1 STATE OF MONTANA
2 BEFORE THE DEPARTMENT OF LABOR & INDUSTRY
3 HEARINGS BUREAU
4 In the matter of Human Rights Case Nos. 0098013823,
5 0098013824, 0098013825
7 DEPUTY SHERIFF JOHN SMITH,
9 Charging Party,
10 DLI CASE NOS.
11 vs. 1098-1100-1101/2010
13 YELLOWSTONE COUNTY and YELLOWSTONE
14 COUNTY SHERIFF OFFICE and JAY BELL,
19 VIDEOTAPED RULE 30(b)(6) DEPOSITION OF JAY BELL
23 Taken at the offices of Billings Job Service
24 2121 Rosebud Drive, Billings, Montana
26 April 27, 2010
27 8:24 a.m.
31 REPORTED BY: CHERYL ROMSA
32 CHERYL ROMSA COURT REPORTING
33 P. O. BOX 1278
34 HELENA, MONTANA 59624
35 (406) 449-6380
1 A P P E A R A N C E S
3 ON BEHALF OF CHARGING PARTY:
5 TIMOTHY C. KELLY
6 Attorney at Law
7 P.O. Box 65
8 Emigrant, Montana 59027-0065
11 ON BEHALF OF RESPONDENTS:
13 KEVIN C. GILLEN
14 Deputy County Attorney
15 YELLOWSTONE COUNTY ATTORNEY'S OFFICE
16 P.O. Box 35025
17 Billings, Montana 59107-5025
20 ALSO PRESENT: John Smith
21 John Nordhagen, Videographer
1 I N D E X
5 JAY BELL:
7 Examination by Mr. Kelly...................... 6
11 INDEX TO EXHIBITS
13 NO. DESCRIPTION MARKED
15 13 Amended Notice of Rule 30(b)(6) Deposition
16 of Respondent Yellowstone County
17 Sheriff's Office, 4/2/2010 7
18 14 Settlement Agreement, August 2008 24
19 15 Response to Complaint, 7/7/2009 48
20 16 Respondents' Preliminary Prehearing
21 Statement, 1/25/2010 51
22 17 Declaration of Deputy John Smith,
23 Case No. CV-06-104-BLG-RFC,
24 8/14/2009 54
25 18 Letter of written warning to
26 Sergeant Bofto, 11/19/2007 81
27 19 Traffic Accident Review Board, 11/8/2007 84
28 20 Letter of written warning to
29 Suzanne DuPuis, 10/10/2008 85
30 21 Letter of written warning to
31 Sergeant McCollum, 5/19/2009 85
32 22 Letter of written warning to
33 Deputy Swecker, 5/1/2009 86
34 23 Supplementary Report, Detective
35 Bancroft, 3/18/2008 86
36 24 Letter of written warning to
37 Deputy McCave, 9/7/2008 87
38 25 Complaint/Corrective Action Form,
39 written warning, Deputy Hoffman,
40 4/9/2009 88
1 INDEX TO EXHIBITS (Cont.)
3 NO. DESCRIPTION MARKED
5 26 Complaint/Corrective Action Form,
6 written warning/reprimand,
7 Deputy Hackbarth, 9/8/2008 89
8 27 Complaint/Corrective Action Form,
9 written warning, Deputy Ketch,
10 7/25/2008 91
11 28 Notice of disciplinary action to
12 Deputy Paris, 8/28/2008 91
13 29 Complaint/Corrective Action Form,
14 written warning, Deputy Paris,
15 8/24/2008 92
16 30 Letter of written warning to
17 Deputy Butler, 8/28/2009 93
18 31 Letter of reprimand to Deputy
19 Ostermiller, 11/29/2007 94
20 32 Letter of written warning to Deputy
21 Ostermiller, 5/30/2007 95
22 33 Letter of written reprimand to
23 Deputy Romero, 3/22/2007 95
24 34 Letter of written warning to
25 Deputy Benjamin, 11/14/2007 95
26 35 Letter from Detective Cunningham,
27 5/2/2007 96
28 36 Letter of disciplinary action to
29 Deputy Cunningham, 1/24/2006 98
30 37 Letter of written warning to
31 Captain Michaelis, 7/28/2008 99
32 38 Accident review, re Detective Weston,
33 11/28/2007 114
34 39 Letter of written warning to
35 Deputy Smith, 5/25/2009 121
36 40 Written notice of policy violation to
37 Deputy Smith, 1/15/2008 122
38 41 Section 49-3-205(3) MCA Analysis by
39 Peter Michael Meloy 128
40 42 Memorandum from Laurel City Court,
41 2/13/2007, and statement of
42 Deputy Taylor, 2/19/2007
43 re Deputy Weiland 210
1 BE IT REMEMBERED THAT, pursuant to notice, the
2 videotaped Rule 30(b)(6) deposition of JAY BELL was taken
3 at the time and place and with the appearances of counsel
4 hereinbefore noted before Cheryl Romsa, Notary Public for
5 the State of Montana.
6 WHEREUPON, the proceedings were had as follows:
7 VIDEOGRAPHER: The time is 8:24. We're on the
9 This is the Rule 30(b)(6) deposition of Respondent
10 Yellowstone County Sheriff's Office, Jay Bell, taken by
11 the attorneys for the charging party in the matter of
12 Deputy Sheriff John Smith, Charging Party, vs. Yellowstone
13 County and Yellowstone County Sheriff's Office, Jay Bell.
14 This is DLI Case Nos. 1098-1100-1101/2010, in the state of
15 Montana, before the Department of Labor and Industry.
16 This deposition is being taken on April 27th, 2010, at
17 the Department of Labor and Industry Job Service Center,
18 2121 Rosebud Drive, Billings, Montana. The court reporter
19 is Cheryl Romsa, of Romsa Court Reporting. The
20 videographer is John Nordhagen, working with Cheryl Romsa.
21 Counsel will now introduce themselves, after which the
22 court reporter will swear in the witness.
23 MR. KELLY: Timothy C. Kelly, for the charging
24 party, Deputy John Smith.
25 MR. GILLEN: Kevin Gillen, that's G-I-L-L-E-N,
1 counsel for Yellowstone County and all respondents in
2 these matters.
3 (The witness was sworn.)
4 JAY BELL,
5 a witness, having been first duly sworn, testified upon
6 his oath as follows:
8 BY MR. KELLY:
9 Q. Would you state your name and current residence
10 for the record, please.
11 A. Jay Bell, 101 East Fourth Street, Laurel,
13 Q. You're employed as the sheriff of Yellowstone
14 County; is that correct?
15 A. That's correct.
16 Q. You were appointed to the position, not elected?
17 A. Correct.
18 Q. How long have you held the position?
19 A. Since July of last year.
20 Q. Pursuant to the Rule 30(b)(6) notice, are you
21 appearing here today as the designee of the sheriff's
23 A. I am.
24 Q. I'm showing you what will be marked as Exhibit
25 No. 13.
1 (Deposition Exhibit 13 was marked for identification.)
2 Q. (By Mr. Kelly) Do you recognize Exhibit No. 13?
3 A. Just as -- from this morning. I just received it
4 this morning, sir, from Mr. Gillen. I had not seen it
5 until about 20 minutes ago. But I do now.
6 Q. And you've been designated to testify about the
7 topics identified in the notice regarding what information
8 and knowledge that the sheriff's office has on each of the
9 topics listed in Exhibit 13; is that correct?
10 A. Yes. That is correct.
11 Q. When I use the term "you" during this deposition,
12 do you understand that I'm referring to you as the
13 sheriff's office?
14 A. I do.
15 Q. And not you personally.
16 A. Correct.
17 Q. And are you aware that the sheriff's office is
18 appearing through you today and when you testify, you are
19 testifying as the sheriff's office?
20 A. Yes.
21 Q. Are you prepared to answer the questions on all
22 of the topics identified in the notice concerning the
23 facts known or reasonably available to the sheriff's
24 office on those topics?
25 A. To the best I can.
1 Q. And so you are prepared?
2 A. Yes.
3 Q. Are you prepared to give complete and binding
4 answers on behalf of the sheriff's office with respect to
5 those facts, beliefs, opinions, and interpretations of
6 events and documents relating to the topics that are
7 identified in the notice?
8 A. Yes.
9 Q. Have you prepared and educated yourself on those
10 topics sufficient to testify today to all matters known or
11 reasonably available to the sheriff's office regarding
12 those topics?
13 A. Well, I can't say that I've prepared as well as I
14 would have if I'd have seen this document earlier, but
15 I -- I think that I can answer your questions hopefully to
16 your satisfaction on these -- on these issues. I didn't
17 bring any specific documents with me that I may have if
18 I'd have seen this stuff earlier.
19 Q. Have you done anything to prepare?
20 A. No.
21 MR. KELLY: We'd note for the record that we
22 reserve our right to make a motion that there has been a
23 failure here to comply with the Rule 30(b)(6)
25 Q. (By Mr. Kelly) Can you state for the record
1 what, if you anything, you did to prepare to testify
3 A. Mr. Gillen called me earlier this morning, went
4 over the questions. I don't think there's any question
5 here that I am not prepared to answer. I think I'm aware
6 of all of the topics.
7 Q. I'm sorry, it didn't seem to be -- Is that the
8 completion of the answer?
9 A. Yes.
10 Q. Okay. Did you take any notes or review any
11 documents for purposes of preparation?
12 A. For the Rule 30? No.
13 Q. For today's testimony.
14 A. For the testimony, I reviewed the human rights
15 part of the code, I looked over the documents I had on
16 Mr. Smith -- I must have left them in my car -- called the
17 Smith file, past testimony when we did the Romero
18 deposition; I spoke with Mr. Gillen a couple of times.
19 Q. Okay. And what portion of the Human Rights Act
20 did you review?
21 A. 49-dash codes.
22 Q. The entire code?
23 A. The entire code.
24 Q. And the Smith file --
25 A. Yeah, that's --
1 Q. -- is that his employment file?
2 A. No. These are just the things concerning his
3 complaints, the correspondence between you and Mr. Gillen,
4 some of the things that you'd asked for in the past.
5 Q. Okay. Could I have an opportunity to review
7 A. Sure.
8 Q. Thank you.
9 (Off the record briefly.)
10 MR. KELLY: So there are certain documents that
11 we would like to tag, but we can do that at the break, if
12 that's okay.
13 MR. GILLEN: Sure.
14 Q. (By Mr. Kelly) Did you review the Preliminary
15 Prehearing Statement of yourself and the other respondents
16 in this case prior to today's testimony?
17 A. Yes.
18 Q. Did you review that prior to the time that it was
19 filed in this case by the respondents?
20 A. Did I review it when, now?
21 Q. Well, they filed a Preliminary Prehearing
22 Statement when it was certified for hearing. Prior to the
23 time that pleading was filed, did you review it?
24 A. I believe so. Yes.
25 Q. Was it true and accurate, to the best of your
1 knowledge and belief?
2 A. Yes, it was. Uh-huh.
3 Q. A document which has been marked as exhibit
4 number -- this is from yesterday's testimony, so 7
5 (indicating) was submitted as a response to an information
6 request in this case. And it's topic No. 3 in your notice
7 of deposition. Did you review that prior to the time it
8 was filed in the administrative investigation?
9 A. Topic No. 3?
10 Q. Exhibit No. 7, the entire exhibit.
11 A. Oh.
12 Q. Please take your time and review it.
13 A. Okay.
14 Q. Maybe I can ask this first: Have you ever seen
15 this before?
16 A. This particular document, no.
17 Q. So with respect to topic No. 3, all facts and
18 circumstances relating to each of the major complaints,
19 minor complaints, and supplemental civilian complaints as
20 set forth in Exhibit 7, you haven't even seen that
21 document, correct?
22 A. This particular document, no. I'm aware that
23 they put this together for the Human Rights -- that the
24 administrative coordinator did this for the Human Rights
1 Q. And it was submitted under Mr. Gillen's name as
2 counsel on your behalf?
3 A. Yes.
4 Q. And having not reviewed it before, do you know if
5 it's true and accurate?
6 A. Well, I'm going to have to rely on the facts that
7 they would be. But not reviewing it -- I'm going to say
8 that they are, but without going through each one of them
9 and going through the vault and checking each one of them,
10 I am going to rely that they are.
11 Q. And you would have to review each one and go
12 through the vault on each one to actually prepare to
13 testify on each of those items with knowledge today?
14 A. Well, let me take a look at them.
15 Q. Okay. Please take your time.
16 A. (Reviewing document.) A lot of them look
18 Q. And are you prepared to answer all questions
19 concerning facts, beliefs, opinions, and interpretation of
20 events and documents relating to those -- each of those
22 A. To the best that I can.
23 Q. Have you done anything to review any of the
24 underlying documents?
25 A. No.
1 Q. Don't you need the underlying documents to be
2 able to accurately testify about these matters?
3 A. Probably help.
4 Q. It would help?
5 A. Yeah, it would.
6 MR. GILLEN: Excuse me, Mr. Kelly, do you have
7 those underlying documents?
8 A. I don't.
9 MR. GILLEN: Were you provided those documents?
10 MR. KELLY: I was provided them.
11 MR. GILLEN: Pardon me?
12 MR. KELLY: I was provided with them.
13 MR. GILLEN: Oh, okay. For the record, this is
14 an outline of all of those cases and documents generated
15 for you and for the Human Rights Bureau, but we didn't
16 bring them with us today.
17 Q. (By Mr. Kelly) Well, and my question only went,
18 did you prepare in order to testify pursuant to
19 Rule 30(b)(6) on all of those items --
20 A. No.
21 Q. -- listed in Exhibit 7?
22 A. No.
23 Q. So to the extent you previously answered that you
24 were prepared to answer on the topics that you --
25 identified in the notice concerning all facts known or
1 reasonably available to the sheriff's office on those
2 topics, you're not prepared today.
3 A. I guess you're right. You're right.
4 Q. And those documents are reasonably available to
5 the sheriff's office, the underlying documents?
6 A. Yes, they would be. Uh-huh.
7 Q. Other than speaking to Mr. Gillen, did you speak
8 to anyone else about preparing for your testimony today?
9 A. No.
10 Q. Did you speak to Captain Michaelis,
11 Captain McCave, Wallis, Schieno, Neiter -- is it Neiter or
13 A. Neiter.
14 Q. -- Neiter, the county auditor, or the county
16 A. I met with Captain Michaelis early this morning
17 before I came over. He's heading to Bozeman. He just
18 mentioned that his, he thought, went fairly well.
19 I saw Lieutenant Wallis briefly this morning for about
20 five minutes. He just thought his went okay, too.
21 I've not talked to McCave or Neiter or any of the
22 others listed.
23 Q. In topics -- topic No. 4, which addresses the
24 policies, procedures, and practices of the sheriff's
25 office during the period of '05 to the present, and any
1 alleged or reported violations thereof by any YC Sheriff's
2 Office personnel during that period, did you do anything
3 to prepare to be able to testify today?
4 A. I just brought the policy with me.
5 Q. Did you review those prior to today's testimony?
6 A. I've reviewed them numerous times.
7 Q. When was the last time you reviewed them?
8 A. Oh, probably within the last week. I mean, not
9 every policy, no, but I go through the policy book quite
11 Q. So you are prepared to testify about that topic?
12 A. About policy, yes.
13 Q. Topic No. 5 is, YC Sheriff's Office personnel who
14 have engaged in protected activities during the period of
15 2005 to the present and the treatment of those persons by
16 the County or the sheriff's office as compared to persons
17 who have not engaged in protected activities during that
19 A. We don't keep a list of protected personnel. I
20 think they're all protected.
21 Q. Well, people who engage in protected
22 activities -- Are you familiar with the term "protected
24 A. I believe I am.
25 Q. And what are they?
1 A. According to the statute, they are folks that
2 have gone into or testified for violations of human rights
3 or have felt that they have been victims of human rights,
4 and within the next six months, they are considered
5 protected under the law.
