneath him for not properly disciplining Officer

20· · Rosen in that situation?

21· · A.· · · · ·I don't have any specific recall of it.

22· · But I remember being very frustrated that they had

23· · not viewed it as critical misconduct.

24· · Q.· · · · ·If you wanted to, you could have

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·1· · instructed them to departmentally charge him,

·2· · right?· You had the power to do that.

·3· · A.· · · · ·Not that I'm aware of.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·They had already disciplined the

·6· · officer, and so I -- I'm not aware that I can come

·7· · back and do a departmental charge for the same

·8· · behavior.· He was disciplined and -- I mean, I

·9· · don't know that I ever tried it.· I don't know if

10· · anybody ever tried it.· But, you know, all the

11· · training and advice and all that that I've been

12· · given is that, you know, once somebody has been

13· · disciplined, you can't change that discipline.

14· · Q.· · · · ·In the other investigation, the one

15· · where he was accused of using improper force

16· · against the civilian, the allegation was that the

17· · civilian was handcuffed and lying on the ground

18· · and that he had come from a fair distance away and

19· · run over and kicked the guy in the head, right?

20· · A.· · · · ·Yes.

21· · Q.· · · · ·And there was video evidence in that

22· · situation showing him doing that.

23· · A.· · · · ·There is video of that particular

24· · incident.

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·1· · Q.· · · · ·Okay.· The video confirmed that he was

·2· · not being truthful in his use of force report,

·3· · didn't it?

·4· · A.· · · · ·By -- in what way?

·5· · Q.· · · · ·Well, his use of force report indicated

·6· · that he had placed his foot on the person's

·7· · shoulder and held him down, and the video showed

·8· · that he had struck him with his foot, to the point

·9· · where the guy's head, like, bounced off the

10· · pavement, right?

11· · A.· · · · ·Well, you're alleging that he was

12· · untruthful in saying that.· It doesn't match up

13· · with what it appears on the video, but you're

14· · saying it's untruthful and it might have been his

15· · perception.

16· · Q.· · · · ·Okay.· His use of force report was

17· · inaccurate in a way that downplayed the severity

18· · of the incident, putting aside his motive.

19· · A.· · · · ·Well, it certainly didn't look as he

20· · described.

21· · Q.· · · · ·Because he didn't do what he described?

22· · A.· · · · ·That's certainly the way that it

23· · appears, yes.

24· · Q.· · · · ·Why did you recommend not terminating

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·1· · Zach Rosen for that incident?· Your recommendation

·2· · was a three-day working suspension, right?

·3· · A.· · · · ·For outside policy use of force.

·4· · Q.· · · · ·Right.

·5· · A.· · · · ·And I don't know that I've ever

·6· · recommended termination for an outside of policy

·7· · use of force.· I don't remember any comps along

·8· · those lines.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·So it ranges from a written reprimand

11· · to I think the most I gave was like 160-hour

12· · suspension --

13· · Q.· · · · ·Okay.

14· · A.· · · · ·-- for outside policy use of force or

15· · something along those lines.

16· · Q.· · · · ·Rosen's was 24 hours, right?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·And I assume you did not charge him

19· · with cause for dismissal as you did with Officer

20· · Morgan.

21· · A.· · · · ·Correct.

22· · Q.· · · · ·Okay.· Did you discuss Rosen's case

23· · with the safety director?

24· · A.· · · · ·I know that the conversations were had

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·1· · and a number of different ways, so, yes, that

·2· · particular incident was discussed a number of

·3· · times.

·4· · Q.· · · · ·Okay.· Did you disagree with the safety

·5· · director's determination to terminate?

·6· · A.· · · · ·Yes.· Or I would have recommended it.

·7· · Q.· · · · ·Okay.· This by the way was an incident

·8· · that was very widely reported in the media and

·9· · didn't reflect particularly well on the

10· · department.

11· · A.· · · · ·Correct.

12· · Q.· · · · ·Was there criminal investigation of

13· · Officer Rosen?

14· · A.· · · · ·No.

15· · Q.· · · · ·Okay.· And Officer Rosen at the time

16· · was still actively under investigation for

17· · shooting a civilian, correct?· The shooting

18· · investigation hadn't cleared him at that point?

19· · A.· · · · ·I think that's -- I think that's

20· · correct.

21· · Q.· · · · ·Did you take that into account?

22· · A.· · · · ·Did I take what into account?

23· · Q.· · · · ·The fact that he was already under

24· · investigation for use of force against a civilian

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·1· · when he improperly used force another civilian.

·2· · A.· · · · ·Well, I was aware of it.· But what do

·3· · you mean by take into account?

·4· · Q.· · · · ·Did you use it as an aggravating or a

·5· · mitigating factor in his discipline, the fact that

·6· · he was -- he knew that he was already sort of

·7· · under investigation and maybe should have been a

·8· · little bit more careful about kicking people in

·9· · the head?

10· · A.· · · · ·No.· I didn't --

11· · · · · · · ·MR. COGLIANESE:· Objection.

