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· · · ·IN THE UNITED STATES DISTRICT COURT

· · · · FOR THE SOUTHERN DISTRICT OF OHIO

· · · · · · · · EASTERN DIVISION

· · · · · · · · · · - - - - -

Karl Shaw,· · · · · · · ·:

· · · · Plaintiff,· · · ·:

· · · · · · · · · · · · · ·Case No. 2:18-cv-483

· · · · vs.· · · · · · · : Judge Graham

· · · · · · · · · · · · · ·Magistrate Judge Vascura

City of Columbus,· · · · :

et al.,

· · · · · · · · · · · · ·:

· · · · Defendants.

· · · · · · · · · · · · ·:

· · · · · · · · · · - - - - -

· VIDEOTAPED DEPOSITION OF KIMBERLEY K. JACOBS

· · · · · · · · · · - - - - -

· · · · ·Taken at Spectrum Reporting LLC

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

· · · · · · · ·Columbus, OH 43215

· · · · · · ·May 20, 2019, 9:34 a.m.

· · · · · · · · · · - - - - -

· · · · · · ·Spectrum Reporting LLC

· · · · · 400 S. 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 #: 15-8 Filed: 08/15/19 Page: 1 of 302 PAGEID #: 928
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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 43205-1011

·5· · · · ·By Frederick M. Gittes, Esq. and

· · · · · · · ·Jeffrey P. Vardaro, Esq.

·6

· · · · · ·and

·7

· · · · · ·Walton & Brown, LLP

·8· · · · ·395 East Broad Street, Ste. 200

· · · · · ·Columbus, OH 43215

·9· · · · ·By Sean L. Walton, Esq.

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· · · ON BEHALF OF DEFENDANTS:

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· · · · · ·Columbus City Attorney's Office

12· · · · ·77 North Front Street, 4th Floor

· · · · · ·Columbus, OH 43215

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

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· · · ALSO PRESENT:

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· · · · · ·Michael Lane - Videographer

16· · · · ·Karl Shaw

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

·2· · · · · · · · · · · · · May 20, 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 Defendant

·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. Gittes - Cross· · · · · · · · · · · · · · · · ·5

·4

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

·5

· · · Exhibit 5· - Memorandum to Jacobs from· · · · · ·110

·6· · · · · · · · ·Williams, 9/5/14

·7· · Exhibit 6· - Routing Sheet for Correspondence,· ·116

· · · · · · · · · ·9/10/14

·8

· · · Exhibit 19 - Memo to Jacobs from Moore,· · · · · 167

·9· · · · · · · · ·1/23/15

10· · Exhibit 20 - Routing Sheet for Correspondence,· ·170

· · · · · · · · · ·1/23/15

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· · · Exhibit 35 - Informational Summary #68· · · · · ·220

12

· · · Exhibit 38 - Memo to Knight from Decker,· · · · ·219

13· · · · · · · · ·9/28/15

14· · Exhibit 41 - Routing Sheet for Correspondence,· ·159

· · · · · · · · · ·10/14/15

15

· · · Exhibit 54 - Routing Sheet for Correspondence,· ·235

16· · · · · · · · ·3/9/17

17· · Exhibit 55 - Memo to Bodker from Weaver,· · · · ·235

· · · · · · · · · ·2/9/18

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· · · Exhibit 57 - McFadden Charges, 5/17/18· · · · · ·256

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· · · Exhibit 58 - Columbus Dispatch Article, 5/4/18· ·234

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22· · (Original exhibits returned to Mr. Gittes.)

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·1· · · · · · · ·THE VIDEOGRAPHER:· The following

·2· · deposition of Kimberley Jacobs is being taken on

·3· · May 20th, 2019 at 400 South Fifth Street, Suite

·4· · 201, Columbus, Ohio, in the case of Karl Shaw

·5· · verse City of Columbus, et al., in the United

·6· · States District Court, Southern District of Ohio,

·7· · Eastern Division, case No. 2:18-cv-483.· The court

·8· · reporter is Mary Bradley and the videographer is

·9· · Michael Lane.· This deposition is being recorded

10· · by Spectrum Reporting LLC.

11· · · · · · · ·We're on the record at 9:34.· Will

12· · counsel please announce their presence.

13· · · · · · · ·MR. GITTES:· This is Fred Gittes

14· · representing the plaintiff.

15· · · · · · · ·MR. VARDARO:· Jeff Vardaro for the

16· · plaintiff.

17· · · · · · · ·MR. WALTON:· Sean Walton for the

18· · plaintiff.

19· · · · · · · ·MR. COGLIANESE:· Rich Coglianese on

20· · behalf of defendants City of Columbus and Chief

21· · Jacobs.

22· · · · · · · ·MR. GITTES:· And for the record,

23· · Officer Shaw is present.

24· · · · · · · · · · · · ·- - - - -

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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. GITTES:

·6· · Q.· · · · ·Would you tell us your name, please.

·7· · A.· · · · ·Kimberley K. Jacobs.

·8· · Q.· · · · ·And given what this case is about, is

·9· · it all right if I refer to you as Chief?

10· · A.· · · · ·Certainly.· Retired.

11· · Q.· · · · ·Chief, I imagine, but I want -- don't

12· · want to rely on my imagination, you've been in

13· · depositions before?

14· · A.· · · · ·I have.

15· · Q.· · · · ·About how many times would you say?

16· · A.· · · · ·Someplace between 10 and 20, I would

17· · assume.

18· · Q.· · · · ·Were any of those in cases involving

19· · you personally?

20· · A.· · · · ·Yes.

21· · Q.· · · · ·How many of them?

22· · A.· · · · ·I have no idea.

23· · Q.· · · · ·Were all of them related to your work

24· · as a police officer?

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·1· · A.· · · · ·Yes.

·2· · Q.· · · · ·All right.· Did any of them involve any

·3· · form of claim related to discrimination or

·4· · retaliation?

·5· · A.· · · · ·Possibly.· I don't -- I don't recall.

·6· · I mean, the allegations are about my role as

·7· · chief, and so sometimes that might have been part

·8· · of the allegations, but I don't recall

·9· · specifically.

10· · Q.· · · · ·Well, I hate to take the time, but it

11· · would be helpful if, as best you can remember, you

12· · let us know the earliest or oldest case that you

13· · can recall involving you.

14· · A.· · · · ·I don't know.· I mean, I was in law

15· · enforcement for 39 years.· And I'm not sure.· Are

16· · you talking when I've been personally sued, or are

17· · you talking about when I've been personally

18· · accused of some particular action?

19· · Q.· · · · ·Let's just take it personally sued

20· · first, keep it simple.· First time you can

21· · remember.· I'm asking you for whatever you can

22· · remember.

23· · A.· · · · ·I don't know.· I was chief for seven

24· · years.· Before that, I might have been deposed for

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·1· · some other reason, but I would assume it was in

·2· · the last seven years, but I can't remember a

·3· · particular case.

·4· · Q.· · · · ·Okay.· Were -- and that's very helpful.

·5· · · · · · · ·Have you -- do you -- sitting here

·6· · today, as best you can remember, were you ever

·7· · sued before you became the chief?· You?

·8· · A.· · · · ·Named in a lawsuit?

·9· · Q.· · · · ·Named in a lawsuit, correct.

10· · A.· · · · ·The potential is there.· I can't recall

11· · a particular case that I would have been named in

12· · prior to being chief.

13· · Q.· · · · ·Okay.· Were you -- did you do law

14· · enforcement work outside of Columbus?

15· · A.· · · · ·No.

16· · Q.· · · · ·Okay.· Do you recall -- and I'll break

17· · it down timewise -- any case that involved

18· · allegations based on your conduct as a police

19· · officer in Columbus?· I'm focusing before you were

20· · chief.· Any case before you were chief that was

21· · based in part or whole on your conduct or alleged

22· · conduct as a police officer?

23· · A.· · · · ·I don't recall any such case.

24· · Q.· · · · ·Okay.· Prior to your being chief, did

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·1· · you ever have a judgment against you in any case?

·2· · A.· · · · ·I'm not aware of any.

·3· · Q.· · · · ·Okay.· Prior to becoming chief, was any

·4· · case settled by the city that involved in whole or

·5· · part allegations related to your conduct as an

·6· · officer?

·7· · A.· · · · ·None that I am 2aware of.

·8· · Q.· · · · ·Fair enough.· Now, let's focus on the

·9· · years after you became chief.· You became chief in

10· · '79; is that right?

11· · A.· · · · ·No.· 2012.

12· · Q.· · · · ·2012, yeah.

13· · · · · · · ·You became a police officer sometime in

14· · the '70s?

15· · A.· · · · ·October of 1979 I joined the division.

16· · Q.· · · · ·Okay.· Since you were the chief in

17· · 2012, can you remember any case in which claims

18· · were made against you personally, excluding this

19· · lawsuit --

20· · A.· · · · ·I know --

21· · Q.· · · · ·-- from your behavior as chief or your

22· · authority as chief?

23· · A.· · · · ·I know that I have been named in

24· · lawsuits personally and professionally, but as far

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·1· · as my own behavior, no.· Most of the time it's for

·2· · behavior that somebody else has done under my

·3· · tenure as chief.

·4· · Q.· · · · ·Okay.· How would you classify this

·5· · case?· Is it personal or is it what you just

·6· · described?

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

·8· · and answer.

·9· · A.· · · · ·I don't recall that there's a specific

10· · allegation against me for a certain behavior of

11· · mine, other than the failure to take a particular

12· · action, I believe.· But I don't -- I don't recall

13· · any specific behavior that I have been accused of

14· · in this particular lawsuit.

15· · Q.· · · · ·Okay.· That's -- I'm just trying to get

16· · an understanding of what you meant when you

17· · described.· So this is -- this case, your view of

18· · it is it's not a suit against you because of your

19· · conduct, it's more related to your status as the

20· · chief and your responsibility --

21· · A.· · · · ·That's --

22· · Q.· · · · ·-- for others?

23· · A.· · · · ·That is the way that I understand it.

24· · Q.· · · · ·Okay.· That's fair enough.

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·1· · A.· · · · ·I haven't reviewed any of the paperwork

·2· · lately, so I --

·3· · Q.· · · · ·Okay.· When you -- so you don't recall

·4· · any of the specific cases since you became chief

·5· · in which you were sued either in your official

·6· · capacity or personally?

·7· · A.· · · · ·Well, I -- are you talking about suit

·8· · or depositions?

·9· · Q.· · · · ·Suit.

10· · A.· · · · ·I know that there's a number of

11· · lawsuits with my name on them.· I can't name them

12· · all.· I know that there's some pending ones and

13· · then there's some others that I believe had gone

14· · to court.· What -- what --

15· · Q.· · · · ·I mean, do you remember any of them?

16· · A.· · · · ·Federal?· State?

17· · Q.· · · · ·Any.

18· · A.· · · · ·I know that I was sued -- well, by

19· · Officers Zimmerman and Lazar --

20· · Q.· · · · ·Okay.

21· · A.· · · · ·-- that is still pending.· I know that

22· · there's a lawsuit that's been filed by Lieutenant

23· · McFadden --

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·-- in state court.· I'm not sure how

·2· · far it went, but Representative Kent, I think

·3· · filed a suit against me.· I've been named in a

·4· · number of -- of suits involving the use of deadly

·5· · force.· The family of Henry Green.· The family of

·6· · Tyree King.· The family of the man who was shot on

·7· · the east side in 2012.· So there's probably a

·8· · number of those cases.· My name is almost always

·9· · on the lawsuits involving the use of deadly force.

10· · So there might be a multitude of those.· I just

11· · don't know all of them.

12· · Q.· · · · ·Have any of the cases you've described,

13· · and I'm not trying to cut you off, but involved

14· · claims of discrimination?

15· · A.· · · · ·Yeah, the one from Lieutenant

16· · McFadden --

17· · Q.· · · · ·Okay.

18· · A.· · · · ·-- I believe includes a claim of

19· · discrimination.· Some of the deadly force ones

20· · might, but --

21· · Q.· · · · ·Yeah, I'll put those aside.

22· · A.· · · · ·Okay.

23· · Q.· · · · ·I understand that.

24· · · · · · · ·You mentioned two other officers who

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·1· · had a case pending?

·2· · A.· · · · ·Zimmerman and Lazar.

·3· · Q.· · · · ·What's that about?

·4· · A.· · · · ·Good question.· They were accused of

·5· · misconduct while on duty and they felt that

·6· · internal affairs had mishandled the evidence.· And

·7· · in that particular case, I made a decision not to

·8· · include the evidence that was under question.· And

·9· · so I think that -- I don't know that it involves

10· · discrimination.· I think it's more of an evidence

11· · kind of a thing.· But I don't know if there was a

12· · gender thing involved in that particular one or

13· · not.· I don't -- I don't think so.

14· · Q.· · · · ·Any others that you can recall sitting

15· · here today where you were -- you were named while

16· · you were chief?· Let's exclude use of force cases.

17· · Mainly interested in employment cases.

18· · A.· · · · ·There might be others, I don't know.

19· · I've disciplined a lot of officers and they might

20· · have filed a suit.· You know, a lot of times the

21· · lawsuits are handled by the city attorney's office

22· · and I may or may not have much of a role in them.

23· · Some of them are settled right away, so...

24· · Q.· · · · ·Do you recall any specific suit -- any

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·1· · suits that you were specifically named in either

·2· · personally or as chief that either went to trial

·3· · and resulted in a judgment against the city or

·4· · you?· Let's do that first.

·5· · A.· · · · ·I --

·6· · Q.· · · · ·While you were chief?

·7· · A.· · · · ·I don't know the time period, but I

·8· · know that some officers in the campus area were

·9· · accused of excessive force.· There may or may not

10· · have been an allegation of discrimination.· And it

11· · did go to court.· And this is the Hines case.· It

12· · did go to court.· And the ruling was that one of

13· · the officers used excessive force and there was a

14· · finding against him.· The other officers were not

15· · found to be guilty of excessive force.· I believe

16· · there was a ruling that the city owed $30,000 or

17· · something in court costs or lawyer's costs, I'm

18· · not sure which.· I think the city tried to fight

19· · back on that ruling and lost, I think.

20· · · · · · · ·I think there was another settlement

21· · case with an officer that punched somebody in the

22· · face, broke his jaw, and so that was a settlement.

23· · It wasn't a court decision.

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·But as far as I know, that is the only

·2· · one that went to court and had a ruling against

·3· · the city.· I was not personally involved in that

·4· · particular case other than being chief.

·5· · Q.· · · · ·Now, let's ask the same question about

·6· · settlements.

·7· · A.· · · · ·I'm not even -- okay.

·8· · Q.· · · · ·Any settlements of cases while you were

·9· · the chief which either involved just the city or

10· · other command staff or you?

11· · A.· · · · ·There were a number of settlements.

12· · Q.· · · · ·Do you remember any where you were

13· · involved?· You had been named?

14· · A.· · · · ·Not specifically.· Sometimes I'm named

15· · and sometimes I'm not.

16· · Q.· · · · ·No, I understand.

17· · A.· · · · ·I -- I sometimes was involved in the

18· · discussions about settlement, not always, but

19· · sometimes just because it impacted whether or not

20· · policies were violated or not, and I had an

21· · opinion about that.· But I don't know which ones

22· · of those I was named in.

23· · Q.· · · · ·Well, even if you don't know, can you

24· · recall specific cases that got settled?· Again,

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·1· · I'm focusing, if I -- to make it clear, on

·2· · employment cases, not use of force cases.

·3· · A.· · · · ·Oh.· As far as lawsuits, no, I don't

·4· · recall any specific one, because there's a -- you

·5· · know, in addition to the lawsuits, there's the

·6· · arbitrations that I go to, and so I can't recall

·7· · which ones were arbitrations and which ones were

·8· · lawsuits specifically.· If you had a list, I might

·9· · be able to --

10· · Q.· · · · ·Yeah, I was hoping --

11· · A.· · · · ·I'm sure it's public record --

12· · Q.· · · · ·-- you might have one in your head.

13· · A.· · · · ·-- somewhere, right?

14· · Q.· · · · ·It should be public record as far as I

15· · know.

16· · · · · · · ·Now, something that's not necessarily

17· · public record, have you had charges of

18· · discrimination filed with the Ohio Civil Rights

19· · Commission or the EEOC based on your allegations

20· · of your conduct?

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Okay.· Tell me what you can remember of

23· · those.

24· · A.· · · · ·Well, the first one that I recall was

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·1· · back in the 1990s.· I was a commander at the

·2· · communications bureau, and there was a charge

·3· · filed against me by -- wow, I -- I think it was

·4· · based on my age, because they said who was under

·5· · 40, and I really wasn't under 40, but I took it as

·6· · a compliment that they thought I was under 40.

·7· · But it was an age-based charge that I made a

·8· · decision about I think my recommendations for

·9· · promotion.

10· · Q.· · · · ·Okay.· Was that resolved or dismissed

11· · or what happened with that?

12· · A.· · · · ·I think there was a finding of no

13· · probable cause.

14· · Q.· · · · ·Okay.· Any others?

15· · A.· · · · ·Yeah, I know that there's been others.

16· · I don't know any specifics.

17· · Q.· · · · ·Okay.· Do you remember any other

18· · charges involving the Columbus Police Department

19· · during a time you were chief where -- again,

20· · employment related, in which probable cause was

21· · found?· Putting -- excluding --

22· · A.· · · · ·This is --

23· · Q.· · · · ·-- Officer Shaw's.

24· · A.· · · · ·-- the only one that I'm aware of.

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·1· · Q.· · · · ·Okay.· So I've talked to you about

·2· · trials.· Let's talk about depositions.· You've

·3· · mentioned you have testified in depositions.

·4· · Could you give me a guesstimate of how many times

·5· · you've been deposed?

·6· · A.· · · · ·I said previously I think it's

·7· · somewhere between 10 and 20.

·8· · Q.· · · · ·Oh, okay.· I missed that.

·9· · · · · · · ·I thought you said something about a

10· · hundred times.· Is that trials?· Have you

11· · testified in a trial?

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

13· · A.· · · · ·I didn't say anything about a hundred.

14· · Q.· · · · ·Okay.· How many times would you say

15· · you've testified in a trial, criminal or civil?

16· · A.· · · · ·Oh, very, very rarely.· I was in a

17· · civil trial as a police officer about a traffic

18· · accident.

19· · Q.· · · · ·You don't have to list what they were

20· · about, I'm just curious --

21· · A.· · · · ·Okay.

22· · Q.· · · · ·-- how many times.· And I know it's an

23· · estimate.

24· · A.· · · · ·In a trial, a criminal trial or civil

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·1· · trial?

·2· · Q.· · · · ·Both.

·3· · A.· · · · ·Very few.

·4· · Q.· · · · ·So 10 times maybe, guesstimate?

·5· · A.· · · · ·Yeah, I would say less than that.

·6· · Q.· · · · ·Okay.· Well, let's -- before I keep

·7· · going, because I've already been throwing

·8· · questions at you, I would just kind of like to go

·9· · over some procedures during the deposition for the

10· · rest of the day.

11· · · · · · · ·I know you've been through them, but I

12· · just want to make sure -- I don't know when the

13· · last time you were deposed was.

14· · · · · · · ·First of all, I will probably

15· · necessarily be asking you most, if not all, the

16· · questions today.

17· · A.· · · · ·Okay.

18· · Q.· · · · ·Do you understand that if I ask you a

19· · question and you don't understand it for any

20· · reason, that you can tell me you don't understand

21· · it and I will try to clarify the question or

22· · rephrase it until you're -- you feel you can

23· · answer it?

24· · A.· · · · ·I do.

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·1· · Q.· · · · ·And will you try to do that for us

·2· · today?

·3· · A.· · · · ·(Indicates affirmatively.)

·4· · Q.· · · · ·And it's better if you speak.

·5· · A.· · · · ·Correct.

·6· · Q.· · · · ·Okay.· If I -- if you do answer a

·7· · question that I've asked you and you don't

·8· · indicate that you're confused or don't follow the

·9· · question, I'm going to assume that you've

10· · understood it unless you tell me otherwise.· Fair

11· · enough?

12· · A.· · · · ·I agree.

13· · Q.· · · · ·Okay.· This is not a memory contest. I

14· · know many, many people who have better memories

15· · than me, so I know what it's like to try to

16· · remember things covering years.· So do you

17· · understand that as we go through today, if you

18· · realize you made a mistake an hour later or any

19· · time later, you forgot something or you got

20· · something wrong, that you can interrupt me, even

21· · in the middle of a question, to let me know you

22· · realized you omitted something or you've

23· · remembered something?

24· · A.· · · · ·I understand.

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·1· · Q.· · · · ·And will you do that for us as we go

·2· · through?

·3· · A.· · · · ·I will.

·4· · Q.· · · · ·This is going to be a full, long day.

·5· · It's not my intention to torture anybody,

·6· · including myself, so feel free to take a break or

·7· · let me know.· I just ask that you don't do it in

·8· · the middle of a question.

·9· · A.· · · · ·I agree.

10· · Q.· · · · ·All right.· Are you on any medications

11· · or other drugs that would affect your ability to

12· · testify truthfully and accurately today?

13· · A.· · · · ·No.

14· · Q.· · · · ·Do you have any health problems that

15· · would affect your ability to testify truthfully

16· · and accurately today?

17· · A.· · · · ·No.

18· · Q.· · · · ·Do you know of any reason, personal or

19· · otherwise, that you would not be able to testify

20· · truthfully and accurately today?

21· · A.· · · · ·No.

22· · Q.· · · · ·Have you had a chance to meet with your

23· · counsel, either your own personal counsel or the

24· · city attorney's office about this case?

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·1· · A.· · · · ·I have met with the city attorney's

·2· · office.

·3· · Q.· · · · ·And about how many times have you met

·4· · with them since it got filed?· Again, a

·5· · guesstimate.

·6· · A.· · · · ·On this particular case?

·7· · Q.· · · · ·This particular case.

·8· · A.· · · · ·I would say less than a handful.

·9· · Q.· · · · ·Okay.· And when was the last time you

10· · met with them?

11· · A.· · · · ·I believe it was before I retired, so

12· · sometime before February.

13· · Q.· · · · ·Okay.· Did you review any records

14· · before coming today?

15· · A.· · · · ·I have reviewed a summary, but that's

16· · been probably two or three months ago.

17· · Q.· · · · ·Okay.· When you say, "a summary," what

18· · are you referring to?

19· · A.· · · · ·Of the investigation of Eric Moore.

20· · Q.· · · · ·Okay.

21· · A.· · · · ·The summary.

22· · Q.· · · · ·So you looked at a portion of the IAB

23· · file called the summary?· Is that what's it's

24· · called?

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·1· · A.· · · · ·Well, the investigation is quite

·2· · extensive, and I just reviewed the summary pages.

·3· · Q.· · · · ·Right.· I mean, the file has a section

·4· · called --

·5· · A.· · · · ·Yeah.

·6· · Q.· · · · ·-- summary?

·7· · A.· · · · ·Summary of investigation, yes.

·8· · Q.· · · · ·Right.· Had you read the IAB packet

·9· · when you were at the police department as chief?

10· · A.· · · · ·I don't believe that I've ever read the

11· · entire investigation.

12· · Q.· · · · ·Okay.· So, in general, when you get IAB

13· · investigations, you don't read them in their

14· · entirety?

15· · A.· · · · ·Not at all.· That's not what I

16· · testified to.

17· · Q.· · · · ·Okay.

18· · A.· · · · ·This was an extensive investigation

19· · that filled boxes, or a box.· Generally I did

20· · review most investigations from beginning to end,

21· · but this one was quite lengthy.· And what I

22· · decided upon was departmental charges, not lesser

23· · discipline, so, you know, I reviewed the parts

24· · that I thought were pertinent to the charges that

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·1· · were brought.

·2· · Q.· · · · ·So does the length of the IAB packet

·3· · determine whether you read the entire packet?

·4· · A.· · · · ·No, it's not the length.

·5· · Q.· · · · ·Okay.· So what -- what -- during your,

·6· · was it 12 years or 13 --

·7· · A.· · · · ·As chief?

·8· · Q.· · · · ·As chief.

·9· · A.· · · · ·No, it was seven.

10· · Q.· · · · ·Seven years.· Okay.· During your seven

11· · years as chief, did you have -- how did you decide

12· · which ones to read through and which ones not to?

13· · A.· · · · ·I read through most of them entirely --

14· · Q.· · · · ·Okay.

15· · A.· · · · ·-- if it resulted in departmental

16· · charges.· I mean, many, many internal affairs

17· · investigations never reach me.· The ones that are

18· · recommended for departmental charges are the ones

19· · that are brought to me.· And in general, I read

20· · all of them.· But based on my schedule and what I

21· · felt I needed to know about a particular thing, I

22· · would make a decision if I had to read something

23· · cover to cover.· And to the best of my

24· · recollection, I don't recall reading this

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·1· · particular investigation cover to cover.

·2· · Q.· · · · ·Okay.· So if I'm understanding you

·3· · correctly, and please tell me if I'm not, most IAB

·4· · files that came to you, you did read them?· Not

·5· · all of them, but most you actually did?

·6· · A.· · · · ·That is -- that is what I believe I can

·7· · accurately testify to, correct.

·8· · Q.· · · · ·And you particularly would make a

·9· · point, if I understood correctly, of reading those

10· · where formal charges were recommended?

11· · A.· · · · ·I generally didn't see internal affairs

12· · investigations unless formal departmental charges

13· · were recommended.

14· · Q.· · · · ·Okay.· I didn't follow that.

15· · · · · · · ·Maybe we should -- let me just kind of

16· · have you explain for all of us, and anybody who

17· · sees this depo, the way this works.· I know there

18· · are things called chain of command investigations?

19· · A.· · · · ·Uh-huh.

20· · Q.· · · · ·And I know there are internal affairs

21· · bureau investigations.· What determines -- can you

22· · explain the difference and what the process is?

23· · A.· · · · ·Sure.· Internal affairs investigates

24· · all citizen complaints.· So if somebody calls in

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·1· · and says an officer was rude or an officer took a

·2· · bribe, it goes to internal affairs, it's

·3· · investigated by internal affairs.· That is a

·4· · citizen complaint if it comes from somebody

·5· · outside the division or even our citizen -- or

·6· · civilian employees by definition.

·7· · · · · · · ·Internal affairs also investigates

·8· · allegations of serious misconduct that might be

·9· · leveled by internal members of the division of

10· · police.· So if a sergeant believes that an officer

11· · was not turning in all of the property that was

12· · required of them to do, serious, it would be sent

13· · to internal affairs for investigation.

14· · · · · · · ·However, if an officer does something

15· · more minor like fails to wear their hat, comes to

16· · work late, that would be described as a chain of

17· · command investigation, still an internal

18· · investigation, but it's being conducted by the

19· · chain of command.· And so that would be conducted

20· · generally by the immediate supervisor and then be

21· · sent up.

22· · · · · · · ·In addition to that, if an officer uses

23· · force, like a TASER, that's investigated by the

24· · chain of command and sent up through the chain.

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·1· · Depending on what the allegation is is somewhat

·2· · determinant of where that investigation's going to

·3· · be decided upon.· So if a use of force is say

·4· · handcuffing and maybe with a minor injury, a

·5· · sergeant can sign off on a particular use of force

·6· · level.

·7· · · · · · · ·However, a TASER needs a higher level

·8· · of chain of command review.· And then most

·9· · investigations that would be of some type of

10· · misconduct would be reviewed up through the deputy

11· · chief of the particular officer involved.· The

12· · deputy chief, if they believe that the officer was

13· · rude to somebody, they can approve a reprimand and

14· · that would be the end of the investigation. I

15· · would never see that particular investigation.· It

16· · would be sent to internal affairs, the discipline

17· · would be issued and it would move on.

18· · · · · · · ·However, if the deputy chief reviewed

19· · that and felt that the officer had say used

20· · excessive force or had committed some type of

21· · misconduct that rose to the level of serious

22· · misconduct, critical misconduct according to the

23· · contract, then the deputy chief would recommend to

24· · me whether or not the officer should receive a

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·1· · written reprimand or departmental charges.

·2· · · · · · · ·And if it's a written reprimand, then I

·3· · can approve that.· A piece of paper is issued,

·4· · goes in their file.· If it's departmental charges,

·5· · then that gets sent to the professional standards

·6· · bureau lieutenants for review and -- just cause

·7· · review, and then they would tell me what they

·8· · think and then I could decide if I believe

·9· · departmental charges were appropriate.

10· · · · · · · ·And if so, then I would schedule a

11· · hearing and bring the officer in and see what the

12· · defense is basically.· And then I would make a

13· · recommendation of discipline that the officer

14· · could either accept if it was a leave forfeiture

15· · or I could recommend a suspension, which would

16· · then be heard by the Director of Public Safety.

17· · Q.· · · · ·Okay.· Please bear with me, because I'm

18· · not sure I quite fully understand all of that.

19· · A.· · · · ·Okay.

20· · Q.· · · · ·First of all, is there something called

21· · an administrative investigation, or is that the

22· · same as chain of command?

23· · A.· · · · ·There's -- there's administrative and

24· · criminal investigations.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·So everything that's being conducted by

·3· · internal affairs --

·4· · Q.· · · · ·Chain of command?

·5· · A.· · · · ·-- chain of command that -- that is

·6· · something that we don't anticipate a criminal

·7· · charge for --

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·-- would be called an administrative

10· · investigation.

11· · · · · · · ·But sometimes an allegation would come

12· · in saying, I believe that this officer stole my

13· · necklace or something along those lines, or raped

14· · me.· And depending on the situation, the evidence,

15· · we might be able to pull body camera video and

16· · immediately find out what happened and not conduct

17· · a criminal investigation.· But there are times

18· · when we have to conduct a criminal investigation

19· · of the allegation.· And so that would be put into

20· · the hands of either a detective or a supervisor.

21· · And occasionally internal affairs has been charged

22· · to do a criminal investigation as well.

23· · · · · · · ·So that's the difference.· Criminal and

24· · administrative are whether or not we anticipate

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·1· · this particular investigation being looked at by

·2· · our legal advisers and/or the prosecutor's office.

·3· · Q.· · · · ·Prosecutor's office?· Okay.

·4· · · · · · · ·So if I -- please help me make sure I

·5· · have this right.· Depending on whether something

·6· · is viewed as critical misconduct, serious --

·7· · A.· · · · ·Uh-huh.

·8· · Q.· · · · ·-- a sergeant or a lieutenant or one of

·9· · the other commanders in a chain of command can

10· · investigate it, decide what to do about it or

11· · make -- decide what to recommend to you should be

12· · done about it, up to and including a written

13· · reprimand or even charges?

14· · A.· · · · ·Departmental charges?

15· · Q.· · · · ·Huh?

16· · A.· · · · ·You mean departmental charges?

17· · Q.· · · · ·Departmental charges, yeah.

18· · A.· · · · ·I would say that those decisions aren't

19· · made in a vacuum.· Generally if it's conduct of a

20· · critical nature, there are discussions that are

21· · being held as to, you know, to make sure that they

22· · don't just issue a disciplinary action and not

23· · look at it in a more serious light.· Most of those

24· · that would be considered for critical misconduct

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·1· · would be sent to internal affairs for

·2· · investigation.

·3· · Q.· · · · ·Okay.· But at the initial stage, this

·4· · is what I'm trying to understand, something's

·5· · happened, it's something more than not wearing

·6· · your hat, but it's, you know, the officer didn't

·7· · beat anybody up or -- as far as is alleged didn't

·8· · steal money from somebody, but there's an issue.

·9· · The initial judgment about whether it's a chain of

10· · command matter is made by the sergeant or the

11· · lieutenants involved?

12· · A.· · · · ·Or commanders.

13· · Q.· · · · ·Or commanders?

14· · A.· · · · ·Yeah.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·That's often the case, yes.

17· · Q.· · · · ·And if they -- they feel that it isn't

18· · what's -- I'll ask you more about the term, but

19· · isn't critical misconduct or something serious,

20· · the normal practice is they look into it, which

21· · might involve some follow up by the sergeant or

22· · somebody else in the chain and come up with a

23· · recommendation?

24· · A.· · · · ·Yeah.· Unless it's one of those things

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·1· · that internal -- you know, we have directives and

·2· · the directives say which things should be

·3· · investigated by internal affairs.· So if it

·4· · doesn't fall into that particular one, then the

·5· · chains of command have some discretion over what

·6· · they investigate before it would be sent to

·7· · internal affairs.

·8· · Q.· · · · ·So other than those that are listed, do

·9· · you remember what that directive is or what it's

10· · called?

11· · A.· · · · ·I used to know the number.· We changed

12· · the numbers.

13· · Q.· · · · ·All right.

14· · A.· · · · ·It used to be 310, now it is in I

15· · believe chapter 8 or 9, but it's --

16· · Q.· · · · ·It's like a laundry list of --

17· · A.· · · · ·Yeah.

18· · Q.· · · · ·-- these go to IAB?

19· · A.· · · · ·Correct.· Correct.

20· · Q.· · · · ·So if it's not in that list and it's

21· · not what's viewed as critical misconduct, it goes

22· · up.· And then ultimately, if they're going to do a

23· · serious -- what I use as serious, what level do

24· · they have to get your approval if it's a chain of

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·1· · command investigation, before they actually take

·2· · the action?

·3· · A.· · · · ·A deputy chief can decide that it's

·4· · going to go to internal affairs.· They don't have

·5· · to get my approval.

·6· · Q.· · · · ·No, what I mean, at what level can they

·7· · actually issue the punishment?· If it's short of

·8· · departmental charges, but they feel something

·9· · needs to be done, let's say like a written

10· · reprimand?

11· · A.· · · · ·So nobody can issue anything higher

12· · than a DCC, which is the first formal level of

13· · discipline, without getting my approval.

14· · Q.· · · · ·Oh, okay.

15· · A.· · · · ·So if it's a written reprimand or

16· · departmental charges, they have to seek the

17· · chief's approval.

18· · Q.· · · · ·And then if it's something --

19· · A.· · · · ·Unless it was based on progressive

20· · discipline.

21· · Q.· · · · ·So they don't have to get your approval

22· · if there's been a prior discipline at a lower

23· · level?

24· · A.· · · · ·Correct.· If they had received a DCC

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·1· · and that was still able to be viewed within its

·2· · time period, we're allowed to progress a DCC

·3· · within nine months.· They could progress it to a

·4· · written reprimand without seeking my approval.

·5· · Q.· · · · ·So there's a lookback --

·6· · A.· · · · ·Yes.

·7· · Q.· · · · ·-- of nine months and that --

·8· · A.· · · · ·Administrative use.

·9· · Q.· · · · ·An administrative use?· Okay.

10· · · · · · · ·Now, if it's determined by the people

11· · in the chain involved that this is a critical

12· · misconduct, they just forward it over to IAB or do

13· · they have to go through you for that?

14· · A.· · · · ·It can go through the deputy chief or

15· · it can come through me.· There's -- a deputy chief

16· · can approve it being sent to internal affairs

17· · without my approval, so...

18· · Q.· · · · ·So something could be investigated at

19· · IAB and you wouldn't even know it's going on?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·That is absolutely the case, because

22· · I'm not aware of all the citizen complaints that

23· · they receive.· And, yes, there could be something

24· · being investigated by internal affairs that was

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·1· · sent there by the chain of command that I wouldn't

·2· · be aware of.

·3· · Q.· · · · ·Okay.· And in your experience during

·4· · your seven years, would that include officer

·5· · complaints about serious misconduct of other

·6· · officers?