6 Q. Are persons who act or make statements opposing
7 discriminatory or retaliatory actions engaged in protected
8 activities even if they haven't filed a complaint?
9 A. Yes. They're protected, uh-huh.
10 Q. Are persons who engage in statements of public
11 concern relating the operation of the sheriff's office
12 engaged in protected activities?
13 A. You bet.
14 Q. And that's under the First Amendment and other
16 A. Yeah. That's fairly well spelled out.
17 Q. And that's also under political beliefs and
18 political ideas?
19 A. Uh-huh.
20 Q. And that's a yes?
21 A. Yes.
22 Q. And I apologize, just for the court reporter.
23 A. No, that's all right.
24 Q. And are persons who engage in protected
25 activities under their Union -- their labor-management
1 contract engaged in protected activities?
2 A. Sure. Yes.
3 Q. Has Lieutenant Schieno ever engaged in a
4 protected activity, to your knowledge?
5 A. Not that I can think of, no.
6 Q. Lieutenant Wallis?
7 A. I don't believe so.
8 Q. Captain Michaelis or as Lieutenant Michaelis?
9 A. No, not that I'm aware of.
10 Q. Captain McCave?
11 A. No.
12 Q. Lieutenant Neiter?
13 A. No.
14 Q. Sergeant McCollum?
15 A. He's a Union member, so probably.
16 Q. Are you aware of any action he's taken under the
17 Union contract to voice a grievance, et cetera?
18 A. No.
19 Q. Yourself, have you engaged in protected
21 A. I was a Union member years and years ago.
22 Q. Did you file any grievances?
23 A. No.
24 Q. Captain Brennan?
25 A. No.
1 Q. Deputy Briese?
2 A. He was a Union member.
3 Q. Are you aware of any grievances that he filed?
4 A. No.
5 Q. Lieutenant, now Undersheriff Weston?
6 A. No.
7 Q. Chris Romero?
8 A. A Union member. Yes, he has filed a grievance, I
10 Q. And also a Human Rights complaint?
11 A. And a Human Rights complaint.
12 Q. And also a federal civil rights claim?
13 A. Correct. Uh-huh.
14 Q. Deputy Anderson? Former Deputy Anderson, is it?
15 A. I'm trying to think if he ever filed a grievance
16 or not.
17 Q. Did he participate in or agree to be a witness in
18 a Human Rights proceeding?
19 A. I believe he did. Uh-huh.
20 Q. And that's a protected activity?
21 A. Sure.
22 Q. Deputy Swecker?
23 A. Same. Uh-huh.
24 Q. Dave Valdez?
25 A. Same as Mr. Romero.
1 Q. And also agreed to participate in Romero's -- as
2 a witness in Romero's case?
3 A. Correct. Uh-huh.
4 Q. Deputy Bodine?
5 A. Same as Valdez and Romero.
6 Q. And we're talking Dave Valdez?
7 A. Yes. Correct.
8 Q. Jason Valdez, also protected activity?
9 A. Uh-huh, absolutely.
10 Q. Jolene Wilson?
11 A. Yes.
12 Q. She filed a discrimination complaint?
13 A. She did.
14 Q. And then a retaliation complaint?
15 A. Correct.
16 Q. She also tried to follow the internal grievances
17 about issues of discrimination?
18 A. I believe so. Uh-huh.
19 Q. And is that a protected activity also?
20 A. You bet.
21 Q. Deputy Eckart? I think it's Mickey Eckart.
22 A. Uh-huh.
23 Q. Raised a Union issue about being disciplined
24 about a card reader? Brought in his Union representative
25 at one point.
1 MR. SMITH: That was Hackbarth.
2 Q. (By Mr. Kelly) Hackbarth.
3 MR. KELLY: Thank you.
4 Q. (By Mr. Kelly) Sorry.
5 A. Okay. I was trying to think.
6 Yes. Correct.
7 Q. The card reader is the thing that reminds me.
8 A. Uh-huh.
9 Q. He brought in his Union representative,
10 specifically John Smith?
11 A. Right.
12 Q. John was the Union president at the time?
13 A. He was.
14 Q. Deputies who agreed to be interviewed by
15 Mike Meloy, were those protected activities?
16 A. Sure.
17 Q. And -- Okay. Do you know of any of the deputies
18 who agreed to be interviewed by Meloy?
19 A. I do not.
20 Q. Did you know that Reyna was one of them?
21 A. I did not.
22 Q. Do you know if Woody Shirley has engaged in a
23 protected activity?
24 A. I believe he has. Uh-huh.
25 Q. Woody is over at the detention center?
1 A. Correct.
2 Q. All facts and circumstances -- This is No. 6.
3 All facts and circumstances relating to the Meloy -- I'll
4 call it the Meloy analysis. Its formal title is
5 Section 49-3-205 Analysis of the Yellowstone County
6 Sheriff's Office; is that correct?
7 A. Yes.
8 Q. Delivered on or about May -- mid-May of 2009?
9 A. That would be right.
10 Q. And what did you do to prepare for testimony
11 today as the designee of the -- of the sheriff's office
12 for that purpose?
13 A. Oh, I've read it over several times. It's been,
14 you know, months since I've read it, but I have read it
15 over several times.
16 Q. Have you talked to anybody about the Meloy
18 A. Oh, I've talked with Mr. Gillen, I've talked with
19 the other command staff, we've talked with human --
20 Dwight Vigness about the content. Sure.
21 Q. And Vigness is the HR director?
22 A. He is.
23 Q. Have you talked to any outside counsel?
24 A. No.
25 Q. Have you talked to any independent persons
1 outside of the County to assist you in reviewing that
3 A. No.
4 Q. Do you know of all of the persons who have
5 engaged in review of that analysis?
6 A. I don't. I know it was sent across the sheriff's
7 office website, so I think about everybody in the office
8 has probably read it.
9 Q. And I apologize. My question was directed to a
10 review by the County for purposes of determining what it
11 would implement.
12 A. The only persons that I know that reviewed it by
13 the County are Mr. Vigness and Mr. Gillen.
14 Q. And Mr. Gillen was acting in a reviewing capacity
15 at that time?
16 A. Yes.
17 Q. No. 7 is, contacts, communications, assessments,
18 records, and payments concerning Chandra Hirschi or any of
19 her children.
20 A. I have nothing on that.
21 Q. And did nothing to prepare on that.
22 A. None whatsoever. I have no -- no information on
23 that at all.
24 Q. You have general knowledge about interactions
25 between Chandra Hirschi and John Smith and Deputy Benjamin
1 in December of 2008; is that correct?
2 A. I do.
3 Q. And that would be the extent of your knowledge?
4 A. Concerning Ms. Hirschi or --
5 Q. Hirschi and contacts between her and --
6 A. Yes.
7 Q. -- the sheriff's office.
8 A. Yes.
9 Q. And you were aware that she was paid money?
10 A. I am.
11 Q. Did you approve the payment of that money?
12 A. I wasn't involved in that.
13 Q. Did you agree with the payment of that money?
14 A. I agree with the counsel's decision to do so,
16 Q. When you say "I," again --
17 A. Right. The sheriff's office did agree.
18 Q. Thank you.
19 A. Yes.
20 Q. Did you do anything, for purposes of preparing
21 today's testimony, to obtain and review information that
22 the sheriff's office had prior to the time that you were
23 employed as the sheriff?
24 In other words, did you look at old records in order
25 to testify today, other than the Smith file and past
1 testimony? I'll get to past testimony in a moment.
2 A. No.
3 Q. Okay. The past testimony was by whom, that you
4 referred to?
5 A. Past testimony?
6 Q. You said you reviewed three types of documents,
7 the Title 49, which is state law, the Smith file, and past
9 A. I don't think I said past testimony, did I?
10 I'm not sure what I was referring to. I don't know.
11 Oh, okay. I'm sorry, yes. The transcript from my
12 previous deposition with you on the Romero case.
13 Q. We have been here before in a different case.
14 A. Yes, we have. And I apologize, I couldn't think
15 what the past testimony was.
16 Q. And that was as a 30(b)(6) witness also?
17 A. Yeah.
18 Q. I'm showing you what will be marked as Exhibit
19 No. 14.
20 (Deposition Exhibit 14 was marked for identification.)
21 Q. (By Mr. Kelly) And I appreciate your patience in
22 having it marked.
23 Do you recognize Exhibit No. 14?
24 A. I do. Uh-huh.
25 Q. And do you recognize it as the complaint made by
1 John Smith in this case?
2 A. Right. Uh-huh.
3 Q. The only alteration was that this is the -- I
4 apologize, this is not the complaint. This is the
5 settlement agreement?
6 A. This is the settlement agreement.
7 Q. And this arose from Mr. Smith's -- Deputy Smith's
8 original charge of retaliation against the sheriff's
9 office and Captain Michaelis?
10 A. Yes, it is. Uh-huh.
11 Q. And what were the circumstances of that -- what
12 were you aware of in terms of that complaint? What was
13 the basis for that complaint?
14 A. Give me a second.
15 It had to do with the three -- "three Mexican"
16 comment, that's what started it.
17 Q. Let's start there. There was an allegation
18 that --
19 A. Allegation that Captain Michaelis had made a
20 reference to Romero, Valdez, and Bodine as "the three
21 Mexicans." And Mr. Smith took offense to that and filed a
22 complaint on Captain Michaelis.
23 Q. Am I correct, he just filed a report at that
24 point about the incident?
25 A. I'm thinking.
1 Q. Okay.
2 A. I don't recall if it was a complaint or a report,
3 but made it known that this had happened.
4 Q. He reported it up the chain of command.
5 A. Yes.
6 Q. And do you consider Bodine and Valdez and Romero
7 to be three Mexicans?
8 A. I consider them to be Hispanics.
9 Q. Do you consider them to be Americans?
10 A. I do, of Hispanic descent.
11 Q. And do you understand that that can -- calling
12 them "three Mexicans" can, in some contexts, be a
13 derogatory comment?
14 A. I believe that to be correct. Uh-huh.
15 Q. And was it this -- Once you received this report,
16 did you consider it to be a possible minor or major
17 violation of the policies or procedures of the sheriff's
18 office? Just a possible one.
19 A. Well, it could have been major. I don't recall
20 exactly which way it went, but he was disciplined and
21 received training as a result of those comments.
22 Q. Did you make a determination that he had made the
24 A. Oh, yes. He admitted it, that he'd made them.
25 I believe he had to go to Miles City for his training.
1 Q. Okay. Do you consider training to be
2 disciplinary action?
3 A. Yes, it can be part of the disciplinary action.
4 We've sent people to driver's training and other training
5 such as this as part of their disciplinary action.
6 Q. And did you evaluate his understanding of his
7 obligations after he underwent the training? And we're
8 talking Michaelis.
9 A. Yes. I did visit with him about the training. I
10 felt confident that he understood that any comments that
11 he has, he does need to keep them to himself; he doesn't
12 need to be saying those types of things. And as far as I
13 know, there have not been any further incidents since then
14 of this type with Mr. Michaelis.
15 Q. You were aware also that he took a adverse action
16 against John Smith after he learned that it was reported
17 to command officers?
18 The Bofto incident, remember?
19 A. Okay, thank you. God, I knew it was there. Oh.
20 Q. That's all right.
21 A. I'm sorry.
22 Q. No, and if I can help --
23 A. Yes, you did help. That helped a lot.
24 Q. -- I will do my best.
25 A. I thought that helped a lot.
1 Well, I don't know that it was a adverse action, to be
2 honest with you. I think that there was a severe
3 misunderstanding between an awful lot of people concerning
4 that particular incident. I think it could have been
5 handled by the sergeant and Mr. Smith in a far better
6 manner than it was at the scene. I think that Mr. Bofto
7 got his feathers ruffled and complained to the captain of
8 the uniform division, and at the onset of the complaint,
9 it looked like a dereliction of duty, and the captain did
10 his investigation into that. And Mr. Smith did file the
11 complaint, feeling it was adverse action against him.
12 Q. And a dereliction of duty, is that a major or a
13 minor violation?
14 A. That would be a major violation.
15 Q. And the captain did the investigation, is what
16 your testimony just was?
17 A. I'm not sure if he, himself, did, but one of the
18 commanders would have.
19 Q. And when you do a major violation, you follow the
20 procedures outlined in the manual?
21 A. Yeah.
22 Q. I mean, just for clarification for the record,
23 there's minor violations --
24 A. There is.
25 Q. -- and that can be done by immediate command
2 A. Correct.
3 Q. And they make a recommendation as to whether it's
4 a verbal or a --
5 A. Or a written.
6 Q. -- or a written warning?
7 A. Right.
8 Major violations can be anything -- can lead to
9 suspension, termination, demotion, those types of things.
10 Q. And major violations are also conducted in a much
11 different manner than minor violations?
12 A. Yes, in a more serious manner.
13 Q. Right. Usually, detectives or some other --
14 A. Or command staff.
15 Q. -- are assigned to conduct it, to lead it?
16 A. Right.
17 Q. Audiotaped interviews are done; is that correct?
18 A. That is correct.
19 Q. Report is submitted to the undersheriff?
20 A. That's correct.
21 Q. Undersheriff evaluates and determines whether
22 it's appropriate to take disciplinary action?
23 A. Yes.
24 Q. Is it -- did the sheriff's office follow its
25 procedures in investigating the alleged complaint, which
1 was actually signed in writing by Captain Michaelis --
2 A. Okay.
3 Q. -- in terms of the alleged dereliction of duty of
4 John Smith regarding Sergeant Bofto?
5 A. I'm guessing they did, without looking at the
6 actual file. But I would assume that they did. It's the
7 guidelines that generally get followed -- should be
9 Q. If policies are not followed, especially in terms
10 of handling major violations or alleged major violations,
11 is that a breach of the duty of the persons who are
12 responsible for that?
13 A. Well, I think each circumstance is different. I
14 think the policies are a guideline. I think that for the
15 most part, they're followed. There may be, you know, some
16 slight deviation in, you know, personnel involved or those
17 types of things, just depending on the circumstances. I
18 think for the most part, they're followed, but as a
19 guideline to follow.
20 Q. Is the sheriff's office aware of any instance in
21 which, where a major violation has been alleged, the
22 policies or procedures were departed from, they weren't
23 followed? Any instance that the sheriff's office is aware
24 of today?
25 A. Well, you know, there's probably some that they
1 weren't followed right to the letter. Okay? I don't know
2 what those would be, but I think that, as I say, for the
3 most part, they're followed.
4 Q. And the material aspect of those procedures are
5 the notice provisions --
6 A. Right. Due process.
7 Q. -- reading --
8 A. Reading the reverse Garrity, if necessary.
9 Q. Audiotaped interviews led by a detective or a
10 command officer or their designee?
11 Should we go through the policy?
12 A. Let's do it right, shall we? Yeah, let's do it
14 Q. I actually have exhibit -- Oh, and if you can get
15 to it faster than I can, great. It's, I think, 1-4.
16 MR. GILLEN: You can't get to it as fast as
17 Mr. Kelly.
18 Q. (By Mr. Kelly) And, in fact, 1-4-02 on page 5.
19 A. Procedure for major?
20 Q. Yes.
21 A. Got it.
22 (Reviewing document.)
23 "Assign the initial investigation to the Division or
24 investigator(s) they deem appropriate."
25 Q. So you can designate an appropriate investigator.
1 A. Correct. So it may be a captain, it may be a
2 lieutenant, it may be a detective.
3 Q. And the actual procedure is at 1-4-03?
4 A. 4-03?
5 Q. Yes. The actual procedure. Sheriff assigns the
6 initial investigation to the division or investigator,
8 A. Yep, gotcha.
9 Q. "There will be at least two investigators."
10 A. Uh-huh. Correct.
11 Q. Okay. All of those -- These are the --
12 A. These are the guidelines.
13 Q. Are these simply guidelines or are these
14 procedures to follow?