12· · A.· · · · ·-- consider -- I didn't consider that

13· · they played into each other.

14· · Q.· · · · ·Okay.· Did you consider the fact that

15· · he had recently been found -- even though you

16· · weren't involved, that he had been recently found

17· · to have made a retaliatory stop of a civilian?

18· · A.· · · · ·I can't consider discipline that's

19· · beyond its administrative use time.

20· · Q.· · · · ·Was that DCC for the retaliatory stop

21· · beyond its administrative use time?

22· · A.· · · · ·I believe it was.

23· · Q.· · · · ·What would be the use time?

24· · A.· · · · ·Nine months.

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·1· · Q.· · · · ·The --

·2· · A.· · · · ·And it was not the same behavior.· So

·3· · it's progressive if it's the same behavior.· It's

·4· · not progressive if it's different behavior.

·5· · Q.· · · · ·Okay.· Can you shed any light for me on

·6· · why Rosen got a shorter suspension than Lyons for

·7· · the vehicle stop?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·Different circumstances.· Lyons was off

10· · duty, he had no duty to take action.· He could

11· · have written down a license plate and drove on.

12· · He could have called the police agency and

13· · reported a hit skip accident if he wanted to.

14· · · · · · · ·Officer Rosen was in a circumstance

15· · where he had a duty to respond to this particular

16· · incident and he did and he responded in a way that

17· · was inappropriate and so different circumstances,

18· · different rules in play.· On duty, off duty.· All

19· · of that played into the decision making.

20· · Q.· · · · ·Okay.· And in your mind what Lyons did

21· · was more severe than what Rosen did?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I thought it deserved a more severe

24· · corrective action.· You know, it's hard to say

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·1· · what's more severe in the sense of public trust in

·2· · the sense of a whole bunch of other things.· But

·3· · based on the behavior and the comparables and the

·4· · circumstances and all of that, I thought that that

·5· · was appropriate level of corrective action for

·6· · that particular use of force.

·7· · Q.· · · · ·If we could take a quick break, I think

·8· · I'm just about done.· But I've got to check with

·9· · my co-counsel.

10· · A.· · · · ·Great.

11· · · · · · · ·(A short recess is taken.)

12· · BY MR. VARDARO:

13· · Q.· · · · ·With one exception, those are the

14· · questions that I have for you today.

15· · · · · · · ·The only other question I have is

16· · whether there's anything that we've discussed that

17· · you feel like you need to add to or correct?

18· · A.· · · · ·Not that I can think of.

19· · Q.· · · · ·Then those are all the questions I

20· · have.

21· · · · · · · ·MR. COGLIANESE:· She'll read.

22· · · · · · · · · (Signature not waived.)

23· · · · · · ·(Thereupon, the foregoing proceedings

24· · · · · · · concluded at 5:21 p.m.)

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·1· · State of Ohio· · ·:· · · ·C E R T I F I C A T E

· · · County of Franklin: SS

·2

· · · · · I, Stacy M. Upp, a Notary Public in and for

·3· · the State of Ohio, certify that Kimberley K.

· · · Jacobs was by me duly sworn to testify to the

·4· · whole truth in the cause aforesaid; testimony then

· · · given was reduced to stenotype in the presence of

·5· · said witness, afterwards transcribed by me; the

· · · foregoing is a true record of the testimony so

·6· · given; and this deposition was taken at the time

· · · and place specified on the title page.

·7

· · · · · Pursuant to Rule 30(e) of the Federal Rules of

·8· · Civil Procedure, the witness and/or the parties

· · · have not waived review of the deposition

·9· · transcript.

10· · · · I certify I am not a relative, employee,

· · · attorney or counsel of any of the parties hereto,

11· · and further I am not a relative or employee of any

· · · attorney or counsel employed by the parties

12· · hereto, or financially interested in the action.

13· · · · IN WITNESS WHEREOF, I have hereunto set my

· · · hand and affixed my seal of office at Columbus,

14· · Ohio, on August 2, 2019.

15

16

17

18

19

20· · ______________________________________________

· · · Stacy M. Upp, Notary Public - State of Ohio

21· · My commission expires August 6, 2021.

22

23

24

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· · · · Witness Errata and Signature Sheet

· · · · ·Correction or Change Reason Code

· ·1-Misspelling· 2-Word Omitted· 3-Wrong Word

· · ·4-Clarification· 5-Other (Please explain)

Page/Line· · ·Correction or Change· · ·Reason Code

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

_______· _______________________________· ________

I, Kimberley K. Jacobs, have read the entire

transcript of my deposition taken in this matter,

or the same has been read to me.· I request that

the changes noted on my errata sheet(s) be entered

into the record for the reasons indicated.

Date__________Signature___________________________

The witness has failed to sign the deposition

within the time allowed.

Date__________Signature___________________________

· · · · · · · · · · · · · ·Ref: SU31482KJ· S-SU P-BW

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