·7· · A.· · · · ·I would say that if it didn't ever rise

·8· · to the level that somebody chose to tell me, then,

·9· · yes, there's a possibility that an investigation

10· · could have ensued and maybe no evidence was found

11· · to support that, and I might not have ever been

12· · advised of that.· I did allow deputy chiefs who

13· · were acting while I was gone to make some

14· · decisions, so they could have, you know, been

15· · investigated without any knowledge on my part,

16· · yes.

17· · Q.· · · · ·You mean initiated?

18· · A.· · · · ·They could have been initiated,

19· · investigated and/or closed without my knowledge.

20· · Q.· · · · ·If you weren't there?

21· · A.· · · · ·If I wasn't there or if it never got to

22· · the level of discipline.· If they investigated it

23· · and nobody told me about it, then it could have

24· · gone into the record books without my knowledge.

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·1· · Q.· · · · ·Can you explain to us what critical

·2· · misconduct is?

·3· · A.· · · · ·Well, this is the subject of lots of

·4· · arbitrations.· But it is conduct for which we

·5· · believe that a documented constructive counseling

·6· · level of discipline is not appropriate for.· So

·7· · it's egregious behavior.· It's something that

·8· · could damage our ability to trust the officer.

·9· · It's -- it's, you know, oftentimes it's, you know,

10· · people say right away, like insubordination, you

11· · know, is critical misconduct because you failed to

12· · follow on order or something along those lines.

13· · · · · · · ·It's -- it's more this body of evidence

14· · that we have over the years of what has been given

15· · a DCC or counseling or written reprimands or more.

16· · For many years there was a standing policy that an

17· · accidental discharge was going to be a written

18· · reprimand.· So that's critical misconduct.· You

19· · know, firearm goes off even accidentally, we

20· · consider that to be critical misconduct because of

21· · the dangers that are associated with that.

22· · · · · · · ·But the division has -- has called some

23· · things critical misconduct -- for some time,

24· · police pursuits that went, you know, like 90 miles

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·1· · per hour, 100 miles per hour were called critical

·2· · misconduct.· That went to an arbitration and they

·3· · said no, it's not.· So there's always been some

·4· · debate about what critical misconduct equates to,

·5· · and there is no bright line.

·6· · · · · · · ·It's a feeling of what the chief at the

·7· · time believes is egregious enough to not reprimand

·8· · that person and only have that reprimand be on

·9· · their record for nine more months basically.

10· · Something that we think should hold that officer

11· · accountable to, you know, not repeating that type

12· · of behavior for at least three years, if not more.

13· · Q.· · · · ·So you mentioned insubordination.· What

14· · about lying during the course of an investigation

15· · or -- to a superior officer?

16· · A.· · · · ·What's the question?

17· · Q.· · · · ·Is that critical misconduct?

18· · A.· · · · ·Absolutely.

19· · Q.· · · · ·Okay.· Is -- what about discrimination?

20· · A.· · · · ·I would -- I would consider most cases

21· · of discrimination to be critical misconduct, yes.

22· · Q.· · · · ·Do you -- and what about threats of

23· · violence?

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

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·1· · A.· · · · ·I would say that depends on the

·2· · circumstances.

·3· · Q.· · · · ·Okay.· Why -- when would a threat of

·4· · violence not be critical misconduct in your mind?

·5· · A.· · · · ·What was the environment in which it

·6· · was spoken?· Who was it spoken to?· Was it being

·7· · told as a joke?· Was it being told very seriously?

·8· · Was it with a weapon in hand?· Was it -- you know,

·9· · did the opportunity, means and everything else

10· · lead somebody to believe that it was actually

11· · going to happen?· Or was it imminent?· You know,

12· · officers hear threats against them every single

13· · day and --

14· · Q.· · · · ·From other officers?

15· · A.· · · · ·No.· From -- from the public.

16· · Q.· · · · ·What about do you consider critical

17· · misconduct for one officer to threaten another

18· · officer with violent act?

19· · A.· · · · ·I -- as I described, yeah, I believe it

20· · all depends on the context.

21· · Q.· · · · ·Okay.· So I gather that if an officer

22· · claims that they were just joking, under those

23· · circumstances, it's okay to threaten another

24· · officer with a violent act?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·That's not what I testified to.

·3· · Q.· · · · ·No, I'm asking you.

·4· · A.· · · · ·Oh.· No, it's not good enough to just

·5· · say I was joking.· You know, we -- you would have

·6· · to understand what the circumstances were and --

·7· · Q.· · · · ·Well, you said if they have the

·8· · means --

·9· · · · · · · ·MR. COGLIANESE:· Chief, were you done

10· · answering that question?

11· · Q.· · · · ·I'm sorry.· I didn't mean to interrupt

12· · you.· Go ahead.

13· · A.· · · · ·There's a lot of context involved in --

14· · in whether or not somebody says I was joking and

15· · whether or not we believe that.· So, no, I'm not

16· · going to say that if they claim I was joking,

17· · that's the end of it.· It certainly depends on

18· · evidence and context, what witnesses have to say,

19· · whether there were witnesses and various other

20· · things.

21· · Q.· · · · ·And let me make it clear to you, I

22· · don't mean to interrupt you, and if you're not

23· · finished, just let me know.· It's fine for Rich to

24· · say it --

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·1· · A.· · · · ·I understand.

·2· · Q.· · · · ·-- but I would rather have you just

·3· · tell me I wasn't done --

·4· · A.· · · · ·I understand.

·5· · Q.· · · · ·-- so I know you have more to say.

·6· · · · · · · ·Also, I want to make sure you

·7· · understand that I, again, don't expect memories to

·8· · be perfect.· So if you don't know something or you

·9· · don't remember, you can just tell me.

10· · A.· · · · ·I understand.

11· · Q.· · · · ·I don't -- I won't take it that you're

12· · doing anything but telling me you can't remember,

13· · all right?

14· · A.· · · · ·I understand.

15· · Q.· · · · ·Okay.· You mentioned that one of the

16· · factors you would look at -- you mentioned joking,

17· · that's why I came back to it.· You also said

18· · whether they have the means.· Now, when it comes

19· · to officers, don't they -- unless they're

20· · suspended, don't they always have the means to do

21· · harm to somebody?

22· · A.· · · · ·Well, when I said that, I meant are

23· · they with the person that they are threatening?

24· · You know, do they -- if they say I'm going to, you

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·1· · know, do something and that isn't physically

·2· · within the realm of doing in the next minutes or

·3· · so, but it would take some, you know, time,

·4· · distance and thought to make it happen, that's

·5· · what I was referring to.· But it doesn't make or

·6· · break the decision.· It's just part of the

·7· · decision-making process.

·8· · · · · · · ·And I don't consider officers to be

·9· · anybody -- any different.· Everybody has access to

10· · weapons.· And whether we've suspended somebody or

11· · not doesn't mean that they don't have access to a

12· · weapon.· So I don't ever consider somebody that's

13· · suspended to be less of a threat, per se, than

14· · somebody that hasn't been suspended.

15· · Q.· · · · ·In criminal cases that you've been

16· · involved with or that you know about, the fact

17· · that somebody doesn't tell their intended victim

18· · that they're going to, you know, beat them up or

19· · kill them, but tells somebody else, is still

20· · considered evidence of intent, isn't it?

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

22· · A.· · · · ·If somebody made a threat towards

23· · somebody, they could be criminally charged with

24· · menacing, correct, whether they're there or not.

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·1· · Q.· · · · ·Whether the target is there or not?

·2· · A.· · · · ·Correct.

·3· · Q.· · · · ·What were the -- what were the -- you

·4· · mentioned -- I asked you about discrimination

·5· · being critical misconduct.· Do you -- you said

·6· · most forms.· Can you exempt -- give me an example

·7· · of a form of discrimination that would not be

·8· · critical conduct?

·9· · A.· · · · ·I would say that -- speaking from

10· · personal experience that there were a lot of

11· · sexist comments made towards me in my career, and

12· · whether or not they were brought to the attention

13· · of management, they weren't always viewed as a

14· · disciplinary action.· So that's a form of

15· · discrimination.· And depending on the person who

16· · heard that particular comment or whatever else, if

17· · they chose to ignore it or not report it, then it

18· · might not rise to that particular level of

19· · discipline.

20· · · · · · · ·Some people say, I don't want anything

21· · to happen.· They report it, but they don't want

22· · anything to happen.· And so I would say that there

23· · are times when -- when some things of a

24· · discriminatory nature have occurred that don't

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·1· · reach the point of critical misconduct for a

·2· · number of reasons.· So it depends on, again, the

·3· · circumstances and, you know, the information that

·4· · we know.

·5· · Q.· · · · ·So is it -- was it your policy while

·6· · you were chief that if people didn't report sexist

·7· · or racist or other forms of discriminatory

·8· · comments, it would not be viewed as critical

·9· · misconduct?

10· · A.· · · · ·Are you saying did I enact a policy of

11· · that nature?

12· · Q.· · · · ·No.· I mean, is that -- is that what

13· · you're telling me, that based on your own

14· · experience and while you were the chief, if a

15· · person like you experienced didn't report the

16· · sexist comments or didn't report racist comments,

17· · then later awareness of the comments by you or

18· · some other managing officer, it would not be

19· · critical misconduct?

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

21· · A.· · · · ·Again, it would still matter on what

22· · the particular situation is.· I'm not -- is that

23· · my phone?

24· · Q.· · · · ·Yeah, I just couldn't figure out what

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·1· · it was.· I don't care now that I know what it is.

·2· · A.· · · · ·Okay.

·3· · Q.· · · · ·I'm sorry.· I'm sorry, you were saying?

·4· · A.· · · · ·I can't make a blanket statement and

·5· · say that, you know, some discriminatory comment or

·6· · action wouldn't be critical misconduct.· It all

·7· · depends on the circumstances.· And, you know, I

·8· · certainly didn't have a policy that we were going

·9· · to ignore any of that.

10· · · · · · · ·I taught EEO and sexual harassment

11· · classes to recruits for years and told them that

12· · they need to make complaints of that.· That they

13· · don't ever need to suffer any type of

14· · discriminatory behavior.· I insisted that it be

15· · taught in the first week of recruit class, because

16· · I didn't want what had happened to me to happen to

17· · them.· So I feel very strongly about reporting

18· · discriminatory behavior, and encouraged people to

19· · report it.· And also described how they can, you

20· · know, address it.

21· · · · · · · ·So I wouldn't say there was any type of

22· · policy during my tenure as chief that said, it's

23· · not critical misconduct.· But I will say that, you

24· · know, each situation is judged on its own merits,

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·1· · and that applies to practically everything, you

·2· · know, excessive force, you know, could be anywhere

·3· · from shooting and killing someone to putting

·4· · handcuffs on too tight.· They're not going to

·5· · receive the same level of punishment.

·6· · Q.· · · · ·So if I -- are you done?

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·So if I understood what you said, a

·9· · failure of someone to report sexist, racist,

10· · ageist or other kinds of conduct from other

11· · officers, at least was a factor, as far as you're

12· · concerned, in whether or not the racist, sexist or

13· · ageist comment would be considered critical

14· · misconduct?

15· · A.· · · · ·How would I know about it if it wasn't

16· · reported?

17· · Q.· · · · ·Because someone said something to

18· · somebody else, but the person to whom the comments

19· · were directed or about whom it were made never

20· · complained about it.

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·No, that is not what I testified to.

23· · Q.· · · · ·Okay.· Then explain to me what the

24· · failure or decision of someone who is the target

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·1· · of racist, sexist or ageist comments, how does it

·2· · matter whether they report it or fail to report it

·3· · themselves?

·4· · A.· · · · ·It's just information.· It depends on

·5· · what the circumstances are.

·6· · Q.· · · · ·So can you give me an example of where

·7· · someone didn't report a racist -- you know, let's

·8· · say a racist slur and you factored in the fact

·9· · that they hadn't reported it in deciding whether

10· · it was critical misconduct?

11· · A.· · · · ·I can't give you an example of that.

12· · Q.· · · · ·Okay.· Now, just briefly in light of

13· · your reference to the training.· Tell me about

14· · your -- your -- actually, I'm going to just kind

15· · of switch totally, just to get it out of the way

16· · real quickly.

17· · · · · · · ·Are you employed now since your

18· · retirement?

19· · A.· · · · ·I'm not employed by the City of

20· · Columbus now.

21· · Q.· · · · ·No.· I mean employed at all?

22· · A.· · · · ·I do not have any income besides the

23· · pension that I receive.

24· · Q.· · · · ·Okay.· Are you doing any volunteer work

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·1· · for any organization?

·2· · A.· · · · ·I -- I consider myself to be doing some

·3· · volunteer work for the Columbus Police Foundation.

·4· · Q.· · · · ·Okay.· And what's the Columbus Police

·5· · Foundation?

·6· · A.· · · · ·It's a charitable group that supports

·7· · programs from the division of police.· They have

·8· · been the supporters of buying tourniquets for

·9· · division members, of -- of providing the funds to

10· · allow us to take five charter bus fulls of

11· · division personnel to Washington, D.C. for a

12· · three-day trip to visit the Holocaust Museum and

13· · the African-American -- or the National African

14· · American Museum of History and Culture for

15· · learning experiences and how to prevent

16· · discrimination.

17· · · · · · · ·They have also supported some of the

18· · meals for some of our recruiting events and some

19· · of our community dialogue events.· What else have

20· · they bought?· They're also helping to raise funds

21· · for us to maybe put together some type of an

22· · engagement center maybe on wheels where we can

23· · have better interaction with our community

24· · members.· So at this point in time, I've just done

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·1· · a little bit of fundraising for them and continue

·2· · to stay in touch with our donors.

·3· · Q.· · · · ·And are you on the board?

·4· · A.· · · · ·No, I'm not.

·5· · Q.· · · · ·Okay.· Any other organizational work

·6· · you're doing?

·7· · A.· · · · ·No.

·8· · Q.· · · · ·Do you have any plans or are you

·9· · involved in any discussions about becoming a

10· · consultant related to police investigation?

11· · A.· · · · ·I have already had discussions about

12· · becoming a consultant, but I turned that

13· · opportunity down.

14· · Q.· · · · ·Okay.· So at the present moment, you

15· · have no specific plans regarding other kinds of

16· · work, whether it's as a consultant, independent

17· · contractor or employee?

18· · A.· · · · ·I didn't say that.

19· · Q.· · · · ·Oh.

20· · A.· · · · ·I have been discussing with the

21· · foundation whether or not they want to hire me

22· · part-time as an executive director.

23· · Q.· · · · ·Oh, okay.

24· · · · · · · ·Any other leads in the offering that

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·1· · you're considering discussing?

·2· · A.· · · · ·Board membership.

·3· · Q.· · · · ·I'm talking about paid gigs at this

·4· · point.

·5· · A.· · · · ·Oh, no.· No, paid gigs.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·Other than that foundation executive

·8· · director possibility, but that's still --

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·-- being discussed and is --

11· · Q.· · · · ·Do you have any family members who are

12· · in law enforcement?

13· · A.· · · · ·I do.

14· · Q.· · · · ·And who are they?

15· · A.· · · · ·My son Peter.

16· · Q.· · · · ·And where does he do his work?

17· · A.· · · · ·He's employed by the division of

18· · police, Columbus Division of --

19· · Q.· · · · ·Columbus Division of Police?

20· · A.· · · · ·Uh-huh.

21· · Q.· · · · ·Okay.· And how long has he been a

22· · police officer?

23· · A.· · · · ·Since January of 2013.

24· · Q.· · · · ·Okay.· And what -- anybody else in the

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·1· · extended family that's in law enforcement?

·2· · A.· · · · ·No.

·3· · Q.· · · · ·Okay.· And what -- is your son on

·4· · patrol?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·Okay.· When you came on the department,

·7· · I believe we said earlier '79, I don't want to

·8· · assume anything, did you go to patrol after going

·9· · through the academy?

10· · A.· · · · ·I did.

11· · Q.· · · · ·And how long did you do patrol?

12· · A.· · · · ·Until -- well, I -- as a patrol

13· · officer, I was on the street until 1987.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·And then I got promoted to sergeant,

16· · and I was a patrol sergeant on the street for most

17· · of '88, I believe.· But then I got a job

18· · inside still assigned to patrol, but in the

19· · administrative office.· And that was until late

20· · November -- or I believe November of 1991 when I

21· · became a lieutenant and I went back to patrol.

22· · Q.· · · · ·What were you doing in the

23· · administrative office for patrol?

24· · A.· · · · ·Scheduling officers to fill the holes

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·1· · for the vacancies that we had due to sickness or

·2· · vacation or training or whatever it might be. I

·3· · answered the complaint line for almost four years.

·4· · Q.· · · · ·Citizen complaint line?

·5· · A.· · · · ·The citizen complaint line, eight hours

·6· · a day, five days a week.· I scheduled officers for

·7· · training purposes.· I scheduled them for big

·8· · events, made sure that we had enough people

·9· · scheduled to go wherever we needed them to.· I did

10· · that for almost four years.

11· · Q.· · · · ·And where were you assigned as a

12· · lieutenant as patrol?

13· · A.· · · · ·Initially on patrol, zone three.· I had

14· · a rotating shift.· I had two nights on third

15· · shift, Thursday and Friday, Saturday was

16· · unassigned, and then Sunday and Monday was on

17· · second shift.· And I did that until early 2000 --

18· · or early 1993 when I got a job on first shift for

19· · the first time working for Deputy Chief Lanata as

20· · his administrative lieutenant in charge of the

21· · patrol office, and I was assigned to him.· It was

22· · still technically patrol, but it was in an office,

23· · until late 1995.

24· · Q.· · · · ·And then what happened?

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·1· · A.· · · · ·And then I got promoted to commander,

·2· · and I went to the communications bureau.· And I

·3· · was there until early 2001.· And in early 2001, I

·4· · was assigned to internal affairs and stayed there

·5· · until I think April or May, maybe, of 2005.· So I

·6· · was there for about four years.

·7· · Q.· · · · ·So you were the commander of IAB?

·8· · A.· · · · ·Internal affairs.

·9· · Q.· · · · ·For four or five years?

10· · A.· · · · ·Yeah.· And that was when we made the

11· · whole reorganizational change from just

12· · investigating serious misconduct allegations to

13· · investigating all citizen complaints as well.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·I implemented that change.

16· · Q.· · · · ·And then what happened?

17· · A.· · · · ·In 2005, I was assigned to patrol zone

18· · four and -- as the commander.· And that was

19· · downtown, Short North, campus, Clintonville and

20· · everything northwest Columbus.· I was there until

21· · mid 2006 when I was assigned to the training

22· · bureau as their commander.· And I was there for

23· · three years till late 2009 when I was promoted to

24· · deputy chief and I went back to patrol.

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·1· · Q.· · · · ·So 2009 you're back on patrol as the --

·2· · A.· · · · ·Not on patrol, but in patrol.

·3· · Q.· · · · ·No, I mean assigned to patrol?

·4· · A.· · · · ·Yes.· Yes.· I was assigned to the

·5· · patrol east subdivision initially.· And then when

·6· · we reorganized that, it was the patrol south

·7· · subdivision, until I think early 2011.

·8· · Q.· · · · ·When you became --

·9· · A.· · · · ·No.

10· · Q.· · · · ·No.· Where were you when you --

11· · A.· · · · ·I became the administrative deputy

12· · chief in 2011 and I was the administrative deputy

13· · chief for about a year before I became the chief

14· · of police.

15· · Q.· · · · ·Okay.· Now, let's talk a little bit

16· · since you've mentioned the academy.· Tell me about

17· · your own training -- well, let me -- let me switch

18· · it up.· I'm sorry.

19· · · · · · · ·You were on the department when the POE

20· · case went to trial, do you --

21· · A.· · · · ·POER?

22· · Q.· · · · ·Yeah.· Right, POER.· Police Officers

23· · for Equal Rights?

24· · A.· · · · ·I don't know what year that was.

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·1· · Q.· · · · ·Okay.· Do you remember the case?

·2· · A.· · · · ·I don't remember specifics.· I remember

·3· · that POER was an employment group within the

·4· · division of police, Police Officers for Equal

·5· · Rights.· I don't remember what -- what the case

·6· · was, you know.· I was, I believe, maybe an officer

·7· · at that time.

·8· · Q.· · · · ·So just sitting here today, you don't

·9· · remember reading about it or hearing about it on

10· · the department?

11· · A.· · · · ·Oh, I can't say that, no.· I --

12· · Q.· · · · ·I'm just asking what you remember.

13· · A.· · · · ·I believe it was allegations of

14· · discrimination from --

15· · Q.· · · · ·Right.

16· · A.· · · · ·-- you know, against the division of

17· · police.· I know that -- and I don't know which

18· · ones are which, because I know that

19· · African-Americans sued the city for hiring

20· · purposes and won that.· I know that women sued the

21· · city for discrimination in hiring and won that. I

22· · coached a woman that got out of the academy and

23· · immediately had seniority over me, because of the

24· · back seniority that she had gotten, because she

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·1· · had tried to be hired and was turned down.

·2· · · · · · · ·And then I know that there were rules

·3· · in place -- in fact, before I got hired, we were

·4· · taking the entry test and there was a white list

·5· · and a black list, and we had to have enough

·6· · African-Americans on the list prior to starting a

·7· · class.

·8· · · · · · · ·And then I know -- and I don't -- I

·9· · don't know if this was the POER case or not, but I

10· · know that there were allegations about

11· · discrimination in promotions, and that was I know

12· · in the mid '80s, I believe, that that was

13· · resolved.· There were promotions that took place

14· · prior to me becoming promoted to sergeant from the

15· · list that were, I believe, a result of either a

16· · settlement or win in a case.· I just don't know if

17· · that was the POER case, so -- but I know that we

18· · promoted like 30 African-Americans, I believe, in

19· · July of '87, I believe as a result of a lawsuit.

20· · I just don't know if it was a settlement or if it

21· · was some type of a decision from the court.

22· · Q.· · · · ·Do you -- do you -- again, I'm just

23· · asking you what you remember.

24· · A.· · · · ·Uh-huh.

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·1· · Q.· · · · ·Do you recall that the -- and I'll fess

·2· · up, I was involved in those --

·3· · A.· · · · ·I know.

·4· · Q.· · · · ·-- cases, so I remember them a little

·5· · better than most people.· Do you recall that the

·6· · POE -- POER case also involved allegations of a

·7· · hostile work environment based on race?· Did you

·8· · ever know that?· Besides promotions?

·9· · A.· · · · ·It -- it might have been something that

10· · I knew at the time.

11· · Q.· · · · ·Okay.

12· · A.· · · · ·I -- as I said, I don't remember the

13· · specifics.· You know, I remember the hiring and

14· · promotion part being big factors.· The hostile

15· · work environment part I might have had some

16· · knowledge of because I believe Officer

17· · Stubblefield was involved in the lawsuit.· And

18· · while I was in the academy, I went on a ride-along

19· · and apparently while I was at the substation,

20· · somebody made some type of a threat against him or

21· · is alleged to have made a threat against him, and

22· · I got called into internal affairs, I believe

23· · while I was still in the academy, to see if I had

24· · heard anything about that.

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·1· · · · · · · ·So I would -- I would certainly

·2· · consider that investigation of hostile work

·3· · environment.· I just don't know if it was related

·4· · to the lawsuit or not.

·5· · Q.· · · · ·Okay.· And were you aware at any time

·6· · during the pendency of that case that another

·7· · issue that was litigated was about assignments?

·8· · Allegations that black officers were excluded from

·9· · certain units like SWAT and the detective bureau?

10· · A.· · · · ·I don't recall having that recollection

11· · as an officer.· You know, you're kind of isolated

12· · at times from what's going on.· But I -- I do know

13· · that a job description manual was created in the

14· · late '80s because of inequities, if you will,

15· · about how people got assignments.· I don't know if

16· · they were based on race or not.

17· · · · · · · ·I was asked if I wanted a job on first

18· · shift, and I was like, I don't have the seniority

19· · to get a job on first shift.· And they're like,

20· · yeah, but we want women on first shift.· I'm like,

21· · well, I'm going to wait until I have the

22· · seniority.

23· · · · · · · ·So, you know, I know that -- that

24· · people felt that there were inequities with regard

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·1· · to assignments, and I believe that that was one of

·2· · the reasons why the job description manual became

·3· · a thing I think in 1989.

·4· · Q.· · · · ·Do you recall that as a result of that

·5· · lawsuit, the judge -- Judge Duncan at the time --

·6· · A.· · · · ·Yes.

·7· · Q.· · · · ·-- does that sound familiar?· Issued a

·8· · number of orders, including the promotion that

·9· · you've mentioned, but also issued orders about not

10· · Judge Duncan, actually Judge Graham later took

11· · over the case, issued orders about creating an EEO

12· · office and a whole new set of rules related to

13· · assignments and other things.· Do you recall that?

14· · A.· · · · ·I don't recall that that was a result

15· · of --

16· · Q.· · · · ·Okay.

17· · A.· · · · ·-- anything.· I remember that it seemed

18· · like all of a sudden we had an EEO office,

19· · Mr. Apple was --

20· · Q.· · · · ·Yep.

21· · A.· · · · ·-- in charge of EEO, and I think

22· · Mr. Wheeler.· But I -- like I said, I don't recall

23· · that it was specifically as a result of the

24· · lawsuit or whether or not it was a settlement or

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·1· · whether it was an agreement.

·2· · Q.· · · · ·Did you hear during these years I'm

·3· · talking about, that lawsuit was pending for quite

·4· · awhile if you remember?

·5· · A.· · · · ·I don't remember when it was filed --

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·-- or when it was settled, no.

·8· · Q.· · · · ·But did you hear police officers that

·9· · you were working with or around making negative

10· · comments about the case or about the people who

11· · filed the case?

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

13· · A.· · · · ·Nothing specific, no.

14· · Q.· · · · ·Okay.· Did you hear people grumbling --

15· · you know, when I say, "people," I'm talking about

16· · officers being -- expressing, criticizing that

17· · some individuals got promoted over them even with

18· · less seniority as you experienced because of the

19· · case?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·Do I remember people express --

22· · criticizing others for being promoted over them?

23· · Q.· · · · ·Just expressing they were upset that

24· · that was happening?

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·1· · A.· · · · ·Again, I can't remember anything

·2· · specific.· I -- I believe that, yeah, there

·3· · were -- you know, there was some resentment of

·4· · either POER as a group or some of the decisions

·5· · that were being made just because of people's

·6· · strong feelings about seniority.

·7· · Q.· · · · ·Okay.· None of them were -- none of the

·8· · comments were about race; that blacks were using

·9· · the race card or taking advantage of their race to

10· · get advantage?

11· · A.· · · · ·I cannot remember anything specific

12· · along those lines.

13· · Q.· · · · ·One way or the other?· Or are you

14· · telling me you never heard anything like that?

15· · A.· · · · ·I would say that I don't recall any --

16· · anything specific at all.· You know, people talked

17· · about a lot of stuff in roll calls or whatever,

18· · but I would say that -- and this is -- this is one

19· · of the things that I have talked about for years

20· · is that, you know, you surround yourself with good

21· · people and you don't hear stuff like that.· You

22· · know, people didn't use profanity around me very

23· · much because they knew that I didn't like it.· And

24· · so I wasn't privy to a lot of conversations. I

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·1· · didn't get invited to the poker games that my

·2· · fellow officers attended.· I didn't get invited to

·3· · a lot of social activities, because I was a woman

·4· · and they didn't want me hanging around, or I was a

·5· · goody two shoes and they didn't want me hanging

·6· · around or whatever.· But I don't remember a lot of

·7· · discussion about resentment towards particular

·8· · individuals as much as just that feeling of -- of,

·9· · you know, seniority not being as big a factor.

10· · · · · · · ·I believe that there was a lot of -- of

11· · discussion among the city and others about whether

12· · or not seniority points were even going to be used

13· · in the sergeant's test that I took, and that

14· · delayed the final list, because they had said it

15· · wasn't going to count, then they added it back in.

16· · And I think that might have been related to the

17· · lawsuits because those other promotions happened

18· · in 1987 as well.

19· · Q.· · · · ·Did you -- why did you decide not to --

20· · I think you indicated you had a chance to get to

21· · the first shift and you chose not to take it?

22· · A.· · · · ·I did not believe that I had earned

23· · enough seniority to get there.· It was important

24· · to me that -- that people didn't view me as a

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·1· · female police officer, you know?· I should be an

·2· · officer that does their job and does it well, and

·3· · I didn't want any special privileges coming to me

·4· · because I was a woman.· And that was the reason

·5· · why the position was offered to me.

·6· · Q.· · · · ·And so I take it that you were

·7· · concerned that other women who might have chosen

·8· · otherwise might face that attitude from male

·9· · officers?

10· · A.· · · · ·I wouldn't say that that was

11· · necessarily part of my decision-making.· It was

12· · just it wasn't right for me.

13· · Q.· · · · ·Okay.· Well, I thought I understood you

14· · to say that you didn't want officers to view you

15· · as a woman police officer, and taking a position

16· · because of a court order which contravened

17· · seniority was one of the concerns you have is that

18· · you would be viewed differently?

19· · A.· · · · ·I don't remember testifying anything at

20· · all related to a court order.· I just decided that

21· · I didn't want to get that assignment because I was

22· · a woman.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·It didn't have anything to do with

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·1· · court orders or anything else.

·2· · Q.· · · · ·I gotcha.

·3· · A.· · · · ·Okay.

·4· · Q.· · · · ·But you didn't want to get -- you

·5· · didn't want to be viewed as someone who was --

·6· · A.· · · · ·Using my gender.

·7· · Q.· · · · ·-- getting -- of using your gender?

·8· · Yeah.

·9· · · · · · · ·During the years from '79 into the

10· · '90s, did you ever observe or hear racial epithets

11· · at the Columbus Police Department?

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

13· · A.· · · · ·By other division personnel or --

14· · Q.· · · · ·Yes.

15· · A.· · · · ·-- by -- I don't know.· Potentially.

16· · And, again, that would -- that would be -- was it

17· · somebody repeating something that they had heard

18· · or been told?

19· · Q.· · · · ·It could be either in your presence or

20· · someone repeating what they had been told, or

21· · graffiti in the bathrooms or racist graffiti or

22· · racist graffiti in the training academy, any kind

23· · of things like that?

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

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·1· · A.· · · · ·I don't recall anything specifically

·2· · like that.

·3· · Q.· · · · ·Okay.· Do you recall anything not

·4· · specific at a -- that related to race and that was

·5· · negative about black personnel?

·6· · A.· · · · ·I can't say that I haven't, I just

·7· · don't remember that there were instances where

·8· · people were referring to African-Americans in

·9· · racially derogatory terms about other division

10· · personnel.· It could have happened in my presence,

11· · but I don't -- I don't ever recall, you know, that

12· · being something that happened.

13· · · · · · · ·It -- it seemed to me that -- I don't

14· · know if it was because I wasn't included in some

15· · things that they, you know, thought that maybe I

16· · would tell on them if they used those kinds of

17· · terms around me, because I had stood up for

18· · myself.· And maybe they thought that maybe they

19· · shouldn't use those kinds of terms, but I can't

20· · say that I -- I never heard those terms and

21· · certainly might have investigated, not personally,

22· · but might have investigated as, you know, the

23· · commander of internal affairs other allegations to

24· · that effect, but I just don't recall anything

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·1· · specific.

·2· · Q.· · · · ·And when you mentioned that your

·3· · sergeant's promotion was delayed because of the

·4· · court -- you know, of the black officers ordered

·5· · to be -- you know, lists being created for

·6· · promotion of black sergeants --

·7· · A.· · · · ·I don't think that's what I testified

·8· · to.

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · Q.· · · · ·Oh, you didn't?

11· · A.· · · · ·I think I testified to there was a

12· · debate on whether or not they were going to add

13· · seniority points to my list or not.· And they put

14· · out a list that had the rankings without seniority

15· · points, and I was higher on that list.· But they

16· · decided then to put seniority points back in and I

17· · sank a little bit down.· I still got promoted in

18· · the first group, but I don't know that that was

19· · related to the lawsuit or not.

20· · Q.· · · · ·So your promotion was not delayed?

21· · A.· · · · ·I didn't say that.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·I believe it was delayed, because I

24· · think that there was debate and a slowness in

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·1· · preparing the final list because of that question

·2· · of whether or not there were going to be seniority

·3· · points added to the list or not.· And then

·4· · ultimately they were added.· And there was a list

·5· · that existed prior to, so you would think that

·6· · that might have been the reason for the delay.

·7· · · · · · · ·I just don't know if the delay was

·8· · caused by the lawsuit or the fact that 30 people

·9· · got promoted, I believe it was 30, you know,

10· · months prior to the promotion ceremony.· But like

11· · I said, I just don't know what was going on behind

12· · the scenes on all of that.

13· · Q.· · · · ·But in terms of where you ranked in

14· · scoring or when you were promoted didn't affect

15· · you?· I mean, it might have happened some weeks

16· · later than expected, but you still --

17· · A.· · · · ·The first time they promoted from the

18· · list, I got promoted.

19· · Q.· · · · ·Okay.

20· · A.· · · · ·It was a very large group from people

21· · that were on the list as well.

22· · Q.· · · · ·During your years in patrol, did you --

23· · did you hear white officers using racial epithets

24· · at any time when they were making arrests or

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·1· · talking to suspects?

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

·3· · A.· · · · ·I suppose the potential is there for

·4· · that.

·5· · Q.· · · · ·But sitting here today, you can't tell

·6· · me one way or the other whether you actually had

·7· · occasions when you heard that kind of language?

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

·9· · A.· · · · ·You're talking about almost 40 years

10· · ago, and, no, I don't remember any particular

11· · incidents where that occurred.

12· · Q.· · · · ·And I take it you never reported such

13· · an incident if you did hear it?

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

15· · A.· · · · ·I don't recall ever reporting hearing

16· · that kind of language being used towards a

17· · suspect.

18· · Q.· · · · ·Prior to being in IAB, but while you

19· · were on patrol and an officer, did you ever report

20· · another officer for misconduct?· Not once you were

21· · a sergeant, but before you were a sergeant?

22· · A.· · · · ·I know that I reported a use of force

23· · that I don't believe that the officer reported to

24· · my sergeant.· I was a witness.· A guy -- this is

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·1· · when we didn't have screens between the front seat

·2· · and backseat, so partners were required to ride in

·3· · the backseat.· And the suspect in this particular

·4· · case went for my partner's gun, even though he was

·5· · handcuffed, and so my partner's struggling to

·6· · maintain control of his weapon.· I got out, I'm

·7· · struggling to make sure that we get him under

·8· · control.· We put out a 10-3, officer in trouble.

·9· · And another officer showed up.

10· · · · · · · ·And as we were dragging the guy out of

11· · the backseat, this officer came up and kicked the

12· · suspect in the face, and it was a big hubbub, you

13· · know, because of the potential for my partner to

14· · have been killed or myself.· And I don't know if

15· · the officer that kicked this guy in the face

16· · reported it to his sergeant, but I reported it to

17· · the sergeant and made sure that I gave my

18· · statement to that effect.· I don't know what

19· · happened to that.· It might have been determined

20· · that it was within policy for all I know, because

21· · the guy was definitely a threat, even though he

22· · was handcuffed.

23· · Q.· · · · ·I take it -- anything else that you

24· · reported?

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·1· · A.· · · · ·Not that I recall.

·2· · Q.· · · · ·And I take it you've explained why

·3· · you -- I -- at least I believe I recall you

·4· · testified that you had heard sexist comments

·5· · during your years on the department?

·6· · A.· · · · ·Yes.

·7· · Q.· · · · ·Did you ever report any of them?

·8· · A.· · · · ·Not officially, no.