15 A. Well, they are procedures. As I say, there may
16 be a circumstance that would vary from this guideline, but
17 I would say that, for the most part, these are followed.
18 Q. And the 1-4-03.02 is Responsibilities of the
20 A. Uh-huh.
21 Q. Those are serious responsibilities --
22 A. Correct.
23 Q. -- is that correct?
24 A. Uh-huh.
25 Q. If someone doesn't follow those responsibilities,
1 they violate those responsibilities or they depart from
2 them, is that considered to be a serious matter?
3 A. No, I think it would be probably grounds for the
4 accused to ask that the complaint be dismissed or
5 unfounded because it wasn't followed.
6 Q. On the next page --
7 A. Uh-huh.
8 Q. -- serious investigation, there are four possible
9 outcomes; is that correct?
10 A. Yes.
11 Q. Unfounded, the allegation is false?
12 A. Uh-huh.
13 Q. Exonerated, allegation conduct was lawful and
15 A. Uh-huh.
16 Q. Not sustained, not enough evidence?
17 A. Right.
18 Q. And sustained.
19 A. Correct.
20 Q. Okay. And are you aware of any instance -- Let
21 me direct it -- I'll get to it later.
22 A. Okay.
23 Q. And then there's employee questioning
25 A. Uh-huh.
1 Q. These are important?
2 A. Yes.
3 Q. Non-testimonial evidence?
4 A. Uh-huh.
5 Q. And, again, these are procedures that should be
6 followed --
7 A. Yes.
8 Q. -- when anybody is doing an investigation?
9 A. Yes. They should be followed.
10 Q. And based on your general understanding, this
11 procedure would have been followed on the dereliction-of-
12 duty allegation with regard to Smith in the interaction
13 with Bofto?
14 A. I would think so.
15 Q. That would be your understanding?
16 A. That would be my understanding.
17 Q. The sheriff's office would have concern if it was
19 A. Yes.
20 Q. Is failure to follow those procedures when a
21 major violation has been alleged a potentially adverse
22 action against the person who has been accused?
23 If you don't follow those procedures and somebody has
24 been accused, is the denial of those procedures an adverse
25 action against them, or can it be?
1 A. I don't think so. I think it's probably a
2 mistake on the investigator.
3 Q. Don't they -- aren't they entitled to the rights
4 of those procedures?
5 A. That's what I say. I think that if they're not
6 followed, then the accused or whoever can say, You know, I
7 disagree with this because of X, Y, and Z.
8 Q. And -- but if you're subject to an investigation
9 and someone doesn't follow --
10 A. You have those rights, yes, to have those.
11 Q. And to be denied those rights would be an adverse
12 action; is that correct?
13 A. I think it's -- I don't know that I would call it
14 adverse. I would call it that the investigator screwed
16 Q. But if you're the subject of an investigation
17 that's supposed to follow a specific procedure --
18 A. Uh-huh.
19 Q. -- and you're afforded rights under those
20 procedures and you're denied those rights, you suffer an
21 adverse action in terms of not being afforded the same
22 rights as the procedure affords; is that correct?
23 A. Well, we might disagree on this, but I guess the
24 person could see that as being adverse. Sure.
25 Q. They might become concerned that they won't be
1 treated equally as provided in the manual?
2 A. I don't know that that would have been the intent
3 on anybody's part, but they could -- I could see them
4 seeing that as part of being adverse. Sure.
5 Q. And my question was not trying to address the
6 state of mind of whoever made the error --
7 A. I understand.
8 Q. -- but the person who is the subject of the
9 departure --
10 A. He may construe that, uh-huh, he or she.
11 Q. You would agree that procedural rights,
12 substantive due process rights are very important to
14 A. I believe they are, yes. I'll agree with that.
15 Q. And when they're not afforded to people, it is
16 reasonable for them to conclude that it may be an adverse
17 action against them?
18 A. They may consider that. Uh-huh.
19 Q. In the settlement agreement, am I correct that
20 you agreed to conduct -- that the sheriff's office would
21 conduct an independent third-party review -- And we're
22 looking at exhibit number, what was the last one?
23 A. 14.
24 Q. Thank you.
25 A. Uh-huh.
1 Q. I have to mark it myself.
2 First paragraph, 1(a), "Yellowstone County Sheriff's
3 Office agrees to conduct an independent third party review
4 to analyze all of its operations to ascertain possible
5 instances of non-compliance with the Montana Human Rights
7 MR. GILLEN: And, Counsel, if I may interrupt you
8 before we get going, we will object, as the Rule 30
9 designee and as a fact witness, any discussion, question
10 and answers relative to the settlement agreement relative
11 to the Meloy report, as that's not relevant to anything
12 presently before the Human Rights in this matter.
13 MR. KELLY: On the --
14 MR. GILLEN: And with that -- I'm sorry.
15 MR. KELLY: And the grounds were as stated in
16 your motion to limit --
17 MR. GILLEN: Yes, to limit the testimony.
18 MR. KELLY: To limit the scope of the hearing?
19 MR. GILLEN: And with that, you are instructed --
20 I'm sorry, I didn't hear you, Tim.
21 MR. KELLY: Your motion was to limit the scope of
22 the hearing, not to limit testimony.
23 MR. GILLEN: Right.
24 MR. KELLY: Okay. And it's the limit-the-scope-
25 of-the-hearing issues that you're asserting here?
1 MR. GILLEN: Yes.
2 MR. KELLY: Fine. I just wanted to know for the
4 MR. GILLEN: Yes, for the record.
5 MR. KELLY: And it is in a written document as to
6 the basis for that.
7 MR. GILLEN: And with that, you're instructed to
8 answer the questions.
9 THE WITNESS: Okay.
10 Q. (By Mr. Kelly) You agreed to do -- to conduct an
11 independent third-party review to analyze all of your
12 operations to ascertain possible instances of
13 noncompliance with the Montana Human Rights Act; is that
15 A. That is correct.
16 Q. And, in fact, you personally signed this
17 agreement; is that correct?
18 A. I did.
19 Q. And you did that on behalf of the sheriff's
21 A. Correct.
22 Q. Okay. And you're aware that the sheriff's office
23 and the charging party agreed, in accordance -- agreed
24 mutually as to who the independent third party would be to
25 conduct that analysis for the sheriff's office?
1 A. We did. Uh-huh.
2 Q. And the sheriff's office was, in fact -- you
3 agreed that you would be conducting this analysis? It
4 says you agree to conduct an independent third-party
6 A. Yes.
7 Q. Okay. And then in the third paragraph, it says,
8 "Once selected, the third party will have 180 days to
9 conduct the review and recommend comprehensive programs to
10 remedy any defect found to exist."
11 You agreed to that.
12 A. We did. Correct.
13 Q. And you agreed that the sheriff's office would
14 implement the remedies to be in compliance with
16 A. That is correct.
17 Q. Have you implemented the remedial actions
18 recommended in the independent third-party review
19 conducted by the sheriff's office?
20 A. There were no recommendations that we were in
21 violation of the Montana Human Rights Act.
22 Q. I'm sorry, where does it say in the first
23 paragraph that there has to be an identification of
24 violations? Doesn't it say "possible instances of
25 non-compliance" in the first paragraph?
1 A. Well, we didn't see anything that were possible
2 incidents. He didn't specify anything that was in -- even
3 a possible violation of the Human Rights Act.
4 Q. "Possible instances of non-compliance with
5 the ... Human Rights Act."
6 A. Uh-huh.
7 Q. That includes, are you aware, in 49-3-205(3),
8 questions of possible noncompliance with the policies --
9 A. Uh-huh.
10 Q. -- of the Human Rights Act?
11 A. Okay.
12 Q. Are you aware that there are non-discrimination
13 and equal opportunity policies within Title 49?
14 A. Absolutely.
15 Q. And that they're not just prohibitions, they're
16 also policies to make sure, through your conduct, that you
17 afford equal opportunities?
18 A. I agree with all of that.
19 Q. And that may not necessarily be a violation of
20 the law requiring -- that would go through a contested
21 case hearing; are you aware of that?
22 A. Okay.
23 Q. And are you aware that the word "defects" is
24 different from "violations"?
25 A. I can understand that. Uh-huh.
1 Q. And it's been your determination -- Is there any
2 place in here where you reserve the right not to implement
3 the remedial actions recommended in the report?
4 A. I don't see --
5 Q. In the settlement agreement.
6 A. -- where we reserved the right to not implement,
7 but we also reserved the right -- I think that we still
8 have to examine the Montana Human Rights Act in his
9 report. I think that we've done that; we didn't see where
10 we were in any violation of that at all.
11 Q. And when did you do that?
12 A. Oh, shortly after we got it. Gosh, we read over,
13 all of us, several times, met with Mr. Gillen, met with
14 Mr. Vigness. I think that there may be some things in
15 there that have merit. We are, you know, trying like heck
16 to revamp our policy, and I think that there will be some
17 things in Mr. Meloy's report that will probably be
18 considered for our policy. I think we're even looking at
19 some for contract negotiations this year.
20 Q. My question went to you made an agreement -- this
21 is a contract that the sheriff's office entered into with
22 Mr. Smith?
23 A. Uh-huh.
24 Q. And your contract says -- Is there any language
25 in this contract, that you're aware of, that indicates
1 that you can make the determination as to whether or not
2 there were defects found to exist by the independent
4 A. There's nothing in there that says we can't.
5 Q. So are you aware of -- Did you -- There's nothing
6 in there -- Okay. So you admit that there is nothing in
7 there that says you can make a revision and reject the
8 recommendations; is that correct?
9 A. There is nothing in there that says we have to
10 accept it as fact.
11 Q. It says you agree to implement the remedies to be
12 in compliance with --
13 A. Right, in compliance. We don't feel that we are
14 not in compliance right now.
15 Q. And the remedies were -- It indicated by the
16 independent reviewer that those remedies were necessary to
17 be in compliance with the policies.
18 A. I don't believe that's what it said.
19 Q. You don't think that that's what the Meloy report
21 A. No, I don't think so. I think he made an awful
22 lot of recommendations for our office, but none of them
23 had anything to do with the -- being in compliance or
24 noncompliance with the Human Rights Act.
25 Q. Well, and he was required to recommend
1 comprehensive programs to remedy any defect found to
2 exist; is that correct?
3 A. That's what paragraph three says. I reference
4 back up to paragraph one. It's all in the same paragraph.
5 I don't know that there were any defects in the Montana
6 Human Rights Act in our policy.
7 Q. But you weren't doing the review, correct?
8 A. That is correct. But I didn't see in the
9 review -- I'm sorry.
10 Q. You agreed that the independent analyst would
11 conduct this analysis for the sheriff's office and
12 identify what the independent reviewer determined to be
13 defects in the operations.
14 A. Uh-huh.
15 Q. Is that correct?
16 A. That's what the -- that's what it says, yes.
17 Q. Okay. And now you're conducting an additional
18 review to determine whether or not you're going to comply
19 with the settlement agreement?
20 A. No. We're conducting a review of that policy --
21 or, with his recommendations, our policy to come up with a
22 new policy, and some of the things that he has, we think
23 may have merit.
24 Q. Okay. And on how many occasions have you met to
25 determine whether or not the recommendations in his report
1 concern defects -- are comprehensive programs to remedy
3 A. Oh, we met, like I say, early on after we all
4 read it, didn't see anything that glared out at us, and --
5 Q. Well, you don't have a policy about retaliation
6 in your manual; is that correct?
7 A. We have it in state law.
8 Q. My question is, you --
9 A. No, we don't. You're correct.
10 Q. Okay. And, in fact, you instruct your officers
11 to follow the sheriff's manual; is that correct?
12 A. Yes.
13 Q. And could that be a deficiency?
14 A. Well, I think that as long as state law covers
15 it, I don't know why that would be a deficiency in the
17 Q. Well, you have in state law that sleeping on the
18 job is illegal -- is grounds for discharge; is that
20 A. Uh-huh. It is.
21 Q. And you put that in your manual.
22 A. Uh-huh.
23 Q. You think that sleeping on the job is more
24 important than adhering to human rights laws?
25 A. Oh, I don't think so.
1 Q. So you -- what objection do you have to including
2 it in your manual?
3 A. I have no objection to it at all.
4 Q. And so why haven't you implemented that part of
5 the report?
6 A. Because we are in the process of redoing the
7 entire manual.
8 Q. But you can and could have, on May -- When did
9 you determine that you would have no objection to
10 including a requirement that people not retaliate or
11 violate people's human rights in your manual?
12 A. I don't think we discussed that particularly to
13 put into the manual. I think that we all understand what
14 the state law is and that we will follow the state law,
15 and if that's something that needs to be implemented into
16 our new policy manual, we will certainly do that. But
17 right now, we're following state law.
18 Q. How do you -- well, how do you know that you all,
19 and you're referring to all members of the sheriff's
20 office, understand the state law under Title 49?
21 A. Because they've all been given copies of it.
22 Q. Okay. And how do you know that they've even read
24 A. I told them that they would. I didn't make them
25 read and sign, but I think that they're all -- They're all
1 like me; they're all on edge on this whole thing and they
2 want to do everything as right as we possibly can. And
3 we're -- I think that, you know, we're not perfect, I'll
4 admit that, but I think over the last couple of years,
5 maybe three to five years, we have -- we've done better.
6 We're getting better. Every time that, you know,
7 something comes up, we do our darnedest to make sure that
8 it's fixed. And I think that we're getting better all the
9 time. You've made me better, believe it or not, from the
10 last time we met. I know the 49 code. My commanders are
11 going to know the 49 code.
12 Q. And would it surprise you or concern you, as the
13 sheriff's office, that there was testimony today by some
14 of your command officers that they had never read
15 provisions of Title 49?
16 A. It would surprise me.
17 Q. And would that concern you?
18 A. It does concern me.
19 Q. And you've instructed them to do that.
20 A. Uh-huh. And I will do so again, because they do
21 need to know it.
22 Q. And if you found out that they, in fact, had
23 failed to follow your instruction to do that, would you
24 discipline them?
25 A. No. Not on this.
1 Q. Why?
2 A. I mean, they were told to do it, but it wasn't an
3 order, it wasn't a direct order. I told them that they
4 need to know this stuff, make sure they read it. And they
5 will -- Hey, I may have to do a read-and-sign for them and
6 have them do that. But, yes, they need to know this
8 Q. And if someone doesn't follow your oral
9 instructions, isn't that a insubordinate act?
10 A. Not necessarily.
11 Q. Doesn't it warrant investigation to determine --
12 A. Not necessarily.
13 Q. Is this just not a topic that raises concerns?
14 A. No, I think the topic is very concerning. I
15 think that you're trying to make me look like I'm ordering
16 these people to do something when I'm not. They need to
17 read this, I told them that they do, but it wasn't a
18 direct order --
19 Q. Are you aware that --
20 A. -- that needs to be investigated.
21 Q. Are you aware that they also -- there was some
22 testimony yesterday that without knowing the law, they
23 didn't know how to follow it?
24 A. That, I don't know.
25 Q. That would be your understanding, though, you
1 need to know the law --
2 A. If they don't know the law, yep, they probably
3 don't know how to follow it.
4 Q. Are you aware that the County has, in fact,
5 offered the position that you don't need to know the law
6 in order to enforce it, in this case?
7 A. They've done what, now?
8 Q. The County, on your behalf, has offered the
9 argument that you don't need to know the law in order to
10 enforce it.
11 A. You don't need to know the law in order to
12 enforce it. How do you enforce it if you don't know the
14 Q. Thank you.
15 Is it your understanding, as the sheriff's office,
16 that you need to know the laws that you are required to
17 adhere to?
18 A. Absolutely.
19 VIDEOGRAPHER: This concludes Tape 1 of the
20 Rule 30(b)(6), Yellowstone County Sheriff's Office,
21 Jay Bell. The time is 9:23. We're off the record.
22 (A brief recess was taken.)