·9· · · · · · · ·And I have told the story many times in

10· · my speeches and when I teach a class on sexual

11· · harassment that when I was at the substation in

12· · front of my entire crew basically at a table like

13· · this, I was standing and one of my co-workers

14· · walked up and pinched me on my butt and hey, Kim,

15· · you losing weight?

16· · · · · · · ·And I was offended by him touching me

17· · in such a private place.· And I told him not to

18· · ever touch me again.· And oh, oh, I didn't mean

19· · anything.· And I said, just don't touch me again.

20· · My sergeant was there, he witnessed it, or at

21· · least could have, but he didn't ever say anything

22· · to me about it, and I never made an official

23· · complaint about it.

24· · Q.· · · · ·Did you have other incidents of

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·1· · inappropriate comments or touching?

·2· · A.· · · · ·Sexist comments, yes.· There were other

·3· · sexist comments, including some that were made by

·4· · higher ranking people than me.

·5· · Q.· · · · ·Did you --

·6· · A.· · · · ·And I was discriminated against, in my

·7· · opinion, by higher ranking people.

·8· · Q.· · · · ·And did you report it?

·9· · A.· · · · ·I did.

10· · Q.· · · · ·When?

11· · A.· · · · ·To my boss.

12· · Q.· · · · ·Who was?

13· · A.· · · · ·At the time it happened, my boss was

14· · Deputy Chief Tony Lanata.

15· · Q.· · · · ·So this was later in your career?

16· · A.· · · · ·This was in the '90s.

17· · Q.· · · · ·Okay.

18· · A.· · · · ·Yeah.

19· · Q.· · · · ·Did anything happen?

20· · A.· · · · ·No.· The offending person was the chief

21· · of police.

22· · Q.· · · · ·Is that Joseph back then?

23· · A.· · · · ·No, Jackson.

24· · Q.· · · · ·Jackson?· Okay.

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·1· · · · · · · ·Any -- any others after that?

·2· · A.· · · · ·I -- I believe that there have been

·3· · comments made about me being gay by some division

·4· · personnel.· I was told by the FOP president that

·5· · there might be a vote of no confidence because I

·6· · was gay after I got promoted to chief.· Apparently

·7· · that didn't happen, but I was told that somebody

·8· · was strongly opposed to the fact that I was gay

·9· · and promoted.· So I know that comments about

10· · gender and sexual orientation have been said about

11· · me, but I -- I don't know how many.· I don't know

12· · when all -- you know, all of them occurred.· But,

13· · yes, I've been the recipient either directly or

14· · indirectly of such comments.

15· · Q.· · · · ·And in most of those instances, it

16· · sounds like you did not make formal complaints

17· · about them?

18· · A.· · · · ·Correct.

19· · Q.· · · · ·Okay.· I gather as somebody who's done

20· · EEO training, you've talked with people about why

21· · they might not want to file complaints?

22· · A.· · · · ·Can you explain what you mean?

23· · Q.· · · · ·Black officers and women, why they

24· · might be hesitant to file complaints about other

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·1· · officers' racial or sexual comments?

·2· · A.· · · · ·The question is whether or not I have

·3· · discussed why they might be hesitant?

·4· · Q.· · · · ·Yes.

·5· · A.· · · · ·I wouldn't say that the training delved

·6· · too deeply into that.· The training was mostly

·7· · that you shouldn't put up with discriminatory

·8· · behavior and that you should report it, here's the

·9· · different ways that you can report it.· We

10· · probably touched on, you know, whether or not you

11· · decide to not report it and then the consequences

12· · of that, but the consequences weren't ever

13· · described as being more pro don't -- don't report

14· · it.

15· · Q.· · · · ·No, I -- and I'm sorry if I'm not being

16· · clear.· I'm not asking whether you ever

17· · discouraged people.

18· · A.· · · · ·Okay.

19· · Q.· · · · ·I'm asking you:· Do you as a woman and

20· · a gay person understand why some gay people and

21· · some women and some blacks would be very hesitant

22· · about making a formal complaint about slurs,

23· · comments, racist jokes, sexist jokes when they're

24· · working with other officers on patrol or in other

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·1· · dangerous assignments?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·I understand why some people are

·4· · hesitant to report, yes.· That's a variety of

·5· · reasons.

·6· · Q.· · · · ·Yeah.· And they include concern about

·7· · retaliation, right?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·I am sure that that is some of the

10· · considerations that some people give to reporting

11· · or not.

12· · Q.· · · · ·Isn't another thing that you -- you

13· · understand about some people in these situations

14· · and the thought about yourself is you don't want

15· · to be viewed as a black person or a woman, you

16· · want to, as much as you can, just be seen as a

17· · police officer?

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · A.· · · · ·I don't know that -- I mean, I -- I

20· · guess you don't want people to think that you

21· · complain about every little thing that happens to

22· · you.· But when it boils right down to it, what are

23· · you going to stand up for?· And the two things

24· · that I thought were the most egregious that

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·1· · happened to me, I dealt with very strongly in my

·2· · opinion.· I didn't let it go unnoticed. I

·3· · addressed it.

·4· · · · · · · ·The one that happened later on in my

·5· · career as a lieutenant and coming from the chief

·6· · of police, I demanded that what was being

·7· · determined be changed or else I would file

·8· · something more official, and it was changed.

·9· · They -- they gave me an order not to ride around

10· · with the only other female lieutenant because it

11· · looked strange, but all of the other male

12· · supervisors were allowed to ride around together.

13· · But it was just me and Lieutenant Kerins that

14· · weren't going to be allowed to right around

15· · together.

16· · · · · · · ·And I said, if you only order the two

17· · of us not to ride in the same vehicle together,

18· · you are individually singling us out because we're

19· · women, and, you know, that needs to be changed.

20· · Within 24 hours, the order went out that no

21· · supervisors were allowed to ride around together.

22· · So I didn't have to make any formal complaint

23· · because the order was changed.

24· · Q.· · · · ·Okay.· My question is:· What are some

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·1· · of the reasons you understand that women or black

·2· · officers or officers with other differences might

·3· · not file a complaint?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·There are -- there are a variety of

·6· · reasons why they might not.· Retaliation is one of

·7· · them.· Wanting to fit in is one of them.· Wanting

·8· · to handle it themselves is one of them.· You know,

·9· · not thinking it's a big deal is one of them or

10· · whatever.· But, yes, there's certainly a variety

11· · of reasons why some people wouldn't make a formal

12· · complaint.

13· · Q.· · · · ·Now, when you have -- what training

14· · have you had on EEO?· As opposed to doing

15· · training, what training have you had?

16· · A.· · · · ·Whatever the city has required. I

17· · instituted that we were going to do EEO training

18· · on a regular basis when I was the chief, but we've

19· · been accredited by the commission on accreditation

20· · for law enforcement agencies since 1999.· And part

21· · of the practices, the standards that we meet are,

22· · I believe it was either biennial or triennial

23· · training required on EEO.· So since 1996ish, I've

24· · attended all of those trainings that were required

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·1· · by the city.· And then as chief, I required it to

·2· · be done more frequently.

·3· · · · · · · ·And then -- that's within the division.

·4· · And then the city also instituted EEO training

·5· · that they required, I think mid managers or

·6· · commanders on up to attend as well, so what the

·7· · city's offered.· Back in the day when Mr. Apple

·8· · was doing training, I went to all of that.

·9· · Q.· · · · ·So let's -- let's kind of focus on the

10· · '90s.· So you would have been what rank

11· · starting --

12· · A.· · · · ·I was --

13· · Q.· · · · ·-- in 1990?

14· · A.· · · · ·I was a sergeant in 1990.· I got

15· · promoted to lieutenant in November of '91.

16· · Q.· · · · ·Okay.· Let's start at '91.· In '91, how

17· · many times would you have had EEO training?

18· · A.· · · · ·Whatever Mr. Apple might have done. I

19· · do remember going to a class that was required of

20· · all, I think mid managers, maybe on up, I'm not

21· · sure which, that the city paid an outside trainer

22· · to do.· And it was the most insulting training

23· · that I've ever taken part of.

24· · · · · · · ·The instructor did not control the

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·1· · class.· There were both fire and police

·2· · supervisors there.· I was a lieutenant at the

·3· · time, so this is probably '92, '93, something like

·4· · that.· And it was -- I believe it was either one

·5· · day or two days.

·6· · · · · · · ·But the instructor had different

·7· · exercises, one of them was a long list of

·8· · leadership traits.· And it said, is this a male

·9· · trait, female trait or both sexes?· And had

10· · everybody answer that.· And then he asked people

11· · to shout out which ones were male and which ones

12· · were female.· And the comments that were being

13· · tossed out were amazingly sexist.

14· · · · · · · ·One said that, can you imagine a woman

15· · having PMS in the war room making decisions about,

16· · you know, what war plan we're going to have?· Or

17· · tramping through the jungle and needing to put a

18· · tampon in?· And another one was a chart that

19· · talked about derogatory terms for ethnicity,

20· · gender, race, religion.· You know, it said, you

21· · know, list these derogatory terms that have been

22· · given for all these different things, and people

23· · were just shouting out these terms.

24· · · · · · · ·And, you know, they said like Italian

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·1· · and somebody would yell Wop.· You know, and they

·2· · would say, Irish, and they would say, you know,

·3· · drunk, you know.· And it was like this free for

·4· · all, just say what you're thinking.· And the

·5· · instructor was encouraging some of this behavior

·6· · basically.

·7· · · · · · · ·But they got to female and the way that

·8· · this was shouted out was, in particular, I believe

·9· · like said with some emphasis, not just Wop, but

10· · cunt.· And I took great offense to that particular

11· · thing.

12· · · · · · · ·A number of the fire guys during the

13· · break apologized for the other firefighters'

14· · transgression, if you will.· Some of the police

15· · guys that, you know, weren't too sure that they

16· · liked, you know, me being a lieutenant I think

17· · even were like defending me, you know.· So that

18· · was EEO training, if you will, cultural

19· · sensitivity training that had the actual opposite

20· · effect.· I left there feeling like the fire

21· · department was a bunch of sexists.

22· · Q.· · · · ·Did you complain about it?

23· · A.· · · · ·I didn't make an official complaint to

24· · anybody.· I let people know how terrible I thought

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·1· · it was.· But it was mandated by either the chief

·2· · of police or maybe even above the chief of police.

·3· · It might have been something that Mr. Apple had

·4· · suggested and had the city hire for.· I don't

·5· · know.

·6· · Q.· · · · ·Okay.· Did subsequent trainings, it

·7· · sounds like you had them every year in the '90s

·8· · and going into the 2000s?

·9· · A.· · · · ·No, I wouldn't say that in the '90s.

10· · Q.· · · · ·No?· Okay.

11· · A.· · · · ·I said as chief, after 2012 I asked our

12· · training bureau to do EEO training every year.

13· · Q.· · · · ·Okay.· But I'm trying to find out:· As

14· · of the time you became the chief, you had been

15· · through a few EEO trainings --

16· · A.· · · · ·Oh, sure.

17· · Q.· · · · ·-- a lot of EEO trainings, I mean, give

18· · me --

19· · A.· · · · ·Yeah, I mean --

20· · Q.· · · · ·-- once a year or twice a year?

21· · A.· · · · ·I -- I would have to go back and look

22· · what the standard was at the time, but the

23· · division became accredited for the first time in

24· · 1999, but it was a three-year lookback.· And so,

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·1· · you know, 1996, '97 we would have had to have EEO

·2· · training at least once every three years, if not

·3· · every other year.

·4· · Q.· · · · ·Okay.· And those trainings were all day

·5· · or half a day or --

·6· · A.· · · · ·No, it could have been an hour or two.

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·It didn't mandate how long, it just

·9· · said you have to have EEO training.· In addition

10· · to that, I went to, you know, outside training

11· · like in the late '90s for the police executive

12· · leadership college.· And I don't remember

13· · specifically, but I'm sure that some of the

14· · outside training courses that I attended also

15· · talked about EEO issues.

16· · Q.· · · · ·Okay.· Did you save the materials from

17· · any of those courses or does the department have

18· · them that you know?

19· · A.· · · · ·I might still have some.· I know that

20· · when we reorganized internal affairs, we had paid

21· · for instructors from -- there were like

22· · contractors for IACP that came in and did 40 hours

23· · of training.· And I believe that they might have

24· · conducted some training on how to conduct EEO

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·1· · investigations so, you know, at least on a

·2· · periphery there was discussion about EEO stuff and

·3· · maybe sexual harassment at that time, too.

·4· · Q.· · · · ·Could you look and see what you have

·5· · and let Rich know --

·6· · A.· · · · ·Sure.

·7· · Q.· · · · ·-- what you have?· Okay.

·8· · · · · · · ·MR. COGLIANESE:· Hey, Fred, can we take

·9· · a break at some point?

10· · · · · · · ·MR. GITTES:· Oh, no, we're not allowed

11· · to take breaks.

12· · · · · · · ·MR. COGLIANESE:· We've been going for

13· · about an hour and 45.

14· · · · · · · ·MR. GITTES:· At what point?

15· · · · · · · ·MR. COGLIANESE:· Within the next 15 or

16· · so.

17· · · · · · · ·MR. GITTES:· Let's just take it now.

18· · · · · · · ·THE WITNESS:· Yeah, that's fine.

19· · · · · · · ·THE VIDEOGRAPHER:· We are off the

20· · record.· The time is 11:13.

21· · · · · · · ·(A recess is taken.)

22· · · · · · · ·THE VIDEOGRAPHER:· This marks the

23· · beginning of media number two.· We're back on the

24· · record.· The time is 11:22.

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·1· · Q.· · · · ·Chief, I think we were just talking

·2· · about EEO training.· And my impression is that it

·3· · doesn't happen every year; every other year maybe,

·4· · sometimes every three years depending on what time

·5· · period we're talking about historically?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·Yeah, I don't have the documents in

·8· · front of me to show what has been offered within

·9· · the division.· But, yes, there are times when

10· · we've done it every year for the last number of

11· · years and then there are times where it wasn't

12· · happening as frequently.

13· · Q.· · · · ·And in more recent years has the

14· · training been multiple days, a day or hour-,

15· · two-hour programs?

16· · A.· · · · ·I would say it comes in less than a

17· · full day of -- of the segment.· I believe the city

18· · offered two hours.· I think the division has been

19· · either one or two hours out of it.

20· · Q.· · · · ·Do you go -- oh, I'm sorry.· I didn't

21· · mean to interrupt.

22· · A.· · · · ·What's the question?

23· · Q.· · · · ·Do you go still?

24· · A.· · · · ·Absolutely.

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·I attended all the training that was

·3· · mandatory.

·4· · Q.· · · · ·So you've had training in retaliation,

·5· · what that means legally?

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

·7· · A.· · · · ·I'm sure it was discussed in at least

·8· · some of those offerings.

·9· · Q.· · · · ·And you've heard of the phrase tangible

10· · -- a tangible employment action?· Have you ever

11· · heard that phrase before?

12· · A.· · · · ·Potentially.

13· · Q.· · · · ·Can you tell me what it means to you?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·In legal terms I don't know --

16· · Q.· · · · ·No, I mean just --

17· · A.· · · · ·-- the words.· But tangible would be

18· · something that is, you know, you can see what

19· · happened.· You know, it's not how somebody felt,

20· · it's somebody -- somebody didn't get promoted or

21· · something like that.

22· · Q.· · · · ·Okay.· And independent of federal and

23· · state law prohibiting discrimination and

24· · retaliation, CPD has its own policies prohibiting

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·1· · discrimination, does it not?

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·Okay.· And do you expect your officers

·4· · to abide by all three, policy, state law, federal

·5· · law?

·6· · A.· · · · ·Yes.

·7· · Q.· · · · ·And I'm gathering from how you've

·8· · described your own experience, you take those

·9· · policies and laws seriously?

10· · A.· · · · ·I do.

11· · Q.· · · · ·And you expect your officers to do the

12· · same?

13· · A.· · · · ·I do.

14· · Q.· · · · ·And are -- while you were chief, did

15· · you expect your commanders, sergeants, lieutenants

16· · to enforce policies and laws concerning

17· · discrimination and retaliation?

18· · A.· · · · ·Yes.· Well, as -- within their power

19· · to.

20· · Q.· · · · ·Yes.· Sure.

21· · A.· · · · ·I mean, they -- they didn't get to make

22· · a lot of decisions about what enforcing means, you

23· · know, but as far as reporting it or investigating

24· · it --

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·1· · Q.· · · · ·Right.

·2· · A.· · · · ·-- yes.

·3· · Q.· · · · ·Well, nothing gets enforced unless

·4· · somebody reports it or somehow else it's

·5· · discovered, right?

·6· · A.· · · · ·Correct.· Correct.

·7· · Q.· · · · ·So it is a priority for your officers

·8· · if they're aware of discrimination to report it?

·9· · A.· · · · ·Yes.

10· · Q.· · · · ·And if individuals become aware, let's

11· · say a lieutenant feels a commander is

12· · discriminating against somebody else, not the

13· · lieutenant, they're obligated to report it, aren't

14· · they?

15· · A.· · · · ·If they believe that a rule violation

16· · has occurred, correct, their required to report

17· · it.

18· · Q.· · · · ·Well, and besides a rule violation,

19· · violation of federal and state discrimination

20· · laws --

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

22· · Q.· · · · ·-- should be reported if they're aware

23· · of it?

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

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·1· · A.· · · · ·Yes.· So our policies closely match the

·2· · laws and, you know, it's to follow policy and the

·3· · law, so -- as they understand the law.

·4· · Q.· · · · ·Okay.· Well, they get training on the

·5· · law --

·6· · A.· · · · ·Correct.

·7· · Q.· · · · ·-- not just the policy, right?

·8· · A.· · · · ·Yes.

·9· · Q.· · · · ·Would -- I don't want to go back to our

10· · earlier discussion about your practices as

11· · regarding IAB investigations except that I do want

12· · to understand one thing.· Do all IAB

13· · investigations have summaries?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · Q.· · · · ·I mean while you were chief anyway?

16· · A.· · · · ·I can't think of an actual

17· · investigation that wouldn't have a summary.· And

18· · it would depend on what you call an investigation.

19· · There are complaints that get called in that

20· · aren't an actual allegation of misconduct.· It

21· · gets written up and it's --

22· · Q.· · · · ·I'm going to interrupt you --

23· · · · · · · ·MR. COGLIANESE:· Hold on.

24· · Q.· · · · ·-- if it's okay.· I don't want us to

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·1· · get sidetracked, because I want to focus now as

·2· · much as I can on this case.

·3· · A.· · · · ·Okay.

·4· · Q.· · · · ·I'm only --

·5· · · · · · · ·MR. COGLIANESE:· But if you need to

·6· · finish your answer, by all means.

·7· · A.· · · · ·An actual investigation generally would

·8· · have a summary.

·9· · Q.· · · · ·Okay.· And was it your practice during

10· · your years as chief to at least read the summaries

11· · if the case was coming to you for some kind of

12· · decision or action?

13· · A.· · · · ·Yes.

14· · Q.· · · · ·Okay.· And then sometimes you would

15· · read more?

16· · A.· · · · ·Yes.

17· · Q.· · · · ·Were there cases where you would read

18· · the summary and based on reading the summary, you

19· · might spot check a particular exhibit or a

20· · particular interview?

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Was the Moore case one of those?· Eric

23· · Moore?

24· · A.· · · · ·What's the question?

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·1· · Q.· · · · ·Where you read the summary and spot

·2· · checked individual parts of the investigation?

·3· · A.· · · · ·In that particular case, I don't even

·4· · know if I read the entire summary prior to that.

·5· · I -- when I reviewed it more recently, because

·6· · this case was brought to me years ago, I saw

·7· · things in the summary more recently that I don't

·8· · recall having seen before.· But I don't know if

·9· · there were things in that particular summary that

10· · I then referenced an actual transcript or

11· · something like that.· I have no idea if I did that

12· · or not.· I -- this was years ago.

13· · Q.· · · · ·Again, it's okay to just say you don't

14· · remember.

15· · · · · · · ·Have you read the actual complaint,

16· · lawsuit in this case?

17· · A.· · · · ·I don't know.

18· · Q.· · · · ·Don't remember one way or the other?

19· · A.· · · · ·I don't remember one way or the other.

20· · Q.· · · · ·Okay.· You -- we talked about this

21· · earlier, there was a probable cause finding by the

22· · Ohio Civil Rights Commission.· You do remember

23· · that, right?

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

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·1· · A.· · · · ·I remember that there was an initial

·2· · finding of no probable cause.

·3· · Q.· · · · ·Right.

·4· · A.· · · · ·And then there was a reconsideration.

·5· · And then it came back with a finding of probable

·6· · cause.· And that we then had an attempt at

·7· · mediation, I believe mediation or settlement, I'm

·8· · not sure which.

·9· · Q.· · · · ·You mean -- never mind, go ahead.

10· · A.· · · · ·And then a lawsuit was filed.

11· · Q.· · · · ·Okay.· Okay.

12· · A.· · · · ·I think that's the order.

13· · Q.· · · · ·Did you attend the mediation you're

14· · talking about?

15· · A.· · · · ·I went to the office in the state

16· · office tower of the Ohio Civil Rights Commission

17· · and there was a mediator there, Pam Gordon was the

18· · city attorney, and I'm not sure who else was

19· · present, but --

20· · Q.· · · · ·Okay.· Have you -- did you read the

21· · reconsideration decision by -- that was issued by

22· · the commission?

23· · A.· · · · ·I don't recall.

24· · Q.· · · · ·Okay.· Have you ever -- during the time

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·1· · you were chief, did you ever order a review or

·2· · analysis to determine if there were disparities in

·3· · the discipline issued to black or -- based on race

·4· · in chain of command and IAB investigations?

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

·6· · A.· · · · ·Not that I recall.

·7· · Q.· · · · ·Have you ever -- have you heard during

·8· · your years as the chief, any complaints from

·9· · officers, particularly black officers, that I --

10· · that -- about disparate discipline?· When I refer

11· · to "disparate discipline," do you understand what

12· · I'm referring to?

13· · A.· · · · ·I do.

14· · Q.· · · · ·Okay.· Did you hear from any office --

15· · black officers during your years as chief any

16· · complaints about disparate discipline?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Okay.· I am as -- one last thing I am a

19· · little unclear on is:· Does the internal affairs

20· · bureau as part of its responsibilities for

21· · investigating employment complaints within the

22· · division, does it investigate EEO employment

23· · complaints?

24· · A.· · · · ·It is charged with investigating those.

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·1· · We have -- we have now in the last number of years

·2· · asked for our human resources personnel to assist

·3· · with some of those investigations, and at times

·4· · have consulted with the human resources department

·5· · and/or their personnel and/or the Director of

·6· · Public Safety's offices, HR manager -- officer --

·7· · HR officer about some EEO investigations.

·8· · Q.· · · · ·Do you know Ms. Van Pelt?

·9· · A.· · · · ·I do.

10· · Q.· · · · ·And how long have you known her?

11· · A.· · · · ·Probably since she's been employed.

12· · Don't know if I knew her before that.· She used to

13· · attend the church that I attend, and so there's a

14· · possibility that she -- that I met her at church

15· · rather than at work, but I know at least since

16· · she's been employed there.

17· · Q.· · · · ·Were you -- were you involved in her

18· · hiring?

19· · A.· · · · ·Not personally.

20· · Q.· · · · ·Okay.· And do you consider her a

21· · friend?

22· · A.· · · · ·Yeah.

23· · Q.· · · · ·Okay.· Do you socialize at times

24· · outside of work?

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·1· · A.· · · · ·She lives in my neighborhood, so, you

·2· · know, there are times when I stop while I'm

·3· · walking the dogs and say, hi, how are you doing?

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·Have a conversation.· She doesn't

·6· · attend my church anymore.

·7· · Q.· · · · ·Okay.· How about Ms. Guyton?

·8· · A.· · · · ·What's the question?

·9· · Q.· · · · ·Do you know that person?

10· · A.· · · · ·Absolutely.

11· · Q.· · · · ·How long?

12· · A.· · · · ·Since probably 1995 or '96.· She was

13· · the union representative for the dispatchers when

14· · I became the commander at the communications

15· · bureau.· And so whenever I started dealing with

16· · the union matters back then is when I would have

17· · met her.

18· · Q.· · · · ·And what's -- what was -- what's her

19· · status now?

20· · A.· · · · ·She is the HR officer for the

21· · department of building and zoning services.

22· · Q.· · · · ·What was her last position in the

23· · department?

24· · A.· · · · ·HR manager over the human resources

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·1· · bureau.

·2· · Q.· · · · ·So was she over Van Pelt?

·3· · A.· · · · ·Yes.

·4· · Q.· · · · ·How many other people are in HR at CPD,

·5· · at least while you were chief?

·6· · A.· · · · ·There was the HR manager and then two

·7· · HR analysts, I believe, and then several others

·8· · that work in employee benefits.· And just the

·9· · personnel office, I don't know, maybe like eight

10· · or nine, and then the industrial hygienist.· So

11· · maybe 10ish at the most.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·Because I don't know if you -- payroll

14· · is actually under the business office.

15· · Q.· · · · ·Okay.· So Ms. Guyton is -- were you

16· · friends?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Socialize outside of work sometimes?

19· · A.· · · · ·Yes.

20· · Q.· · · · ·Okay.· When you say that HR would get

21· · involved with IAB investigations of EEO matters,

22· · did they actually sit in on interviews, conduct

23· · interviews for or with the IAB sergeants or you --

24· · A.· · · · ·For --

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·1· · Q.· · · · ·How did they get involved?

·2· · A.· · · · ·-- investigations of officers --

·3· · Q.· · · · ·Yes, officers.

·4· · A.· · · · ·-- or investigations of civilian

·5· · employees?

·6· · Q.· · · · ·Officers.

·7· · A.· · · · ·I don't think that they participated in

·8· · the interviews.

·9· · Q.· · · · ·So they would just be consulted about

10· · questions?

11· · A.· · · · ·Asked to review information, asked to

12· · determine whether or not they felt like the

13· · complainant and the -- you know, the person

14· · accused should be separated, you know, to follow

15· · what the recommendations are from U.S. EEOC with

16· · regard to leaving people in the same area.

17· · Q.· · · · ·The internal affairs bureau, you

18· · indicated you made changes to it.· Can you very

19· · briefly tell me what changes you made?

20· · A.· · · · ·Well, I was implementing the changes to

21· · internal affairs, if that's what you mean.

22· · Q.· · · · ·Implementing what changes?

23· · A.· · · · ·Are you talking about back in the 19 --

24· · or 2001 time period?

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·1· · Q.· · · · ·No, I thought -- maybe my confusion. I

·2· · thought you were talking about as chief?

·3· · A.· · · · ·No, I don't think so.· When I

·4· · referenced reorganizing internal affairs, that was

·5· · back in 2001 --

·6· · Q.· · · · ·Oh.

·7· · A.· · · · ·-- when the city made a lot of changes

·8· · based on the lawsuit that had been filed --

·9· · Q.· · · · ·Yeah.

10· · A.· · · · ·-- and the Department of Justice

11· · investigation.

12· · Q.· · · · ·Okay.· Thank you.

13· · · · · · · ·When did you first meet -- or did you

14· · ever personally meet Eric Moore?

15· · A.· · · · ·I've run into him throughout my career.

16· · Q.· · · · ·Okay.· Did you ever --

17· · A.· · · · ·I don't know when the first time was.

18· · Q.· · · · ·Did you ever work with him?

19· · A.· · · · ·I don't recall any assignment where we

20· · would have been in the same unit, no.

21· · Q.· · · · ·You were never his direct supervisor?

22· · A.· · · · ·No.

23· · Q.· · · · ·And as far as you recall, he was never

24· · your direct supervisor?

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·1· · A.· · · · ·No.

·2· · Q.· · · · ·Okay.· How about Lieutenant Brust?

·3· · A.· · · · ·What's the question?

·4· · Q.· · · · ·Do you know him?

·5· · A.· · · · ·Oh, yeah.

·6· · Q.· · · · ·Have -- do you socialize with him

·7· · outside?

·8· · A.· · · · ·No.

·9· · Q.· · · · ·Okay.· How -- when -- as best you can

10· · recall, when would you have first had met or had

11· · dealings with Lieutenant Brust?

12· · A.· · · · ·Whenever our paths would have crossed

13· · with regard to assignments.· He works a lot of

14· · special duty, so I might have run into him at a

15· · football game or something like that first. I

16· · don't know when the first time was, but I don't

17· · remember ever working in the same unit or maybe

18· · even bureau.· Maybe -- well, no, he might have

19· · been in the training -- no, I don't think so.· So

20· · I don't --

21· · Q.· · · · ·Okay.

22· · A.· · · · ·He might have been in my subdivision at

23· · some point in time, but I don't --

24· · Q.· · · · ·Never directly supervised or

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·1· · supervisee --

·2· · A.· · · · ·Not to my knowledge.

·3· · Q.· · · · ·-- or coordinating together?

·4· · A.· · · · ·Correct.

·5· · Q.· · · · ·Same thing about Sergeant Williams, do

·6· · you know him?· How do you know him?· Did you

·7· · work --

·8· · A.· · · · ·Sergeant Doug Williams?

·9· · Q.· · · · ·Doug Williams, yes.

10· · A.· · · · ·Yes, I know him.· I don't believe that

11· · I've ever worked with him in the same unit peer to

12· · peer or as supervisor.

13· · Q.· · · · ·Okay.· You don't consider him a

14· · personal friend outside of work?

15· · A.· · · · ·No.

16· · Q.· · · · ·Okay.· Did you ever have occasion to

17· · discipline him?

18· · A.· · · · ·Yes.

19· · Q.· · · · ·And did he raise any disagreements with

20· · you about the discipline?

21· · A.· · · · ·Yes.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·He took at least one of the decisions

24· · that I had to arbitration.

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·1· · Q.· · · · ·Okay.· How about Gary Cameron, how long

·2· · have you known him?

·3· · A.· · · · ·Well, I know that he worked at the

·4· · training academy when I was there.· That might

·5· · have been our first time working together.· That

·6· · would have been in 2006?· Yeah, 2006.

·7· · Q.· · · · ·Was he your supervisor there?

·8· · A.· · · · ·No.· I was his.

·9· · Q.· · · · ·Okay.· And other than your supervising

10· · him at the training academy, any other connection

11· · work wise beyond being in the same department or

12· · division?

13· · A.· · · · ·No.

14· · Q.· · · · ·Okay.· Socialize with him outside of

15· · work?

16· · A.· · · · ·No.

17· · Q.· · · · ·And how about now Chief Quinlan, when

18· · did you -- when did you first meet him?· Have you

19· · worked with him?· Do you consider him a friend?

20· · Those same questions.

21· · A.· · · · ·I might have met him prior to, but I do

22· · know that when I went to being the patrol

23· · commander zone four, so this would have been '05,

24· · I believe, but he was the third shift lieutenant

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·1· · on zone four, and so I was his direct supervisor

·2· · at that time.· And then subsequent to that, I've

·3· · pretty much known him ever since.· And, yeah, I

·4· · would consider him to be a friend.

·5· · Q.· · · · ·You ever socialize outside of work?

·6· · A.· · · · ·We've attended social events at the

·7· · same time, same place, but I haven't like gone out

·8· · with just specifically him or his wife.

·9· · Q.· · · · ·Or your families, right?

10· · A.· · · · ·Correct.· Correct.· Mostly those were

11· · law enforcement --

12· · Q.· · · · ·Related?

13· · A.· · · · ·-- events.

14· · Q.· · · · ·Yes, I understand.

15· · A.· · · · ·Yes.

16· · Q.· · · · ·And Lieutenant Echenrode?

17· · A.· · · · ·I've never worked with him in the same

18· · unit.· I don't believe that I've ever directly

19· · supervised him, but I've known him for a long

20· · time.

21· · Q.· · · · ·In the department context?

22· · A.· · · · ·Correct.· Correct.

23· · Q.· · · · ·Not a personal friend?

24· · A.· · · · ·No.· Correct.

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·1· · Q.· · · · ·And how about Jennifer Knight, same

·2· · questions?

·3· · A.· · · · ·Don't know when I first ran into her.

·4· · It's -- I don't know when.· I haven't been her

·5· · supervisor --

·6· · Q.· · · · ·Oh, you haven't?

·7· · A.· · · · ·-- directly that I recall.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·I've never worked with her in the same

10· · unit.· I'm trying to figure out when our paths

11· · would have crossed for the first time.· But she's

12· · the sister-in-law of one of my deputy chiefs that

13· · I've known for a long time.

14· · Q.· · · · ·Which one is that?

15· · A.· · · · ·Tim Becker.

16· · Q.· · · · ·Have you ever disciplined Jennifer

17· · Knight or been involved with discipline related to

18· · her work in the internal affairs bureau?

19· · A.· · · · ·Oh, I oversaw her, yeah.· I was her

20· · direct supervisor when she was in internal

21· · affairs.· I had -- I don't think that I've

22· · officially disciplined her.

23· · Q.· · · · ·Okay.· And Ken Decker, what's your

24· · knowledge about him, interactions --

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·1· · A.· · · · ·Yeah.

·2· · Q.· · · · ·-- relationship?

·3· · A.· · · · ·All work related.· I've never worked in

·4· · the same unit or supervised him directly, but I

·5· · have seen him on a number of incidents, because as

·6· · an investigator, when I have hearings, the

·7· · investigator comes into the hearings, so I've seen

·8· · him on any number of occasions.· He's also part of

·9· · the pipes and drums band, so seen him that context

10· · as well.

11· · Q.· · · · ·Are you?

12· · A.· · · · ·No.

13· · Q.· · · · ·Okay.· Is there -- I don't know what to

14· · call it, but can you unofficially discipline

15· · somebody, I guess, coach them or criticize them

16· · say, don't do that again?

17· · A.· · · · ·Can you?

18· · Q.· · · · ·Yeah.

19· · A.· · · · ·Absolutely.

20· · Q.· · · · ·Did you ever do that with Jennifer

21· · Knight?

22· · A.· · · · ·Yes.

23· · Q.· · · · ·Okay.· And what was it about?· If it

24· · happened on more than one occasion, tell me that,

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·1· · but --

·2· · A.· · · · ·One that I specifically remember was

·3· · that I believe that something that she directed

·4· · was a violation of the contract.· And that was not

·5· · providing a record of an interview that the FOP

·6· · had asked for and she decided to not list it as an

·7· · interview.· She said it was spontaneous, it wasn't

·8· · long, and it didn't amount to anything.· So I --

·9· · she said, I don't call it a record.· And I looked

10· · into it more and I called it a record.· And I

11· · said, you should have provided that.· And told her

12· · that I thought that was a violation of the

13· · contract.

14· · Q.· · · · ·Wasn't she removed from internal

15· · affairs?

16· · A.· · · · ·She was reassigned.

17· · Q.· · · · ·But wasn't it -- was it as a result of

18· · some alleged misconduct?

19· · A.· · · · ·Are you asking me why I reassigned her?

20· · Q.· · · · ·Yes.

21· · A.· · · · ·Because I'm the one that reassigns

22· · people.· That is not exactly the reasoning that I

23· · would describe as to why.· I want to have complete

24· · trust in my internal affairs commander.· And if

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·1· · you are going to, in my opinion, violate the

·2· · contract and then basically argue that I was wrong

·3· · about that, then you don't have enough -- I don't

·4· · have enough trust in you to do that.

·5· · · · · · · ·I have said for as many years as I

·6· · remember that I never knowingly violated the

·7· · contract.· And because internal affairs deals with

·8· · contractual issues on a regular basis and the FOP,

·9· · I needed to know that my internal affairs

10· · commander would follow the rules of the contract.

11· · And she didn't see or agree with me on that

12· · particular issue.· And so that was the biggest

13· · determining factor as to why she was reassigned.

14· · Q.· · · · ·Isn't one of your priorities to -- I

15· · mean, that you make clear to everybody who works

16· · for you that you will not tolerate being

17· · untruthful to you?

18· · A.· · · · ·Absolutely.

19· · Q.· · · · ·Okay.· Wasn't she -- and if -- again,

20· · I'm just asking for your best memory.· Wasn't she

21· · involved in a situation where she was overheard by

22· · witnesses making dismissive comments about a

23· · complaint from an employee, I don't believe it was

24· · a uniformed employee, who was making a complaint

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·1· · that IAB was supposed to look into and before it

·2· · was even looked into, she was making dismissive

·3· · comments about it?· Does that ring a bell with

·4· · you?

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

·6· · A.· · · · ·You would have to be more specific for

·7· · me to be able to respond appropriately.

·8· · Q.· · · · ·Do you know an officer named Falacia

·9· · Dragin?

10· · A.· · · · ·I do.

11· · Q.· · · · ·Okay.· Do you recall any kind of a

12· · complaint or events involving Knight related to

13· · her?

14· · A.· · · · ·I know that Falacia filed a grievance,

15· · I believe it was against a sergeant, I think

16· · alleging discrimination.· He had told her to do a

17· · certain task.· She refused to do it.· I believe

18· · she was disciplined, and then she filed a

19· · grievance about the discipline.· And there were --

20· · there were complaints, I believe, that Commander

21· · Knight had talked about that case as if it didn't

22· · have merit or something like that.· I asked some

23· · questions about what was heard, seen, told, all of

24· · that, and did not feel that there was enough

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·1· · information to take formal disciplinary action on

·2· · that particular thing.

·3· · Q.· · · · ·Did you counsel her about what you

·4· · found out?

·5· · A.· · · · ·I told her how imperative it was that

·6· · the IA commander appears to be impartial to all

·7· · investigations, and that she shouldn't be talking

·8· · about any cases.· The way that it was explained

·9· · was that it wasn't about, you know, what was

10· · alleged.· And I didn't have proof to sustain real

11· · misconduct, but, yes, I counseled her about the

12· · importance of the internal affairs commander

13· · being -- you know, treating things confidentially,

14· · not talking about cases and then appearing to be

15· · impartial.

16· · Q.· · · · ·What was the interview that Officer

17· · Knight, I guess was she a lieutenant then?

18· · Captain?

19· · A.· · · · ·Commander.

20· · Q.· · · · ·Commander.· What was the interview that

21· · Commander Knight claimed was not an interview?

22· · A.· · · · ·That was out of an investigation of an

23· · officer that -- let me make sure that I've got

24· · this one right.· An officer was accused of and he

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·1· · was charged three different times, so this is why

·2· · I'm -- the first time he was accused of harassing

·3· · recruits when he was an instructor.· The second

·4· · time I think that he was accused of not following

·5· · orders.· And then the third time he was accused

·6· · of -- of harassing a fellow worker and saying

·7· · inappropriate things.

·8· · · · · · · ·And so I think Commander Knight

·9· · decided, and I might have been involved in that

10· · decision to do simultaneous interviews of the

11· · officer and his girlfriend.· In one of these

12· · cases, I think the second or the third case, we

13· · believe that he had made up a false call.

14· · · · · · · ·He had been ordered to not see this

15· · particular girlfriend while he was on duty.· And I

16· · believe that he made up a false call or had his

17· · girlfriend make up a false call so that they could

18· · see each other while he was on duty.· Because he

19· · was married and he was seeing her while he was at

20· · work rather than, you know, during his time off.

21· · · · · · · ·And so I believe the decision was that

22· · they were going to do simultaneous interviews of

23· · him and the girlfriend.· And when they knocked on

24· · the girlfriend's door, they talked to her briefly,

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·1· · but she declined to come in for an interview, I

·2· · believe, and shut the door.· But it was a long

·3· · enough discussion and they recorded it, that it

·4· · was a record in my opinion.

·5· · Q.· · · · ·Okay.· Thank you.

·6· · · · · · · ·Can you tell me -- first of all, when

·7· · did -- when did you first and how did you first

·8· · become aware of the overtime allegations -- you

·9· · know, faking overtime from Officer Sorrell

10· · concerning Eric Moore?

11· · A.· · · · ·Officer Sorrell made allegations, I

12· · believe, to his chain of command that Sergeant

13· · Moore had given him permission to take a city

14· · phone or something along those lines, and Sorrell

15· · admitted to his own behavior with regard to that.

16· · He admitted to this behavior.

17· · · · · · · ·And so we started an investigation.

18· · And at some point, I think Officer Sorrell then

19· · added more allegations against Sergeant Moore.

20· · And it just kept multiplying the number of

21· · allegations that Officer Sorrell did.

22· · · · · · · ·And then as it was being investigated,

23· · I think just more information came out.· There

24· · were a lot of interviews, obviously.· And at some

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·1· · point in time, they told me that there might have

·2· · been overtime abuse as well, but I don't believe

·3· · that that was part of the initial allegations, so

·4· · sometime after that first --

·5· · Q.· · · · ·So I will represent to you that in

·6· · August of '14, some overtime allegations were

·7· · brought up by Officer Sorrell based on documents

·8· · we've gotten from the city and the IAB file.

·9· · A.· · · · ·To the chain of command?

10· · Q.· · · · ·Yeah.

11· · A.· · · · ·Okay.

12· · Q.· · · · ·Do you -- do you know or can you tell

13· · me whether you were made aware of those in August

14· · or September of 2014?

15· · A.· · · · ·Probably.

16· · Q.· · · · ·Probably?

17· · A.· · · · ·Yes.

18· · Q.· · · · ·Okay.· Can you remember who it was who

19· · told you about them?

20· · A.· · · · ·I would assume it would have been

21· · either the deputy chief over that subdivision

22· · or --

23· · Q.· · · · ·Was that Gray at the time, 2014, late

24· · 2014?

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·1· · A.· · · · ·Maybe.

·2· · Q.· · · · ·Who else might it have been?

·3· · A.· · · · ·Well, I can't remember where they were

·4· · assigned at the time.· If they were in SRB.· So it

·5· · could have been, I think maybe Deputy Chief

·6· · Quinlan might have been over --

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·-- that subdivision --

·9· · Q.· · · · ·All right.

10· · A.· · · · ·-- at the time.· So I don't know if it

11· · came from that subdivision or --

12· · Q.· · · · ·Okay.· Then do you -- at some point

13· · later, do you remember being made aware of race --

14· · a racist threat by Eric Moore?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · Q.· · · · ·Allegations of a racist threat?

17· · A.· · · · ·I remember being told that there was a

18· · possibility of a racist -- or a threat against

19· · another officer, yes.

20· · Q.· · · · ·And how did you become aware of that?

21· · A.· · · · ·I'm sure by some verbal means.

22· · Q.· · · · ·Do you remember who?

23· · A.· · · · ·No.

24· · Q.· · · · ·Okay.· Do you remember getting a letter

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·1· · from Sergeant Williams about it?

·2· · A.· · · · ·I don't know that I received a letter

·3· · directly from Sergeant Williams about it.

·4· · Q.· · · · ·Can we look at Exhibit 5?

·5· · · · · · · · · · · · ·- - - - -

·6· · · · · · ·Thereupon, Plaintiff's Exhibit 5 is marked

·7· · for purposes of identification.

·8· · · · · · · · · · · · - - - - -

·9· · Q.· · · · ·For the record, Chief, you've been

10· · handed what's been marked for identification as

11· · Plaintiff's Exhibit 5.· Would you take a moment

12· · and look at that document and tell me if you

13· · recognize it?

14· · A.· · · · ·What was the question?

15· · Q.· · · · ·Do you recognize that document?

16· · A.· · · · ·I believe I've seen it before, yes.

17· · Q.· · · · ·Okay.· Now, prior -- based on the

18· · content of the letter, does this bring to mind to

19· · you that you had already heard from some other

20· · source about the overtime issue regarding Moore?

21· · A.· · · · ·Yeah, I would say that's a good

22· · possibility.

23· · Q.· · · · ·Okay.· Did you -- what is -- where was

24· · the AV tech unit?

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·1· · A.· · · · ·It was more than anything else located

·2· · in the SRB bureau, fairly unofficial, but had been

·3· · fairly longstanding.· They were the ones that

·4· · helped out with surveillance equipment.

·5· · Q.· · · · ·Okay.· And at this point in time, if

·6· · you -- best you can remember, was Quinlan the

·7· · deputy chief for SRB?

·8· · A.· · · · ·I believe so.

·9· · Q.· · · · ·Okay.· And at this point in time, was

10· · Eric Moore, had he already left SRB and gone to

11· · narcotics?

12· · A.· · · · ·That's a good possibility.· I don't

13· · know.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·And I'm not even sure about Quinlan

16· · being the deputy chief.· I can't remember when he

17· · got promoted --

18· · Q.· · · · ·Okay.

19· · A.· · · · ·-- to deputy chief, so...

20· · Q.· · · · ·What was your reaction when you saw

21· · this letter from Sergeant Williams?

22· · A.· · · · ·That it needed to be investigated.

23· · Q.· · · · ·Okay.· Did you -- from the statement

24· · attributed to Moore, did you think it was a -- did

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·1· · it sound like a joke?

·2· · A.· · · · ·I wouldn't interpret it that way.

·3· · Q.· · · · ·And would it be acceptable under the

·4· · policies of the department to reference -- use

·5· · references like niggers and monkey?

·6· · A.· · · · ·No.

·7· · Q.· · · · ·What steps did you take after you got

·8· · that letter, if any?

·9· · A.· · · · ·I just know that it needed to be

10· · investigated by internal affairs and making sure

11· · that this was included in the file.

12· · Q.· · · · ·I mean, did you -- did you communicate

13· · with internal affairs?· Did you communicate with

14· · Quinlan or whoever it was the deputy chief?

15· · Exactly what do you do when you get a letter like

16· · this?

17· · A.· · · · ·Send it to internal affairs.

18· · Q.· · · · ·Okay.· And at the time, who would have

19· · been in charge of internal affairs in early

20· · September 2014?

21· · A.· · · · ·I don't know.

22· · Q.· · · · ·Okay.· But whoever that person was,

23· · that's what you would have done with this letter?

24· · A.· · · · ·Correct.

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·1· · Q.· · · · ·All right.

·2· · A.· · · · ·I -- I don't know if I had possession

·3· · of it or if it was on a routing sheet.· My

·4· · secretary logged all of my correspondence in and

·5· · out, but oftentimes deputy chiefs would bring a

·6· · letter in, show it to me, I would give them some

·7· · kind of verbal direction --

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·-- and they would then forward it on

10· · out.

11· · Q.· · · · ·But at the time, is it reasonable to

12· · believe that you knew there was already an IAB

13· · investigation concerning Moore's -- the

14· · allegations about Moore's false reporting work,

15· · not showing up for work, overtime, that kind of

16· · stuff?

17· · A.· · · · ·I believe it's reasonable to believe

18· · that, yes, there was already an investigation

19· · underway.· I don't know all of the allegations

20· · that were currently under investigation at that

21· · time.· But as I said before, I remember that what

22· · Officer Sorrell first told us wasn't everything

23· · that we later found out were, you know, potential

24· · allegations.

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·1· · Q.· · · · ·Okay.· Do you recall that within, oh,

·2· · about -- I'm sorry.

·3· · · · · · · ·You -- were you involved in relieving

·4· · Officer Sorrell of his duties in early

·5· · September 2014?

·6· · A.· · · · ·By "involved," what do you mean?

·7· · Q.· · · · ·Did you authorize it?

·8· · A.· · · · ·I don't recall specifically.· If I was

·9· · asked if I approved, I probably would have said

10· · yes.

11· · Q.· · · · ·Okay.· Do you sometimes initiate

12· · officers being relieved of duty?

13· · A.· · · · ·I have.

14· · Q.· · · · ·Okay.· And what determines whether you

15· · do it or not?

16· · A.· · · · ·Depends on what knowledge I have of the

17· · circumstances.· If it occurred in my presence or

18· · something else, then -- or if it was brought

19· · directly to me, then I could order it.· But the

20· · chains of command also have the authority to

21· · relieve somebody of duty without my approval.· And

22· · I just don't recall if this was one that I was

23· · consulted on prior to the actual relief of duty.

24· · I might very well have.· I do recall that when he

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·1· · came forward, he was making allegations of things

·2· · that had happened months and years prior to.

·3· · Q.· · · · ·Okay.· And how was that pertinent?

·4· · A.· · · · ·There's a statute of limitations on

·5· · some things, and, you know, we decide whether or

·6· · not we're going to investigate based on timeliness

·7· · for some allegations.· There's a directive that

·8· · actually addresses, you know, that if you're going

·9· · to make an internal allegation, that it should be

10· · done within a more prompt period of time.

11· · Q.· · · · ·Is there a time limit for a threat like

12· · as reported here to take action on?

13· · A.· · · · ·It's not specific to threats.· It's --

14· · Q.· · · · ·Well, discrimination claim like --

15· · A.· · · · ·Well, discrimination has its own EEO

16· · laws, but the directive, I believe, is more

17· · general just saying that internal investigations

18· · should be made -- or allegations should be made

19· · within a certain period of time.· I don't recall

20· · what it is.· And that there will be a decision

21· · made on whether or not it's going to be

22· · investigated.· You know, if somebody said, three

23· · years ago I didn't wear a hat, we wouldn't

24· · investigate that.

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·1· · Q.· · · · ·Sure.· Did you consider ordering

·2· · Sergeant Moore relieved of duty when you learned

·3· · about this accusation?

·4· · A.· · · · ·I don't recall a specific conversation

·5· · about it, but --

·6· · Q.· · · · ·Well, just on your own did you think

·7· · about it when you got the letter?

·8· · A.· · · · ·Not that I recall a specific -- I

·9· · don't -- I don't even know what the state of that

10· · was at that point in time.

11· · · · · · · · · · · · ·- - - - -

12· · · · · · ·Thereupon, Plaintiff's Exhibit 6 is marked

13· · for purposes of identification.

14· · · · · · · · · · · · ·- - - - -

15· · Q.· · · · ·Okay.· For the record, Chief, you've

16· · been handed what's been marked as Plaintiff's

17· · Exhibit 6.· And my first question is:· Can you --

18· · do you recognize that document?

19· · A.· · · · ·There's no indication that it came to

20· · me directly.· It was very potentially part of the

21· · investigation of Eric Moore and/or of Wes Sorrell,

22· · but I don't --

23· · Q.· · · · ·On the second page of the document,

24· · there appears to be something sent to you?

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·1· · A.· · · · ·All correspondence within the division

·2· · of police is addressed to the chief of police.

·3· · Q.· · · · ·Okay.

·4· · A.· · · · ·That never means that it was received

·5· · by me.· My correspondence log kept by my secretary

·6· · would be the best indicator whether or not it was

·7· · sent to my office directly.

·8· · Q.· · · · ·Okay.· So in order to know whether this

·9· · document that's from Echenrode to you on

10· · September 10th actually got to you, we would need

11· · to look at your log?

12· · A.· · · · ·Correct.

13· · Q.· · · · ·Okay.· It's just called the log?

14· · A.· · · · ·Correspondence log or mail log.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·Yes.

17· · Q.· · · · ·Is it maintained or is it destroyed?

18· · A.· · · · ·It's maintained in accordance with

19· · public record law.

20· · Q.· · · · ·Do you know what the requirement is for

21· · your logs?

22· · A.· · · · ·I would say it's probably at least

23· · three years.

24· · Q.· · · · ·Okay.· All right.· Thank you.

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·1· · A.· · · · ·Sure.

·2· · Q.· · · · ·I mean, if you didn't see it, that's

·3· · all I need to know.

·4· · A.· · · · ·I don't know if I --

·5· · Q.· · · · ·You just don't remember?

·6· · A.· · · · ·Correct.

·7· · Q.· · · · ·Okay.· I will represent to you that

·8· · Sergeant Williams was later interviewed in October

·9· · of 2014 as part of an internal affairs

10· · investigation of Eric Moore.· Did you ever read

11· · that interview or the interview summary as best

12· · you recall?

13· · A.· · · · ·I don't want to make an assumption. I

14· · would -- I would assume that I did, but I --

15· · that's an assumption.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·I can't say with certainty whether I

18· · did or not.

19· · Q.· · · · ·Well, maybe this will help.· Do you

20· · recall during the interview, Sergeant Williams

21· · talking about over his career, he's experienced,

22· · you know, racial slurs and racist comments being

23· · made at the division, and that he wouldn't always

24· · report them, you know, you just kind of get used

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·1· · to it?

·2· · A.· · · · ·I do remember that.

·3· · Q.· · · · ·Okay.· What was your reaction when you

·4· · read that he said that?

·5· · A.· · · · ·I was disappointed that he had

·6· · experienced some of the same things, differently,

·7· · that I had, you know, that -- that feeling of

·8· · being excluded, the feeling of being treated

·9· · differently based on his race, rather than my

10· · gender.· I don't -- I don't think a lot of people

11· · understand what that feels like.· And so when I

12· · hear that other people have experienced it, it

13· · makes me disappointed and sad that they've had

14· · that occur to them.

15· · · · · · · ·I know that -- I believe that things

16· · have gotten better with regard to at least

17· · explicit messages like that.· I know it did for

18· · me.· I just don't know if it was because I got

19· · promoted and people wouldn't say those kinds of

20· · things around me.· But it's just discouraging to

21· · know that other people have been the subject of

22· · derogatory comments based on, as you said before,

23· · their difference, you know, whether it's race,

24· · gender, sexual orientation, religion, anything.

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·1· · It just has no place in the workplace in my

·2· · opinion.

·3· · Q.· · · · ·I noticed you said you think it's

·4· · getting better.· I mean, have you got -- have you

·5· · done any study yourself or had somebody do it to

·6· · see whether it's really better, and how would you

·7· · do -- how would you determine that?

·8· · A.· · · · ·I listen to people.· I have meetings

·9· · with a lot of people, and I had a lot of meetings

10· · with a lot of employees.· And I specifically had a

11· · meeting with a significant sized group of

12· · African-Americans, probably in 2015, and asked

13· · what their experience was.· James Fuqua was

14· · somebody that helped organize the meeting for me.

15· · It was after I prepared a training program that I

16· · thought was relevant to what was going on with

17· · police-involved shootings at the time.· And I

18· · wanted to hear what that focus group thought of

19· · the training, whether it was far enough.

20· · · · · · · ·I also sought feedback after we did

21· · implicit bias training from African-Americans and

22· · said, you know, did we -- how did we do?· Because

23· · we did the implicit bias training.· I thought it

24· · was decent training, but I didn't know if it had

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·1· · actually, you know, accomplished everything that I

·2· · wanted it to.· So any number of times I sought

·3· · feedback from employees within the division of

·4· · police on how their experience was and how they

·5· · felt they were being treated.· And so based on the

·6· · feedback that I got, based on, you know, the types

·7· · of complaints that we have received, I believe

·8· · that explicit signs of racism or discrimination

·9· · had at least dropped during my career as compared

10· · to where it was when I began.

11· · Q.· · · · ·Did you go talk to Sergeant Williams

12· · after you got that letter?

13· · A.· · · · ·I don't believe that I did, no.

14· · Q.· · · · ·How about after you read his interview

15· · where he was talking about how he stopped

16· · complaining about it or didn't report it?

17· · A.· · · · ·I don't believe that I had a

18· · conversation with him about it, no.

19· · Q.· · · · ·Okay.· Did you -- and I -- I think you

20· · sort of said this, but I want to focus on it.· You

21· · don't -- you don't honestly expect that line

22· · officers are going to feel totally open to talk to

23· · the chief of police about every aspect of their

24· · work, would you?

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·1· · A.· · · · ·I believe that some will tell me what

·2· · they're thinking and some won't.

·3· · Q.· · · · ·Okay.· And some people don't want to

·4· · bring up discrimination and some are willing to,

·5· · right?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·Their perception of allegation -- of

·8· · discrimination, some will and some won't probably,

·9· · yes.

10· · Q.· · · · ·When -- did you -- were you concerned

11· · at all -- well, I guess I don't -- did you learn

12· · at some point that Sorrell had been relieved of

13· · duty?

14· · A.· · · · ·Oh, I -- yeah, I was aware of that.

15· · Q.· · · · ·Okay.· And you approved it?

16· · A.· · · · ·Like I said, I don't know if I, you

17· · know, weighed in on approving it or not, but I was

18· · not opposed to it at all, that's for sure. I

19· · don't know if I said you have my approval or I

20· · agree or what, but it was -- based on what he had

21· · admitted to, I believe it was the appropriate

22· · thing, because we, at that point in time, thought

23· · it was criminal behavior.

24· · Q.· · · · ·Okay.· I just was going to ask you was

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·1· · it based on him admitting --

·2· · A.· · · · ·Yes.

·3· · Q.· · · · ·-- that he kept the phone --

·4· · A.· · · · ·Correct.

·5· · Q.· · · · ·-- or whatever it was he did?

·6· · A.· · · · ·And --

·7· · Q.· · · · ·Okay.· All right.· Now, did you -- you

·8· · were being informed, were you not, about the

·9· · progress of the Moore investigation from time to

10· · time after October, you know, into November, et

11· · cetera, because it went on for a long time, right?

12· · A.· · · · ·Yes.· I was being informed and I was

13· · also asking about, you know, the investigation.

14· · Q.· · · · ·So would it be -- wasn't it the case

15· · that by December of 2014, this is, you know, going

16· · on three months after the initial reports, you had

17· · been informed that Sergeant Moore's racist

18· · comments and the racist threat had been confirmed

19· · during interviews by Sergeant Decker?

20· · A.· · · · ·What's the question?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · · · · · · ·MR. GITTES:· Want to read that back,

23· · please?

24· · · · · · · ·(The record is read as requested.)

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·1· · A.· · · · ·I would have to answer no to that,

·2· · because, to my knowledge, the threats have never

·3· · been confirmed.· And the other part of that is is

·4· · I don't know the timing of which I found out that

·5· · there was a likelihood that the derogatory comment

·6· · was going to be sustained.

·7· · Q.· · · · ·Well, don't you know as you sit here

·8· · today that besides Officer Sorrell, another

·9· · officer confirmed that Moore made a threat of

10· · violence against Eric Moore and Sergeant Williams?

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

12· · Q.· · · · ·I'm sorry, Eric Cornett, yeah, sorry.

13· · · · · · · ·MR. COGLIANESE:· Objection.· Fred, why

14· · don't you repeat the question --

15· · · · · · · ·MR. GITTES:· I'll repeat the question.

16· · · · · · · ·MR. COGLIANESE:· -- because we've got a

17· · bunch of names.

18· · Q.· · · · ·Sitting here today, don't you know that

19· · Sergeant Decker interviewed Sergeant Watkins that

20· · confirmed that Sergeant Moore had made a threat of

21· · violence toward Sergeant Williams and Eric

22· · Cornett?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·I don't recall the names of people or

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·1· · what you say is confirmed, but I believe that that

·2· · allegation was not sustained.

·3· · Q.· · · · ·I understand it wasn't sustained,

·4· · that's why we're talking to you about it.

·5· · A.· · · · ·Okay.

·6· · Q.· · · · ·Did you look at the evidence when you

·7· · accepted a report that said it wasn't sustained?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·You mean this particular one?

10· · Q.· · · · ·This particular one.

11· · A.· · · · ·I would say that I probably did.

12· · Q.· · · · ·Okay.· So then my question to you is:

13· · On what basis would you not sustain that Sergeant

14· · Moore didn't make or there was a lack of evidence

15· · that Moore made the threat to take the two

16· · monkeys -- basically a threat against two black

17· · officers and do some violence to them out back?

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · Q.· · · · ·When you had -- you had an Officer

20· · Sorrell confirm such a statement and then you had

21· · a second officer, Watkins, who confirmed a -- not

22· · exactly the identical words, but confirmed the

23· · threat to do violence to Cornett.· Why is that not

24· · enough evidence to sustain it?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·Without being able to point to the

·3· · actual testimony and review that, I can't respond

·4· · to that.· As you pointed out, it wasn't the same

·5· · exact confirmation that Officer Watkins provided.

·6· · And I don't recall what all of the other reviewers

·7· · had to say about their reasoning for not

·8· · sustaining that particular allegation.· Very

·9· · rarely is it left to me to decide whether or not

10· · something is sustained or not.· Most of the time,

11· · it is for me to decide whether or not something

12· · that is sustained is going to result in a written

13· · reprimand or a departmental charges.· So that's

14· · the focus of my review most of the time.

15· · · · · · · ·Certainly in this one, you know,

16· · threats against officers are, in my opinion, very

17· · serious, and we have to, you know, decide whether

18· · or not we think that they are something that is

19· · criminal, administrative, whether it requires

20· · protection or whether it's not sustained.· And so

21· · without the evidence before me, I can't explain to

22· · you what my reasoning is, because I don't recall

23· · all the specific interviews and justifications.

24· · Q.· · · · ·If Officer Watkins confirmed that

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·1· · Sergeant Moore had made violent -- a violent

·2· · threat towards Eric Cornett using racist language,

·3· · along with Sorrell's report, which you do remember

·4· · that, don't you?· It's reflected in the letter you

·5· · just read.

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·I remember reading about it, hearing

·8· · about it.

·9· · Q.· · · · ·Okay.

10· · A.· · · · ·Yes.

11· · Q.· · · · ·Do you remember also that there was

12· · confirmation from several other officers that

13· · Moore routinely made racial slurs, used the N word

14· · and talked about taking people out back and

15· · fighting with them?

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · Q.· · · · ·Do you remember that?

18· · A.· · · · ·I believe that there were other

19· · interviews that alluded to behavior of Sergeant

20· · Moore's that was derogatory.· And then there were

21· · others that said they never heard such a thing,

22· · so -- and that included some African-Americans

23· · that testified that he had always treated them

24· · well or, you know, that they hadn't heard such

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·1· · things.

·2· · · · · · · ·So, yes, I remember that there were

·3· · other statements that didn't necessarily

·4· · corroborate this particular threat, but other --

·5· · other people that said that Sergeant Moore had

·6· · some things, but I don't believe that they were

·7· · specific enough, dates, times, places for us to be

·8· · able to pin him down.

·9· · Q.· · · · ·So let me make sure I understand.

10· · You -- you did have the authority to issue more

11· · severe punishment, right?

12· · A.· · · · ·Than what?

13· · Q.· · · · ·Than -- well, first of all, you could

14· · reverse the not sustained and sustained it?

15· · A.· · · · ·I could have.

16· · Q.· · · · ·Okay.· And you knew there were both

17· · white and black officers who told Decker that they

18· · had heard him use racist terms, told Decker that

19· · he -- they believed he had racist attitudes based

20· · on his comments.· One of them said with respect to

21· · the threat, he didn't deny it when he asked Moore

22· · about it.· You also had several officers, again,

23· · black and white, who confirmed specific examples

24· · of him threatening to take people out and fight

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·1· · them or beat them up?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · Q.· · · · ·And you're telling -- and I want to

·4· · make sure I understand.· You did not feel that was

·5· · enough evidence to corroborate either that Moore

·6· · made either version of the direct threat to

·7· · Cornett or Williams together -- despite Sorrell

·8· · and Watkins both supporting that as well?

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·The decision of that particular

11· · allegation was not sustained, and so I have to say

12· · that, yes, I wasn't convinced by the evidence,

13· · whatever that is, and you're giving testimony as

14· · to what some of that evidence was that I may or

15· · may not recall parts of all or not.· But it was --

16· · it was not my decision to override the

17· · recommendation of not sustained, correct.

18· · Q.· · · · ·And if I understood your answer was

19· · that you -- part of the reason you didn't take --

20· · or you accepted the not sustained charge is that

21· · some other officers, white and black, according to

22· · your recollection, said they hadn't personally

23· · heard Moore make such racist statements or

24· · threats; is that right?

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

·2· · A.· · · · ·I don't believe that I testified that

·3· · that was relevant to the decision to over -- to

·4· · not override the not sustained.· Sounds like a

·5· · double negative.· The allegation of making a

·6· · derogatory comment was sustained.· The allegation

·7· · of making that particular threat was not

·8· · sustained.· And it was a particular threat of a

·9· · particular nature at a particular time.

10· · · · · · · ·So the fact that other people might

11· · have heard derogatory comments is significant, but

12· · it's not necessarily overriding whether or not

13· · this particular comment was made as described in

14· · the allegation.· And that's the -- that's the

15· · situation that we're in where we have a specific

16· · allegation about a specific comment at a specific

17· · time.· And you might believe that, you know,

18· · there's circumstantial evidence, but you might not

19· · be able to prove that there was enough evidence to

20· · sustain an allegation.

21· · Q.· · · · ·So just to make sure I understand.

22· · Because two witnesses reported about the same

23· · threat occurring at the same time, had slightly

24· · different versions of the wording, and Sergeant

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·1· · Moore denied making that threat, you felt

·2· · obligated to accept the denial?

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

·4· · A.· · · · ·I didn't say it that way.· I said that

·5· · based on all of --

·6· · Q.· · · · ·I'm saying it that way.· Isn't that

·7· · true?

·8· · · · · · · ·MR. COGLIANESE:· Fred, let her finish.

·9· · · · · · · ·MR. GITTES:· I want to make sure she

10· · understands my question.

11· · · · · · · ·THE WITNESS:· I said --

12· · · · · · · ·MR. GITTES:· Want to read it back to

13· · her?

14· · · · · · · ·MR. COGLIANESE:· Chief, finish your

15· · answer.

16· · · · · · · ·MR. GITTES:· She can finish it when she

17· · hears the question again.

18· · · · · · · ·MR. COGLIANESE:· It depends on which

19· · question you're asking her, because you cut her

20· · off twice on questions here.

21· · · · · · · ·MR. GITTES:· I hadn't finished my

22· · question.· She can't answer a question until it's

23· · finished.· So I'm giving her a chance to hear the

24· · question I asked.

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·1· · · · · · · ·MR. COGLIANESE:· And, Chief, by all

·2· · means, give a full answer.

·3· · · · · · · ·(The record is read as requested.)

·4· · · · · · · ·MR. COGLIANESE:· Feel free to respond.

·5· · Q.· · · · ·Do you not understand the question?

·6· · · · · · · ·MR. COGLIANESE:· Feel free to respond.

·7· · Q.· · · · ·Do you understand what I'm asking you?

·8· · A.· · · · ·You -- you suggested that I did not

·9· · feel obligated.· That is not the terms that I

10· · would use.· I said, based on the information that

11· · I reviewed at that time, the evidence that had

12· · been submitted, that I did not override the

13· · decision.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·And part of that is that the two

16· · officers that said something happened and part of

17· · it is all of the other information.· So it's based

18· · on all of the evidence, not just a particular

19· · subset.

20· · Q.· · · · ·Okay.· What other information did you

21· · have regarding that specific threat, other than

22· · the two officers and Sergeant Moore's statements

23· · about it?

24· · A.· · · · ·Without re-reading the entire

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·1· · investigation and trying to remember what I was

·2· · making a decision on four or five years ago, I

·3· · can't tell you.

·4· · Q.· · · · ·Well, I'll represent to you that no

·5· · other witness claimed to have heard the threat.

·6· · That the only people who specifically represented

·7· · they had heard it were Sorrell and Watkins,

·8· · although their wording was slightly different, and

·9· · Sergeant Moore denied it.· I'm unaware, I will

10· · represent to you, and we have extensively reviewed

11· · the IA packet, there's no documentation of a

12· · threat, unlike other things that occurred later

13· · that we're going to talk about.· It's just those

14· · three who claimed one way or another to have

15· · knowledge about whether it was or wasn't said.

16· · · · · · · ·So if you have some thought of any kind

17· · of other evidence that maybe we're not aware of, I

18· · would sure like to hear it.

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·I've testified that it's based on the

21· · information that I had before me and --

22· · Q.· · · · ·Okay.

23· · A.· · · · ·So --

24· · Q.· · · · ·I'm representing to you had that before

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·1· · you.

·2· · A.· · · · ·I already told you that I also had

·3· · people within the chain of command that had

·4· · weighed in on that particular allegation as well.

·5· · Q.· · · · ·Did someone in the chain of command

·6· · claim to be there when the statement was allegedly

·7· · made?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·Not to my knowledge.

10· · Q.· · · · ·They would have been relying on the

11· · same IAB investigation you were, wouldn't they?

12· · A.· · · · ·Yes.

13· · Q.· · · · ·You also knew, independent of that

14· · specific threat, that there was a sustainable

15· · conclusion that Sergeant Moore made racist

16· · comments on multiple occasions, not just that

17· · single occasion, right?

18· · A.· · · · ·Not sustainable, no.

19· · Q.· · · · ·No.· They found it was sustainable?

20· · A.· · · · ·There was one allegation of a racist

21· · comment, a derogatory comment.· There were other

22· · people that had been interviewed that alleged

23· · that, but they didn't allege it with dates, times,

24· · places, you know, participants, all of those

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·1· · things.· So I wouldn't describe those as

·2· · sustainable.· The one sustainable allegation we

·3· · had was in that investigation.

·4· · Q.· · · · ·So, in other words, you disregarded the

·5· · interviews by Sergeant Decker where a number of

·6· · other officers, black and white, confirmed that

·7· · they had heard Sergeant Moore saying things --

·8· · using the N word, talking about blacks being --

·9· · referring to them as monkeys, referring to blacks

10· · as being lazy and also talking about taking

11· · officers out and fighting them.· You just

12· · disregarded that, because those people hadn't made

13· · a specific complaint to the chain of command or to

14· · IAB; is that right?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·You're characterizing it as me

17· · disregarding that information, and I would not.

18· · Q.· · · · ·That's right, I am.

19· · A.· · · · ·I would not.

20· · · · · · · ·MR. COGLIANESE:· Let her finish.

21· · Q.· · · · ·Well, how did you weigh that evidence?

22· · · · · · · ·MR. COGLIANESE:· Fred, please let her

23· · finish.

24· · · · · · · ·MR. GITTES:· She was finished.

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·1· · · · · · · ·MR. COGLIANESE:· No, you cut her off

·2· · and she was finishing.

·3· · Q.· · · · ·Chief, let me make it clear so I don't

·4· · have to have continued interruptions by counsel

·5· · trying to direct your testimony.· If you feel I'm

·6· · cutting you off, just say it, okay?· He doesn't

·7· · have to say it.· You're answering the question.

·8· · Please tell me if you -- if you remember something

·9· · that you don't, interrupt me.· If you feel I'm

10· · interrupting you, please tell me.· I don't mean to

11· · interrupt you.· I really don't.· I really want to

12· · hear what you have to say.

13· · · · · · · ·MR. COGLIANESE:· And, Mr. Gittes, when

14· · you talk over her, I'm going to tell you you're

15· · interrupting her, and I'm going to tell her to

16· · finish, which is what you keep doing.· So, Chief,

17· · please finish.

18· · Q.· · · · ·Are we clear that you can tell me if

19· · you feel I'm interrupting you?

20· · A.· · · · ·Sure.

21· · Q.· · · · ·And will you do that?

22· · A.· · · · ·I will.

23· · Q.· · · · ·Okay.· Now, you --

24· · · · · · · ·MR. COGLIANESE:· And, Chief, if you

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·1· · haven't finished your previous answer, please

·2· · finish it.

·3· · Q.· · · · ·Were you finished?

·4· · A.· · · · ·No.

·5· · Q.· · · · ·Okay.· What else did you want to say?