23 (Deposition Exhibit 15 was marked for identification.)
24 VIDEOGRAPHER: The time is the 9:32. This is
25 Tape 2 of the Rule 30(b)(6) deposition of Jay Bell. We're
1 on the record.
2 Q. (By Mr. Kelly) I'm showing you what's been
3 marked as Exhibit No. 15. It's the response the sheriff's
4 office and the respondents in this case provided in answer
5 to Mr. -- to Deputy Smith's complaint.
6 A. Okay.
7 Q. And this is dated July 7th of 2009, and I'm just
8 directing your attention to page 2, the first sentence at
9 the top: "The County denies all allegations this
10 discipline," referring to the discipline against
11 Deputy Smith relating to the -- is it Beas Lane?
12 A. Yes.
13 Q. -- incidents, "was an adverse action or
15 A. Uh-huh.
16 Q. Is it a true statement that the discipline taken
17 against him was not an adverse action?
18 A. That is a true statement.
19 Q. Are you saying that a suspension is not an
20 adverse action?
21 A. I'm saying that it was a disciplinary action.
22 Q. Are you saying that a disciplinary action
23 involving a suspension is not an adverse employment
25 A. Well, I never considered it as an adverse action.
1 The employee may consider it an adverse action. We
2 consider it disciplinary action for something that has
4 Q. And are you aware of what an adverse action is
5 under Title 49?
6 A. Yes. It's when you do something against a
7 protected class, protected party.
8 Q. And without the motive, for purposes of defining
9 retaliation --
10 A. Okay.
11 Q. -- there is a definition in the rules and
12 regulations as to what an adverse action is. Are you
13 familiar with that?
14 A. Well...
15 Q. And it's actually not in the statute.
16 A. Okay.
17 Q. It's in Rule 24.9. --
18 A. Probably not, then. I don't know --
19 Q. -- .603 --
20 A. -- the exact definition of that.
21 Q. -- paragraph (2), which defines adverse action.
22 A. I can define retaliation for you, if you'd like.
23 Q. I understand.
24 Do you think it's important that you also read the
25 binding regulations that have been adopted and promulgated
1 by the Department of Labor regarding acts in violation of
2 Title 49?
3 There are rules and regulations that they've adopted.
4 A. Okay.
5 Q. They explain what things are under Title 49.
6 A. Okay.
7 Q. Do you think it's important for the sheriff's
8 office to review those matters?
9 A. Yes.
10 Q. Okay. Would you be surprised if the definition
11 of adverse action includes any demotion, dismissal from an
12 assignment, suspension, termination, or other material
13 adverse employment action?
14 A. Well, not reading the definition, I'll go with
15 what you say. It does surprise me, yes.
16 Q. As a reasonable person, if you were subject to
17 that kind of action, you would consider it adverse?
18 A. I guess you would, yes.
19 Q. I'm showing you now what will be marked as
20 Exhibit No. 16.
21 (Deposition Exhibit 16 was marked for identification.)
22 Q. (By Mr. Kelly) And I'm directing your -- And
23 this is -- Have you seen this before?
24 A. Yes. Uh-huh.
25 Q. And this was filed by the County as its
1 preliminary prehearing statement in the contested case.
2 A. Yes, correct. Uh-huh.
3 Q. I'm directing you to page 5, top of it,
4 subparagraphs (b) and (c).
5 A. Okay.
6 Q. Starts, "Section 49-3-205(3)" --
7 A. Uh-huh.
8 Q. -- "requires the County to analyze its operations
9 'to ascertain possible instances of noncompliance with the
10 policy of this chapter'" --
11 A. Uh-huh. Okay.
12 Q. And you're aware that the policy they're
13 referring to is the non-discrimination, non-retaliation,
14 equal opportunity policy; is that correct?
15 A. Yes. Uh-huh.
16 Q. -- "'and shall initiate comprehensive programs to
17 remedy any defect found to exist.'"
18 You're familiar with that statute?
19 A. I am.
20 Q. Okay. And you understand that's an affirmative
21 duty on the part of the sheriff's office?
22 A. Uh-huh.
23 Q. And that's a yes for the reporter?
24 A. Yes. I'm sorry.
25 Q. That's okay.
1 And paragraph (c) says that "The County did analyze
2 its operations to determine if defects exist; Mike Meloy
3 conducted an independent analysis of the County's
4 operations," specifically the Yellowstone County Sheriff's
6 Is that correct?
7 A. That is correct.
8 Q. And "Meloy made recommendations but did not
9 identify any violations of Title 49."
10 Is that correct?
11 A. That's correct.
12 Q. Did Meloy identify deficiencies?
13 A. I don't know that he identified any specific
14 deficiencies. He made suggestions, but I don't know that
15 he actually found any deficiencies in our policy. He made
16 certain suggestions on how he thought our office should be
18 Q. And if he stated that he did, in fact, find
19 deficiencies -- Have you reviewed the report recently?
20 A. Not recently, no.
21 Q. Okay. Do you understand that the term
22 "deficiencies" is synonymous with "defects"?
23 A. Could be. Uh-huh.
24 Q. Okay. I'm showing you what's been marked -- or
25 will be marked as Exhibit No. 17.
1 (Deposition Exhibit 17 was marked for identification.)
2 Q. (By Mr. Kelly) Do you recognize Exhibit No. 17?
3 A. Somewhat. It's been a while since I've seen this
4 one, but, yes.
5 Q. Take a moment -- I'm going to direct your
6 attention specifically to paragraphs 2 and 3.
7 A. Okay.
8 Q. Do you want to read those first?
9 A. Okay. (Reviewing document.)
10 Q. And just for the record, the document No. 17 is a
11 declaration filed by Deputy John Smith; is that correct?
12 A. I'm sorry, what did you say? I just read
13 something that made me laugh.
14 Q. Exhibit 17 is a declaration of Deputy John Smith
15 in the federal case, 06-CV-104, in Billings; is that
17 A. Yes.
18 Q. Thank you.
19 Did you have a chance to read those?
20 A. I have.
21 Q. And paragraph 2, do you remember the meeting on
22 October 14th?
23 A. I do. Uh-huh.
24 Q. And do you remember who -- That was about
25 Deputy Hackbarth?
1 A. Yes.
2 Q. And John Smith attended as the Union president?
3 A. He did.
4 Q. And there was concern -- And who else attended;
5 do you recall?
6 A. I believe it was Sergeant Evans.
7 Q. Okay. And would you describe -- Can you -- In
8 paragraph 2 --
9 A. Uh-huh.
10 Q. -- Deputy Smith relates that it was regarding a
11 minor accident involving a repair of approximately $30 for
12 a card reader repair?
13 A. Right.
14 Q. And, in fact, we had testimony yesterday that
15 that estimate was correct, the $30 estimate, from
16 Lieutenant Schieno.
17 A. That is correct. Yes.
18 Q. And that the sheriff's office had falsely claimed
19 that it involved a repair in excess --
20 A. Well, I wouldn't say "falsely claimed" -- I'm
21 sorry, didn't mean to interrupt.
22 Q. Go ahead.
23 A. We didn't falsely claim. The information that
24 we'd received was about a different gate, so it was a
1 Q. But it was an untrue claim against Hackbarth; is
2 that correct?
3 A. It was a misunderstanding with Hackbarth.
4 Q. Was it a true statement when you advised
5 Hackbarth that he had been responsible for in excess of --
6 A. At that time, I thought it was a true statement,
7 but I did find out later that it was not.
8 Q. True.
9 A. Correct.
10 Q. It was not true.
11 A. Correct.
12 At the time, I was under the understanding that it was
13 a true statement.
14 Q. And that was in October -- On October 14th, you
15 had an understanding -- an inaccurate understanding.
16 A. Yes. Uh-huh.
17 Q. And, in fact, in the middle of the discussion,
18 did you become agitated or angry about Smith's presence at
19 the meeting?
20 A. No. Not in the middle of the discussion. I
21 think I talked to John before the discussion.
22 Q. You talked to him before Hackbarth and Evans came
24 A. I think so.
25 Q. And what did you talk to him about?
1 A. I was a little bit upset about his inquiring
2 about a new hire. I think that he overstepped his bounds
3 at that time. I felt that he was trying to find us doing
4 something wrong in our hiring procedure. I believe
5 Mr. Smith had an ulterior motive of having one of his
6 friends hired, and when he wasn't hired, I don't think he
7 was happy with that.
8 Q. Okay. And who was the person that -- Was the
9 hiring decision already made?
10 A. It was.
11 Q. And who was hired?
12 A. Oh, shoot. I can't tell you today. It might
13 have been -- October of what year?
14 Q. '08?
15 A. I can't tell you. It probably was Gerber and
16 Ketch, I'm thinking.
17 Q. And Smith indicated to you what? Prior to the
18 meeting about Hackbarth, what did he indicate to you?
19 A. He wasn't down there trying to create problems
20 for the administration, he was just curious to know who
21 was hired.
22 Q. And did you have information that he was not just
23 curious about who had hired?
24 A. No. It was the -- the mannerism, from what I
25 understand there, the way he acted when he went down and
1 talked to the training officer.
2 Q. And did you have any personal knowledge of how he
4 A. No.
5 Q. And who is the training officer?
6 A. Mike Olsen.
7 Q. Was any kind of written report filed by Olsen?
8 A. No.
9 Q. What did Olsen tell you?
10 A. Just that Mr. Smith was down making inquiries,
11 and the way it sounded, he thought that maybe the
12 administration was doing something different.
13 Q. "He" being who?
14 A. Being Mr. Smith.
15 Q. Okay. And do you know in what way he thought
16 something -- or was it relayed to you at all?
17 A. Well, I probably did at that time, but I don't
18 recall anymore, Mr. Kelly. I'm sorry.
19 Q. That's okay.
20 Made no reports about that?
21 A. No. No. I just told Mr. Smith I didn't
22 appreciate him sticking his nose in where it didn't
23 belong. And at that point in time, it didn't belong.
24 Q. As a public citizen, do you think it's a matter
25 of public concern as to the manner in which the sheriff's
1 office hires people?
2 A. I think we're very open. Sure. I have no
3 problem with anybody seeing how we hire people.
4 Q. Including Deputy Smith?
5 A. I think the way he went about it was not correct
6 at that time.
7 Q. Making an inquiry?
8 A. No, I think it was more than that. But, again, I
9 can't recall what it was. For me to be upset, there was
10 more to it than him just making a simple inquiry.
11 Q. So you indicated that you were upset before --
12 A. Oh, yeah, he knew I was upset.
13 Q. And how did you indicate that you were upset?
14 A. Oh, I probably raised my voice at him.
15 Q. Okay. And if Deputy Hackbarth testified that he
16 observed you to be visibly angry during a meeting at which
17 Smith was present and he was present --
18 A. Probably. Yes. I'm sure -- I probably was
19 visibly angry.
20 Q. And what were you angry about?
21 A. Oh, at the time, like I say, I don't recall the
22 exact conversation I had with Mr. Olsen, but it appeared
23 to me that Mr. Smith was trying to indicate that we
24 weren't following our hiring procedure properly.
25 Q. And you indicated that in the meeting with
2 A. No. Well, no, not in so many words. I think
3 that I just -- Hackbarth and the sergeant and Mr. Smith
4 came in, and it was just, you know, an unfortunate timing
5 on Mr. Smith's part to be there at the time I was upset
6 over that incident.
7 Q. And do you recall whether or not you used the
8 term, directed at Deputy Smith, that he was being down
9 there always bitching?
10 A. No.
11 Q. You didn't use that term?
12 A. I may have -- I don't think so.
13 Q. But you may have.
14 A. I may have.
15 Q. You were angry.
16 A. I was angry, yes. And I may have, you're right.
17 Q. And is that in compliance with the policies of
18 the sheriff's manual?
19 A. Well, I don't know if it is or isn't, but I
20 wasn't very happy. I think that, you know, I've -- I
21 think I've changed -- I guess I have learned some things
22 over the last couple of years, too. I've changed my ways.
23 But I was -- You know, hey, we get upset. I got upset.
24 You know, whether in violation of policy or not, I was
25 upset with Mr. Smith. I wanted to make my point across,
1 and I think I did that.
2 Q. And you asked Hackbarth and Evans to leave so you
3 could meet privately with Smith?
4 A. You know, I don't know if I asked them to leave
5 or if John and I decided to sit and visit about it. But,
6 yes, John and I did sit and talk privately.
7 Q. Hackbarth and Evans understood that they were
8 to -- they were dismissed.
9 A. That could be. That could be.
10 Q. After they left, did you use the term that if
11 you -- he repeated anything that you were going to say,
12 that you were going to make sure to kick his ass?
13 A. I did not. Absolutely not.
14 Q. You were pretty angry, though, still.
15 A. I was angry, but I wouldn't say that to any of my
16 people. If I did, it would be in a joking manner to one
17 of the guys, but I would never say that to one of my
19 Q. And do you believe that you, during that private
20 meeting -- That was in your office?
21 A. Uh-huh.
22 Q. And that's a yes?
23 A. Yes. I'm sorry.
24 Q. That's okay.
25 A. I keep forgetting that we're not just having a
1 casual conversation here.
2 Q. And I appreciate that. And it probably doesn't
3 matter, since there's a video record of this, but I know
4 for the court reporter, she finds it difficult.
5 A. I'm with you.
6 Q. When you become angry, do you become red in the
8 A. I don't know.
9 Q. Okay. That would have to depend on observers?
10 A. I guess, yeah.
11 Q. Did you make a comment at that time -- Did you
12 raise your voice during that private meeting, after
13 meeting with -- after Hackbarth and Evans were gone?
14 A. I don't know that I did.
15 Q. Do you recall that you did not raise your voice?
16 A. I can't say either way.
17 Q. Okay. No recollection.
18 A. No recollection.
19 Q. Did you make a comment saying that 80 percent of
20 the deputies who supported Linder against Maxwell in the
21 last election had no right to do so?
22 A. I don't recall ever making that comment, no.
23 Q. Do you recall -- May you have made the comment?
24 A. I don't think so. I don't believe so.
25 Q. May you have indicated that you didn't think it
1 was appropriate for 80 percent of the deputies who
2 supported Linder to not support Maxwell?
3 A. I don't believe so, no. I know we did talk a
4 little bit about the Linder-Maxwell election, but I don't
5 think I came out with those types of statements, no.
6 Q. Did you make a statement that those deputies
7 should not be working for the sheriff's office if they
8 don't support the sheriff?
9 A. I may have said, Why are they here working for
10 the sheriff if they don't support him? I may have said
11 something like that.
12 Q. Do you consider a loyalty to the administration
13 to be a critical --
14 A. I do, yes.
15 Q. If I could just finish that.
16 A. I'm sorry.
17 Q. -- a critical qualification to perform in the
18 sheriff's office?
19 A. I think so. Uh-huh. I think it's important to
20 support the person you're working for.
21 Q. Should you support the person you're working for
22 if they engage in a violation of law or policy?
23 A. Probably not.
24 Q. Should you support the person that you're working
25 for even if you disagree, and support in their election
1 even if you disagree, with their political views?
2 A. You know, I don't care about political views. I
3 think that when you're working for a person, though, you
4 at least support that person while you're working for him.
5 Now, if you want to go and vote for someone else, I don't
6 care. But I think that it's just -- You know, and I'm old
7 school; I believe in loyalty to my boss. And I was as
8 loyal as I could have been to all the sheriffs I've had,
9 and I'm just having a little difficulty with the new
10 generation not being loyal.
11 So, no, I don't care if they vote Republican,
12 Democrat, Independent. I don't care who they vote for.
13 But I think that when they're wearing that uniform and
14 they're around the office and they're talking to the
15 public, they should support their boss.
16 Q. And do they have a higher loyalty to the
17 citizenry in terms of the performance of their duties?