·6· · A.· · · · ·You -- you characterized my review as

·7· · disregarding information, and I regarded all of

·8· · the information.

·9· · Q.· · · · ·Okay.· How did you weigh with respect

10· · to the accusation about the violent threat

11· · confirmed by Watkins and Sorrell, how did you

12· · weigh the other testimony about racist comments,

13· · comments about fighting, stupidity of black

14· · officers, use of the N word, et cetera, how did

15· · you weigh that with respect to whether or not the

16· · charge about the specific threat to Cornett and

17· · Williams should be sustained?· Explain your

18· · thinking.

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

20· · A.· · · · ·Well, first of all, that was years ago,

21· · and I can't recall specific balancing of

22· · percentages or anything, you're talking about

23· · weighing and all that.· I can't remember what I

24· · did years ago in that regard.· It boils down to I

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·1· · wasn't convinced that I could prove that charge.

·2· · Q.· · · · ·Okay.· Now, you also said that with

·3· · respect to the other charge about using the

·4· · inappropriate racist language, you only had one

·5· · incident, is that what I understood you to say a

·6· · little bit ago?

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

·8· · A.· · · · ·There was an allegation made in this

·9· · particular investigation that was investigated and

10· · prepared about this remark being made.· That was

11· · sustained.· Other people's testimony in their

12· · interviews were not written up as other

13· · allegations.

14· · Q.· · · · ·And is it -- was it your policy while

15· · you're the chief that when new incidents of

16· · misconduct, including racist misconduct, racist

17· · language that clearly violates the department's

18· · policies and the law come up, that you are not

19· · allowed to consider them and IAB is not allowed to

20· · follow up on them?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · Q.· · · · ·Is that your testimony?

23· · A.· · · · ·That is not my policy.

24· · Q.· · · · ·Okay.· Well, then explain to me why the

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·1· · other officers who were reporting experiences with

·2· · Moore, both to them directly, but also him

·3· · discussing this kind of stuff with them regarding

·4· · black officers wasn't part of the charge that was

·5· · made?

·6· · A.· · · · ·That wasn't my decision.· That was the

·7· · decision made by the IAB investigator and that

·8· · chain of command to decide what the allegations

·9· · are.

10· · Q.· · · · ·Okay.

11· · A.· · · · ·And if they felt that it was an

12· · allegation that needed to be further investigated,

13· · they should have.

14· · Q.· · · · ·You had the -- you're the chief at the

15· · time, right?

16· · A.· · · · ·Yes.

17· · Q.· · · · ·Have you ever opened -- ordered them to

18· · reopen or expand an investigation?

19· · A.· · · · ·I don't know about reopening an

20· · investigation, but I've certainly given them some

21· · direction on what I thought were appropriate

22· · allegations.

23· · Q.· · · · ·Well, in cases where they were added to

24· · the investigation?

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·1· · A.· · · · ·Yeah.

·2· · Q.· · · · ·Okay.· You didn't do that in this case?

·3· · A.· · · · ·No.· I -- I think that I did with

·4· · regard to some of the comments that were brought

·5· · up.· I believe that I talked to them about, you

·6· · know, Sorrell.· And to my recollection, he made

·7· · this allegation about the phone, and then he

·8· · didn't feel like he was getting enough attention

·9· · and so he made more allegations and he made more

10· · allegations.· And the allegations kept coming in.

11· · And so I believe that I did at least approve, if

12· · not direct, adding other allegations.

13· · Q.· · · · ·So, Chief, just to save time for the

14· · rest of the afternoon, I'm only interested in the

15· · discrimination allegations.· I have no -- I may

16· · touch on them, but the focus of this case, you

17· · know, is about your handling and the department's

18· · handling of the discrimination issues related to

19· · Sergeant Shaw, okay?

20· · A.· · · · ·Okay.

21· · Q.· · · · ·You did not order any expansion of the

22· · investigation or follow up regarding these other

23· · officers who reported other racist comments by

24· · Sergeant Moore, did you?

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·1· · A.· · · · ·Not to my recollection, no.

·2· · Q.· · · · ·But you did order further follow up on

·3· · things about whether cell phones were taken and

·4· · whether overtime was done, but not on the racist

·5· · comments, right?

·6· · A.· · · · ·I don't recall the exact, you know,

·7· · process and chronology, but I might very well have

·8· · made sure that that allegation was investigated.

·9· · Q.· · · · ·I'm not -- okay.· I'm sorry, let's -- I

10· · don't want to have a terminology problem here.

11· · I'm not talking about that allegation.· I'm

12· · talking about follow-up allegations, additional

13· · specific allegations about these other comments,

14· · racist comments that other officers were reporting

15· · about Moore during Decker's investigation of the

16· · particular racist comment that started this.· You

17· · did not instruct IAB to follow up on them and

18· · prepare new specifications or charges, did you?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·The lack -- the lack thereof certainly

21· · indicates that I did not give such an order.

22· · Q.· · · · ·In contrast with -- regarding the money

23· · issues, what I call the money issues, theft of

24· · time, theft of property and so forth, you did make

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·1· · instructions to expand certain things, correct?

·2· · A.· · · · ·I don't know what my role was in

·3· · initiating the allegations.· I just know that

·4· · Moore came in and we decided that there was going

·5· · to be more to investigate.

·6· · Q.· · · · ·Okay.· "We" includes you?· When you use

·7· · the word "we"?

·8· · A.· · · · ·I don't investigate things, I order

·9· · people to do it or --

10· · Q.· · · · ·So "we" --

11· · A.· · · · ·-- approve of that.

12· · Q.· · · · ·-- including you approving of it?

13· · · · · · · ·MR. COGLIANESE:· Okay.· You cut her off

14· · again.· Please finish your answer, Chief.

15· · Q.· · · · ·Did you get her answer?· Okay.· Thanks.

16· · · · · · · ·Do you want to add anything else?

17· · A.· · · · ·No.

18· · Q.· · · · ·Now, at some point during the

19· · investigation, do you recall becoming aware of

20· · information about Sergeant Moore ordering a

21· · lightning link?

22· · A.· · · · ·I -- I don't recall that until actually

23· · the OCRC thing when -- and Pam Gordon started

24· · talking about it.· It might have been something

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·1· · that I reviewed when I reviewed the investigation

·2· · or the summary.· But it did not -- it did not -- I

·3· · don't recall any such attention that I had prior

·4· · to it becoming an issue in the OCRC thing.· And

·5· · that was well after the investigation was closed.

·6· · Q.· · · · ·Well, let me see if I can -- let me

·7· · just ask you questions about it.· Do you recall

·8· · becoming aware during the course of this

·9· · investigation that -- that Officer Shaw had a

10· · second interview with Decker?· He was interviewed

11· · twice.· Do you remember that?

12· · A.· · · · ·Not specifically.

13· · Q.· · · · ·Okay.· Do you remember learning during

14· · the investigation that from the -- from Sergeant

15· · Decker or from reading the material, that someone

16· · had made Karl Shaw aware of the fact that the --

17· · what is it?· What's the agency?· Yeah, ATF had

18· · been investigating or checking Sergeant Moore

19· · because it was discovered he'd ordered a lightning

20· · link.· Does that ring a bell with you?

21· · A.· · · · ·Well, I'm aware of that now.

22· · Q.· · · · ·No, I'm trying to put --

23· · A.· · · · ·I don't know when I first became aware

24· · of it.

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·1· · Q.· · · · ·Okay.· Do you recall that Sergeant

·2· · Decker, in the report, didn't -- determined, I

·3· · believe with the advice of Jennifer Knight, that

·4· · there would be no further inquiries about the

·5· · lightning link because ATF had not filed charges?

·6· · · · · · · ·MR. COGLIANESE:· And I'm just going to

·7· · object because you said didn't determine, and I

·8· · just wanted to make sure that you both are

·9· · answering the question that he asked.

10· · · · · · · ·MR. GITTES:· Okay.· Thank you.

11· · · · · · · ·MR. COGLIANESE:· So...

12· · · · · · · ·MR. GITTES:· Let me -- let me make sure

13· · I ask the question correctly.

14· · Q.· · · · ·Do you recall becoming aware that

15· · Jennifer Knight, in consultation with Sergeant

16· · Decker, decided not to look into the lightning

17· · link matter further, because ATF had not filed

18· · criminal charges?

19· · A.· · · · ·I am aware of that.· I don't know when

20· · I became aware of that.

21· · Q.· · · · ·Okay.

22· · A.· · · · ·It might very well have been at the

23· · conclusion of the investigation and when it was

24· · sent to me for review, or it could have been even

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·1· · later when it was brought up at OCRC.

·2· · Q.· · · · ·Is it -- was it your policy, I should

·3· · ask, while you were the chief that if another law

·4· · enforcement agency did not prosecute a potentially

·5· · criminal matter regarding one of your officers,

·6· · that IAB could not look into it further?

·7· · A.· · · · ·Could you state the question again?

·8· · Q.· · · · ·Sure.· Was it a policy while you were

·9· · the chief that if another law enforcement agency,

10· · federal or state, decided not to prosecute one of

11· · your officers about a potential criminal issue,

12· · that meant IAB should not look into it further?

13· · A.· · · · ·I had no such policy.

14· · Q.· · · · ·Okay.· And I believe there have been

15· · occasions during your tenure as chief when some

16· · other law enforcement agency, for whatever reason,

17· · decided not to do a prosecution, but the CPD and

18· · the county prosecutors ended up doing one.· Hasn't

19· · that happened?

20· · A.· · · · ·The second part of that question, I'm

21· · not sure I'm going to be able to answer.

22· · · · · · · ·There are cases in both regards where

23· · other agencies have criminally investigated our

24· · personnel where internal affairs has been ordered

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·1· · or does follow up with an administrative

·2· · investigation.· And there have been cases where a

·3· · criminal investigation has ensued from another

·4· · agency and we don't investigate.· There have been

·5· · both --

·6· · Q.· · · · ·Directions?

·7· · A.· · · · ·-- scenarios.

·8· · Q.· · · · ·But there's no automatic rule that you

·9· · don't touch something --

10· · A.· · · · ·Correct.

11· · Q.· · · · ·-- if another --

12· · A.· · · · ·Correct.

13· · Q.· · · · ·-- law enforcement agency doesn't

14· · pursue it?

15· · A.· · · · ·Correct.

16· · · · · · · ·MR. GITTES:· Can we -- doesn't have to

17· · be long, but I need to eat lunch.

18· · · · · · · ·THE WITNESS:· Okay.

19· · · · · · · ·MR. COGLIANESE:· That's fine.

20· · · · · · · ·MR. GITTES:· Unless we can -- I can't

21· · remember, is there food real close?

22· · · · · · · ·MR. COGLIANESE:· Why don't we go off

23· · the record.

24· · · · · · · ·MR. GITTES:· Yeah.· Yeah.· Sure.· Sure.

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·1· · · · · · · ·THE VIDEOGRAPHER:· We're off the

·2· · record.· The time is 12:47.

·3· · · · · · · · · · · · ·- - - - -

·4· · · · · · ·Thereupon, a luncheon recess is taken

·5· · · · · · ·at 12:47 p.m.

·6· · · · · · · · · · · · ·- - - - -

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·1· · · · · · · · · · · · Monday Afternoon Session

·2· · · · · · · · · · · · May 20, 2019, 1:27 p.m.

·3· · · · · · · · · · · · ·- - - - -

·4· · · · · · · ·THE VIDEOGRAPHER:· This marks the

·5· · beginning of media number three.· We're back on

·6· · the record.· The time is 1:27.

·7· · Q.· · · · ·Chief, let's start where I think I left

·8· · off sort of.· I was asking about a lightning link

·9· · and, you know, other law informant agencies.· But

10· · I forgot to ask you:· Can you tell us for the

11· · record what a lightning link is?

12· · A.· · · · ·I don't know for sure.· I've been told

13· · that it has something to do with like a bump

14· · stock, I believe, making a weapon fire faster.

15· · Q.· · · · ·Okay.· And are you aware or have you

16· · been aware that it's illegal?

17· · A.· · · · ·Through this investigation.· That's the

18· · only place I've ever heard of it.

19· · Q.· · · · ·Okay.· Switching totally now.

20· · A.· · · · ·Okay.

21· · Q.· · · · ·I want to talk to you about SRB.· And I

22· · just -- just -- I want to make it clear to you,

23· · we're going to be going back and forth.· I'm going

24· · to come back to some things we've touched on, but

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·1· · in light of subsequent things I'm going to ask you

·2· · about to see how that might affect or change what

·3· · you remember, okay?

·4· · A.· · · · ·Sure.

·5· · Q.· · · · ·Because I realize I said in the

·6· · beginning, and I guess I didn't make this clear, I

·7· · know no one's memory's perfect, so you understand

·8· · you can interrupt me at any time, I don't remember

·9· · if I said this or not in the beginning.· If you

10· · remember something you forgot, interrupt me and

11· · say, oh, by the way.

12· · A.· · · · ·I do.

13· · Q.· · · · ·Okay.· At some point, I believe it was

14· · in the fall of 2014, but I -- it's not clear to us

15· · exactly when, there started to be some discussion

16· · about either reorganizing or disbanding portions

17· · of SRB.· Do you recall at some point making a

18· · decision about modifying or reorganizing SRB?

19· · A.· · · · ·I do.

20· · Q.· · · · ·Can you tell me about when that started

21· · being discussed?

22· · A.· · · · ·I think it's always been on the

23· · discussion table.· SRB was created in 1999 as its

24· · own basically community policing bureau.· And

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·1· · there have been a lot of people that have

·2· · discussed over the years whether it needed to be

·3· · its own entity or not.· And so previous chiefs and

·4· · a lot of other command staff personnel have talked

·5· · about the necessity of having that bureau.· And if

·6· · there is going to be such a bureau, what should be

·7· · in it.

·8· · · · · · · ·I made adjustments to the entire

·9· · organizational chart after I became chief and

10· · created some bureaus and moved entities within

11· · bureaus around.· And that occurred for my whole

12· · seven years as chief, making changes to the

13· · organizational chart.

14· · · · · · · ·And then in addition to that, I had set

15· · up a procedure for us to -- for me to make

16· · decisions three times a year on staffing requests.

17· · I told everybody if they wanted to have new

18· · assignments created, that they should send in

19· · requests only three times a year.· Previous chiefs

20· · had allowed people to walk into the office and

21· · say, hey, I need a couple more officers here, and

22· · the chief would consider it then.· But in my

23· · opinion, I needed to have the big picture, look at

24· · it on a more infrequent basis and then look at the

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·1· · whole and decide.

·2· · · · · · · ·So I would get requests to create

·3· · positions or expand units throughout my tenure as

·4· · chief.· And I had to make decisions about whether

·5· · or not to approve such requests.· Typically I had

·6· · told them I would make them in February, June and

·7· · October.· And so I would like collect these

·8· · requests and then I would review them and we would

·9· · discuss them at executive staff, if not command

10· · staff, and decide what to do about those.

11· · · · · · · ·I believe it was during 2014 that I had

12· · gotten a lot of requests to create a number of

13· · assignments and positions that either didn't exist

14· · or to expand them, and the number was quite high.

15· · And I wanted to do a lot of those, but the

16· · division was not hiring to add at that point in

17· · time, we were just maintaining, if not sinking

18· · lower in our total sworn ranks.· And so there

19· · weren't any new people, you know, or new numbers

20· · of people, it was just moving some here to fill

21· · this hole over here, but you're basically just

22· · taking -- you know, robbing Peter to pay Paul

23· · basically.

24· · · · · · · ·And so I wanted to create some of those

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·1· · new requests or approve those, and I knew that I

·2· · had to find someplace else that I could take away

·3· · from.· So that was part of my consideration with

·4· · regard to looking at the organization and

·5· · determining where I could fill some holes and do

·6· · without.

·7· · · · · · · ·Because there had been advocates to

·8· · disband either all of SRB or parts of SRB, I

·9· · started looking at whether or not those were still

10· · vital.· SRB enforcement section was one of those

11· · areas that the original idea was to supplement the

12· · community policing idea of some uniformed

13· · officers, community liaison officers, and do some

14· · of the detective work, if you will, that needed to

15· · be done and street level work that needed to be

16· · done, but it had morphed even prior to me becoming

17· · a chief.

18· · · · · · · ·There were a lot of successes that were

19· · related to SRB enforcement, but there were also a

20· · lot concerns related to SRB enforcement.· And some

21· · of those concerns involved the use of overtime.

22· · We did surveillance on a fairly regular basis, and

23· · sometimes we would use SRB enforcement to do that

24· · and sometimes we would use SWAT or others to do

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·1· · it.· And somehow the other units managed to do it

·2· · without a lot of overtime, but SRB enforcement's

·3· · overtime was always quite significant.· And I made

·4· · a pledge basically to Mayor Coleman when I got

·5· · promoted that I was going to maintain our overtime

·6· · budget, and I did up until the very last year when

·7· · the circumstances didn't allow that.· But I was on

·8· · budget with overtime.· And to do that, you have to

·9· · make some hard decisions.

10· · · · · · · ·And so for a lot of different reasons,

11· · I decided that abolishing the SRB enforcement

12· · section was going to be the way that I would be

13· · able to create some of those other positions and

14· · to address some of the concerns that had been

15· · raised about overtime and just the mission of SRB

16· · enforcement.

17· · Q.· · · · ·So what -- do you recall whether that

18· · happened late 2014, early 2015?

19· · A.· · · · ·I think both.

20· · Q.· · · · ·Okay.· Did you know Karl Shaw before

21· · this lawsuit was filed?

22· · A.· · · · ·I'm sure that we had, you know, some

23· · knowledge of each other at some point in time, but

24· · I don't think that I've ever worked with him or

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·1· · supervised him directly.

·2· · Q.· · · · ·You -- did you know -- at the time you

·3· · eliminated SRB, did you know he was there?

·4· · A.· · · · ·I believe that he was in a meeting that

·5· · I had with SRB enforcement section.· You know, I

·6· · know a lot of people, and I know a lot of names

·7· · and I know a lot of faces, sometimes they match

·8· · and sometimes they don't.· But I believe that Karl

·9· · might have been at that meeting, and so I would

10· · have been aware at that point in time that he was

11· · in SRB enforcement.

12· · Q.· · · · ·Was that an informational meeting or a

13· · meeting to announce that you were going to change

14· · SRB?

15· · A.· · · · ·Both.

16· · Q.· · · · ·Both?· Okay.

17· · A.· · · · ·Yeah.· I know that -- I know that there

18· · was an awful lot of rumors flying, but I wanted to

19· · be involved in the discussion so that I could

20· · answer questions.

21· · Q.· · · · ·If you remember, at the point in time

22· · you had that meeting, was Sergeant Moore

23· · already -- had he already moved out of SRB and was

24· · in narcotics?

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·1· · A.· · · · ·I have no idea.

·2· · Q.· · · · ·Okay.· Were you aware at the time you

·3· · met with Shaw, and not just him, but others at

·4· · SRB, were you aware of any accolades or awards

·5· · that Karl had received for work he had been doing

·6· · on hotels that were centers of drug trafficking

·7· · and other illegal activity?

·8· · A.· · · · ·I would say that I was just generally

·9· · aware of a lot of the recognitions that had been

10· · given to many of our employees.

11· · Q.· · · · ·Okay.

12· · A.· · · · ·You know, I mean, we have award

13· · ceremonies twice a year.· I read the newspaper, I

14· · read Facebook, you know, the accolades about our

15· · division employees.· So I certainly would think

16· · that I was aware, but not in particular, but, you

17· · know.

18· · Q.· · · · ·Okay.

19· · A.· · · · ·Not singling that particular thing out.

20· · Q.· · · · ·So I want to talk a little bit about

21· · Officer Shaw's efforts to find another job after

22· · learning that SRB -- the unit, part of SRB he was

23· · in was going to be disbanded.

24· · A.· · · · ·Okay.

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·1· · Q.· · · · ·There's a time limit, right?· On how

·2· · long officers have to apply for open positions

·3· · before they can just be reassigned?

·4· · A.· · · · ·The contract describes in great detail

·5· · what the rules are as far as giving abolishment

·6· · notices and all that.· I specifically discussed

·7· · the process with the union and gave them far --

·8· · basically twice the amount of time that the

·9· · contract requires to start looking for other jobs

10· · and the number of postings that would be available

11· · to them.

12· · Q.· · · · ·Okay.· I'm just trying to make sure

13· · it's clear on the record that he did have some

14· · time constraints, it wasn't that he could just

15· · take forever, he was given the right to pick, if

16· · available, open assignments based on his

17· · qualifications, seniority for a period of time.

18· · And then if he couldn't get a job after that, then

19· · he was subject to being assigned through the chain

20· · of command, is that --

21· · A.· · · · ·Ultimately if an abolishment notice was

22· · officially provided then, yes, there would be a

23· · limited amount of time.

24· · Q.· · · · ·Okay.· So going back to the

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·1· · investigation and the charges.· When you

·2· · reviewed -- you understood at some point that

·3· · Officer Shaw felt he had been retaliated against

·4· · and discriminated against in his efforts to go to

·5· · narcotics?

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

·7· · A.· · · · ·Are you saying that I learned that from

·8· · the investigation?

·9· · Q.· · · · ·Yes.· I'm asking whether you became

10· · aware that one of the issues that Karl Shaw had

11· · was -- that he discussed and reported about,

12· · whether or not it became a charge is a separate

13· · question, did you become aware at any point during

14· · the investigation that he had complaints about the

15· · process related to him seeking a narcotics

16· · assignment?

17· · A.· · · · ·Well, I know very -- very -- I know

18· · that I knew about complaints about his attempt to

19· · get into narcotics.· I just don't know if I

20· · learned about it as a result of the investigation

21· · of Sergeant Moore.· I don't know if that was a

22· · separate thing that was brought to my attention

23· · and that I dealt with or if I learned about it

24· · from there and then we dealt with it.· But I do

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·1· · know that I'm aware that he had complained about

·2· · the process of being selected in narcotics.

·3· · Q.· · · · ·Hang on one second.· I want the chain

·4· · of command stuff on Moore.

·5· · · · · · · ·MR. VARDARO:· It's 41.· It's either 39

·6· · or 41, depends on what version you want.

·7· · · · · · · ·MR. GITTES:· Hang on, I'm looking. I

·8· · think we want -- I'm sorry, give me a second here.

·9· · Okay.· I'm going to use -- let's use 41.

10· · · · · · · ·MR. VARDARO:· I know, I'm just

11· · wondering whether we already used it.

12· · · · · · · ·MR. GITTES:· Oh, do you have a list?

13· · · · · · · ·MR. VARDARO:· No, I have the list.· We

14· · didn't already use it, but just --

15· · · · · · · ·MR. GITTES:· I see it right here, 41.

16· · · · · · · ·MR. VARDARO:· Oh, it is?· Oh, okay.

17· · Then it's in this.

18· · · · · · · ·MR. GITTES:· Okay.

19· · · · · · · ·MR. VARDARO:· They're in numerical

20· · order.

21· · · · · · · ·MR. COGLIANESE:· Before you do, let me

22· · just double check it against what I got.· Thank

23· · you.

24· · · · · · · ·THE WITNESS:· Uh-huh.

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·1· · Q.· · · · ·For the record, Chief, you've been

·2· · handed an exhibit that was previously identified

·3· · in this case as Plaintiff's Exhibit 41.· And the

·4· · part of it that I want to draw your attention to,

·5· · but obviously you can look at other parts as you

·6· · feel necessary, is -- it is paginated 014417 at

·7· · the bottom dated December 29th, 2015.· And it's

·8· · from Lieutenant Brust addressed to you.· I've now

·9· · learned today that everything is addressed to you,

10· · so -- but I would like to know if you recall

11· · seeing this?· Jeff's pointing out the next page

12· · after that is also related.

13· · · · · · · ·MR. COGLIANESE:· So you're talking

14· · 14419 also?

15· · · · · · · ·MR. GITTES:· Yes.

16· · · · · · · ·MR. COGLIANESE:· So let me just make

17· · sure that you've got two sided.

18· · · · · · · ·THE WITNESS:· There's 19.

19· · · · · · · ·MR. COGLIANESE:· Yeah.· So they're

20· · talking about this page, that page and that page

21· · and I assume 20 also?· That's the last page.

22· · Q.· · · · ·Yeah.· They all concern.· I'm just

23· · asking you to look at them and see if you remember

24· · to try to remind you of an issue related to job

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·1· · openings in narcotics.

·2· · A.· · · · ·If this was part of the package of the

·3· · investigation, which it should have been because

·4· · it's listed in the allegations package, then there

·5· · is a possibility that I've seen them before.

·6· · Q.· · · · ·Okay.· Sitting here today, you don't

·7· · have a specific recollection of looking at them?

·8· · A.· · · · ·I don't specifically recall that, no.

·9· · The --

10· · Q.· · · · ·When --

11· · A.· · · · ·The outcome of those two allegations

12· · was a DCC.· So in my review of the investigation,

13· · I'm looking for evidence in support of those that

14· · have been sustained and recommended for charges or

15· · written reprimands.· So I could have seen them and

16· · decided that they weren't relevant, or I could

17· · have just reviewed them and not taken any further

18· · action on reading that.· But I do know that I was

19· · involved in decision-making on how to handle a

20· · posting in narcotics.

21· · Q.· · · · ·Okay.· Well, let me -- let me just try

22· · to go over some pieces of information that I will

23· · represent to you come out of the IAB investigative

24· · report --

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·1· · A.· · · · ·Okay.

·2· · Q.· · · · ·-- and see if they bring to mind

·3· · anything.

·4· · · · · · · ·Did you -- do you recall that it came

·5· · to your attention that Sergeant Moore, with

·6· · Commander Cameron's consent, had a preferred

·7· · candidate for an initial opening in narcotics?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · Q.· · · · ·His name -- his name was Ehrenborg?

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

11· · A.· · · · ·I believe that I know that at this

12· · point in time, yes.

13· · Q.· · · · ·Okay.· You don't remember whether you

14· · knew it back then?

15· · A.· · · · ·I'm going to say that I believe I did.

16· · I just don't know when I got knowledge of that.

17· · Q.· · · · ·Do you recall that Sergeant Moore

18· · conducted -- sent an invitation to bid to a

19· · certain list of officers to let them know about

20· · the opening?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·I would say I don't remember

23· · specific -- that particular part of this.

24· · Q.· · · · ·Is that something that's customarily

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·1· · done when there's an opening?

·2· · A.· · · · ·I can't say what's customarily done,

·3· · because I'm not aware of what the 200-plus

·4· · supervisors --

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·-- do --

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·-- with regard to advertising their own

·9· · openings.

10· · Q.· · · · ·All right.· Were you aware that at the

11· · time that Sergeant Moore was pursuing the opening,

12· · you know, for candidates and preparing to make a

13· · recommendation for selection, he was already under

14· · investigation?· In other words, the complaints

15· · about him had been made and an IAB file had been

16· · opened, investigation had been opened?

17· · A.· · · · ·I'm not sure I understand the question

18· · as far as the chronology that you're asking.

19· · Q.· · · · ·I'm asking you if you were aware that

20· · Sergeant Moore was permitted to conduct the

21· · process of considering candidates for the initial

22· · opening in vice while he was being investigated by

23· · IAB?

24· · A.· · · · ·Oh, I'm certainly aware of that now.

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·1· · That would -- unless you're relieved of duty, you

·2· · do the responsibilities of the job, so there was

·3· · no particular notice that I would have taken of

·4· · any supervisor trying to fill an assignment unless

·5· · I was somehow asked to be involved in the posting

·6· · of it or something else, which, you know, for some

·7· · jobs, they had to ask for my permission to post,

·8· · but others they didn't.

·9· · Q.· · · · ·Do you now remember that Sergeant Moore

10· · was engaging in this inter -- selection process --

11· · hang on one second.

12· · · · · · · ·Do you recall that during the process

13· · where Moore was doing -- you know, overseeing and

14· · conducting the selection process, initial phase of

15· · it, complaints had already been made about him

16· · making racist comments and threats?

17· · A.· · · · ·Well, I was aware that Sergeant Moore

18· · was under investigation until the investigation

19· · was over.· And that's -- that's it.· I mean, I

20· · don't recall that there was any connection between

21· · the two until it became an issue that there was an

22· · allegation that he had probably not done it under

23· · the most desirable circumstances.

24· · Q.· · · · ·Well, you knew -- you had already

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·1· · received Sergeant Williams' letter, had you not?

·2· · By the time that this vice squad hiring process

·3· · had started or selection process?

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

·5· · A.· · · · ·Like I said before, I believe.· I don't

·6· · know when I got that letter --

·7· · Q.· · · · ·Okay.

·8· · A.· · · · ·-- but --

·9· · Q.· · · · ·What date is this?

10· · A.· · · · ·-- I know it was earlier than this.

11· · And I don't know when that selection process was,

12· · so that's --

13· · Q.· · · · ·All right.

14· · A.· · · · ·-- my -- I -- if -- I'm not sure what

15· · you're asking.· I knew that he was under

16· · investigation and I knew that at some point in

17· · time there was a question about the manner in

18· · which he sought candidates or disregarded

19· · candidates for that particular opening in

20· · narcotics.

21· · Q.· · · · ·I'm just trying to see whether you will

22· · agree with me that you knew he was under

23· · investigation not just for theft of time and other

24· · things, but for alleged racism?

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·1· · A.· · · · ·Yeah, I knew what he was under

·2· · investigation for.

·3· · Q.· · · · ·Okay.· So --

·4· · A.· · · · ·To some degree.

·5· · Q.· · · · ·And during -- at a certain point in the

·6· · narcotics job selection process, you became aware

·7· · there were issues about it because you ordered

·8· · them to redo the selection process, right?

·9· · A.· · · · ·That is correct.

10· · Q.· · · · ·And the reason that you ordered them to

11· · redo the selection process is that you found out

12· · that Officer Ehrenborg had been given the

13· · assignment that Sergeant Moore, with Commander

14· · Cameron's permission, had made him the -- started

15· · the process with him as a preferred candidate,

16· · right?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·I -- I know that what I was told was

19· · that he wanted Ehrenborg and that he had found a

20· · way to get to Ehrenborg.· And when it was

21· · described how he got there and I understood it,

22· · that I did not agree with that method.

23· · Q.· · · · ·Okay.· Now, the how he got there -- and

24· · so after he recommended Ehrenborg, and I don't

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·1· · know if you remember the details, it came to your

·2· · attention, you considered it and you said redo it?

·3· · A.· · · · ·Right.

·4· · Q.· · · · ·Rebid it?

·5· · A.· · · · ·Yes.

·6· · Q.· · · · ·Okay.· Now, the process by which

·7· · Sergeant Moore did this came to your attention,

·8· · did it not?

·9· · A.· · · · ·Yeah.· I mean, at least some parts of

10· · the process came to my attention or else I

11· · wouldn't have made the change.

12· · Q.· · · · ·And he wrote a letter to you about it?

13· · A.· · · · ·Sergeant Moore?

14· · Q.· · · · ·Yeah.

15· · A.· · · · ·He could have.

16· · Q.· · · · ·Okay.· Let me find --

17· · A.· · · · ·Was that prior to him posting the job?

18· · Q.· · · · ·No.· No, it wasn't.· Let me get you the

19· · letter.· I'm just trying to --

20· · · · · · · ·MR. VARDARO:· It's 18.

21· · · · · · · ·MR. GITTES:· Has that been marked?

22· · · · · · · ·MR. VARDARO:· It's previously marked.

23· · · · · · · ·MR. VARDARO:· 19.

24· · Q.· · · · ·May I?

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·1· · A.· · · · ·You want to touch it?

·2· · Q.· · · · ·So for the record, Chief, you've been

·3· · handed what was previously identified as

·4· · Exhibit 19.

·5· · A.· · · · ·Okay.

·6· · Q.· · · · ·So do you recall getting that -- or

·7· · seeing it?

·8· · A.· · · · ·Not specifically, no.

·9· · Q.· · · · ·Okay.· In hindsight, do you now recall

10· · that Sergeant Moore lied to you in this document?

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

12· · A.· · · · ·Where are you talking about?

13· · Q.· · · · ·Well, he says in this letter addressed

14· · to you at least, "Without exception, all the

15· · candidates passed with the agreement that they

16· · would be considered if a less senior candidate

17· · would accept the position."

18· · · · · · · ·See that sentence?

19· · A.· · · · ·Uh-huh.

20· · Q.· · · · ·You know now from the investigation

21· · that that's simply not true, don't you?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I believe that the information that I

24· · received indicated that some people had not

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·1· · actually passed or agreed to that particular

·2· · statement, yes.

·3· · Q.· · · · ·And other people verified that he had

·4· · misled them about a Spanish speaking requirement.

·5· · Do you recall that also came out of Decker's

·6· · interviews?

·7· · A.· · · · ·Something to that effect, yes.

·8· · Q.· · · · ·But he was never charged with lying,

·9· · was he?· Not about this?

10· · A.· · · · ·Correct.· Correct.

11· · Q.· · · · ·And he -- in addition, a number of the

12· · individuals who he had falsely claimed had passed

13· · were black officers, you also learned that, didn't

14· · you?

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

16· · A.· · · · ·I don't recall the race or ethnicity or

17· · gender of all of the people that he might have

18· · passed, but I do know that there were some of --

19· · Q.· · · · ·And as far as I can tell from the

20· · records -- and as far as I can determine, and

21· · please tell me if you have reason to believe I'm

22· · wrong, you did not make any specific inquiries

23· · about that to Sergeant Decker?

24· · A.· · · · ·About what?

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·1· · Q.· · · · ·About the race -- racial make-up of the

·2· · people he misled or falsely claimed they had

·3· · passed?

·4· · A.· · · · ·To Sergeant Decker?

·5· · Q.· · · · ·Or to anybody.

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·I can't say that I did or did not.

·8· · Q.· · · · ·Okay.· Was it the practice when you

·9· · were supervisor of IAB that if an investigating

10· · sergeant were contacted, asked questions or asked

11· · to do something, they put it in their notes? I

12· · think there's a part of the file that lists all of

13· · the investigator's contacts and communications?

14· · A.· · · · ·You mean for internal affairs?

15· · Q.· · · · ·Yeah.

16· · A.· · · · ·There is a notes -- like a chronology

17· · of -- of what the investigators are doing.

18· · Q.· · · · ·And that would include when they're

19· · given instructions or contacted by their

20· · supervisors?

21· · A.· · · · ·In general it should, yes.

22· · Q.· · · · ·Now, as I understand it -- and this is

23· · in exhibit previously marked -- I'm just going to

24· · give it to her unless it's a --

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·1· · · · · · · ·MR. COGLIANESE:· What's the number?

·2· · · · · · · ·MR. GITTES:· 20, sorry.

·3· · · · · · · ·MR. COGLIANESE:· That's okay.

·4· · Q.· · · · ·There -- I've handed you what's been

·5· · previously identified by a different witness

·6· · Exhibit 20.

·7· · A.· · · · ·Uh-huh.

·8· · Q.· · · · ·Can you take a moment to look at it?

·9· · Have you seen that before?

10· · A.· · · · ·This is a routing sheet that doesn't

11· · have my name on it.

12· · Q.· · · · ·Well, doesn't it refer to an

13· · instruction from you?

14· · A.· · · · ·It does.

15· · Q.· · · · ·Okay.· Do you remember giving that

16· · instruction?

17· · A.· · · · ·Absolutely.

18· · Q.· · · · ·Does that suggest to you when your

19· · decision about rebidding the job or your order

20· · about it occurred?

21· · A.· · · · ·It appears that that decision was --

22· · would have been made in January of '15.

23· · Q.· · · · ·Okay.· Now, let's talk a little bit

24· · about after -- so at the point you gave that

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·1· · order, let me see if I understand -- or let me ask

·2· · you to confirm what you did or didn't know.· You

·3· · knew there was a preferred white candidate that

·4· · Sergeant Moore, with Commander Cameron's

·5· · permission, was the preferred candidate they were

·6· · trying to get to, right?

·7· · A.· · · · ·That Sergeant Moore was trying to get

·8· · to and/or Commander Cameron was trying to get to?

·9· · Q.· · · · ·Well, Sergeant Moore with Cameron's

10· · consent.

11· · A.· · · · ·Yes.

12· · Q.· · · · ·That there were some black officers who

13· · were candidates for the job who had more seniority

14· · than Ehrenborg?

15· · A.· · · · ·Everyone above Officer Ehrenborg had

16· · more seniority.

17· · Q.· · · · ·Okay.· Many -- some of them were black?

18· · A.· · · · ·I believe so, yes.

19· · Q.· · · · ·And some of the most senior people, in

20· · fact, at this time, were a couple of black

21· · officers, including Whitney Lancaster and Karl

22· · Shaw?

23· · A.· · · · ·I would have to see the list to be able

24· · to affirm that, but everybody above Ehrenborg was

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·1· · more senior to him.· So it doesn't matter if

·2· · they're one day more senior or lots more senior.

·3· · Q.· · · · ·Do you know Whitney Lancaster?

·4· · A.· · · · ·I know of him and I know who he is,

·5· · yes.

·6· · Q.· · · · ·You've met him?

·7· · A.· · · · ·Yes.

·8· · Q.· · · · ·Okay.· But never supervised him or did

·9· · you?

10· · A.· · · · ·Never directly supervised him.

11· · Q.· · · · ·I mean, you -- did you have more

12· · familiarity or the same as you had with Karl Shaw,

13· · just in passing or did you actually have more

14· · knowledge of him?

15· · A.· · · · ·I think Officer Lancaster's more well

16· · known to me because his name has come up in more

17· · circumstances that would come to my attention.

18· · Q.· · · · ·Okay.· Some of them more recent?

19· · A.· · · · ·Oh, absolutely.

20· · Q.· · · · ·Yeah.· Okay.· I don't want to get

21· · involved with things that I'm not involved with.

22· · · · · · · ·MR. COGLIANESE:· Yeah, and I would

23· · instruct you not to talk about --

24· · · · · · · ·THE WITNESS:· I'm not going to.

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·1· · · · · · · ·MR. COGLIANESE:· Thank you.

·2· · Q.· · · · ·So when you -- you also -- and I take

·3· · it at the point you had the job rebid, someone,

·4· · and I don't know whether it was at your request or

·5· · not, asked Sergeant Moore to explain what he had

·6· · done and why.· I'm referring to 19, I'm trying to

·7· · understand --

·8· · A.· · · · ·Why that letter was written?

·9· · Q.· · · · ·-- why that letter was written?

10· · A.· · · · ·Someone might have asked him for it or

11· · he might have volunteered to do it to try to

12· · justify his position.· I know that sometimes when

13· · they hear that I'm going to make a decision, they

14· · try to override my decision by more justification.

15· · So I don't know if it was specifically requested

16· · or directed, so I can't answer what originated

17· · this particular letter.

18· · Q.· · · · ·Well, let me ask you this:· Would you

19· · have seen the letter or at least have been told of

20· · its contents before you made the decision?

21· · · · · · · ·MR. COGLIANESE:· Which letter are we

22· · talking about?· Exhibit --

23· · · · · · · ·MR. GITTES:· 19.

24· · · · · · · ·MR. COGLIANESE:· -- 19?· Okay.

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·1· · A.· · · · ·I would need more information before I

·2· · could answer that.

·3· · Q.· · · · ·Well --

·4· · A.· · · · ·Because I don't know when the job was

·5· · posted and I don't know when it was reposted.

·6· · This letter was written on the 23rd.· Cameron's

·7· · routing sheet indicates that I made a decision by

·8· · the 28th, but I don't know if I had made the

·9· · decision even prior to the 23rd and he responded

10· · to that.· So I -- I cannot give you a timeline. I

11· · don't know when the job got posted the first time

12· · and when it got posted -- reposted again

13· · subsequent to that.· We sometimes have a schedule

14· · for when postings occur, and so I don't know the

15· · timeline without more information.· This isn't

16· · enough for me to be able to give you an answer --

17· · Q.· · · · ·Well, I mean --

18· · A.· · · · ·-- to how this originated.

19· · Q.· · · · ·-- Plaintiff's 20 was forwarded to you

20· · and it has an attachment which refers to the

21· · issues.· Wasn't this letter part of what's being

22· · forwarded to you about all of this?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·This does not indicate it was forwarded

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·1· · to me.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·As I said before, all correspondence is

·4· · addressed to me.

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·And this is -- there's no indication

·7· · that this letter was forwarded to me.· It might

·8· · have been shown to me, but this routing sheet does

·9· · not indicate that at all.

10· · Q.· · · · ·After -- so after -- after you had

11· · rebid, were you made aware of the process that was

12· · to be followed?

13· · A.· · · · ·I'm not sure what you're referring to.

14· · The process to be followed is follow the contract.

15· · Q.· · · · ·Okay.· Did you become aware that

16· · Sergeant Moore was ordered not to interview

17· · certain individuals for the position because of

18· · the pending complaints against him?

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

20· · A.· · · · ·I don't recall specifically.· That

21· · might very well have happened, I just don't recall

22· · the discussion.

23· · Q.· · · · ·Okay.· And when I say, "complaint," I'm

24· · talking about the IAB investigation that was

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·1· · ongoing.

·2· · A.· · · · ·I understand.

·3· · Q.· · · · ·Okay.· Were -- did you become aware of

·4· · who would -- did you know that Commander Cameron

·5· · and Lieutenant Brust decided to interview the two

·6· · most senior candidates who were black officers,

·7· · Whitney Lancaster and Karl Shaw, in person?

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

·9· · A.· · · · ·Are you asking me if I'm aware that

10· · that occurred?

11· · Q.· · · · ·I'm asking if you were aware of it at

12· · the time?

13· · A.· · · · ·I don't believe that I was aware of

14· · that at the time.

15· · Q.· · · · ·Hang on one second.

16· · · · · · · ·So is it -- in your experience in the

17· · department, normal for a commander and a

18· · lieutenant to interview in person a couple of --

19· · from -- two officers from among other officers who

20· · are seeking an assignment?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·Well, I would say again that I don't

23· · know the practices of all the commanders with

24· · regard to filling assignments.· There may be some

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·1· · that do it with regularity.· Certainly if it's a

·2· · commander interviewing a lieutenant for a

·3· · position, that would happen with regularity.· If

·4· · you mean specifically a commander interviewing an

·5· · officer rank for a position, I would think that

·6· · that doesn't occur very often, but I can't say

·7· · with any knowledge how often that may or may not

·8· · occur.

·9· · Q.· · · · ·Okay.· Have you -- were you ever

10· · interviewed as an officer by a commander for a bid

11· · on an assignment?

12· · A.· · · · ·The job description manual and the

13· · assignment process did not occur in the same way

14· · when I was an officer.· It was, who do you know.

15· · Q.· · · · ·Okay.

16· · A.· · · · ·And I was offered that first shift job

17· · by a captain at the time, so an officer was

18· · asked --

19· · Q.· · · · ·Okay.

20· · A.· · · · ·-- by the captain at the time if I

21· · wanted that job on first shift.· But that's not

22· · the process that was in place when I was an

23· · officer on the street or of the officer rank.

24· · Q.· · · · ·Okay.· After -- so you don't know just

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·1· · how unusual -- I'm gathering from what you told me

·2· · it is -- you -- at least as far as you knew, it's

·3· · unusual for a commander and a lieutenant to pick

·4· · two applicants for an opening out of a list of

·5· · many other applicants to interview them in person?

·6· · A.· · · · ·What I think I testified to is that

·7· · I -- I don't know how frequently it happens. I

·8· · don't know if there's some commanders that do it

·9· · all the time for, you know, particular

10· · assignments.· I know when I was the internal

11· · affairs commander and I was bringing in 15 more

12· · sergeants, I personally interviewed all of those

13· · 15 positions, and the 40 or 50 plus sergeants that

14· · applied.· So even though there wasn't a direct

15· · report to me, my rank, I did interviews.· So for

16· · me in internal affairs, it was very common for the

17· · commander to be involved in interviews.

18· · · · · · · ·But I can't say for other commanders

19· · what their practice is.· You know, for patrol, I

20· · wouldn't think that it happens very often, because

21· · it's seniority based, it has nothing to do with,

22· · you know, exceptional skills.· But a commander

23· · over SWAT or something else might very well sit

24· · down with you and want to know more about your

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·1· · skills and, you know, thought process on why you

·2· · want to be a SWAT officer or a K-9 officer or

·3· · something like that.

·4· · Q.· · · · ·Yeah.

·5· · A.· · · · ·So I just can't answer that for

·6· · everyone else.

·7· · Q.· · · · ·Did you ever -- did you become aware at

·8· · some point before this lawsuit was filed, before

·9· · charges were filed, that Officer Shaw had reported

10· · to Sergeant Decker and had complained about the

11· · manner in which he was interviewed by the -- by

12· · Commander Cameron and Lieutenant Brust?

13· · A.· · · · ·Well, I am aware of that because it's

14· · part of this, but I don't have any recollection of

15· · knowing it before the investigation took place.

16· · Q.· · · · ·Okay.· Do you -- I'm not asking you

17· · about before an investigation took place.

18· · A.· · · · ·I thought you did.

19· · Q.· · · · ·I'm talking about while the

20· · investigation was going on.· At some point, did

21· · you become aware that Cameron and Brust had done a

22· · personal interview with Lancaster -- separate

23· · personal interviews with Lancaster and Shaw?

24· · A.· · · · ·I might very well have.· I don't

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·1· · recall.· The investigation of Moore was quite

·2· · lengthy.· And somebody might have brought that to

·3· · my attention as a bit of information, but I think

·4· · you're saying that that occurred after I had

·5· · ordered it to be reposted.

·6· · Q.· · · · ·No, actually it didn't.· It occurred

·7· · before.· That was my mistake.· I misinformed you.

·8· · A.· · · · ·Okay.

·9· · Q.· · · · ·It -- just to make it clear, before you

10· · re -- ordered the rebid after Sergeant Moore

11· · recommended Ehrenborg, I will represent to you,

12· · and your counsel can confirm it, but that Sergeant

13· · Moore had been prohibited or ordered not to make

14· · contact with certain people and Cameron and Brust

15· · conducted the personal interviews with Lancaster

16· · and Shaw.

17· · A.· · · · ·Okay.

18· · Q.· · · · ·Do you remember whether you learned

19· · that either before you vacated the -- you know,

20· · the selection or immediately after or --

21· · A.· · · · ·I was probably told that with the

22· · entire -- you know, here's what happened and what

23· · should we do about it.· And then I ordered the

24· · rebid.

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·1· · Q.· · · · ·Okay.· So here's one question that we

·2· · hope you can answer for us.

·3· · A.· · · · ·Okay.

·4· · Q.· · · · ·And there's -- just put it in question

·5· · form:· Did you know that Officer Shaw recorded his

·6· · interview with Brust and Cameron?· And that he

·7· · submitted -- he told Sergeant Decker that he had

·8· · and the information related to the interview were

·9· · provided to Decker?

10· · A.· · · · ·I don't recall that specific

11· · information.

12· · Q.· · · · ·So sitting here today, this is the

13· · first you've heard of it?

14· · A.· · · · ·I can't say that --

15· · Q.· · · · ·Okay.

16· · A.· · · · ·-- with any certainty.

17· · Q.· · · · ·Okay.· I will represent to you that on

18· · that recording, which we've been through with

19· · Lieutenant Brust, among others, on the record,

20· · Officer Shaw made it clear to both Cameron and

21· · Brust that he would take the narcotics position

22· · even though Moore was the sergeant?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · Q.· · · · ·And if -- and then after the interview,

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·1· · Ehrenborg was recommended for the position, not

·2· · Officer Shaw, and in no documents we've seen, nor

·3· · in any testimony we've gotten, is there any

·4· · indication that Officer Shaw ever withdrew or ever

·5· · changed his mind before Ehrenborg was announced as

·6· · the preferred -- as the recommended candidate.

·7· · · · · · · ·My question to you is:· When you

·8· · ordered the rebid, was there some reason you

·9· · didn't order that the position go to Karl Shaw,

10· · who is the most senior person who was considered

11· · and had indicated he would take the job?

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

13· · A.· · · · ·I don't recall what the -- what I knew

14· · at that time.· I don't recall if I felt that he

15· · was entitled to it based on his statement of

16· · wanting that job, if I knew that everybody more

17· · senior than him had turned it down.· I just knew

18· · that it did not sound like it had been done

19· · appropriately and that it should be redone.

20· · · · · · · ·I have no idea what all I knew about

21· · that.· I don't know if anybody even suggested that

22· · we just take Officer Shaw.

23· · Q.· · · · ·Okay.· So at least as far as you can

24· · recall sitting here today, Commander -- neither

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·1· · Commander Cameron or Lieutenant Brust indicated to

·2· · you that they had interviewed Karl Shaw and he had

·3· · indicated he was interested in the position?

·4· · A.· · · · ·I can't say with any certainty if they

·5· · -- if I was aware of that at that time or not. I

·6· · don't believe that the information that I received

·7· · was directly from them.

·8· · Q.· · · · ·Okay.

·9· · A.· · · · ·I believe it came from their deputy

10· · chief.

11· · Q.· · · · ·That was Gray at the time?

12· · A.· · · · ·That doesn't sound right to me.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·I -- I don't know.

15· · Q.· · · · ·Quinlan?

16· · A.· · · · ·It was narcotics, that would have been

17· · in Homeland Security, so, yes, it probably would

18· · have been Gray.

19· · Q.· · · · ·Now, I want to ask a few questions, but

20· · I don't want to -- I'm trying to be as efficient

21· · as I can here.

22· · A.· · · · ·Okay.

23· · Q.· · · · ·And we don't know that I want to use up

24· · your time or ours playing recordings of things

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·1· · that you've never heard before or read before.

·2· · · · · · · ·There were a number of issues brought

·3· · up during the investigation about the kinds of

·4· · questions and statements that Commander Cameron

·5· · made during his interviews of both Lancaster and

·6· · Shaw.· Have you -- have you read the transcript of

·7· · that interview?

·8· · A.· · · · ·Which particular interview?· Of

·9· · Commander Cameron?

10· · Q.· · · · ·Cameron's interview of Shaw and

11· · Cameron's -- let's just say Shaw.· Cameron's

12· · interview of Shaw for the narcotics position?

13· · A.· · · · ·I don't recall reading a transcript of

14· · that particular interview.

15· · Q.· · · · ·Let me mention a few things to see if

16· · it brings something to mind.· Do you recall

17· · reading or hearing an interview involving

18· · Commander Cameron in which he brought up the

19· · Ramparts controversy in LA and talked to the

20· · candidate, in this case Shaw, about productivity

21· · and being worried about ethics?

22· · A.· · · · ·Those words sound familiar to me. I

23· · don't know if they're part of the summary that I

24· · read, but I don't think I read a transcript.· But

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·1· · I do believe I've heard something along those

·2· · lines being mentioned.

·3· · Q.· · · · ·Do you recall reading or hearing there

·4· · was conversation of -- from Cameron with Karl Shaw

·5· · in the interview about how he hadn't done any work

·6· · in 2011 and 2012?· Of course this interview was

·7· · happening in 2015.· Does that ring a bell?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·If it's included in the summary, then

10· · that might be where I have seen it.

11· · Q.· · · · ·And do you recall hearing Officer Shaw

12· · say, that's not true, I've made a lot -- I was

13· · very productive at the time, and there's some

14· · disagreement about it.· Does that sound familiar?

15· · A.· · · · ·It sounds a little familiar, yes.

16· · Q.· · · · ·Do you recall learning, either from the

17· · summary or other sources, that similarly, when

18· · Lancaster was interviewed, again, both by Cameron

19· · and Brust, that he -- the Ramparts thing was

20· · brought up with him, there were questions about

21· · him not being -- I haven't memorized it, we have

22· · the transcript if you really want to see it, but

23· · words to the effect, you know, this is -- I don't

24· · remember whether they actually used the word, but

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·1· · implying he was lazy and didn't do enough work.

·2· · Do you recall something like that?

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

·4· · A.· · · · ·If that was included in the summary,

·5· · then that would have been probably where I read it

·6· · or --

·7· · Q.· · · · ·Would it -- to your knowledge, isn't it

·8· · the case that none of the other candidates at the

·9· · time that these interviews were being conducted

10· · had been told anything about Ramparts or asked

11· · about their ethics, anything remotely like that?

12· · A.· · · · ·If that's what was submitted --

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · A.· · · · ·-- into the investigation, then, you

15· · know, I would trust the investigation to explain

16· · if that -- if similar comments were made.· But I

17· · don't even know if they were asked, so I --

18· · Q.· · · · ·Do you -- do you remember -- would it

19· · concern you as chief if only two black senior

20· · officers were interviewed in person off a list of

21· · potential candidates for an opening while all

22· · other candidates, many, if not -- well, most of

23· · whom are white, were simply called and contacted

24· · by a sergeant?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·Well, it would concern me if it was

·3· · done for discriminatory reasons.· It would not

·4· · concern me if it was done based on separating

·5· · people from, you know, people that are making

·6· · allegations against each other or one side or vice

·7· · versa.· If it was a decision that was made in the

·8· · best interest of the division of police, the

·9· · interview should -- should take place in that way

10· · to protect, you know, any conflict of interest,

11· · not necessarily asking some questions of some

12· · people and not questions of other people.· If it

13· · was done for discriminatory reasons, then

14· · absolutely, it would -- it would concern me.

15· · Q.· · · · ·Well, why wouldn't the commander make

16· · sure that Sergeant Moore asked the same kind of

17· · questions and bring up the same kinds of issues

18· · with people he talked to?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·You would have to ask Commander Moore.

21· · Q.· · · · ·Did you ask him?

22· · A.· · · · ·I don't think that I knew enough about

23· · that particular aspect of things to have that

24· · conversation.· And it's not my job to supervise

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·1· · Commander Cameron as much as it is the deputy

·2· · chief that oversees that person who would have

·3· · been the one telling me about the circumstance in

·4· · the first place, but --

·5· · · · · · · ·(Mr. Vardaro left the room.)

·6· · Q.· · · · ·Well, let me just put it this way:

·7· · Whatever you read in the summary and other

·8· · documents that came to your attention that led you

·9· · to have it rebid, you didn't make any inquiries of

10· · the Commander or Lieutenant Brust about what they

11· · asked Shaw and Lancaster, why they asked it,

12· · whether they had made sure that the other people

13· · being contacted were submitted to the same kinds

14· · of questions?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·You asked if I made any inquiries into

17· · that?· Not to my knowledge, no.· Other than

18· · telling Deputy Chief Gray, because the more that

19· · we talk about it, the more I remember, I think it

20· · was him that told me about this and feeling that

21· · he had a grasp of what was going on and would

22· · address it.

23· · Q.· · · · ·You -- you also, as I understand it,

24· · became aware of the fact that Commander -- either

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·1· · Lieutenant Brust or Commander Cameron, I'm not

·2· · sure which, it may have been both of them, ordered

·3· · Moore not to talk to Whitney Lancaster.· Do you

·4· · recall that?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·I know that I'm aware of it now.

·7· · Q.· · · · ·You don't believe you knew that there

·8· · was an instruction -- is it -- in the

·9· · specifications, there is an issue that came

10· · through a routing sheet about insubordination as

11· · to the order given to Moore not to communicate

12· · with Lancaster.· Do you recall that?

13· · A.· · · · ·Right.· He got a DCC for it.

14· · Q.· · · · ·Yeah, got a DCC for it.

15· · · · · · · ·And were you aware that from the

16· · documents in this case, Moore not only spoke to

17· · Lancaster right after he was interviewed by the

18· · Commander and Brust, but he e-mailed him to come

19· · into his office before he made any decision about

20· · whether to take the job, did you --

21· · A.· · · · ·What was the question?

22· · Q.· · · · ·Were you aware of that?

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

24· · A.· · · · ·Well, I might have been aware of that

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·1· · at some point in time, but I don't know when.

·2· · Q.· · · · ·Okay.· And do you believe you were

·3· · aware of the fact that not only did Moore e-mail

·4· · Lancaster in violation of his order not to have

·5· · contact with him, then had him come to his office

·6· · and spoke with him about the position, and that

·7· · afterwards, I don't recall, it may have been the

·8· · same day or the day after, Lancaster said -- sent

·9· · a letter to the Commander and Brust saying he

10· · decided not to take the position, this is like

11· · shortly after this conversation with Moore?

12· · · · · · · ·(Mr. Vardaro entered the room.)

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · Q.· · · · ·Do you recall becoming aware of that?

15· · A.· · · · ·Perhaps as part of reading this summary

16· · or the investigation, but no -- no idea of when I

17· · became aware of it.

18· · Q.· · · · ·Okay.· Do you recall that in his

19· · interviews, or in the interview -- in the

20· · investigation summary, Lancaster described his

21· · meeting with Moore in ways which indicated that

22· · he -- he felt -- not only Moore, but also

23· · Commander Cameron was trying to push him not to

24· · take the position?· Does that ring a bell?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·Overall, the recollection that I have

·3· · is is that they wanted Officer Ehrenborg and that

·4· · was their goal.· And so alternatively, they would

·5· · not want somebody else to take the job and they

·6· · would use whatever means, you know, to do that

·7· · that they could accomplish it hopefully within the

·8· · rules.· But -- so that's my take on it was that

·9· · they wanted Ehrenborg and they made efforts to get

10· · to Ehrenborg.

11· · Q.· · · · ·And that's the reason you think -- you

12· · would agree with me that Sergeant Moore was

13· · flagrantly insubordinate as I've described it?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·Well, he was -- he was charged with

16· · misconduct and got a DCC for failing to follow an

17· · order.· I think it's in here somewhere, but you're

18· · describing it as insubordination, and it was found

19· · to be, I believe, failure to follow an order.

20· · Q.· · · · ·So -- okay.

21· · A.· · · · ·Well, the contract addresses that.· You

22· · can read the FOP contract.

23· · Q.· · · · ·Okay.

24· · A.· · · · ·It says, insubordination should be

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·1· · reserved for the most egregious cases and lower --

·2· · lower charges should be used prior to the charge

·3· · of insubordination.

·4· · Q.· · · · ·Okay.· So when he was told not to

·5· · contact -- contact or communicate with Lancaster,

·6· · a person who has made a -- there's an issue about

·7· · whether he's discriminating against him, it's

·8· · pending investigation, he not only e-mails him, he

·9· · talks to him, and that talk is part of an effort

10· · to prevent him from coming to the bureau where

11· · that sergeant, who's accused of racism, worked.

12· · And you think that's not critical misconduct?

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · A.· · · · ·I didn't say that.

15· · Q.· · · · ·I'm asking you.· Isn't that critical

16· · misconduct?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·That he -- that he spoke to Officer

19· · Lancaster?

20· · Q.· · · · ·That he did all of those things.· He

21· · e-mailed him, he spoke to him, he actively

22· · discouraged him from coming to the bureau where he

23· · works, he -- and by the way, Moore admitted he had

24· · a very angry conversation with Lancaster in his

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·1· · interview.

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · Q.· · · · ·But as far as you're -- I'm sorry.

·4· · Were you going to say something?

·5· · A.· · · · ·It might have been.· I -- I don't have

·6· · all of the information in front of me to be able

·7· · to properly assess all of that.· And you're

·8· · telling me stuff that may or may not be written

·9· · down, and I'm not sure if I reviewed it all in

10· · that light or if it was even addressed as an

11· · allegation for insubordination, other than just

12· · failing to follow an order.

13· · Q.· · · · ·Well, in the investigation, do you

14· · recall that Sergeant Moore admitted to Sergeant

15· · Decker -- well, let me back this up.

16· · · · · · · ·You do recall, do you not, that

17· · Sergeant Moore had sent a text message to Officer

18· · John Ever -- Evans saying that Lancaster and Shaw

19· · better not take the job in vice or I'm going to

20· · get them?· Do you remember that?

21· · A.· · · · ·I didn't have any recollection of it

22· · before you just mentioned that, but I think that

23· · might have been part of the investigation.

24· · Q.· · · · ·Well, if you had become aware of that

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·1· · in the investigation, isn't that quite striking

·2· · that he would send a text message threatening two

·3· · people who are trying to get an assignment where

·4· · he's the sergeant and he's selecting -- he's

·5· · involved in the selection process?

·6· · A.· · · · ·Well, you are saying threatening them,

·7· · but you said that the actual terms were get them

·8· · and --

·9· · Q.· · · · ·You don't consider that a threat from a

10· · sergeant about if somebody takes a job?

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

12· · your thought if you wanted to.

13· · A.· · · · ·I would -- I would just say that that's

14· · unspecific.

15· · Q.· · · · ·I see.

16· · A.· · · · ·"Get them" can be interpreted a lot of

17· · different ways.· I don't know what his intent was.

18· · Q.· · · · ·Which way do you interpret it?

19· · A.· · · · ·I'm not going to --

20· · · · · · · ·MR. COGLIANESE:· Finish your thought.

21· · A.· · · · ·I'm not going to interpret it without

22· · more information.

23· · Q.· · · · ·Okay.· Well, you knew that -- you knew,

24· · if you read the summary, which I believe you had

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·1· · indicated you think you did, you knew that there

·2· · were multiple witnesses who confirmed that

·3· · Sergeant Moore was making racist statements using

·4· · the N word, calling black officers monkeys,

·5· · threatening to take people out and fight them or

·6· · beat them, and in two officer's cases, indicated

·7· · that he actually threatened to take two individual

·8· · black officers out and kill them.· So you had that

·9· · background, right?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·You're indicating that I knew all of

12· · that.

13· · Q.· · · · ·Well, did --

14· · A.· · · · ·I --

15· · Q.· · · · ·If you read --

16· · A.· · · · ·I will say that there was information

17· · in the investigation.· I don't have any personal

18· · knowledge of Sergeant Moore doing that.· And just

19· · because somebody says something happened doesn't

20· · mean that it did.· Some of it got investigated

21· · allegations and some of it didn't as we previously

22· · discussed.

23· · · · · · · ·You know, if -- if you said that

24· · somebody made a racist comment five years ago and

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·1· · you can't say who was there, all that kind of

·2· · stuff, it's not going to get investigated without

·3· · more information in general, so...

·4· · Q.· · · · ·But you didn't order it to be

·5· · investigated more, did you?

·6· · A.· · · · ·I -- you'll have to be more clear about

·7· · what I didn't do.· You're -- what are you talking

·8· · about?· Because I just gave a hypothetical.

·9· · Q.· · · · ·Just -- you -- if you read the summary

10· · and you read the routing sheet, you knew that

11· · there were multiple officers, it wasn't one, it

12· · wasn't two, it was three, it was more who

13· · testified to having heard Moore make

14· · discriminatory, racist comments?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · Q.· · · · ·You did not -- if you had concerns that

17· · you wanted more specifics, you did not direct

18· · Sergeant Decker or anybody else to get the more

19· · specifics, did you?· About those statements?

20· · A.· · · · ·Correct.

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · Q.· · · · ·Okay.· In addition, you had information

23· · from the summary that Moore -- in addition to that

24· · information, that Moore sent a text message

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·1· · indicating that he would get Karl Shaw and Whitney

·2· · Lancaster if they took the position in narcotics?

·3· · A.· · · · ·If it was included in the

·4· · investigation, then, yes, I had that information.

·5· · Q.· · · · ·Okay.· And your reaction was oh, well,

·6· · who knows what he means; is that --

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I did not say that.

·9· · Q.· · · · ·That was your testimony a moment ago,

10· · but if you want to change your testimony, go right

11· · ahead.

12· · · · · · · ·MR. COGLIANESE:· Objection.· You're

13· · mischaracterizing.

14· · A.· · · · ·That is correct.

15· · Q.· · · · ·Okay.· Well, then how did you --

16· · A.· · · · ·I did not say, oh, well, we're just

17· · going to leave it alone.

18· · Q.· · · · ·Okay.· Well, then what did you do?

19· · A.· · · · ·I took the investigation that we had

20· · and I made rulings upon that.· I had a

21· · disciplinary hearing with Sergeant Moore, and I

22· · made a recommendation to the Director of Public

23· · Safety.

24· · Q.· · · · ·With respect to the discrimination

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·1· · claim that Officer Shaw was unable to take a

·2· · position in narcotics because of Sergeant Moore's

·3· · behavior and his text threat, what did you rule?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · Q.· · · · ·Did you recommend his termination?

·6· · A.· · · · ·You're talking about a lawsuit.

·7· · Q.· · · · ·No.· I'm talking about the IAB

·8· · investigation.· You keep referring to the portion

·9· · of the investigation regarding overtime and other

10· · financial issues.· I told you I would like to

11· · focus today on the discrimination, race issues.

12· · · · · · · ·With respect to this information I just

13· · reviewed with you that you indicate that if it was

14· · in the report, you would have been aware of it,

15· · I'm asking you:· Did you recommend charges against

16· · Sergeant Moore?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·For what?

19· · Q.· · · · ·For sending a text that threatened to

20· · get two officers if they took a job where he was

21· · working in narcotics?· For him making racial slurs

22· · not to one, not to two, but more officers using

23· · the N word, calling back officers monkeys,

24· · threatening to take them out back and fight them,

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·1· · for lying to you about whether or not he had

·2· · actually interviewed and gotten agreements from

·3· · officers to pass on the job when, in fact, he

·4· · hadn't.· Did you ever consider charges for any of

·5· · those?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·Those were never presented to me as

·8· · potential charges to my knowledge.· And, no, I did

·9· · not initiate any departmental charges for things

10· · that he wasn't charged with.

11· · Q.· · · · ·Okay.· You also became -- I think we

12· · mentioned earlier that he had ordered a lightning

13· · link.· Do you recall that?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·What was the question?

16· · Q.· · · · ·As I recall, you became aware at some

17· · point during the investigation, that Sergeant

18· · Moore had ordered a lightning link?

19· · A.· · · · ·I became aware of it at some point in

20· · the investigation or far after the investigation.

21· · I'm not sure which.

22· · Q.· · · · ·Okay.· Well, if -- as the chief,

23· · putting yourself in Karl Shaw's shoes as an

24· · officer, if you've become aware that the sergeant

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·1· · where you're trying to get a job is texting people

·2· · that he's going to get you if you take it, he has

·3· · ordered an illegal device to make a weapon

·4· · automatic despite the law, he has made numerous

·5· · racist comments about black officers, including,

·6· · according to two people, a threat to violently

·7· · hurt or kill two particular black officers.

·8· · Wouldn't you feel a little uncomfortable about

·9· · taking a job where he's your boss?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·You're asking me to think like Officer

12· · Karl Shaw does?

13· · Q.· · · · ·Yes.

14· · A.· · · · ·And I'm not sure that I'm able to do

15· · that, because I haven't had the same experiences

16· · that he has.

17· · Q.· · · · ·Okay.

18· · A.· · · · ·But if he were to be uncomfortable

19· · about that, certainly those things would be

20· · something that could cause that.

21· · Q.· · · · ·And based on your training in EEO, is

22· · it your claim that sending on e-mail like that and

23· · engaging in that kind of behavior would not deter

24· · people for having raised concerns about a

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·1· · sergeant's racism or discriminatory behavior?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·I'm trying to make sure I understand

·4· · the question.· Do I understand how an e-mail or

·5· · text message could deter somebody from --

·6· · Q.· · · · ·Well, let's take that first.

·7· · A.· · · · ·Okay.· What's the question?

·8· · Q.· · · · ·Can you -- do you agree that an e-mail

·9· · from somebody who will be your boss in a

10· · prospective position saying, if you take it, I

11· · will get you, would deter many people, many

12· · reasonable people from taking the job?

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · A.· · · · ·It could.

15· · Q.· · · · ·Okay.· In your -- in your training of

16· · EEO, is it your understanding that a sergeant who

17· · says, I sent the text because I was upset that

18· · they claimed I was a racist or discriminating,

19· · that that's not retaliation?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·So he -- you're telling me that he sent

22· · that message retaliating against them because they

23· · had called him a racist?

24· · Q.· · · · ·I'm telling -- I'm saying to you that

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·1· · in his interview with Sergeant Decker, which was

·2· · summarized, he admitted that he sent the text

·3· · because Shaw had -- not just Shaw, but Shaw was

·4· · included, had accused him of being a racist?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · Q.· · · · ·Is -- according to you as chief, is

·7· · that a retaliatory act under your policies or the

·8· · law?

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·We certainly think it's worth

11· · investigating, you know.· If we have information

12· · of that sort, then I would certainly be interested

13· · in a better understanding, you know, that.

14· · Q.· · · · ·Would you have expected your chain of

15· · command, if they knew the sequence of events about

16· · the text message, as well as the other information

17· · in the interviews about people saying he made

18· · racist comments and all the other stuff we've been

19· · through, should have asked for further

20· · investigation as you just suggested?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·I will -- I will address that in the

23· · sense that there are points in time in a number of

24· · lengthy or very complicated investigations where

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·1· · you have to decide how much longer you want to

·2· · make the investigation.· In the past we've very

·3· · rarely bifurcated investigations and taken little

·4· · bits out of it at a time and so at some point in

·5· · time when allegations continued to stream in or

·6· · things keep arising, it is often best to say,

·7· · let's -- let's move forward with what we have and

·8· · then see if we need to go back and do more.

·9· · · · · · · ·And sometimes the allegations don't --

10· · don't stop, because sometimes once they start

11· · happening, they steamroll.· And so there are times

12· · when you have to say, let's move forward with what

13· · we have and wrap that up, because this

14· · investigation is taking too long as it is.· And so

15· · when you think that you have a terminable case,

16· · sometimes you say, we have a termination case,

17· · let's move forward with that.· And there might be

18· · a lot of other miscellaneous things that get set

19· · aside thinking that we don't need that at that

20· · point in time to make our case and to make a

21· · recommendation of termination.

22· · · · · · · ·When you have allegations of

23· · untruthfulness, you often think that that person's

24· · not going to be an employee very long.· And so we

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·1· · have, on any number of occasions, set aside some

·2· · serious allegations as, you know, pending,

·3· · thinking that we have enough to move forward and

·4· · not necessarily ever gone back, because that

·5· · person was separated from employment or whatever

·6· · else.

·7· · · · · · · ·Sometimes the chain of command is aware

·8· · of those decisions, sometimes they're not.

·9· · Sometimes I'm aware of those decisions, sometimes

10· · I'm not.· So it's a complicated process,

11· · especially when we have very lengthy

12· · investigations.· And what things we think are the

13· · strongest evidence that we can make a case for are

14· · decisions that are taken into consideration.

15· · · · · · · ·When we think that we have a

16· · termination case, sometimes it's best to move

17· · forward on the termination and get that done.· And

18· · so some things don't continue to make it lengthier

19· · and lengthier and lengthier.

20· · Q.· · · · ·And more could there need -- what more

21· · would you need to understand whether or not

22· · Sergeant Moore sending out a text saying, Karl

23· · Shaw better not take this job and Sergeant Moore

24· · telling IAB that he did that because Shaw accused

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·1· · him of being a racist?· What more would you need

·2· · to understand what was happening?

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · Q.· · · · ·His purpose?

·5· · A.· · · · ·A formal investigation.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·You know, a -- a -- it being added as

·8· · an allegation.