18 A. Sure. They work for the citizens first. That's
19 their duty. But if you're out there not supporting your
20 boss, it's kind of hard to do a great job for the
21 citizens, too.
22 Q. Did you find -- And that's your --
23 A. That's my opinion. Uh-huh.
24 Q. Okay. And do you think that's a political belief
25 that you have?
1 A. Probably.
2 Q. Did John Smith make it clear at that meeting that
3 he didn't agree with that position?
4 A. He did.
5 Q. Did he make it clear by also having a bumper
6 sticker on his truck supporting Linder?
7 A. We discussed his bumper sticker, and I thought
8 that it was very rude of Mr. Smith to park that vehicle
9 where Sheriff Maxwell could come out every day and see
10 that. I thought it was a slam on Mr. Smith's part, to the
11 sheriff, that he would park that thing in a position that
12 when Chuck came out after work, there it was. And I just
13 disagreed with the way he was doing that.
14 I don't care if he has a bumper sticker; just don't
15 rub it in the sheriff's nose.
16 Q. So you would limit the time and place where he
17 would display a bumper sticker?
18 A. I couldn't do that. I just didn't think it was
19 proper. I can't limit where he parks or what he does, but
20 I don't think -- I can say it wasn't proper.
21 Q. Smith advised you that he normally voted straight
22 Republican; is that correct?
23 A. He did. Uh-huh.
24 Q. Did you ask, why is he working for a Democratic
25 sheriff, then?
1 A. Probably. I may have.
2 Q. So you questioned the rationality of his
3 employment based on his political beliefs?
4 A. Oh, possibly. Yeah, I may have had that.
5 Q. Did you indicate that you did not enjoy as much
6 working in the sheriff's office any longer because of the
7 problems that had started with the Romero incident --
8 A. Oh, I think we may have discussed that the
9 atmosphere in the sheriff's office had changed
10 dramatically since the Romero incident. There is no more,
11 you know, kidding of any kind, whether it's -- You know,
12 everything is all business. The commanders can't kid with
13 the troops anymore. It's just -- And right, wrong, or
14 indifferent, it has changed the whole atmosphere.
15 Q. Why did the Romero filing of a Human Rights
16 complaint affect the ability -- Which -- Well, let me
17 rephrase that.
18 A. Uh-huh.
19 Q. Romero complained that he was being treated based
20 in whole or in part because he was Hispanic.
21 A. Correct.
22 Q. That as a particular, Deputy Briese had been
23 treated differently than he was, even though he had been
24 accused of some drug -- illegal drug use prior to the time
25 that Romero had been.
1 A. I don't think he was treated differently.
2 Q. And I understand that, but I'm saying that that's
3 what Romero was alleging.
4 A. Uh-huh.
5 Q. And you recall that?
6 A. Uh-huh.
7 Q. And why did that complaint cause people not to
8 kid around with each other?
9 A. Because nobody wants to be sitting where I am
10 right now. There's too many complaints going around.
11 Everybody's too thin-skinned in our office. You look at
12 these guys -- some of these guys cross-wise, they go
13 running to you or the Gazette, saying, I'm being
14 discriminated against. So we have cut that all out.
15 Q. Okay. And when has someone filed a complaint for
16 someone looking at them cross-wise.
17 A. Oh, I'm getting complaints from some of these
18 guys all the time about the captain not being warm and
19 fuzzy with them and, you know, he's bringing down morale;
20 he's doing this, doing that. So we're just trying to be
21 very professional with everybody.
22 Q. Isn't that good, to be very professional?
23 A. Well, it's not near as much fun as it used to be.
24 But, yep, I'm okay with it. That's what I say; over the
25 last couple of years, we've improved.
1 Q. When did someone make a complaint that a command
2 officer was bringing down morale?
3 A. Oh, that must have been about three weeks ago at
4 a briefing I attended with Team A.
5 Q. And what was -- Your response, am I correct, was
6 they need to get a thicker skin?
7 A. Probably. They do need to get a little more
8 thicker skin, some of them.
9 Q. Isn't --
10 A. Bill's not a warm and fuzzy guy. He's not going
11 to be a warm and fuzzy guy. But --
12 Q. And we're talking Captain Michaelis?
13 A. Yes.
14 But he can be professional. We're making darn sure.
15 We've had two conversations with him over this issue, and
16 I think he's making a very cognizant effort to not offend
18 Q. Morale is critical in a law enforcement agency --
19 A. Morale is critical. And I think morale has gone
20 up in the last couple of years, very much so.
21 Q. Do you think morale is helped when a command
22 officer refers to your reserve deputies as a bunch of
24 A. I'm not aware of that.
25 Q. Okay. But, I mean, would that be an appropriate
1 comment --
2 A. It would not.
3 Q. That would be derogatory toward fellow members of
4 the force?
5 A. Well, it would be a morale buster. Uh-huh.
6 Q. Did you discuss, then -- Did you discuss, then,
7 the fact that -- Smith described to you that he was
8 concerned about inconsistency in discipline in that
10 A. Probably. Could have.
11 Q. He talked about Schieno losing his gun?
12 A. Okay.
13 Q. Do you remember that incident?
14 A. I do. Uh-huh.
15 Q. No discipline?
16 A. Probably not.
17 Q. Isn't there a policy that he violated in losing
18 his service weapon and then being unarmed during the
19 period after he had lost it?
20 A. You would have to show that one to me.
21 Q. Don't you have to exercise -- I actually showed
22 this to a number of people yesterday --
23 A. Okay.
24 Q. -- maximum safety and care in the handling of
25 your --
1 A. Absolutely. Yes, you do.
2 Q. Okay. And do you think --
3 A. There are accidents that happen.
4 Q. Well, and accidents happen, like motor vehicle
6 A. Correct.
7 Q. And they get disciplined.
8 A. Some do.
9 Q. Can you think of anybody who has been involved in
10 a preventable motor vehicle accident who has not been
12 A. Well, not off the top of my head, no.
13 Q. Okay. And if I were to represent to you that
14 everybody except one person in the list of major and minor
15 violations who had a motor vehicle violation got
16 disciplined, would that be consistent with your
17 understanding of how you operate? And they're all
19 A. Not necessarily.
20 Q. Okay. I'll ask you to look at it later.
21 So losing a 9mm Glock --
22 A. 10mm.
23 Q. Thank you.
24 A. Uh-huh.
25 Q. In fact, he described it in even more detail.
1 But a 10mm Glock on the roadway is not considered to
2 be a minor violation.
3 A. Well, it could be, but --
4 Q. In Schieno's --
5 A. He did not get written up for it, correct.
6 Q. Did you even investigate it?
7 A. No.
8 Q. Anybody else lose a gun that you haven't
10 A. I don't know that anybody else has lost a gun.
11 Q. Okay. Anybody else violate --
12 A. We've had a gun stolen, but I don't know of
13 anybody that's lost one.
14 Q. Someone who had it stolen, were they
16 A. No. The burglary was, but the person wasn't.
17 Q. But this was clearly negligent, to put it on the
18 top of his car --
19 A. Sure.
20 Q. -- and drive away; is that correct?
21 A. It was an accident, yes.
22 Q. No, but, I mean, negligent --
23 A. Probably.
24 Q. -- in terms of he had a duty and he breached the
1 A. Oh, probably, but, you know...
2 Q. So were you under the understanding, on the
3 October 14th meeting, that Hackbarth had, in fact, caused
4 $600 in damages?
5 A. I was. That was the second one, so, yes.
6 Q. And you issued him a one-year reprimand?
7 A. Uh-huh.
8 Q. And then you later found out that that was not
9 true --
10 A. Not correct.
11 Q. -- and in error?
12 A. Yes.
13 Q. Did you then advise Hackbarth?
14 A. Absolutely.
15 Q. Did you do that in writing?
16 A. I don't know if I did a writing or just in -- I
17 don't know. I know that I had the letter pulled and all
18 of that and told him that was going to happen. But I
19 don't recall if that was in writing or not. I brought him
20 in and said, you know, that we had the wrong gate and took
21 care of it that way.
22 Q. Am I correct that in the initial recommendation,
23 it was a five-year letter?
24 A. Oh, it might have been. Yeah, it sure could have
1 Q. Because of the amount?
2 A. Right. Yeah, it could have been. It was the
3 second one -- second gate that he crashed into, so it
4 could have been a five-year.
5 Q. Going to paragraph 5 in Exhibit No. 17, I'd ask
6 you to read that.
7 A. (Reviewing document.) Okay.
8 Q. Is the first sentence correct, that you met with
9 Smith --
10 A. Probably. Uh-huh.
11 Q. Did he ask whether -- did you ask whether he had
12 any suggestions? I understand you did that with a number
13 of the staff.
14 A. Uh-huh, every one.
15 Q. Did Smith ask you if and when the sheriff's
16 office was going to implement the recommendations in the
17 Meloy report?
18 A. He certainly may have.
19 Q. Did you indicate to him that the County never
20 agreed to implement those recommendations?
21 A. That was my understanding.
22 Q. And you gained that understanding from whom?
23 A. Just talking with Mr. Gillen and, you know, that
24 the meeting that we had with the investigator, that we'd
25 agreed to have an independent review on any human rights
1 violations we had in our policy.
2 Q. And you signed the actual agreement that you
4 A. Yes, sir.
5 Q. And it doesn't use the word "violations" in
7 A. I'd have to see the agreement to see what it
9 Q. The agreement speaks for itself.
10 A. Sure.
11 If we were in violation of any human rights, we would
12 certainly take care of that.
13 Q. And if you had defects in your policy, would you
14 take care of those, in terms of human rights policy?
15 A. Yes.
16 Q. Did you also indicate to him that the report was
17 not law enforcement and that there were just a handful of
18 complainers in the sheriff's office?
19 A. I don't recall the report-was-not-law-
20 enforcement part, I don't recall that at all. But, yeah,
21 I think I probably said that there are just a handful of
22 complainers in the -- You know, it's like any other
23 business, there's five percent that aren't happy.
24 Q. Who do you consider to be a complainer -- First
25 of all, do you consider John Smith to be a troublemaker?
1 A. I consider John Smith to be someone that
2 absolutely detests the administration of this office, and
3 he will do anything he can to embarrass us or to bring a
4 commander down. I don't know that he's a troublemaker,
5 per se, but I know that he certainly has made no bones
6 about not being in favor of this administration or its
8 Q. And can you give me the specific actions that you
9 have knowledge of that brought you to that conclusion?
10 A. Well, he has told me, himself, that he has no
11 respect for the two lieutenants that are running the
12 patrol division. He has told Lieutenant Wallis that he
13 doesn't support anything that the commanders do, including
14 the captain. He went to the range one day, and as he was
15 unloading his bullets, he said, Schieno, Wallis,
17 Q. And you --
18 A. To me, that is not a support of any of these
19 folks, Mr. Kelly.
20 Q. And were you present when those alleged things --
21 A. Mr. Schieno was present during the bullets.
22 Wallis was present during allega -- or the statements of
23 not supporting either of the -- any of the command staff.
24 And I've heard John, himself, say that he hates the two
1 Q. And my question would go to if statements were
2 made or actions taken like this, did you take any action
3 consistent with your policy?
4 A. I didn't take any actions against him at all
5 because he's protected.
6 Q. Is that your understanding of the law?
7 A. It is. Yep.
8 Q. And have you had training in that regard?
9 A. Nope. I'm just hearing what my counsel tells me,
10 that we pretty much -- he's pretty much untouchable at
11 this point in time.
12 Q. And that's what --
13 A. That's my understanding of Mr. Smith; if we do
14 any adverse action against him, or we try to, this is
15 where we end up, right in front of a deposition camera.
16 Q. And, in fact, if you do take adverse action
17 because he's engaged in protected activities, you
18 understand that's a violation of the law?
19 A. I understand that. But if we do it even as a
20 disciplinary thing for just cause, here we are.
21 Q. And who -- And have you inquired of any outside
22 counsel to determine whether that's an accurate statement
23 of the law?
24 A. This is my counsel, right here (indicating).
25 Q. My question is --
1 A. No.
2 Q. -- have you sought a second opinion?
3 A. No.
4 Q. And that's what you're stating is the
5 instructions that's been given to the sheriff's office.
6 A. That's the instructions I'm going with right now,
7 is that he is a protected class.
8 Q. Well, a number of people are in protected
9 classes. And is that true of all of the persons in
10 protected classes?
11 A. That's the way I feel about it. I'm not saying
12 that's what my counsel's advising, but that's the way I
13 look at all this now.
14 Q. And do you think that you need training in what
15 the actual law is in terms of retaliation?
16 A. I don't. I have the law. I know what the law
17 says, and I think that Mr. Smith was disciplined for just
18 cause. We have an arbitrator that says he was not, and
19 here we are in depositions, end of story.
20 Q. And the arbitrator, in fact, was an independent
21 third party --
22 A. Absolutely. And I --
23 Q. Let me just finish that one.
24 A. I'm sorry.
25 Q. -- who heard, in fact, all of the evidence under
1 oath, and you did not; is that correct?
2 A. I was there for the whole thing, yes.
3 Q. Okay. And, in fact, he made a determination as
4 an independent adjudicator.
5 A. Yes, he did. Uh-huh.
6 Q. And is there any opinion that goes against you
7 that you agree with?
8 A. Oh, I'm sure there are. I don't agree with his
9 opinion, but I'm living with it.
10 Q. My question is, is there any legal opinion that's
11 gone against you that you agree with, that you're aware of
12 in your entire 30 years' experience?
13 A. I don't know. I'd have to think on that a little
15 Q. If you think of one that you agree with --
16 A. The only thing that I've ever had are criminal
17 cases. This is all -- you know, the civil stuff, these
18 things, you know, just kind of cropped up in the last five
19 years. And, yeah, probably not. I can't imagine that I
20 would agree with any of them.
21 Q. And that's because you lost.
22 A. Probably. You're probably right. But can I
23 accept it? Yeah.
24 Q. Well, and we'll get to the Smith investigation
1 A. I know.
2 Q. So who else would you -- I assume you would put
3 John on the list of complainers?
4 A. All I can --
5 Q. As you used the term on October 14th.
6 A. Well, probably would have. Uh-huh.
7 Q. Who else would you identify in that list?
8 A. Oh, I think --
9 THE WITNESS: Do I need to answer this one?
10 MR. KELLY: It's just who does he consider
12 THE WITNESS: It's just my opinion.
13 MR. GILLEN: As a Rule 30 deponent, you are
14 characterizing, as the sheriff's office, people that are
15 designated complainants?
16 MR. KELLY: Complainers.
17 MR. GILLEN: I'm sorry, complainers.
18 If you have a list of people that the sheriff's office
19 has determined to be complainers...
20 THE WITNESS: We don't. I have a personal
22 Q. (Mr. Kelly) Okay. And I can phrase it
23 actually -- Does the sheriff's office know of those
24 persons whom the individual sheriff considers to be
1 A. Probably not, if that makes sense.
2 MR. KELLY: Okay. Then I don't have a problem --
3 we can take this particular question out of the 30(b)(6)
4 designation, because I would have asked him this question
5 this afternoon.
6 MR. GILLEN: Sure. That's not a problem.
7 Q. (By Mr. Kelly) As an individual, and speaking as
8 an individual, who do you identify as complainers?
9 A. Mr. Smith, Mr. Swecker, and Mr. Bodine seem to be
10 the three biggest complainers right now that we have.
11 Q. And then in the last four to five years, would
12 you consider also Mr. Romero?
13 A. No.
14 Q. Valdez?
15 A. No.
16 Q. No others. Bodine, Swecker, and Smith.
17 A. Those seem to be the three most vocal, that seem
18 to have issues with everything.
19 Q. Smith and Swecker were Union officials also?
20 A. Yes.
21 Q. Was Bodine a Union official?
22 A. He was.
23 Q. And is this -- And I'm just asking, and I'm going
24 to redesignate in a minute, is this an opinion shared by
25 command staff as to who are the most difficult
2 A. I don't know. This is my opinion.
3 Q. Okay. Have you ever discussed this with any of
4 the command staff?