·9· · Q.· · · · ·This had been an issue for six months

10· · already, the whole issue about whether he was

11· · discriminating.· So why wouldn't it be appropriate

12· · to include it since they're already investigating

13· · whether he threatened black officers and they had

14· · already learned during the course of the

15· · investigation that he -- witnesses were reporting,

16· · both white and black, that he was making racist

17· · comments?

18· · A.· · · · ·I don't have any knowledge --

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·-- that I was aware of making a

21· · decision not to include it.

22· · Q.· · · · ·I'm sorry, what?

23· · A.· · · · ·I'm not aware of me making a decision

24· · not to include that as an allegation.

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·1· · Q.· · · · ·Well, it wasn't included, was it?

·2· · A.· · · · ·Correct.· That doesn't mean that I made

·3· · a decision not to.

·4· · Q.· · · · ·Well, you had the authority -- the

·5· · routing sheets that came up to you concluded that

·6· · the selection process for the narcotics position

·7· · wasn't fair.· Do you remember that?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·I believe that I've established that I

10· · was told about the selection process not being the

11· · way that it should have been and that I ordered it

12· · to be redone.

13· · Q.· · · · ·Okay.

14· · A.· · · · ·That doesn't mean that I was aware of

15· · all of that information that was even in this

16· · letter, let alone what we've been discussing as

17· · far as the interviews and the text messages and

18· · all of that.· There was nothing stopping me, other

19· · than I can't think of everything all the time.

20· · And if it's brought to my attention and given to

21· · me in the form of an investigation with an

22· · allegation that I can review, then I address it.

23· · · · · · · ·Very rarely have I initiated

24· · investigation of more information upon reading a

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·1· · completed investigation.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·Do you understand what I mean?

·4· · Q.· · · · ·I understand what you're saying.· My --

·5· · my confusion, Chief, is:· I believe, if not every

·6· · single detail, most of what I've gone over with

·7· · you today is in the investigative report.· But let

·8· · me move on, okay?

·9· · · · · · · ·Did you -- did you become -- did you

10· · become aware that Karl Shaw was very upset and

11· · fearful about what he was learning about Moore's

12· · threats, one was the text, because Officer Evans

13· · came to him and gave it to him.· I don't think

14· · there's any dispute about that in this case, it's

15· · in the interviews.· He also became aware of the

16· · lightning link.

17· · · · · · · ·He also became aware of a prior

18· · instance of Sergeant Moore threatening another

19· · black officer by reaching down toward his gun as

20· · he passed him in the hall, only within a few weeks

21· · of this, okay?· He brought it all up with Sergeant

22· · Decker and -- because he was still debating, can I

23· · take this position with Moore being there, and he

24· · asked for a meeting with Lieutenant Brust to

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·1· · discuss it.· They discussed it.· The conversation

·2· · is recorded.· Are you aware of anything I just

·3· · described to you?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·Well, obviously parts of it.

·6· · Q.· · · · ·Okay.

·7· · A.· · · · ·We've been talking about it most of the

·8· · day.

·9· · Q.· · · · ·I'm not asking about -- I'm not -- I

10· · don't --

11· · A.· · · · ·I --

12· · Q.· · · · ·-- want to ask you whether you know

13· · about it because we've talked about it today.

14· · Before today, were you aware that Officer Shaw

15· · talked to Decker and went over those three issues

16· · I just mentioned, the lightning link, the Elias

17· · incident that he'd become aware of since the last

18· · conversation he had with him and the text message?

19· · A.· · · · ·Well, I'm aware --

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·I'm aware of those things, but I don't

22· · know when I became aware of them --

23· · Q.· · · · ·Okay.

24· · A.· · · · ·-- or his -- when he became --

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·-- aware of them.

·3· · Q.· · · · ·Well, we know that he became aware of

·4· · them before his second interview, because he

·5· · brings them up, okay?

·6· · A.· · · · ·Sure.

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · Q.· · · · ·All right.· So I understand you don't

·9· · remember when you may have first learned of those

10· · things or if you ever did before -- before you

11· · made the decision on the package, is that what

12· · you're telling me?· You don't -- you don't --

13· · that's what I'm trying to understand.· Before you

14· · made the decision on whether to charge Eric Moore

15· · related to the discrimination complaints, the

16· · hiring process, the racist commentary, the racist

17· · threat, were you aware of what I just talked

18· · about?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·I was aware of the gist of the summary

21· · of the investigation, so the contents of that I

22· · had a level of awareness of.

23· · Q.· · · · ·Okay.· What -- I'm just, if you don't

24· · remember, it's okay, you can tell me.· Sitting

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·1· · here today, do you believe at some point when you

·2· · read the summary and anything else you looked at,

·3· · you were aware, for example, that the lightning

·4· · link issue had come up?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·Like I said, that didn't really reach

·7· · any level of consciousness until the OCRC

·8· · complaint.

·9· · Q.· · · · ·Okay.· How about the text message that

10· · Moore sent to John Evans and that later came to

11· · Decker's attention?

12· · A.· · · · ·I don't know how much attention I gave

13· · to it at the time of reading the investigation.

14· · Q.· · · · ·All right.· Now I'm going to -- now I

15· · want to talk a little -- a minute about Lieutenant

16· · Brust's meeting with Karl Shaw.

17· · A.· · · · ·Okay.

18· · Q.· · · · ·During this meeting -- it's recorded,

19· · your counsel has the transcript of the

20· · recording -- Officer Shaw tells Lieutenant Brust

21· · that he's struggling about the issue of whether to

22· · take the narcotics job.· He tells him, I'm running

23· · out of time because of that time limit.· My family

24· · and other people, friends, are saying, don't do

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·1· · it, don't do it, because he's shared with them

·2· · some of the information about Moore we're talking

·3· · about today.· He asks Lieutenant Brust and he

·4· · tells Lieutenant Brust about the text.· He tells

·5· · him that Moore said in a text to John Evans that

·6· · he's going to do something, I think -- I think he

·7· · -- he didn't actually mention text, but he told

·8· · him, I'm being told that Moore is saying he's

·9· · going to do something to me if I take the job.

10· · We -- separately, Decker actually has the text.

11· · A.· · · · ·Okay.

12· · Q.· · · · ·Lieutenant Brust doesn't ask him any

13· · questions about, well, what did you hear and what

14· · do you mean?· You know, what did you mean?· And

15· · how do you know that?· He asks nothing about it.

16· · And he indicates to him, look, I'm not going to

17· · let him do something to you, but, you know, I'm

18· · not there all the time.· After which -- and by the

19· · way, Lieutenant Brust doesn't go to Decker,

20· · doesn't bring this up with Decker, he doesn't

21· · report it to Cameron, doesn't report it to you.

22· · And after that conversation, Karl Shaw decides he

23· · better not take the position given all of these

24· · circumstances and what Lieutenant Brust says.

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·1· · · · · · · ·Now, as chief, would you -- would you

·2· · expect Lieutenant Brust to do some follow up after

·3· · being told about this by Karl Shaw?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·Not having listened to the exact nature

·6· · of the discussion, but based on what you have told

·7· · me, and I don't know that the timing of

·8· · everything, certainly I would think that if

·9· · Officer Shaw expressed concerns about his own

10· · safety, that that information should have been

11· · shared.

12· · · · · · · ·If it was about whether he was going to

13· · be retaliated against in some way for taking the

14· · job, then I would express that that would be

15· · something that Lieutenant Brust should have

16· · shared, at least with Commander Cameron, to make

17· · sure that they were watching for adverse, you

18· · know, evaluations or adverse assignments, or, you

19· · know, some type of other action, employment action

20· · that the sergeant could or would take against

21· · Officer Shaw for taking that.

22· · · · · · · ·If it was related to the investigation

23· · and he provided new information that the

24· · lieutenant felt was relevant to the ongoing

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·1· · investigation of Sergeant Moore, then, yes, he

·2· · should have contacted internal affairs.· So there

·3· · are a number of things that I think could have

·4· · been done differently if all he said was, I can't

·5· · help you.

·6· · Q.· · · · ·Well, when he said, I'm not there all

·7· · the time, what kind -- what message do you think

·8· · he's sending to Karl Shaw when he's asking for --

·9· · · · · · · ·MR. COGLIANESE:· Objection.

10· · A.· · · · ·You would have to ask him directly.

11· · Q.· · · · ·I'm asking how you would take that

12· · response --

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · Q.· · · · ·-- as his chief?

15· · A.· · · · ·I understand that you said that

16· · Lieutenant Brust said, I'll do what I can when I

17· · am able to, but acknowledging that he's not able

18· · to, you know, guard his house or guard his person

19· · when he's off duty or something along that line.

20· · · · · · · ·So it does not sound very reassuring to

21· · me, but it sounds realistic in the sense that,

22· · hey, I'm not going to be around all the time, you

23· · know, that's -- that's true of everyone.· So --

24· · Q.· · · · ·Well --

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·1· · A.· · · · ·-- that certainly could be taken in a

·2· · number of different ways, but I don't know what

·3· · way Lieutenant Brust took it or intended.

·4· · Q.· · · · ·Well, one of -- but he could have said

·5· · that I'm going to look into this and if necessary,

·6· · we will consider ordering that Sergeant Moore be

·7· · relieved of his duty, as has been done for other

·8· · people and as was already done for Officer

·9· · Sorrell, right?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·He could have said a hundred different

12· · things.

13· · Q.· · · · ·Okay.· Yeah, well, that was certainly

14· · one of them, right?

15· · · · · · · ·MR. COGLIANESE:· Well, objection. I

16· · mean, can we move on?

17· · A.· · · · ·What's the question?

18· · Q.· · · · ·That's one of the things he could have

19· · said to Karl Shaw?

20· · A.· · · · ·If he felt that there was a --

21· · something that was said that needed to be relieved

22· · of duty, then I would expect him to say, I would

23· · relieve him of duty.· But, I mean, he could have

24· · said a whole bunch of different things.

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·1· · Q.· · · · ·Right.· But he didn't?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·I don't know.· I haven't seen or read

·4· · that transcript --

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·-- so I --

·7· · Q.· · · · ·I encourage you to read it.· I believe

·8· · I've accurately described it to you.

·9· · A.· · · · ·Okay.

10· · Q.· · · · ·Assuming --

11· · · · · · · ·MR. COGLIANESE.· Form.

12· · Q.· · · · ·-- I've accurately described it, he did

13· · nothing to reassure Karl Shaw when he -- by adding

14· · to his statement, I'm not around all the time, and

15· · leaving it at that?

16· · · · · · · ·MR. COGLIANESE:· Objection.· Asked and

17· · answered.· Can we please --

18· · · · · · · ·MR. GITTES:· That's not an objection

19· · and this is cross-examination.

20· · · · · · · ·MR. COGLIANESE:· This is the fifth time

21· · you've asked this question, move on.

22· · · · · · · ·MR. GITTES:· Rich, if you want to

23· · instruct her not to answer this question, you

24· · feel -- you do so.

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·1· · · · · · · ·MR. COGLIANESE:· I have told --

·2· · · · · · · ·MR. GITTES:· And we can act

·3· · accordingly.· I believe I'm conducting this

·4· · deposition appropriately.

·5· · · · · · · ·MR. COGLIANESE:· And I doubt it very

·6· · much.

·7· · · · · · · ·MR. GITTES:· You've made your

·8· · objection.

·9· · · · · · · ·MR. COGLIANESE:· Let's take a break.

10· · · · · · · ·MR. GITTES:· I'm not ready to take a

11· · break.

12· · · · · · · ·MR. COGLIANESE:· Let's take a break.

13· · We're off the record.

14· · · · · · · ·MR. GITTES:· Do you need a break?

15· · · · · · · ·THE WITNESS:· I'm ready.

16· · · · · · · ·MR. GITTES:· Okay.

17· · · · · · · ·THE VIDEOGRAPHER:· We're off the

18· · record.· The time is 3:02.

19· · · · · · · ·(A recess is taken.)

20· · · · · · · ·THE VIDEOGRAPHER:· This marks the

21· · beginning of media number four.· We're back on the

22· · record.· The time is 3:15.

23· · Q.· · · · ·Ready?

24· · A.· · · · ·Yep.

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·1· · Q.· · · · ·Okay.· I wasn't quite finished asking

·2· · you about the meeting between Lieutenant Brust and

·3· · Karl Shaw.· One of the other aspects of their

·4· · conversation is that Officer Shaw, who I think we

·5· · discussed earlier, had complained about the manner

·6· · of that interview by Cameron where Brust was

·7· · there, too?

·8· · A.· · · · ·Yes.

·9· · Q.· · · · ·Did you know or have you learned that

10· · during this recorded conversation with Officer

11· · Shaw, Lieutenant Brust told Shaw that Cameron was

12· · a bully in reference to that interview?

13· · · · · · · ·MR. COGLIANESE:· Objection.

14· · A.· · · · ·That doesn't sound familiar to me.

15· · Q.· · · · ·Okay.· Would you agree that if

16· · Lieutenant Brust felt Cameron was bullying Shaw or

17· · trying to bully him not to take the job, and in

18· · combination with being told that Moore had been

19· · issuing warnings against taking the job, that

20· · Lieutenant Brust should have followed up on it

21· · either with the commander or IAB?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I'm not sure I'm clear on the actual

24· · question.· Are you saying, Lieutenant Brust should

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·1· · have followed up with IAB if he alleged Commander

·2· · Cameron is a bully or what?

·3· · Q.· · · · ·If he felt that Commander Cameron was

·4· · bullying Karl Shaw with respect to that interview

·5· · that was conducted, and it was in the context of

·6· · whether he should take that position, and in light

·7· · of Shaw's being upset about the interview,

·8· · shouldn't he have reported it, or at least talked

·9· · to Cameron about it?

10· · A.· · · · ·I think he --

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

12· · A.· · · · ·-- could have talked to Officer Shaw

13· · about what he wanted to see happen.· You know, if

14· · he wanted to make an allegation against Commander

15· · Cameron or Lieutenant Brust and explain the

16· · process if he was unaware.· If he felt that there

17· · was enough information there that needed to be

18· · investigated, he certainly could have made a

19· · decision to either go to internal affairs or go to

20· · Commander Cameron's deputy chief to, you know,

21· · share his concerns.

22· · Q.· · · · ·Now, let's take a look -- let's do

23· · those two exhibits here right now.

24· · · · · · · ·MR. VARDARO:· 38, it's too big to

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·1· · staple, so we need to be careful to keep that

·2· · together as best we can.

·3· · · · · · · · · · · · ·- - - - -

·4· · · · · · ·Thereupon, Plaintiff's Exhibit 38 is

·5· · marked for purposes of identification.

·6· · · · · · · · · · · · - - - - -

·7· · Q.· · · · ·First, for the record, you've been

·8· · handed what's been marked as Plaintiff's Exhibit

·9· · 38.· And I would ask you if you can flip through

10· · that and see if that is the investigative summary

11· · regarding Eric Moore's investigation?

12· · A.· · · · ·It certainly appears to be.

13· · Q.· · · · ·Okay.· And did you read some or all of

14· · this investigative report?

15· · A.· · · · ·I believe so.

16· · Q.· · · · ·And then if you would go to page 147 of

17· · the report.· It's up here in the left-hand corner,

18· · the page numbers.· You can take the clip off as

19· · long as you're careful.· I think it is actually

20· · easier, at least it was for me.· There's also page

21· · numbers at the bottom and the Bates stamp number

22· · is --

23· · A.· · · · ·I got it.

24· · Q.· · · · ·You got it?· Okay.

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·1· · · · · · · ·So I will represent to you, as it

·2· · should be obvious when you flip through, this is

·3· · the portion of the investigation, a much smaller

·4· · portion, regarding allegations involving Moore's

·5· · alleged racism and other misconduct of that

·6· · nature.

·7· · · · · · · ·Did you read all or a portion of this

·8· · section of the investigation?

·9· · A.· · · · ·I believe so.

10· · · · · · · · · · · · ·- - - - -

11· · · · · · ·Thereupon, Plaintiff's Exhibit 35 is

12· · marked for purposes of identification.

13· · · · · · · · · · · · ·- - - - -

14· · Q.· · · · ·Okay.· Then I would also like to hand

15· · you what's been identified as Exhibit 35.· And I

16· · will represent to you that this is the actual

17· · interview summary of the interview of Sergeant

18· · Moore by Sergeant Decker.· And I would like to

19· · know whether you read that interview?

20· · A.· · · · ·Without reading it again, I would have

21· · to guess.· I don't -- I don't -- I don't know for

22· · sure, but --

23· · Q.· · · · ·Well, would -- take your time and look

24· · at it.· I need to know whether you read it.

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·1· · A.· · · · ·I would have to say that some of this

·2· · content looks familiar to me, but whether I read

·3· · it word for word, I can't tell you.

·4· · Q.· · · · ·Chief, let me ask you:· Would it --

·5· · would there be some reason when you are in a case

·6· · involving charges that you wouldn't read the

·7· · officer's interviews who was being charged?

·8· · A.· · · · ·No, I would say it was very typical of

·9· · me to do that.

10· · Q.· · · · ·Okay.· Now, I would like to ask a -- or

11· · share with you some information to see if you knew

12· · about it at any time before today.

13· · A.· · · · ·Okay.

14· · Q.· · · · ·There -- did you -- were you made aware

15· · at any time that Officer Dick Elias had made a

16· · complaint to Lieutenant Brust about Officer Moore

17· · passing him in the hall and putting his hand on

18· · his weapon as if to draw it out and Officer Elias

19· · complaining about it to Lieutenant Brust?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·I'm aware of -- of some incident

22· · involving Officer Elias and Sergeant Moore

23· · occurring.

24· · Q.· · · · ·Okay.· And were you aware that Sergeant

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·1· · Moore acknowledged to Brust, according to Brust,

·2· · that he had done it and it was poor judgment?

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · A.· · · · ·I might be.

·5· · Q.· · · · ·Okay.· Given what lieutenant -- what

·6· · Karl Shaw was telling Brust in that meeting I --

·7· · we discussed earlier before the break?

·8· · A.· · · · ·(Indicates affirmatively.)

·9· · Q.· · · · ·Do you think it was appropriate -- and

10· · I'll represent to you this is what Lieutenant

11· · Brust told us -- that he did not follow up

12· · regarding the Elias situation or make Sergeant

13· · Decker aware of it after Karl Shaw shared with him

14· · his concerns about threats being made by Moore?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·I don't know what reasoning Lieutenant

17· · Brust would have had for the decision-making that

18· · he used.· I don't know what he knew about Officer

19· · Elias's situation involving that.· So it's hard

20· · for me to say what rationale Lieutenant Brust used

21· · for his decision-making and whether or not that

22· · was appropriate.

23· · Q.· · · · ·Okay.· Well, I guess I'm asking you as

24· · a supervisor, as an experienced command officer,

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·1· · if you have a black officer come to you and report

·2· · that a white officer made a gesture of grabbing,

·3· · reaching for a gun and -- as if to pull it out as

·4· · passing you in the hall, and that officer was

·5· · upset enough that they came to you and said this

·6· · happened and reported it, and you checked with the

·7· · person involved, the white officer involved who

·8· · confirmed it but said and acknowledged it was poor

·9· · judgment.· And then later, a couple of weeks later

10· · you find out that at least allegedly that that

11· · same person, and it's a ranking officer, a

12· · sergeant, is now being accused of and involved

13· · with other racist discriminatory remarks and

14· · threats.· Wouldn't what happened with Officer

15· · Elias at least be appropriate for the investigator

16· · to know about?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·I certainly think that it could have

19· · been shared and appropriately been shared.

20· · Q.· · · · ·Now -- I'm now moving on to another

21· · completely different event.

22· · · · · · · ·Are you familiar with an Officer

23· · Christopher Smith-Hughes?

24· · A.· · · · ·I am.· Sergeant.

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·1· · Q.· · · · ·Sergeant.· No, I'm going to put this

·2· · off to save time, because it doesn't -- I'm

·3· · worried about time, so I'm just going to drop that

·4· · for the moment.

·5· · · · · · · ·The narcotics bureau -- part of your

·6· · job as chief, as you mentioned earlier, you keep

·7· · track of overtime, or that's an important

·8· · financial issue?

·9· · A.· · · · ·Well, I -- I ask many other people

10· · within the division of police --

11· · Q.· · · · ·Right.

12· · A.· · · · ·-- to help me stay within the overtime

13· · budget.· It's their job to keep track of it.

14· · Q.· · · · ·Right.· I didn't mean that you had to

15· · do the accounting.

16· · · · · · · ·Based on your own experience as chief

17· · and just general awareness as a commanding

18· · officer, the narcotics bureau is among the

19· · highest, if not the highest unit with need for

20· · officers to work overtime; is that not true?

21· · A.· · · · ·It's one of them.

22· · Q.· · · · ·When -- there obviously was a

23· · progression during the course of this

24· · investigation which occurred over a year --

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·1· · ongoing over a year.· In hindsight, I'm asking you

·2· · in hindsight, would you agree that there were

·3· · several points in time when a decision to relieve

·4· · Sergeant Moore of his duties would have been

·5· · appropriate?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · A.· · · · ·A decision to relieve him of duty was

·8· · enacted.

·9· · Q.· · · · ·Yeah, but it was like almost a year

10· · after the investigation, wasn't it?

11· · A.· · · · ·So what's the question?

12· · Q.· · · · ·Well, I'm asking you, you have a

13· · sergeant who is involved in ongoing work at a unit

14· · where individuals who have reported he engaged in

15· · black -- black individuals who have reported he

16· · has made racist statements, sent a threatening

17· · text message, corroborated, to some extent, by

18· · other officers and not just one or two, but more

19· · than that, and these officers are interested in

20· · the narcotics bureau, given all of those

21· · circumstances -- and he's admitted it, the

22· · sergeant has admitted to the text message.· Why

23· · would he remain on duty?

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

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·1· · A.· · · · ·Somebody would need to advise the chain

·2· · of command or me that they have information that

·3· · leads us to believe that there's a charge perhaps

·4· · that could reach termination level, that is likely

·5· · to be sustained or of the nature that we can't

·6· · trust that individual to perform their duties

·7· · without the potential of causing harm or, you

·8· · know, making a decision that could impact either

·9· · employees or the public.

10· · · · · · · ·So depending on the information that we

11· · know during the investigation, or think that we

12· · can prove and is -- is then discussed to the point

13· · where there's a conversation about relief of duty,

14· · is usually the factors that determine that.· Going

15· · into an investigation, allegations that come in,

16· · sometimes they sound egregious, like I mentioned

17· · before, you know, people have accused officers of

18· · rape, but based on the information that we have,

19· · we're like, there's no evidence to indicate such

20· · and we wouldn't relieve them.

21· · · · · · · ·But in another case, based on the

22· · evidence that we have initially, we might very

23· · well relieve them of duty.· So it all depends on

24· · the amount of evidence that we have, whether the

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·1· · case might result in sustained departmental

·2· · charges for a terminational -- terminational, you

·3· · know, type of a recommendation.· Or whether or not

·4· · we feel that we can trust that person to do their

·5· · job in the way that we expect it to be done.

·6· · Q.· · · · ·Well, let's see if we can put timing on

·7· · it.· By the time of Sergeant Moore's interview, at

·8· · least the April 14th interview of 2015, he

·9· · admitted sending the text message, and the reason

10· · he sent it, shouldn't he have been relieved at

11· · that point?

12· · A.· · · · ·That -- I would -- I would say that --

13· · I can't say that "should have" is necessarily part

14· · of the equation.· I don't think that we've ever

15· · fired anybody for such a text message before.· The

16· · retaliation issue is probably the strongest,

17· · because despite what the words are, "get them,"

18· · it's still unclear if he meant I'll get them

19· · through my evaluation of them --

20· · Q.· · · · ·No, I don't want to be misled.· And I'm

21· · sorry to interrupt you.· I think I used "get

22· · them," but the other phrase I used, which is

23· · actually the actual words, is "better not."

24· · Better not take the job, okay?

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·1· · A.· · · · ·So the part that you said earlier that

·2· · says, "or I'll get them" is not there?

·3· · Q.· · · · ·That's not the words that were in the

·4· · text.

·5· · A.· · · · ·Oh, well, then do we go back and relive

·6· · my former testimony based on my understanding of

·7· · what that was?

·8· · · · · · · ·MR. COGLIANESE:· Yeah, and by all

·9· · means -- go ahead.· "Get them" was not in the

10· · text.

11· · A.· · · · ·Well, then what I've responded to

12· · earlier needs to be taken into consideration that

13· · I was misled as to what that text message said.

14· · Q.· · · · ·Okay.· Well, let's go over the text

15· · message.

16· · A.· · · · ·Okay.

17· · Q.· · · · ·He's sending an e-mail saying that

18· · Lancaster and Shaw better not take the job.

19· · A.· · · · ·Period?

20· · Q.· · · · ·Yeah.· Well, there's -- but that's the

21· · essence of the -- of the message.· You do not

22· · consider that a threat?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·I've already testified that I didn't

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·1· · consider that to be a direct threat of violence.

·2· · Q.· · · · ·Okay.· I didn't ask if you if it was a

·3· · threat of violence.

·4· · A.· · · · ·I just responded to you.· I didn't

·5· · consider it to be a threat of violence.

·6· · Q.· · · · ·Okay.· Do you consider it to be a

·7· · job-related threat?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·It certainly could be taken that way.

10· · I don't know what his intentions were, so that's,

11· · again, something that you have to find out what he

12· · means by that particular thing.

13· · Q.· · · · ·Would sending a message like that

14· · reasonably be viewed as deterring or trying to

15· · deter -- deter someone from taking a job when the

16· · person who sent it admits he did it because they

17· · called him a racist?

18· · · · · · · ·MR. COGLIANESE:· Objection.

19· · A.· · · · ·I believe that that certainly could be

20· · taken as a deterrent.

21· · Q.· · · · ·Okay.· And would you not agree it would

22· · be an attempt to prevent them from taking it

23· · because of their assertion about him?

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

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·1· · A.· · · · ·Well, I think that the testimony has

·2· · already indicated that he wanted to get to

·3· · somebody else, so certainly preventing somebody

·4· · from taking it would have been part of getting to

·5· · somebody else.

·6· · Q.· · · · ·Chief, in his interview, he didn't say

·7· · he sent it because he wanted to get to Ehrenborg.

·8· · He said he sent it because they called him a

·9· · racist.· Why would he say it if his only reason

10· · was to get to Ehrenborg?

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

12· · A.· · · · ·I didn't say that that was his only

13· · reason.

14· · Q.· · · · ·Maybe I'm misunderstanding you, and

15· · tell me if I'm misreading you.· You seem to be

16· · trying to come up with explanations for Sergeant

17· · Moore's conduct here, and I'm a little confused

18· · why you're doing that.

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·I am not.· I'm trying not to guess at

21· · anybody's intentions.· You've asked me in a number

22· · of times to put myself in other people's shoes or

23· · to explain why somebody did or did not do

24· · something.· So I'm not trying to explain why

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·1· · Sergeant Moore did something.· I am trying to

·2· · explain, when I can, what I think of a particular

·3· · thing.· You asked me why he wasn't relieved about

·4· · a text message that I now find out isn't exactly

·5· · what you had said was -- it was earlier.

·6· · · · · · · ·So in clarifying why he wasn't relieved

·7· · after finding out about a particular message that

·8· · was sent, I think that's how we got back into this

·9· · discussion, but I'm not trying to read anyone's

10· · mind.

11· · · · · · · ·We've discussed the fact that Sergeant

12· · Moore wanted to get to sergeant -- or Officer

13· · Ehrenborg.· So the means in which he accomplished

14· · that is -- sounds like a variety of things,

15· · preventing people, deterring people, talking to

16· · people, passing people, you know, not waiting for

17· · an answer, whatever it might have been, all seem

18· · to have been at play.

19· · Q.· · · · ·Okay.· So in your analysis when

20· · Sergeant Moore told Sergeant Decker that he sent

21· · the e-mail warning them they better not take the

22· · job, and that he did it because they called him a

23· · racist, you can't tell why he did it?

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

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·1· · A.· · · · ·I didn't say that.

·2· · Q.· · · · ·Okay.· Well, fine.

·3· · · · · · · ·So you -- you -- do you think it's

·4· · reasonable for Sergeant Decker and others who read

·5· · that portion of the interview to take Sergeant

·6· · Moore at his word when he says he did it because

·7· · they called him a racist?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·If somebody explains their

10· · justification for that, then generally we're going

11· · to believe that that is their justification.

12· · Q.· · · · ·And in terms of considering what the

13· · officers who were cautioned not to take the job,

14· · isn't it part of your responsibility as a chief or

15· · as a command officer who is to enforce the

16· · retaliation prohibitions to consider whether that

17· · text under those circumstances would deter people

18· · from making complaints, raising issues of racism?

19· · Isn't that part of what you have to do to evaluate

20· · a retaliation claim?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·You're asking if I as the chief need to

23· · decide if that message was going to deter people

24· · from taking the job?

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·1· · Q.· · · · ·Could deter people?

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·I think I established that I felt

·4· · strongly enough about the methods used that I

·5· · asked and ordered it to be reposted.· So I think

·6· · it's definitely shown that I did not approve of

·7· · the way that that posting was handled.

·8· · · · · · · ·And as far as retaliatory behavior,

·9· · certainly that is something that concerns me, and

10· · its impact upon our personnel is another concern.

11· · So I'm not sure what parts of that question I

12· · didn't respond to.

13· · Q.· · · · ·Okay.· I'm just trying to find out

14· · whether you, considering all the facts that you're

15· · aware of, concluded that Sergeant Moore's text

16· · message, along with his other behavior, would

17· · deter a reasonable person from raising

18· · discrimination complaints?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · Q.· · · · ·If that was -- that's a risk of his

21· · behavior?

22· · · · · · · ·MR. COGLIANESE:· Objection.

23· · A.· · · · ·I can't speak for what other people use

24· · as their rationale, but certainly retaliation is

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·1· · something that could deter people from reporting

·2· · something and/or taking an assignment.

·3· · Q.· · · · ·I want to switch gears here for a few

·4· · minutes.· And I would like you to take a look

·5· · at --

·6· · · · · · · ·MR. VARDARO:· 58.

·7· · · · · · · ·MR. GITTES:· Yeah, was it 58?· I had it

·8· · marked.

·9· · · · · · · ·MR. COGLIANESE:· Chief, just make sure

10· · you put the clip on that.

11· · · · · · · ·THE WITNESS:· Yeah, I am.

12· · · · · · · ·MR. COGLIANESE:· Thanks.

13· · · · · · · · · · · · ·- - - - -

14· · · · · · ·Thereupon, Plaintiff's Exhibit 58 is

15· · marked for purposes of identification.

16· · · · · · · · · · · · - - - - -

17· · Q.· · · · ·What I've -- what you've been handed,

18· · Chief, is a print of a newspaper article in which

19· · you're quoted, Plaintiff's Exhibit 58.· And I

20· · would like you to take a moment and read the

21· · article, because I just want to confirm whether

22· · you made the statements attributed to you in the

23· · article.

24· · A.· · · · ·Okay.

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·1· · Q.· · · · ·Okay.· Were there any statements

·2· · attributed to you in this article that you believe

·3· · are inaccurate or that you didn't say?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·I can't say that word for word the

·6· · quotes are exactly what I said, but I don't

·7· · dispute that I might have said words to these

·8· · effect.

·9· · Q.· · · · ·Okay.· Okay.· Now, I would like to give

10· · you -- I want 54 and 55.

11· · · · · · · ·MR. VARDARO:· Here's 54.

12· · Q.· · · · ·I'm going to give you two exhibits,

13· · Chief.

14· · A.· · · · ·Okay.

15· · · · · · · · · · · · ·- - - - -

16· · · · · · ·Thereupon, Plaintiff's Exhibits 54 and 55

17· · are marked for purposes of identification.

18· · · · · · · · · · · · - - - - -

19· · Q.· · · · ·For the record, Chief, you've been

20· · handed what have been marked as Plaintiff's

21· · Exhibit 54 and 55.· And first of all, do you

22· · recognize these documents?

23· · A.· · · · ·I don't know that I've seen the routing

24· · sheet before, which is 54.

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·1· · Q.· · · · ·Okay.· And what about 55?

·2· · A.· · · · ·Are you asking if I've seen it before?

·3· · Q.· · · · ·Yes, if you recognize it?

·4· · A.· · · · ·Yes.

·5· · Q.· · · · ·Okay.· And what is it?

·6· · A.· · · · ·This is a summary of an investigation

·7· · that was conducted by internal affairs.· It's not

·8· · everything that was investigated, but it's part of

·9· · an investigation that was conducted by internal

10· · affairs of Lieutenant Melissa McFadden.

11· · Q.· · · · ·Okay.· And the investigative report is

12· · dated February 9th, 2018, correct?

13· · A.· · · · ·Yes.

14· · Q.· · · · ·Didn't you order Lieutenant McFadden

15· · relieved of duty in March of '17?· Actually,

16· · March 10th of 2017?

17· · A.· · · · ·I don't believe that that is what

18· · happened.· I see that the routing sheet says to be

19· · relieved of her assignment, but she was

20· · reassigned.· But I don't believe she was relieved

21· · of duty at that time.

22· · Q.· · · · ·Okay.· So, I mean, this is -- first of

23· · all, did you talk to Deputy Chief -- do you

24· · pronounce his name Kuebler, is that --

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·1· · A.· · · · ·Kuebler.

·2· · Q.· · · · ·Like the cookies?

·3· · A.· · · · ·Yeah.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·But it's spelled differently.

·6· · Q.· · · · ·Did you discuss McFadden with him?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I am sure that I have.

·9· · Q.· · · · ·Okay.· As best you recall, what -- what

10· · did you order about her?

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

12· · A.· · · · ·I don't know if I ordered, approved or

13· · what, but based on the information that we

14· · received, an investigation was to ensue and she

15· · was to be reassigned during the pendency of that

16· · investigation, because she was the accused in an

17· · EEO allegation.· And per the recommendations of

18· · federal EEO law, you remove the accused rather

19· · than the accuser if they are going to remain in

20· · contact.

21· · · · · · · ·And so that was the decision or part of

22· · the decision-making with regard to not letting her

23· · continue to act as the lieutenant in the patrol

24· · zone that she was.

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·1· · Q.· · · · ·Because -- so you -- as I recall, you

·2· · reassigned her -- when I say you --

·3· · A.· · · · ·She was.

·4· · Q.· · · · ·-- with your consent, she was

·5· · reassigned to a non-supervisory position -- no?

·6· · A.· · · · ·I wouldn't say that at all.

·7· · Q.· · · · ·Okay.· Where was she reassigned?

·8· · A.· · · · ·No authority was taken away from her

·9· · with regard to her supervisory rank.· She was

10· · assigned to a place that didn't have the same

11· · direct reports or responsibilities, but I didn't

12· · take away any of her supervisory authority.

13· · Q.· · · · ·She was assigned to the property room,

14· · right?

15· · A.· · · · ·Yes.

16· · Q.· · · · ·Who -- who was there that she was

17· · supervising?

18· · A.· · · · ·I don't believe that she was put in

19· · charge of anybody to supervise.

20· · Q.· · · · ·Okay.

21· · A.· · · · ·They already have a chain of command

22· · there.

23· · Q.· · · · ·Had she admitted to -- had she --

24· · according to the charges against her, had she made

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·1· · any threats of violence to anybody?

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

·3· · Q.· · · · ·Had she sent any -- verbally or in

·4· · writing, communicated any messages warning someone

·5· · not to seek a position under her authority related

·6· · to a complaint about her?

·7· · A.· · · · ·I don't believe that we had that type

·8· · of information.

·9· · Q.· · · · ·Okay.· You, as I recall, according to

10· · the records, you ordered her put into the property

11· · room one day after, is it Commander Grizzell, I

12· · believe, sent you a letter about her concerns

13· · about Lieutenant McFadden; isn't that correct?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·I don't recall the exact timing.

16· · Q.· · · · ·Okay.· You wouldn't dispute that she

17· · sent the letter to you on the 9th and you

18· · confirmed that she should be put into the --

19· · reassigned to the property room, that is McFadden,

20· · on the 10th?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·What you characterize is after I had

23· · discussed concerns I believe.· I don't know that

24· · there weren't discussions prior to the actual

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·1· · letter being sent up, so --

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·-- I --

·4· · Q.· · · · ·Well, can we agree that one day after

·5· · the letter was sent up, regardless of whether

·6· · there were prior discussions, you moved McFadden,

·7· · reassigned her to the property room?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·Well, that information's not before me.

10· · This is dated -- discussed with me on the 10th of

11· · March.· It's forwarded on the 13th of March.

12· · Q.· · · · ·Okay.

13· · A.· · · · ·And I don't know -- well -- it says it

14· · was originated on the 9th, so -- but there's no

15· · letter here, so I --

16· · Q.· · · · ·Okay.· Do you need me to show you the

17· · letter?· Do you dispute that it happened very

18· · quickly?

19· · · · · · · ·MR. COGLIANESE:· Objection.

20· · A.· · · · ·No.

21· · Q.· · · · ·Okay.· So with respect to McFadden, she

22· · hadn't admitted anything, which is something you

23· · stress with Sorrell earlier today, she was charged

24· · with EEO violations, as was Sergeant Moore, but at

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·1· · no time did you or anybody under your command seek

·2· · to relieve Sergeant Moore, though it became clear

·3· · early on that he was going to be involved as an

·4· · officer in a bureau where black officers who had

·5· · expressed complaints, along with others, about his

·6· · discriminatory racist conduct.· Why wasn't he

·7· · relieved?

·8· · · · · · · ·MR. COGLIANESE:· Objection.

·9· · A.· · · · ·You're equating, I think, what happened

10· · to Lieutenant McFadden with what didn't happen to

11· · Sergeant Moore.

12· · Q.· · · · ·Absolutely.· That's exactly what I'm

13· · doing.

14· · A.· · · · ·And they are not the same.

15· · Q.· · · · ·Tell me how they're not the same.

16· · A.· · · · ·Lieutenant McFadden was given a new

17· · place to report to work because she still had

18· · people within her chain of command that were, I

19· · believe, accusers of hers, and we wanted to make

20· · sure that separation happened.· She wasn't

21· · relieved of duty.· Her gun wasn't taken away.· Her

22· · badge wasn't taken away.· She still had police

23· · powers.· Relieving somebody of duty is taking away

24· · their badge and gun and saying, don't perform

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·1· · police powers.

·2· · · · · · · ·In Sergeant Moore's case, he, at some

·3· · point in time, had already received a new

·4· · assignment, wasn't working with the people that

·5· · had accused him of the racist remarks, to my

·6· · knowledge.

·7· · Q.· · · · ·So the fact that he actually ordered,

·8· · using his powers as sergeant, Whitney Lancaster to

·9· · come and talk to him when he was prohibited to do

10· · so, and Officer Lancaster later was interviewed

11· · and said he felt it was discriminatory the way

12· · both the commander and -- and Moore talked to him

13· · and pushed him out of the job, that didn't matter?

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·I didn't say that at all.· I'm just

16· · saying, you asked why he wasn't relieved of duty.

17· · Q.· · · · ·Okay.· Why wasn't he relieved of duty

18· · at the point in time he disobeyed the order not to

19· · talk to people who were witnesses in an ongoing

20· · discrimination investigation?

21· · · · · · · ·MR. COGLIANESE:· Objection.

22· · A.· · · · ·I don't know that anybody made that

23· · recommendation.

24· · Q.· · · · ·Why didn't you make that

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·1· · recommendation?

·2· · A.· · · · ·I don't know how much information I had

·3· · at that time to be able to make that decision.

·4· · Q.· · · · ·Okay.· Why didn't -- you understood at

·5· · a certain point, didn't you, that he had ordered

·6· · an illegal weapon?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · Q.· · · · ·Moore, I'm talking about Eric Moore.

·9· · · · · · · ·MR. COGLIANESE:· Yeah, objection.

10· · A.· · · · ·As I stated before, I have no idea when

11· · I first became aware of that.· The fact that the

12· · ATF, who would be the investigating agency on

13· · that, declined to prosecute is an indication that

14· · there's not enough evidence or it's not

15· · prosecutable.· If it's not prosecutable, it is

16· · probably not going to result in a termination

17· · case.· And that is one of the leading reasons why

18· · you would relieve somebody of duty upon learning

19· · of -- of criminal behavior.

20· · Q.· · · · ·Chief, is it your representation here

21· · that the FBI, ATF, even the Columbus -- I'm sorry,

22· · the Columbus and county prosecutors don't decide

23· · not to prosecute for reasons other than the merits

24· · of a case?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·I didn't say anything like that.

·3· · Q.· · · · ·Sometimes they do it because it's not a

·4· · priority case, right?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·They have a variety of reasons for not

·7· · charging people.

·8· · Q.· · · · ·I mean, no law enforcement agency that

·9· · you know of prosecutes every single criminal case

10· · of any kind; isn't that true?

11· · A.· · · · ·I have no knowledge --

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

13· · A.· · · · ·-- of everybody -- of what you said,

14· · yeah.

15· · Q.· · · · ·Okay.· I mean, there's limits on

16· · resources, among other things?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·Correct.

19· · Q.· · · · ·Okay.· I mean, you recently in this

20· · depo were talking about resource problems because

21· · at one point you were running short of people and

22· · you used SRB -- a reorganization that may have

23· · been perfectly necessary, but it happened to help

24· · out because you needed people at another -- other

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·1· · assignments.

·2· · · · · · · ·MR. COGLIANESE:· Objection.

·3· · A.· · · · ·If that was a question, yes.

·4· · Q.· · · · ·Yeah, it was a question.

·5· · A.· · · · ·Okay.

·6· · Q.· · · · ·Sorry.

·7· · · · · · · ·I mean, it's -- I mean, it's a problem

·8· · for all law enforcement, I think everybody here in

·9· · this room understands that.

10· · A.· · · · ·Resources are.

11· · Q.· · · · ·Okay.· But that's not a reason to think

12· · that the fact that they have -- they've indicated

13· · to Sergeant Decker, not just to Karl Shaw, that

14· · they had proof he ordered a lightning link,

15· · doesn't mean it's pertinent to the Columbus Police

16· · Department, does it?

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·I'm not understanding what the question

19· · is.

20· · Q.· · · · ·Because the ATF didn't prosecute

21· · doesn't mean they didn't have evidence to verify

22· · that the sergeant ordered an illegal device?

23· · A.· · · · ·Correct.

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

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·1· · Q.· · · · ·But Sergeant -- Sergeant Decker was

·2· · told not to pursue that, wasn't he?

·3· · A.· · · · ·I believe you testified to that.

·4· · Q.· · · · ·No, I'm asking you.· Wasn't he?

·5· · · · · · · ·MR. COGLIANESE:· Objection.

·6· · A.· · · · ·I -- Sergeant Moore was not --

·7· · Q.· · · · ·Sergeant Decker -- oh, I'm sorry, maybe

·8· · you meant Sergeant Moore.

·9· · A.· · · · ·Sergeant Moore was not investigated by

10· · internal affairs for that attempt to purchase.

11· · Q.· · · · ·And didn't Sergeant Decker, in his

12· · report, say that he wasn't investigating him about

13· · the lightning link because ATF didn't prosecute

14· · him?

15· · · · · · · ·MR. COGLIANESE:· Objection.

16· · A.· · · · ·You're asking me to recall details

17· · about the investigation that I would have to read,

18· · but I believe that you earlier testified that --

19· · or stated that Commander Moore gave him that

20· · direction.

21· · Q.· · · · ·Okay.· I haven't testified and I'm not

22· · under oath.

23· · A.· · · · ·You've stated.

24· · Q.· · · · ·I've stated it's in the report.· And we

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·1· · have it here if you want -- you and your counsel

·2· · can correct me when I'm wrong, and I've already

·3· · corrected myself on one occasion when I made

·4· · one --

·5· · A.· · · · ·Correct.

·6· · Q.· · · · ·-- misstatement.

·7· · A.· · · · ·Correct.

·8· · · · · · · ·MR. COGLIANESE:· There's been more than

·9· · one, but that's fine.

10· · · · · · · ·MR. GITTES:· Okay.· You can put them

11· · all on the record.

12· · · · · · · ·MR. COGLIANESE:· I've been objecting to

13· · lots of them.

14· · · · · · · ·MR. GITTES:· Okay.

15· · Q.· · · · ·You -- my question was:· Do you recall

16· · that in his report, he indicated that he -- he,

17· · Decker, didn't pursue it because ATF hadn't

18· · charged him or pursued the case?

19· · A.· · · · ·I believe that I read that in the

20· · summary of the report.

21· · Q.· · · · ·Okay.· And my understanding that by

22· · itself is not a reason to look into a situation

23· · like that.· The mere fact that another law

24· · enforcement agency hasn't prosecuted a Columbus

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·1· · police officer isn't -- it's not a policy of the

·2· · department that that means it's not to be

·3· · investigated?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·I've already testified to that.

·6· · Q.· · · · ·So it's not a policy?

·7· · · · · · · ·MR. COGLIANESE:· Asked and answered.

·8· · A.· · · · ·We don't have a policy.

·9· · Q.· · · · ·Okay.· Did you -- did you or did

10· · yourself ask Sergeant Decker why he didn't look

11· · into it further?

12· · · · · · · ·MR. COGLIANESE:· Objection.· Can you

13· · read that question back?· I just want to make sure

14· · I heard it.

15· · · · · · · ·(The record is read as requested.)

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

17· · Q.· · · · ·Let me clarify the question in case --

18· · since Rich doesn't understand it.

19· · · · · · · ·Did you ask Sergeant Decker why he

20· · didn't investigate it further?

21· · A.· · · · ·I don't recall.

22· · Q.· · · · ·Okay.· Did you instruct anybody else to

23· · talk to Sergeant Decker about investigating the

24· · lightning link?

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·1· · A.· · · · ·Not that I recall.

·2· · Q.· · · · ·Okay.· At the time that you became

·3· · aware that there were multiple witnesses

·4· · confirming racist statements or slurs by Sergeant

·5· · Moore, why wasn't he relieved at that point?

·6· · · · · · · ·MR. COGLIANESE:· Objection.

·7· · Q.· · · · ·Or -- or reassigned to a position where

·8· · you would have no -- he would not be with people

·9· · who might be seeking or working with him?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·Well, again, I don't recall anybody

12· · making that suggestion based on the information

13· · that we had at that point in time, making racist,

14· · derogatory comments.· We -- we don't have a

15· · precedent for termination for such comments within

16· · the division of police, so it wouldn't jump out as

17· · this is a termination case, we have to relieve him

18· · of duty that it would necessarily be brought to my

19· · attention for consideration.· And that doesn't

20· · stop anybody else from making that decision.

21· · · · · · · ·And I don't know if Sergeant Decker

22· · brought it to somebody's attention, recommended

23· · that he be relieved of duty, if that was

24· · discussed.· I don't know how many times we

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·1· · discussed when would be an appropriate time to

·2· · relieve him of duty.· It certainly wasn't any

·3· · desire to protect Sergeant Moore, and it certainly

·4· · wasn't any desire to upset any of our employees.

·5· · It's just a decision that isn't taken lightly.

·6· · · · · · · ·I have been accused by the FOP and

·7· · talked to by the FOP and pleaded to by the FOP to

·8· · be very careful about our relief of duty

·9· · situations.· And I made changes to the policy and

10· · then discussed with our command staff when

11· · relieving of duty might be appropriate and when

12· · it's not and then how long that should last.· And

13· · I've made it clear to them, as I've tried to make

14· · it clear here, that if we don't trust you to do

15· · the job the way that it's supposed to be done and

16· · can't trust you around other employees or

17· · public -- or the public, you should be relieved

18· · until we know more.· And if I think I have enough

19· · evidence of an allegation that would result in

20· · termination, that would be another reason to

21· · recommend relief of duty.

22· · Q.· · · · ·Well, first of all, let me make it

23· · clear.· I'm not just asking about relief of duty

24· · in light of your absolutely appropriate point that

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·1· · the McFadden case, she was reassigned.· Why didn't

·2· · you reassign the sergeant?

·3· · A.· · · · ·I'm not aware of a situation where he

·4· · was directly supervising the accusers.

·5· · Q.· · · · ·You were aware that individuals were --

·6· · wanted to work in the bureau in which he would be

·7· · supervising him and were being deterred because of

·8· · comments witnesses were saying he made and

·9· · statements he texted; isn't that correct?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · A.· · · · ·It's a lot easier for me to leave him

12· · in an assignment where he's not directly

13· · supervising those accused than to move him

14· · someplace where he might come into contact with

15· · people that are the accusers.· So if there's

16· · multiple accusers, that would be -- make it even

17· · more difficult for me to find a place to reassign

18· · him.

19· · · · · · · ·And like I said, I'm just not aware of

20· · a situation where he was supervising those people

21· · that had accused him of discriminatory behavior.

22· · Q.· · · · ·So did you actually make a decision

23· · that it was better that someone like Officer Shaw

24· · be prevented from seeking to work in narcotics

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·1· · than it would be to have Sergeant Moore reassigned

·2· · somewhere?

·3· · · · · · · ·MR. COGLIANESE:· Objection.

·4· · A.· · · · ·Not at all.

·5· · Q.· · · · ·Did you actually even consider

·6· · reassigning him?

·7· · · · · · · ·MR. COGLIANESE:· Objection.

·8· · A.· · · · ·I would say that at various points in

·9· · time, there was discussion of either relieving him

10· · of duty or -- or reassigning him.· And I can't

11· · tell you when those discussions occurred, whether

12· · they were repeated or whether they were only at

13· · the beginning or what, but I know that there was

14· · certainly thought about whether or not he should

15· · be relieved of duty.· I just can't tell you how

16· · often that was discussed or who it was discussed

17· · with or where it stood with regard to the evidence

18· · that we had.

19· · Q.· · · · ·Were those -- did those discussions

20· · occur with Commander Cameron?

21· · A.· · · · ·I generally wouldn't be doing that kind

22· · of conversation with the commanders.

23· · Q.· · · · ·So it would have been -- would have

24· · been with Quinlan and/or Gray?

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·1· · A.· · · · ·And/or all of the executive staff, yes.

·2· · Q.· · · · ·Okay.

·3· · A.· · · · ·And it might have been internal affairs

·4· · as well.

·5· · Q.· · · · ·And when you use the phrase "executive

·6· · staff," who are you including?

·7· · A.· · · · ·The six deputy chiefs and the commander

·8· · from the professional standards bureau are the

·9· · members of the executive staff.· And the chief.

10· · Q.· · · · ·Are those -- have the deputy chiefs --

11· · how many of those deputy chiefs are still in the

12· · department to the best of your knowledge, of the

13· · ones that would have been involved in the

14· · discussions about Moore?

15· · A.· · · · ·Well, Gray --

16· · · · · · · ·MR. COGLIANESE:· Objection.

17· · A.· · · · ·-- has retired and Gary Dunlap has

18· · retired just in the last month.

19· · Q.· · · · ·Okay.· And who are the other four?

20· · A.· · · · ·Currently there's Tom Quinlan who's --

21· · Q.· · · · ·Right.

22· · A.· · · · ·-- acting -- acting chief.· Richard

23· · Bash, Tim Becker, Ken Kuebler and Michael Woods.

24· · Q.· · · · ·Okay.

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·1· · A.· · · · ·And then like I said, Gary Dunlap just

·2· · retired, so they're in the process of selecting

·3· · somebody for his position.· And Knight is the

·4· · acting deputy chief for Quinlan's position.

·5· · Q.· · · · ·So if I understand it, when you

·6· · fired -- or recommended the termination of Melissa

·7· · McFadden, that's the first time, to your

·8· · knowledge, anyone has been fired for making racist

·9· · comments?

10· · · · · · · ·MR. COGLIANESE:· Objection.

11· · Q.· · · · ·Alleged racist comments?

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

13· · A.· · · · ·Well, Melissa McFadden wasn't fired.

14· · Q.· · · · ·Recommended termination.· I'm sorry,

15· · you demote -- you recommended demotion, you're

16· · right, I'm sorry.

17· · · · · · · ·MR. COGLIANESE:· Objection.

18· · A.· · · · ·So what's -- what's the question?

19· · Q.· · · · ·Okay.· Did you recommend termination

20· · for her?

21· · A.· · · · ·I did.

22· · Q.· · · · ·Okay.

23· · A.· · · · ·But not for that.

24· · Q.· · · · ·What did you recommend termination for?

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·1· · A.· · · · ·Untruthfulness.

·2· · Q.· · · · ·Okay.· And what was --

·3· · A.· · · · ·And -- and possibly discriminatory

·4· · actions.

·5· · Q.· · · · ·Okay.

·6· · A.· · · · ·I would have to review the charges

·7· · again.

·8· · Q.· · · · ·Do you remember what she was allegedly

·9· · untruthful about?

10· · A.· · · · ·Her testimony in my hearing, I felt

11· · that she was untruthful to me --

12· · Q.· · · · ·Okay.

13· · A.· · · · ·-- and untruthful in her statements to

14· · internal affairs, but --

15· · · · · · · ·MR. GITTES:· Can we have a short break?

16· · I think I'm almost done.

17· · · · · · · ·THE VIDEOGRAPHER:· We're off the

18· · record.· The time is 4:18.

19· · · · · · · ·(A recess is taken.)

20· · · · · · · ·THE VIDEOGRAPHER:· We are back on the

21· · record.· The time is 4:27.

22· · Q.· · · · ·Okay?

23· · A.· · · · ·Uh-huh.

24· · Q.· · · · ·Chief, I would like you to look at

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·1· · Exhibit -- Exhibit 57 again.

·2· · · · · · · ·MR. VARDARO:· No, you haven't given it

·3· · to her yet.

·4· · · · · · · ·MR. GITTES:· Oh, that's right.

·5· · · · · · · · · · · · ·- - - - -

·6· · · · · · ·Thereupon, Plaintiff's Exhibit 57 is

·7· · marked for purposes of identification.

·8· · · · · · · · · · · · - - - - -

·9· · Q.· · · · ·And after you've had a chance to look

10· · at the exhibit, can you tell me what it is?

11· · A.· · · · ·First page is my recommendation of the

12· · charges to Lieutenant McFadden, and the next one

13· · is my recommendation, the finding and discipline

14· · to the Director of Public Safety.· The one labeled

15· · 000006 is a routing sheet that I signed off on at

16· · the conclusion of the investigation and prior to

17· · the departmental charge hearing.· And the one that

18· · ends with 07 is Deputy Chief Bash's comments with

19· · regard to the investigation, and there are also

20· · e-mails here.· And the last one are the charges

21· · that were filed against her prior to the hearing.

22· · Q.· · · · ·Okay.· Let me make sure I understand.

23· · So going from reverse direction, the last two

24· · pages were the charges you had decided to file?

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·1· · A.· · · · ·There's one, two, three --

·2· · Q.· · · · ·Three pages, yeah?

·3· · A.· · · · ·-- so 11, 12 and 13 are the charges

·4· · that I signed off on charging her departmentally

·5· · with violations of our rules.

·6· · Q.· · · · ·And that's dated the 18th and that's

·7· · your signature above your name?

·8· · A.· · · · ·Correct.

·9· · Q.· · · · ·And in this specific -- in the charges,

10· · I don't see anything about lying.· Am I missing

11· · something?

12· · A.· · · · ·No, you're right.· I -- I was thinking

13· · of something else.

14· · Q.· · · · ·So it's all EEO-related charges?

15· · A.· · · · ·Correct.

16· · Q.· · · · ·And as I think you indicated, this

17· · document at the end came before the hearing, the

18· · charges come out --

19· · A.· · · · ·This is her notice that she's being

20· · departmentally charged with those violations,

21· · correct.

22· · Q.· · · · ·And she signs it, because I think

23· · that's her signature?

24· · A.· · · · ·This is, yes, her receipt --

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·1· · Q.· · · · ·Okay.

·2· · A.· · · · ·-- to say that she understands that she

·3· · needs to appear.

·4· · Q.· · · · ·Okay.· And then I guess now I

·5· · understand my confusion about termination,

·6· · demotion.· In this letter, the first page, there

·7· · were different penalties assigned to different

·8· · specifications, is that why there's three

·9· · different things?· It says level of discipline,

10· · 240 hours suspension/termination/demotion?

11· · A.· · · · ·I -- I grouped them all together, and

12· · that was my recommendation for that combination of

13· · charges.

14· · Q.· · · · ·Okay.

15· · A.· · · · ·I did not separate out what the

16· · different --

17· · Q.· · · · ·Well, how does that work?· I mean, in

18· · practice, if you've done three different levels of

19· · discipline, how does it -- how is that handled?

20· · Obviously if you're terminated, you're not -- you

21· · can't be demoted.· I mean, so how does it work?

22· · A.· · · · ·How does that work if that was to be

23· · upheld by the Director of Public Safety?

24· · Q.· · · · ·So you're -- you're recommending three

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·1· · different levels of punishment for the purpose of

·2· · giving the director choices?· I'm just trying to

·3· · understand how the system works.

·4· · A.· · · · ·This is a very different kind of a

·5· · case, because she was a supervisor, and all of the

·6· · aspects involved in that.· But it's the Director

·7· · of Public Safety's decision on the recommendation

·8· · that gets to him.· And it gets to him if I'm

·9· · recommending something that involves a suspension

10· · or worse.

11· · · · · · · ·There are some discipline cases where I

12· · can offer the officer a leave forfeiture.· And if

13· · they accept that, it doesn't go to the Director of

14· · Public Safety.· Otherwise if I recommend

15· · suspension, then it always goes to the Director of

16· · Public Safety to make the final decision.

17· · · · · · · ·In this particular case, I made that

18· · recommendation thinking that if termination isn't

19· · the decision, that it's worthy of a six-week

20· · suspension and a demotion, because I thought that

21· · the supervisory issues were very relevant to the

22· · situation and the charges.· You know, if it was --

23· · it could have been, you know, just a termination

24· · case and sometimes that's all I recommend.

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·1· · Q.· · · · ·Okay.· That's what I was trying to

·2· · understand.

·3· · A.· · · · ·Yeah.

·4· · Q.· · · · ·Okay.

·5· · A.· · · · ·This is an unusual recommendation for

·6· · me, but I have seen it done before in my previous

·7· · years as a supervisor.· I've been a supervisor

·8· · since 1987, so in my years in internal affairs and

·9· · just documents that I've reviewed, I've seen this

10· · type of a recommendation before.· It's very rare.

11· · Q.· · · · ·Okay.· Now, just one other area, I

12· · believe, not promising, but I believe just one

13· · other area.

14· · · · · · · ·In a situation where you have one

15· · officer saying another officer made a threat and

16· · the accused officer says, no, I didn't, what do

17· · you do?· You just write it off?· Do you

18· · investigate further?· What is the -- what is the

19· · process?

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

21· · A.· · · · ·Well, first of all, you're asking what

22· · I do.

23· · Q.· · · · ·Well, I'm -- as chief, I mean, you've

24· · investigated cases before, right?

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·1· · · · · · · ·MR. COGLIANESE:· Objection.

·2· · A.· · · · ·I have never investigated as an

·3· · internal affairs investigator.· As a sergeant, I

·4· · did do some chain of command investigations, but

·5· · they were generally like a use of force

·6· · investigation.· You know, did you use force and

·7· · how did you use it?· I know that I investigated

·8· · some citizen complaints, a few when I was a

·9· · sergeant, but this is in the 1980s and early '90,

10· · maybe.· No, probably not.

11· · Q.· · · · ·I thought you supervised IAB for a

12· · while?

13· · A.· · · · ·Well, I was the commander.· I didn't

14· · conduct the investigations.

15· · Q.· · · · ·But you were consulted about ongoing

16· · investigations?

17· · A.· · · · ·Absolutely.

18· · Q.· · · · ·And you supervised their investigations

19· · as needed, right?

20· · A.· · · · ·Correct.

21· · Q.· · · · ·Okay.· Well, based on your experience

22· · as an IAB commander, when you have, you know, a he

23· · said/he said kind of situation, do you just not

24· · pursue it?· Or do you -- do you do polygraphs?· Do

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·1· · you do some other -- take other steps to see if

·2· · you can cooperate?

·3· · A.· · · · ·There are --

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·There are a variety of -- of directions

·6· · that you can go with an allegation that involves

·7· · he said/he said.· Most often if they are committed

·8· · to a complaint, it's going to go for an

·9· · investigation.· Sometimes that's chain of command,

10· · sometimes that's going to be internal affairs. I

11· · wouldn't say that writing it off is ever like a

12· · given or even a policy.

13· · · · · · · ·It depends on the he said/he said

14· · content, you know, whatever that might be.· A lot

15· · of those situations, you know, going into it you

16· · think, well, it might be not sustained, but we

17· · have the gamut from sustained to unfounded when

18· · it's he said/he said or she said/he said or

19· · whatever.· And that depends on the evidence that

20· · we're able to uncover.

21· · · · · · · ·You know, a video makes a huge

22· · difference obviously.· An admission makes a huge

23· · difference, obviously.· So it just all depends on

24· · what the situation is, but --

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·1· · Q.· · · · ·What about polygraphs?

·2· · A.· · · · ·Polygraphs are written into the

·3· · contract with regard to when they can be

·4· · undertaken.· So -- and that's with regard to sworn

·5· · personnel.· And I've kind of been talking about

·6· · sworn personnel.· Civilian investigations are --

·7· · have different rules.· But with regard to the FOP

·8· · contract, the contract comes right out and says

·9· · when you can do a polygraph.· And that's if

10· · there's a criminal aspect to the allegations, and

11· · whether or not the accuser or the person making

12· · the complaint is willing to take a polygraph and

13· · passes, I believe, before we would then make a

14· · decision on ordering the involved officer to take

15· · a polygraph.

16· · Q.· · · · ·In this case, did Sorrell take -- I

17· · mean, accusations -- some of the accusations that

18· · Sorrell was making were of a criminal nature,

19· · right?· Theft of money essentially?

20· · A.· · · · ·Certainly some of the allegations

21· · involved, theft of time or overtime.· I can't

22· · recall whether we had a discussion about ordering

23· · a polygraph for Sorrell or not.· Some people see

24· · value in that.

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·1· · · · · · · ·My -- my history with polygraphs and

·2· · how it's used and all that is that I often don't

·3· · find that it's going to create a lot of value to

·4· · the investigation, and the FOP sometimes turns

·5· · that around and says, well, you're relying on

·6· · that, and if you're relying on that, then we have

·7· · to throw the whole thing out, so...

·8· · Q.· · · · ·So the rule -- the contract rule is

·9· · it's got to be criminal and the accuser has to --

10· · A.· · · · ·Of a criminal nature, I believe it

11· · says.

12· · Q.· · · · ·Criminal nature?

13· · A.· · · · ·Yeah.

14· · Q.· · · · ·I'm sorry.· Has to be of a criminal

15· · nature or at least potentially --

16· · A.· · · · ·Correct.

17· · Q.· · · · ·-- a criminal act?

18· · · · · · · ·And the accuser has to agree to it --

19· · to take it?

20· · A.· · · · ·I'm pretty sure it says accuser or, you

21· · know, the person making the complaint.

22· · Q.· · · · ·Complainant or something --

23· · A.· · · · ·Yeah.· Exactly.

24· · Q.· · · · ·-- like that?

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·1· · A.· · · · ·I mean, it's in the contract.· It would

·2· · be better to just go word for word than --

·3· · Q.· · · · ·The reason I'm asking you this --

·4· · A.· · · · ·Yeah.

·5· · Q.· · · · ·-- is there's a document that I've seen

·6· · where it looks like Sergeant Decker suggested or

·7· · requested polygraphs, but we can't figure out

·8· · whether they actually ever happened.· Do you know?

·9· · A.· · · · ·If they happened --

10· · Q.· · · · ·Yeah, in this case?

11· · A.· · · · ·-- the records should be in the record.

12· · Q.· · · · ·Okay.· All right.

13· · A.· · · · ·Because it would have been a public

14· · record and it would have been part of the

15· · investigation.

16· · Q.· · · · ·Okay.· Okay.· If you would take a look

17· · at Exhibit 38, the big giant one.

18· · A.· · · · ·Uh-huh.

19· · Q.· · · · ·And look at page 138 --

20· · · · · · · ·MR. VARDARO:· 163.

21· · Q.· · · · ·163.· And that's the page --

22· · A.· · · · ·Up at the top?

23· · Q.· · · · ·-- up at the top, yeah.

24· · · · · · · ·I would like to point your attention

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·1· · down to the last paragraph on the page.

·2· · A.· · · · ·Okay.

·3· · Q.· · · · ·And I'm just going to read it out loud

·4· · to be -- since it's the basis of a question.

·5· · · · · · · ·Although it is a very close call, and I

·6· · do not find Sergeant Moore credible, I am

·7· · unwilling to sustain this allegation without some

·8· · form of corroboration of Officer Sorrell -- of

·9· · Officer Sorrell's statement.· Therefore I find

10· · that the alleged conduct could not be supported or

11· · refuted by a preponderance of the evidence.· And

12· · he recommends not sustained.

13· · · · · · · ·My question is that:· As chief and as a

14· · former commander of IAB, is that the general rule

15· · that we're -- that you need -- if it's just one

16· · witness, and for this purpose since assuming there

17· · was only one witness, did you -- is it the rule

18· · you have to have other corroboration to sustain a

19· · charge?

20· · · · · · · ·MR. COGLIANESE:· Objection.

21· · A.· · · · ·There's no rule.· I mean, everything is

22· · taken based on the information that we have for

23· · that thing.· I would say when -- when we don't

24· · have something that tips the scales, then it's

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·1· · going to be not sustained.· It's -- it's just --

·2· · you can't get there and say that the evidence is

·3· · sufficient to make it sustained.· It's a fine

·4· · line.

·5· · · · · · · ·And sometimes that just depends on what

·6· · you think you can prove.· Just like, you know,

·7· · prosecutors don't take all their cases even though

·8· · probable cause might be there, they might not take

·9· · it because they don't think they can get to beyond

10· · a reasonable doubt.· So, you know, it's all about

11· · what we think the evidence tells us, and there's

12· · always differing opinions about what the evidence

13· · says.

14· · Q.· · · · ·So the fact that Moore was not credible

15· · as Sergeant Decker describes it, and there is

16· · someone accusing him, that's not enough without

17· · additional corroboration?

18· · A.· · · · ·That was Sergeant Decker's decision --

19· · Q.· · · · ·Right.

20· · A.· · · · ·-- to go that route.

21· · Q.· · · · ·Well, but this is just a

22· · recommendation, right?

23· · A.· · · · ·He makes a recommendation of finding

24· · and that's what -- how he --

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·1· · Q.· · · · ·Right.

·2· · A.· · · · ·-- justified his decision.

·3· · Q.· · · · ·I'm asking you:· Do you view situations

·4· · like he's describing here the same, that even if

·5· · you have somebody you don't believe is credible,

·6· · but you don't feel you have corroboration of some

·7· · kind, you don't think there should be a charge?

·8· · A.· · · · ·A finding of sustained.

·9· · Q.· · · · ·A finding of sustained?

10· · A.· · · · ·There's a difference there.

11· · Q.· · · · ·Okay.· You're right.· A finding of

12· · sustained.

13· · A.· · · · ·Yes, I have to agree that I've been in

14· · that same -- same reasoning situation where even

15· · though I don't believe necessarily the officer, I

16· · don't have enough.· I -- I can very clearly

17· · remember a case where I thought the officers were

18· · very guilty, but I didn't have enough

19· · corroboration.· They weren't credible, but I

20· · didn't have enough corroboration to make a

21· · sustained finding.· And that's just one case, you

22· · know, there's --

23· · Q.· · · · ·And -- and in a situation like this

24· · where another officer specifically asked Moore

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·1· · about whether he had made this statement and Moore

·2· · did not deny it, that's not enough to tip the --

·3· · to tip the scales?

·4· · · · · · · ·MR. COGLIANESE:· Objection.

·5· · A.· · · · ·Well, it wasn't for Sergeant Decker or

·6· · anyone else that reviewed the information.

·7· · Q.· · · · ·And you understand that -- let me make

·8· · it clear, there's a different witness that's not

·9· · referenced in this little section who in a

10· · conversation with Sergeant Decker told him that he

11· · had asked him about the allegations, and Moore did

12· · not deny it, he just didn't respond?

13· · A.· · · · ·Is that included --

14· · · · · · · ·MR. COGLIANESE:· Objection.

15· · A.· · · · ·-- in the rest of this?

16· · Q.· · · · ·It is included elsewhere in the

17· · investigation.· Do you think that is pertinent?

18· · A.· · · · ·All of it is.

19· · Q.· · · · ·Okay.· As someone who has investigated

20· · some cases, would that have tipped the scale for

21· · you had it been discussed in connection with

22· · Sorrell and Watkins in this section?

23· · · · · · · ·MR. COGLIANESE:· Objection.

24· · A.· · · · ·Well, I didn't change the ruling, so I

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·1· · think that it's clear that I didn't feel that I

·2· · could sustain the charge.

·3· · Q.· · · · ·But as far as you recall, you

·4· · considered this other -- the other witness about

·5· · Moore --

·6· · A.· · · · ·I considered --

·7· · Q.· · · · ·-- not the whole thing?

·8· · A.· · · · ·-- the information, yeah.

·9· · Q.· · · · ·Okay.· Okay.· I think I am finished

10· · with my questions.· I just want to give you an

11· · opportunity if you have anything that you believe

12· · sitting here at the moment you need to correct or

13· · add to a prior answer, please let us know.

14· · A.· · · · ·I can't think of anything in

15· · particular.

16· · Q.· · · · ·Okay.

17· · A.· · · · ·It was a long day.

18· · · · · · · ·MR. GITTES:· I am requesting that you

19· · review and read the transcript when it's done up.

20· · · · · · · ·MR. COGLIANESE:· And she'll read.

21· · · · · · · ·THE WITNESS:· I understand.

22· · · · · · · ·THE VIDEOGRAPHER:· This concludes the

23· · deposition.· We are off the record.· The time is

24· · 4:48.

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·1· · · · · · · ·(Signature not waived.)

·2· · · · · · · · · · · · ·- - - - -

·3· · · · · · ·Thereupon, the foregoing proceedings

·4· · · · · · ·concluded at 4:47 p.m.

·5· · · · · · · · · · · · ·- - - - -

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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, Mary Bradley, RPR, a Notary Public in and

·3· ·for the State of Ohio, certify that Kimberley K.

· · ·Jacobs was by me duly sworn to testify to the whole

·4· ·truth in the cause aforesaid; testimony then given

· · ·was reduced to stenotype in the presence of said

·5· ·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 hereto,

12· ·or financially interested in the action.

13· · · ·IN WITNESS WHEREOF, I have hereunto set my hand

· · ·and affixed my seal of office at Columbus, Ohio, on

14· ·June 4, 2019.

15

16

17

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20· ·___________________________________________________

· · ·Mary Bradley, Notary Public - State of Ohio

21· ·My commission expires September 19, 2019.

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: Mb30921kj· S-mb P-bw

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