5 A. Oh, I'm sure we've discussed various things, and
6 I'm sure everybody's name comes up a time or two, but not
7 in specific.
8 Q. As sheriff, you would -- individually as sheriff,
9 you would identify Smith, Swecker, and Bodine.
10 A. Uh-huh.
11 Q. And that's a yes?
12 A. Yes, that is a yes. Those are the three biggest
13 complainers we have.
14 Q. I'm showing you what will be marked as Exhibit
15 No. 18.
16 (Deposition Exhibit 18 was marked for identification.)
17 Q. (By Mr. Kelly) And these are just to get
18 documents in the record. I'm hoping to move quickly on
19 this part.
20 Do you recognize it?
21 A. Uh-huh.
22 Q. And what is it?
23 A. Yes.
24 It's a letter of written warning to Sergeant Bofto.
25 Q. And it's about a traffic accident?
1 A. Yes.
2 Q. And it went through an accident review board?
3 A. Yes.
4 Q. And those usually -- they're supposed to occur
5 within 10 days of the accident?
6 A. I believe so.
7 Q. Whatever the policy says, but a short period.
8 A. Right.
9 Q. And persons within the same division are supposed
10 to participate in the review?
11 A. Supposed to. Uh-huh.
12 Q. Different than a hearing board, sheriff's hearing
14 A. It is.
15 Q. And they make a determination whether or not the
16 accident was preventable?
17 A. Yes.
18 Q. And if it's preventable, in the ordinary course,
19 there's discipline, a one-year letter?
20 A. Usually a letter. Uh-huh.
21 Q. Can you describe for me very quickly -- I've
22 gotten very confused -- reprimand letter different from a
23 letter of warning?
24 A. I don't think so. I think they're the same, just
25 different terminology.
1 Q. Okay. So whenever a warning or instruction is
2 put in writing, it's effectively a reprimand that's kept
3 for a year, and then is cleared if the request is made.
4 A. That's correct.
5 Q. And the other minor disciplinary action would be
6 oral warning.
7 A. Correct.
8 Q. Or counseling.
9 A. Correct.
10 Q. And is that noted anywhere, if you do an oral
11 warning or counseling?
12 A. Yes.
13 Q. Okay. Where is it noted?
14 A. It's in a locked cabinet in the lieutenants'
16 Q. Okay. So the lieutenants keep notes on those.
17 A. Yes.
18 Q. And you use those -- If you have several oral
19 warnings, you may wind up with a written warning?
20 A. You may.
21 Q. You may even wind up in a major violation?
22 A. Depends on what it is. Yes.
23 Q. Right, I understand.
24 But those are part of the record that are kept on the
1 A. Yes.
2 Q. Exhibit No. 19. She's going to mark it for you.
3 (Deposition Exhibit 19 was marked for identification.)
4 Q. (By Mr. Kelly) And I'll try to hurry.
5 Is this, again, an accident review board document
6 regarding -- and I don't recall the deputy.
7 A. I don't know.
8 Q. Let me see.
9 A. Is it Bofto again?
10 Q. It is Bofto again.
11 A. Okay. All right.
12 Q. Can you check it against Exhibit 18 to see if
13 it's the same dates, or are they two different incidents?
14 A. Must be -- this must be his first -- No, it might
15 be the -- Well, this one's the 19th, this one's the 7th,
16 or the 8th (indicating).
17 Q. Of November '07?
18 A. Uh-huh.
19 So they must be the same incident.
20 Q. So they're all connected?
21 A. Uh-huh, must be.
22 Q. October 8 -- I'm showing you what will be marked
23 as Exhibit 20. And I'll do it this way: 10/10/08 to
25 A. Oh.
1 Q. Suzanne?
2 A. DuPuis.
3 Q. DuPuis?
4 A. Yeah. I couldn't say it there for a second.
5 Q. Letter of written warning regarding a motor
6 vehicle accident that was preventable in September of '08.
7 A. Okay.
8 (Deposition Exhibit 20 was marked for identification.)
9 THE WITNESS: (Reviewing document.) Okay.
10 Q. (By Mr. Kelly) Is that an accurate statement of
11 that document?
12 A. Should be. Uh-huh.
13 Q. She received a discipline of the one-year letter?
14 A. Uh-huh. Yes.
15 Q. I'm showing you what will be marked as
16 Exhibit 21, a May 19, '09 letter from you to McCollum.
17 A. Okay.
18 Q. Accident review board done on May 18th regarding
19 an accident on May 9th; board determined it was
20 preventable; a one-year letter of warning.
21 A. Okay.
22 (Deposition Exhibit 21 was marked for identification.)
23 Q. (By Mr. Kelly) Is that a correct description of
24 that letter --
25 A. Yes.
1 Q. -- Exhibit No. 21?
2 A. Uh-huh.
3 Q. I'm showing you what will be marked as Exhibit
4 No. 22, May 1, '09 letter to Swecker from you; accident
5 review board on April 30th regarding a April 26 accident;
6 a unanimous decision it was preventable; one-year letter
7 of warning.
8 A. Okay.
9 (Deposition Exhibit 22 was marked for identification.)
10 Q. (By Mr. Kelly) I'm showing you what will be
11 marked as Exhibit No. 23, March 18th, 2008, to Detective
12 Bancroft -- from Detective Bancroft regarding county
13 vehicle accidents, a two-page document. I don't have a
14 letter on this from you or from Sheriff Maxwell, but
15 perhaps it will refresh your memory about an accident that
16 he was involved in. That's Exhibit No. 23.
17 (Deposition Exhibit 23 was marked for identification.)
18 Q. (By Mr. Kelly) Do you recall what happened on
19 that one?
20 A. I don't.
21 Q. And I couldn't find the accident review board
23 A. I don't recall this one at all.
24 Q. If --
25 A. I don't know of this one. I'm sorry.
1 Q. Okay. And I'm going to ask you, then, if, on
2 that accident, the review board determined that it was
3 preventable, would the ordinary discipline be a one-year
5 A. Yes.
6 Q. Okay. I'm showing you what will be marked as
7 Exhibit No. 24, a memo from McCollum to Deputy McCave --
8 Is Deputy McCave the son of Captain McCave?
9 A. Yes.
10 Q. -- about an accidental Taser discharge --
11 A. Okay.
12 Q. -- indicating that it was a written warning for
13 unacceptable conduct.
14 (Deposition Exhibit 24 was marked for identification.)
15 THE WITNESS: Okay.
16 Q. (By Mr. Kelly) And would that have been the
17 appropriate, usual discipline where someone accidentally
18 discharges a Taser?
19 A. I believe so.
20 Q. Did he hit somebody else?
21 A. I don't know. This one, I don't recall. I don't
22 think I was involved in this one at all. I don't know if
23 it just went off or -- We had one hit Romero, I think, a
24 accidental discharge. I don't remember who did that.
25 Q. Was that an adverse action?
1 A. I'm not going there.
2 MR. GILLEN: Move to strike.
3 MR. KELLY: Oh, and I apologize, after I asked
4 the last question of the witness in his individual
5 capacity about the question of complainers, we were back
6 on the record -- I intended that we be back on the record
7 as the 30(b)(6).
8 Is that acceptable, Counsel?
9 MR. GILLEN: That's correct, yes.
10 MR. KELLY: Thank you.
11 Q. (By Mr. Kelly) I'm showing you what appears to
12 be a new form, April '09, Michaelis regarding Hoffman;
13 inappropriate statement on the MDT.
14 A. Okay.
15 Q. And it's marked as Exhibit No. 25.
16 (Deposition Exhibit 25 was marked for identification.)
17 THE WITNESS: These are the forms that go in the
18 commanders' -- the lieutenants' file, is this form here.
19 Q. (By Mr. Kelly) Thank you.
20 A. Uh-huh.
21 Q. This is -- I'll ask you in a sec.
22 A. (Reviewing document.) Okay.
23 Q. Am I correct that this is -- Is this an oral
25 A. This is a written warning.
1 Q. Okay. And that stays in the file for a year and
2 is not confidential and in the lieutenants' files?
3 A. Right. This one should be in his personnel file.
4 Q. And can you read the inappropriate language, the
5 actual quote that he was disciplined for?
6 A. "Well, I'm haven a fuckin beautiful night, excuse
7 my language, somebody just stole my cop car."
8 Q. And in your experience as a law enforcement
9 officer, is that an unreasonable reaction to someone
10 stealing your cop car?
11 A. I don't think so. I probably wouldn't have
12 written him up. I didn't sign this one, so I probably
13 wouldn't have written him up, to be honest with you. I'd
14 have chalked it up to experience.
15 Q. Did he, in fact, get the cop car back?
16 A. Yeah, in Hardin.
17 Q. Okay. I'm showing you what will be marked as
18 Exhibit No. 26. And, again, I believe it's on the new
19 form, but it does indicate a written warning/reprimand of
20 Deputy Hackbarth by, I believe Lieutenants Schieno and
22 (Deposition Exhibit 26 was marked for identification.)
23 THE WITNESS: (Reviewing document.) Okay.
24 Q. (By Mr. Kelly) Is that a correct description of
1 A. Yep, it would be.
2 Q. And his infraction was?
3 A. He struck the card reader with his vehicle.
4 Q. And is that the thing that arose regarding the
5 October '08 --
6 A. Yeah, this might have been the first one. I
7 don't know if this is the first one or the second one.
8 Q. The date is -- I assume there was a --
9 A. 9/18 of '08.
10 Q. So the 10/14/08 meeting would have related to
12 A. Probably. Uh-huh. This must have been what
13 replaced the -- that probably replaced the original
14 letter, the five-day letter.
15 Q. Corrected the amount?
16 A. Right.
17 Q. Oh, the five-year letter.
18 A. Right. This would have been replaced.
19 Q. What form does the five-year letter come in; the
20 same form?
21 A. It would have probably been on a written --
22 Q. Straight letter?
23 A. Yeah, straight letter.
24 Q. And signed by you and no one else.
25 A. Signed by me or the sheriff and on letterhead.
1 Q. I'm showing you what will be marked as Exhibit
2 No. 27, Ketch.
3 A. Okay.
4 Q. Struck a concrete block while backing his patrol
5 car into a residence; Schieno and Michaelis issue a
6 written warning, which is the one-year letter.
7 A. Okay.
8 (Deposition Exhibit 27 was marked for identification.)
9 THE WITNESS: Okay.
10 Q. (By Mr. Kelly) I'm showing you what will be
11 marked as Exhibit 28; to Paris, notice of suspension
12 without pay.
13 A. Uh-huh.
14 Q. Suspension without pay would involve a major
16 A. Uh-huh.
17 Q. And those are both yeses?
18 A. I'm sorry. Yes.
19 Q. "Will not misuse or abuse Sheriff's Office or
20 County equipment"?
21 A. Correct.
22 Q. And that was dated August '08.
23 (Deposition Exhibit 28 was marked for identification.)
24 THE WITNESS: Yes, I remember this one.
25 Q. (By Mr. Kelly) And what were the circumstances
1 on that one?
2 A. He beat up his computer in the car.
3 Q. Smashed --
4 A. Destroyed it.
5 Q. And he was provoked. What was his --
6 A. It wouldn't work. Said it wouldn't come up or
8 Q. So a -- not road rage, but computer rage?
9 A. Computer rage. Yes.
10 Q. I'm showing you what I believe will be marked
11 Exhibit No. 29. The date is August '08.
12 Is 28 August '08?
13 A. Uh-huh. It is.
14 Q. And maybe you can explain if that's connected to
15 Exhibit 28. But it's on the form --
16 A. It might have been the original complaint.
17 Q. -- complaint action form signed by Wallis and
19 (Deposition Exhibit 29 was marked for identification.)
20 Q. (By Mr. Kelly) Does that go with 28?
21 A. Doesn't look like it.
22 Q. He was given another written warning?
23 A. Oh, this was a different -- Yeah, he didn't have
24 the passenger restrained in seat belts.
25 Q. And there was some injury to the passenger?
1 A. Yeah.
2 Q. Okay.
3 A. It was a separate incident.
4 Q. A one-year letter on that?
5 A. Uh-huh.
6 Q. And that's a yes; is that correct?
7 A. Let's see. Yes, a written warning. Yes.
8 Q. I'm showing you what will be marked as Exhibit
9 No. 30, and it is a August '09 letter to Deputy Butler
10 regarding "neglect of duty, or failing to assume
11 responsibility or exercise diligence."
12 And I believe this is, again, a letter of -- a
13 one-year letter of reprimand, and it was issued by you?
14 A. Yes.
15 Q. And that's Exhibit No. 30.
16 Is that an accurate description of that letter?
17 A. It would be. Correct.
18 (Deposition Exhibit 30 was marked for identification.)
19 Q. (By Mr. Kelly) I'm showing you what will be
20 marked as Exhibit No. 31. It's a November 29, '07 policy
21 violation against Ostermiller for failure to exercise
22 maximum care and safety in handling her firearm.
23 A. Okay.
24 Q. And an indication that she had had several
25 problems in the past regarding those steps and dropping
1 her firearm and issued -- and this is, I believe, Exhibit
2 No. 31, a one-year letter of reprimand.
3 Do you recall that?
4 A. Uh-huh.
5 (Deposition Exhibit 31 was marked for identification.)
6 Q. (By Mr. Kelly) I'm showing you what will be
7 marked as Exhibit No. 32, again to Ostermiller, May of
8 '07, dropping her firearm and again being cited for
9 failure to exercise maximum care and safety in handling
10 and given a one-year letter of reprimand. Do you recall
12 A. I think so, yeah. These are -- this one was done
13 by Wallis and that one was done by Sergeant Evans
14 (indicating), but I do think I recall the incidents.
15 Q. And are those the two incidents -- He talks
16 about, in the second letter, that she had had problems --
17 A. I believe it is. Yes.
18 Q. Do you know of any other incidents prior to May
19 of '07 regarding Ostermiller and handling of her firearm?
20 A. Not off of top of my head, no.
21 Q. And today, I'm asking you, does the sheriff's
22 office have any knowledge of any other incidents prior to
23 May of '07 --
24 A. No.
25 Q. -- regarding Ostermiller?
1 A. No.
2 (Deposition Exhibit 32 was marked for identification.)
3 Q. (By Mr. Kelly) I'm showing you what will be
4 marked as Exhibit No. 33, a written letter of reprimand by
5 Lieutenant Michaelis to Chris Romero, March of '07, for
6 using inappropriate language on the MDT. March of '07.
7 A. Okay.
8 (Deposition Exhibit 33 was marked for identification.)
9 Q. (By Mr. Kelly) And is that consistent -- Are you
10 aware of that?
11 A. I know that we've had several write-ups for
12 improper use of the MDT.
13 Q. Captain Michaelis takes that awful serious?
14 A. Yeah. I think all the commanders probably do.
15 Q. Have you assessed whether it has a negative or
16 positive impact on morale?
17 A. I have not.
18 Q. I'm showing you Exhibit No. 33, November '07, to
19 Benjamin; MDT computer messages inappropriate; letter of
20 written warning by Schieno.
21 (Deposition Exhibit 34 was marked for identification.)
22 Q. (By Mr. Kelly) I'm showing you Exhibit No. 35,
23 and this is from Detective Cunningham requesting that
24 various letters of warning be removed from his file.
25 A. Okay.
1 Q. May of '07, he makes this request.
2 A. Okay.
3 (Deposition Exhibit 35 was marked for identification.)
4 Q. (By Mr. Kelly) And my question goes to 35, as to
5 whether or not that's the usual procedure for getting the
6 letters pulled.
7 A. That is.
8 Q. And what was the firecracker incident that he
9 refers to there; do you remember that?
10 A. I think he threw some firecrackers out of his
12 Q. And what's the second incident?
13 A. Speeding.
14 Q. And third incident?
15 A. A PVOC BAC incident.
16 Q. And what would that be?
17 A. I think that's when he showed up for training and
18 had alcohol on his breath.
19 Q. Did you do a drug test or alcohol test at that
21 A. Did not. No, we did not.
22 Q. Is that the usual recommended practice?
23 A. It can be done, but it was not.
24 Q. Is it the recommended practice if there's an
25 allegation of appearance -- I mean, that's a -- Let me
1 rephrase that.
2 In your policy manual, if you show up to duty with
3 reasonable appearance of having used alcohol, that's a
4 serious violation.
5 A. I would say. Uh-huh.
6 Q. Was he disciplined other than to be given a
7 written warning?
8 A. No.
9 Q. Was there any major investigation done?
10 A. No.
11 MR. KELLY: We'll stop for the moment.
12 VIDEOGRAPHER: This concludes Tape 2 of the
13 Rule 30(b)(6) deposition of Yellowstone County Sheriff's
14 Department, Jay Bell. The time is 10:30. We're off the
16 (A brief recess was taken.)
17 VIDEOGRAPHER: The time is 10:41. We're on the
18 record. This is Tape 3 of the Rule 30(b)(6) deposition of
19 Yellowstone County Sheriff's Office, Jay Bell. We're on
20 the record.
21 Q. (By Mr. Kelly) Sheriff, I'm showing you now as
22 the designee of the sheriff's office Exhibit No. 36, which
23 is a January '06 letter from you to Cunningham regarding
24 an unintentional discharge of a firearm --
25 A. Uh-huh.
1 Q. -- in which you -- Maybe you can explain the
2 discipline that you gave to him.
3 Do you recall the incident?
4 A. I do.
5 (Deposition Exhibit 36 was marked for identification.)
6 Q. (By Mr. Kelly) And just for the record, I'm
7 looking for what discipline was afforded to him.
8 A. He was to spend four hours on the range with one
9 of the sheriff's office firearms instructors; he was
10 assigned one day at the range during the next handgun
11 qualification shoot; and it will be his duty to go over
12 firearm safety with the group, so he was going to be
13 instructor; and he received one day off without pay.
14 Q. Okay. So a suspension?
15 A. Uh-huh.
16 However, I did suspend that for a year, providing that
17 he had no further disciplinary action.
18 Q. And would that kind of letter be kept in his file
19 for a year --
20 A. Yes.
21 Q. -- and he could request that it be removed?
22 A. Yes.
23 Q. So it was a reprimand and one-day suspension
25 A. Correct.
1 Q. I'm showing you what's been marked -- or will be
2 marked as Exhibit No. 37, a July '08 memo from you to
3 Michaelis; letter of written warning regarding a sheriff's
4 office hearing board on his pursuit.
5 A. Okay.
6 (Deposition Exhibit 37 was marked for identification.)
7 Q. (By Mr. Kelly) Do you recognize Exhibit 37?
8 A. I do.
9 Q. And the discipline -- there was no discipline for
10 his actions during the pursuit; is that correct?
11 A. That's correct.
12 Q. And, in fact, there was a fatal injury that
13 resulted from that pursuit?
14 A. There was.
15 Q. And I believe Lieutenant Wallis was ordered to
16 conduct or instructed to conduct a hearing board.
17 A. He was.
18 Q. And you use -- I find it -- It's the only time
19 you use hearing board in terms of the incident, a vehicle
20 accident, as opposed to an accident review board?
21 A. It was a typographical -- It must have been my
23 Q. And why --
24 A. I should have used the accident review.
25 Q. Don't you have the authority to hold a hearing
1 board on, or instruct that a hearing board be held on,
2 vehicle accidents?
3 A. We have accident review boards. I mean, you can
4 do either, but this should have been an accident review
6 Q. And why -- He also used the term, though,
7 accident review -- I mean, a hearing board.
8 A. Hearing board, yeah. I don't know why.
9 Q. And it took place long after the accident.
10 A. Yeah, it did.
11 Q. And that would be inconsistent with the accident
12 review board policy?
13 A. It would be.
14 Q. It would be consistent with the hearing board
16 A. I guess it probably would be. Yes.
17 Q. And because of the fatal accident, is it possible
18 or even likely that you may -- a hearing board --
19 A. May have.
20 Q. And, in fact, just for your information in case
21 you don't remember, an MHP officer was directed to attend.
22 A. Right. Officer Grover.
23 Q. And that's, again, inconsistent with accident
24 review, correct?
25 A. That would be inconsistent.
1 Q. But it would be consistent with a hearing board.
2 A. Could be. Uh-huh.
3 Q. And if a hearing board was -- Did you give the
4 instruction to hold the hearing?
5 A. I probably would have given the instruction to
6 hold the review, yes.
7 Q. And this was a very serious matter, the
8 pursuit and the -- The video thing wasn't so serious,
9 according to your memo, but the pursuit itself, the
10 circumstances were very serious to the sheriff's office;
11 is that correct?
12 A. Of course, they were. Uh-huh.
13 Q. Well, and particularly because of the fatal
15 A. Sure. Uh-huh.
16 Q. And do you know, was there ever an internal
17 investigation done of that pursuit other than through the
18 hearing board?
19 A. No.
20 Q. And so as a serious matter -- I mean, it's not a
22 A. Right, or it's not a violation of anything.
23 Q. Well, that was the determination, that he hadn't
24 violated anything.
25 A. Right.
1 Q. And would it be your understanding that the
2 hearing board would have followed the policies of the
3 manual in order to come to that determination?
4 A. I would guess that they would.
5 Q. And in that instance -- Do you know where the
6 audiotape or videotape is of the information that was
7 taken during the hearing board?
8 A. No.
9 Q. That's the policy, though, is that you're
10 supposed to --
11 A. I'm sure it's kept, but I don't know -- I assume
12 it's in the vault, but I can't say that for sure.
13 Q. I can tell you that on page 1-6 of your manual,
14 it says a written video or audiotape recording will be
15 kept of all proceedings of a hearing board.
16 A. And I'm sure it was.
17 Q. Okay.
18 A. As long as it was a hearing board.
19 MR. KELLY: If you would check and see if there's
20 a video or audio on the hearing board on --
21 The date was?
22 THE WITNESS: 7/18 of '08.
23 MR. KELLY: -- July 18 of '08.
24 MR. GILLEN: We'll track that down for you,
1 MR. KELLY: Thank you.
2 MR. GILLEN: Video.
3 MR. KELLY: Or an audio, it says. It doesn't
4 have to be -- it says either one.
5 MR. GILLEN: You'll know this afternoon.
6 MR. KELLY: Okay.
7 Q. (By Mr. Kelly) And a hearing board is supposed
8 to use the standard of supposed to be able to
9 cross-examine witnesses. It's a regular serious hearing.
10 A. If this was, in fact, a hearing board. And I
11 don't recall if it was, in fact, a hearing board.
12 Q. Well, why wouldn't you have a hearing board on an
13 incident like the Michaelis pursuit?
14 A. We don't have a hearing board on all pursuits.
15 You know, we review it to make sure there wasn't any
16 policy violated in the pursuit.
17 Q. How many pursuits have resulted in fatal -- the
18 death of a innocent civilian?
19 MR. GILLEN: I'll object to the characterization
20 of that question. Nothing about Michaelis's actions that
21 day caused the death of Ms. Stahl. There was an
22 individual charged with the offense; he pled guilty to the
23 offense. The bulk of the investigation into Michaelis was
24 failure to have a camera on when Houston backed up and hit
25 him on the corner of Sixth Avenue and Broadwater Avenue.
1 Q. (By Mr. Kelly) And my -- I think there was
2 testimony yesterday that, in fact, the scope of the
3 hearing was beyond simply the video, and it was whether he
4 followed the pursuit policy as well.
5 A. Probably was. Uh-huh.
6 Q. And, in fact, that's the determination you make
7 in your letter, Exhibit 37; is that correct?
8 A. I would say that's correct.
9 Q. Did you review the evidence that was considered
10 by the hearing board?
11 A. I personally did not.
12 Q. And have you had other pursuits where a --
13 MR. KELLY: I'll try and phrase this properly,
14 Counsel, so as to afford you the opportunity to keep it
15 within the scope of your objection.
16 Q. (By Mr. Kelly) Have Yellowstone County sheriff's
17 officers been involved in a pursuit, the end result of
18 which was the death of a civilian?
19 A. I believe one other time.
20 Q. Okay. And did you have a hearing board on that
22 A. I don't believe any of this policy was in effect
23 at that time.
24 Q. So it would have been long ago.
25 A. Correct.
1 Q. Long before '04.
2 A. Correct.
3 Q. So this would have been the only such incident
4 since '04; is that correct?
5 A. That I'm aware of.
6 Q. And his failure to turn -- He didn't have his
7 audio either; is that correct?
8 A. I assume that's -- I don't know, are they one and
9 the same? Yeah, they're one and the same, so...
10 Q. Did you investigate why he was -- It's a major --
11 Let me phrase it this way: One of your policies is, is
12 that it's a violation of the manual to give false
13 information in a report.
14 A. Okay. Yes.
15 Q. Chris Romero was charged with a major complaint
16 on that; do you recall that, by Sheriff Maxwell?
17 A. Was that the grievance?
18 Q. The grievance and the Human Rights complaint
19 alleging discrimination.
20 A. Uh-huh, I do recall that.
21 Q. Okay. And are you aware that in the report by
22 Captain Michaelis on the incident on April 18th, he made
23 an untrue statement as to where he stopped?
24 A. I'm aware that he made a statement that -- yeah,
25 that wasn't accurate, that he wasn't quite where he
1 thought he was.
2 Q. Two or three blocks from where he thought he was.
3 A. I don't know what the exact location is.
4 Q. Do you know where Wyoming and Yellowstone are?
5 A. I do.
6 Q. Do you know where Lewis and Clark are?
7 A. I do.
8 Q. Do you know where Grand is?
9 A. I do.
10 Q. Okay. And if he indicated that he was -- he
11 stopped between Wyoming and Yellowstone, and actually
12 stopped closer to Lewis, that would be two or three
14 A. Probably.
15 Q. Okay. And that's a material piece of
17 A. Oh, I'm sure it is. It will be.
18 Q. Did you investigate it?
19 A. I did not.
20 Q. An untrue statement is an inaccurate statement;
21 is that correct?
22 A. Well, I think untrue and mistaken is two
23 different things.
24 Q. And did you investigate why he may have been
25 disoriented or not observant at that time --
1 A. Oh --
2 Q. -- as to where he was?
3 A. -- I think it's pretty common knowledge that when
4 you're in a pursuit, you're pretty -- pretty excited. You
5 know, you may not focus on everything quite as well as you
7 Q. And did you -- But it's an obligation of every
8 law enforcement --
9 A. It is.
10 Q. -- officer --
11 A. It is.
12 Q. -- to be observant and alert, especially in those
14 A. But they're also human.
15 Q. And I understand that, but their duty is to be
16 alert and observant.
17 A. I understand their duty, but I also understand
18 they're also human.
19 Q. Okay. And, in fact, did you investigate in any
20 manner whether or not he failed in concluding the pursuit
21 at the time that the person being pursued had run into a
22 light pole at Broadwater and Sixth?
23 A. No.
24 Q. Did you make any determination as to whether he
25 could have taken action that would have prevented
1 him from --
2 A. No.
3 Q. -- backing his car up and then proceeding?
4 A. No.
5 Q. You're aware, though, that Michaelis had a
6 special duty to the general public while he was conducting
7 the pursuit?
8 A. Sure. Of course, he does.
9 Q. And that's why you have such a specialized policy
10 on pursuits?
11 A. Uh-huh. Yes, sir.
12 Q. But you didn't investigate whether or not, in
13 detail -- as far as you know, as far as the sheriff's
14 office knows, in detail what his specific actions were
15 during that pursuit?
16 A. He -- his report would have reflected his
17 specific actions. But an independent investigation, no.
18 Q. Why not?
19 A. Didn't see the necessity for it.
20 Q. Why not?
21 A. Because everything appeared to be aboveboard.
22 Q. But he made an inaccurate statement as to where
23 his location was.
24 A. Yeah. He made a mistake.
25 Q. He gave you untrue information in that report.
1 A. Yep, by mistake. He admits it.
2 Q. Well, and do you know if he made other mistakes
3 in his report?
4 A. I do not know.
5 Q. Doesn't that warrant investigation, where a
6 citizen -- at the end of whatever the pursuit was, a
7 citizen's life was lost?
8 A. I think that all of the reports and all the other
9 deputies and the police officer's report reflect
10 accurately what occurred.
11 Q. And have you actually reviewed those and
12 determined that they're accurate?
13 A. I'm going to have to rely on the accuracy of the
15 Q. But you relied on the accuracy of Michaelis in
16 making statements --
17 A. Uh-huh.
18 Q. -- and you found out later that was false.
19 A. He made a mistake.
20 Q. And did you review and determine whether or not,
21 or order the review and investigation of any others to
22 determine whether or not, they had made inaccurate
24 A. No.
25 Q. Even though there was a fatality involved?
1 A. It's generally not our policy to review the
2 officers' reports on anything. We trust their -- we trust
3 the officers to be accurate. They may make a mistake on
4 occasion. If it's caught, we correct it.
5 Q. Isn't your procedure, as supervisors, to review
6 and determine whether inaccurate statements are being
8 A. Well, at the time, if you read a report, you
9 don't -- how are you gonna to know if it was made or not
10 if you read the report? Once it comes out, then it's
12 Q. So you leave it to somebody else to figure it
14 A. I don't think you leave it to anybody. You rely
15 on the officer's report, you read their report, you take
16 it at face value. If there's something that comes up that
17 shows that it is inaccurate, it's corrected.
18 Q. And something comes up from where?
19 A. That's the question. I assume this one came up
20 from the video -- No, there wasn't a video. It must have
21 come up from another video of another deputy.
22 Q. It came up from an interview by an outside
24 A. Is that what it was? Okay. And so then it was
1 Q. But did you then go back, since there was an
2 indication that he was inaccurate in part, that he may
3 have been inaccurate in other respects of the report?
4 A. We did not.
5 Q. You're aware of the general rule that if someone
6 is inaccurate or not credible in making one statement,
7 their credibility may be doubted with respect to other
8 statements; are you aware of that?
9 A. I am aware of that, but I don't think that's the
10 case are here.
11 Q. And why don't you think that?
12 A. I think that our officers are credible. I
13 believe they're all credible. They make mistakes, sure,
14 but not intentionally. And I think that our officers are
15 all very credible.
16 Q. Would it have been important to determine what
17 exactly was the distance between -- Let me rephrase.
18 Would it have been important to determine whether or
19 not Captain Michaelis could have actually stopped that
20 vehicle when he had run into the light pole at Sixth and
22 A. I believe his report reflected that he couldn't
23 stop the vehicle. Whose vehicle; his or the other guy's?
24 Q. The other guy's.
25 A. Well, sure, but I don't think he had the
1 opportunity to do so.
2 Q. Didn't he indicate that he was afraid of a
3 collision with the car?
4 A. Sure.
5 Q. If he had parked in closer, would that not have
6 at least reduced the risk --
7 A. We can second-guess this all day, Mr. Kelly. I
8 don't know. I wasn't there, and neither were you. We're
9 just going to have to go with their report, sir.
10 Q. Isn't it important, though, to do an evaluation
11 of circumstances that -- especially when they result in a
12 fatality of an innocent citizen, to review what happened
13 in order to determine if mistakes were made and to correct
14 those mistakes?
15 A. I think that the review was the -- everybody
16 talking about the incident, how it occurred, the officers'
17 reports, the police department's reports, and they speak
18 for themselves on how this thing took place.
19 Q. And, in fact, that should have come out in the
20 hearing board, correct? It should have been reviewed by
21 the hearing board?
22 A. I don't know what the hearing board did. I don't
24 Q. Based on being the sheriff's office today --
25 A. Yes. I --
1 Q. -- should they have reviewed all of the
2 materials --
3 A. They should have. Absolutely. Yes, if it was a
4 hearing board.
5 Q. Well --
6 A. I know what it says, I understand all that. But
7 I would have to -- I will have to verify whether or not it
8 was an actual hearing board or an accident review board.
9 I don't recall.
10 Q. So on this particular issue -- And it differs --
11 A. I may have made a mistake. That's what we're
12 talking about. I may have misspoke here.
13 MR. GILLEN: Let him ask the question.
14 THE WITNESS: I'm sorry.
15 Q. (By Mr. Kelly) On this particular issue, though,
16 it does deviate from all of your other written letters
17 regarding motor vehicle accidents, and where you are very
18 precise and accurate in saying accident review board. Are
19 you aware of that?
20 A. I am aware of that.
21 Q. And can you think of any reason why this
22 particular incident, which involved a fatality, would be
23 the one occasion when you make an inaccurate statement in
24 your letter?
25 A. I can't -- I can't answer that. I don't know
1 that it's inaccurate or not.
2 Q. Okay.
3 A. I just don't know.
4 Q. And it speaks for itself; is that correct?
5 A. It does. Absolutely.
6 Q. And a hearing review board is governed by 1-6,
7 all those procedures?
8 A. Sure. Yes.
9 Q. And you've never heard the audiotape of the
10 hearing review board?
11 A. I have not.
12 Q. Okay. I'm showing you what will be marked as
13 Exhibit No. 38.
14 (Deposition Exhibit 38 was marked for identification.)
15 Q. (By Mr. Kelly) Quick question on Michaelis and
16 the violation that he actually got.
17 A. Uh-huh.
18 Q. Didn't turn on his video, didn't have his
19 audio --
20 A. Right.
21 Q. -- engaged in a pursuit; a clear violation of the
23 A. The audio thing was, yes.
24 Q. And the video with respect to pursuits.
25 A. Correct.
1 Q. Okay. He testified that he doesn't turn on his
2 video pursuant to policy as a matter of course.
3 A. That's probably correct.
4 Q. Have you, other than issuing him a one-year
5 letter, instructed him at this point to begin following
7 A. I don't know that I have. There's a reason he
8 doesn't turn it on, because it takes a while to warm up,
9 and by the time he gets to the courthouse, it generally
10 warms up and he shuts his car off. So it's very
11 ineffective for him to do so. I am a little surprised
12 that he doesn't, if he testified that he still doesn't do
13 that after this incident.
14 Q. And Skillen actually testified, too, that she
15 doesn't turn hers on because it doesn't warm up.
16 A. Yeah. See, that's a problem with the -- problem
17 with the policy and with the video --
18 Q. Conduct?
19 A. -- both of them. Yeah.
20 Q. And am I correct that because he failed to turn
21 on the video, essential evidence -- what may have been
22 essential evidence was lost as a result?
23 A. Sure.
24 MR. GILLEN: Objection; that's speculation.
25 THE WITNESS: I'm guessing.
1 Q. (By Mr. Kelly) Based on your understanding of
2 how the video operates and what it would have shown.
3 A. I would guess so. Hopefully, it would have shown
4 more of the pursuit that he was in.
5 Q. Well, the video would have shown what he was
6 doing during the pursuit.
7 A. Absolutely.
8 Q. What the car was doing.
9 A. Absolutely.
10 Q. I'm showing you what is marked as Exhibit No. 39,
11 and it's a letter, May 25, '09, failure to complete cases;
12 one-year letter from Evans to --
13 A. Wait, that's not what I have.
14 Q. Oh, I'm sorry. Which one is that?
15 A. Weston.
16 Q. Oh, yes, that's correct.
17 MR. GILLEN: Is that No. 39?
18 MR. KELLY: 39, right.
19 MR. GILLEN: Thank you.
20 Q. (By Mr. Kelly) Or is it 40?
21 A. 38.
22 Q. Thank you for correcting me.
23 39, and that relates to the incident where
24 Detective Weston knocked down an 80-year-old woman?
25 A. Yes.
1 Q. Put her in the hospital?
2 A. He did.
3 Q. And you didn't issue any discipline?
4 A. No. He got a citation, he paid off his citation.
5 He pled guilty, he admitted to everything.
6 Q. He admitted it was negligent?
7 A. Well, he admitted it was an accident.
8 Q. He admitted also it was negligent; is that
10 A. I don't know.
11 Q. The citation was for negligently failure to --
12 A. Is that what it was? Okay. Whatever the
13 citation was, he admitted to that, yes.
14 And I think that that's probably a little better than
15 a letter of written reprimand, because that will stay on
16 his record and we can use it at a future date, if need be.
17 These other letters get pulled in a year. So I at that
18 time thought that was discipline for him.
19 Q. Were you aware that Lieutenant Wilson determined
20 that there was no negligence?
21 A. Oh, I probably was at the time. I know it was an
22 accident. But, you know, the statute says -- you know,
23 the traffic ticket probably said negligent something,
25 Q. Well, are you aware that your counsel has
1 described it as a negligent act?
2 A. I don't know how he described it.
3 Q. Are you aware that it was --
4 A. I describe it as an accident.
5 Q. Are you aware that it was preventable?
6 A. Oh, sure. Any accident's preventable.
7 Q. Are you aware of any other officer who has
8 engaged in a motor vehicle accident that's caused a
9 personal injury, in this case to a 79, 80-year-old woman,
10 put her in the hospital, and has received no discipline?
11 A. What do you consider discipline?
12 Q. Discipline is defined by your manual.
13 A. A written warning? No. A citation?
14 Q. Discipline in your manual is defined.
15 A. Okay. No.
16 Q. It's defined as a letter of reprimand or a
17 warning. You know what it is.
18 A. I do. Yeah.
19 Q. And he received none.
20 A. He did not.
21 Q. And in terms of his employment and the
22 application of the manual, he received more favorable
23 treatment -- I'm just saying the application of the
24 manual -- than every one of those other letters where I
25 showed you motor vehicle accidents; is that correct?
1 A. I don't know that he received favorable
2 treatment. He didn't get a letter of reprimand. He did
3 get his --
4 Q. He did not get a letter of reprimand.
5 A. He did not.
6 Q. He got no discipline.
7 A. Not from the office, no.
8 Q. Okay. And that's what you go by in your office,
9 is your manual.
10 A. Yes.
11 Q. And there was a representation that it cost the
12 County $36,000?
13 A. I don't know the dollar amount, but I know that
14 it did cost some money.
15 Q. And when it causes liability of that amount, is
16 that a factor that you consider in whether someone's
17 engaged in a major or minor violation?
18 A. I don't know that it does. I think it's -- it
19 goes by circumstance.
20 Q. Didn't you --
21 A. I don't know that this would be a major
23 Q. Didn't you, in fact -- didn't the office, in
24 fact, try to issue a five-year letter of reprimand to
25 Hackbarth --
1 A. Uh-huh.
2 Q. -- for $600 in damages?
3 A. Yeah, but he -- that was because he did two like
4 incidents in a very short period of time.
5 Q. So pattern is a factor.
6 A. That would have something to do with it, sure, if
7 he continued to have a pattern of these types of
9 Q. Didn't you reduce, though, the letter because you
10 found out it was only $30 in damages?
11 A. I did.
12 Q. So pattern wasn't the only consideration --
13 A. I guess not. It must not have been.
14 Q. Value of the damage that's done is, in part, a
16 A. Yeah, I think you're probably right. Yeah.
17 Q. And are you aware that, in fact, the County
18 became incurred for more than $48,000 as a result of that
20 A. I don't know what the dollar amount is on her.
21 Q. Are you aware of other incidents causing the
22 County more than $48,000 in damages and obligations
23 because of a violation of a policy?
24 A. Not off the top of my head. I'm sure the County
25 has some in other -- in other departments.
1 Q. No. My question was, though --
2 A. For us? No. There may be.
3 Q. There's another part of my question. I'm sorry.
4 -- where the person has not been disciplined.
5 A. No.
6 Q. I'm showing you what will be marked as Exhibit
7 No. 39. It's a letter of May '09 to John Smith, and I
8 don't know who -- oh, Sergeant Evans; dereliction of duty.
9 A. Okay.
10 (Deposition Exhibit 39 was marked for identification.)
11 Q. (By Mr. Kelly) Do you recall that one?
12 A. Huh-uh. Not yet. Let me read it.
13 Q. Oh, I apologize.
14 A. (Reviewing document.)
15 Q. And that (indicating) should go with it as well.
16 A. I -- Yeah, I'm aware of this incident.
17 Q. Am I correct that the basis of the -- Was it a
18 one-year disciplinary letter?
19 A. Yes.
20 Q. And was the basis of the discipline that he
21 failed to complete assignments?
22 A. Yes.
23 Q. Okay. I'm going to show you what will be marked
24 as Exhibit No. 40.
25 A. Is that this one (indicating) or is this --
1 Q. That went with the other one, yes.
2 And do you see that that was the Michaelis --
3 A. Yes.
4 Q. -- note related to the failure to do assignments?
5 A. Uh-huh.
6 (Deposition Exhibit 40 was marked for identification.)
7 Q. (By Mr. Kelly) Let me ask, have you --
8 Detective Horton, did you find out that Detective Horton,
9 in fact, was failing to complete assignments?
10 A. No.
11 Q. There was testimony by Lieutenant Wilson. He
12 didn't report that to you?
13 A. Nope.
14 Q. You're aware that --
15 A. I've found that out since, but I have not been
16 aware of it prior to his departure.
17 Q. Okay. He's still an employee?
18 A. He is. Uh-huh.
19 Q. And did Lieutenant Wilson ever indicate anything
20 to you about whether or not Detective Horton was impaired
21 or demonstrating inappropriate behavior on the job?
22 A. No.
23 Q. He was, however, taken to a facility in
25 A. I don't think I'm going to talk about Mr. Horton.
1 I don't think that has any bearing on this.
2 Q. Well, the bearing is --
3 A. I think HIPAA -- HIPAA prevents me from saying
4 anything about him.
5 Q. Well, you don't know -- you don't have any
6 specific knowledge of his medical records, do you?
7 A. I do not.
8 Q. Okay. HIPAA covers medical records.
9 My question goes to did two of your employees,
10 Seth Weston and his son, take Horton to a facility in
12 A. No. Seth Weston and his brother did.
13 Q. Okay. And did he do so on county time?
14 A. He did.
15 Q. Okay. And that was pursuant to your
17 A. Yep.
18 Q. And did you have any suspicions that
19 Detective Horton may have been using inappropriate drugs?
20 A. Not at that time. Not until he'd said he needed
21 help -- or I found out he needed help.
22 Q. And at that point, did you conduct an
23 investigation as to whether or not he was using
24 inappropriate drugs?
25 A. We have not at this point.
1 Q. And how did you find out that he was using
2 inappropriate drugs?
3 A. I, to this day, still don't know that he was.
4 Q. How did you find out of an allegation that he
6 A. It was just an understanding from the
7 conversations that the undersheriff had with his wife.
8 Q. And --
9 A. I don't know that they were inappropriate drugs.
10 I think that he was using narcotics that were prescribed
11 to him, but not inappropriate drugs.
12 Q. And do you know that?
13 A. I do not know, but this is --
14 Q. No investigation has been done?
15 A. Not yet. He's not back yet.
16 Q. But you found this information out before he
17 left; is that correct?
18 A. Uh-huh. I would like to interview --
19 Q. Immediately.
20 A. I would like to interview him to see what's going
22 Q. Okay. And my question --
23 A. I haven't had an opportunity to do that.
24 Q. Well, don't you think there's a difference
25 between the evidence you may be able to collect before
1 someone goes to a facility, a rehab facility, and after?
2 A. Now, what are we going to collect?
3 Q. Hair samples?
4 A. We're going to collect hair samples from him?
5 Q. Yes. Drug use.
6 A. For what reason?
7 Q. Well, you did that to Chris Romero to find out if
8 he has been using inappropriate drugs. You did it to
9 Briese --
10 A. Uh-huh.
11 Q. -- and you found he was using inappropriate
13 A. Because we'd received information that he had
15 Q. And you received information in this instance
16 that Horton had been; is that correct?
17 A. We received information that he was medicated.
18 Not saying that he was using anything inappropriate, but
19 that he was on -- that he was using narcotics.
20 Q. And sufficient information that required him to
21 go to a facility; is that correct?
22 A. Possibly he has an issue, a problem.
23 Q. And did you take hair samples or urine tests from
25 A. Did not.
1 Q. And did you learn -- did you investigate whether
2 or not he had been acting in an impaired way in the last
3 couple of months?
4 A. I have learned that since the first of the year,
5 his productivity has slowed down.
6 Q. And when you say "productivity," you mean he
7 wasn't getting the cases done?
8 A. Not to any real extent.
9 Q. Okay. And did you issue to him a disciplinary
10 action regarding those failures to complete his cases?
11 A. I have not issued anything yet.
12 Q. And why did you give him so much time between
13 receiving the allegation and investigating it?
14 You haven't even investigated it, correct?
15 A. I have not. No.
16 Q. Do you know if someone went to the house who was
17 a officer of the sheriff's office to determine whether or
18 not there was any evidence there of illegal or
19 inappropriate drugs?
20 A. I don't know that there was.
21 Q. You didn't talk to Weston about his going to the
23 A. I know he's been to the house several times.
24 Q. And do you know if he looked to see what kind of
25 drugs Horton was using?
1 A. I don't recall. No. He may have.
2 Q. You don't recall?
3 A. I think that they may have taken some back East
4 with him, what he was on.
5 Q. And did you learn of anything in terms of the
6 inventory of his desk at the detectives division?
7 A. No. I have heard since that there may have been
8 some prescription bottles in there, in his desk.
9 Q. And those were thrown away, correct?
10 A. I guess that they were. Yes.
11 Q. And is that the usual practice that you follow
12 when there may be, obviously, an investigation of
13 someone's inappropriate uses of drugs?
14 A. I -- I'm guessing probably not, but I don't know
15 the totality of the circumstances.
16 Q. Did you investigate that?
17 A. Have not.
18 Q. So there may have been possibly a destruction of
19 evidence regarding his drug use?
20 A. It's hard to say.
21 Q. But at least you've had some indication that --
22 A. That there were --
23 Q. -- containers of drugs of some sort were
24 contained in his workspace.
25 A. Uh-huh, but not illegal. Nothing illegal --
1 Q. As I understand --
2 A. -- from what I understand.
3 Q. Okay. The testimony yesterday was that the
4 labels were not indicating that they were legal.
5 A. Oh. Then I am misinformed.
6 Q. Okay. And if that were true, if that testimony
7 is true, should that evidence have been retained for
8 purposes of the investigation?
9 A. I believe it probably should have been.
10 Q. And a detective who has experience in collecting
11 evidence on these matters should have been aware of that?
12 A. Uh-huh.
13 Q. And if you find out that they disposed of
14 evidence, that they -- especially if they were a detective
15 and had knowledge of collecting evidence, disposed of
16 inappropriately, does that warrant an investigation for
17 possible discipline?
18 A. We'll look into it.
19 Q. I'm showing you what will be marked as
20 exhibit number -- Which one did we just do?
21 A. 40.
22 (Deposition Exhibit 41 was marked for identification.)
23 Q. (By Mr. Kelly) And I believe you've seen this
24 before. Is this the 49-3-205 analysis of the sheriff's
25 office done by Peter Michael Meloy?
1 A. I believe it probably is. Uh-huh. I have no
2 reason to doubt it.
3 Q. Okay. And what I'd like to do is go through it.
4 A. Okay.
5 Q. In the first paragraph, it indicates that
6 Section 49-3-205 "imposes a duty" on "all state and local
7 government entities 'to analyze all of its operations to
8 ascertain possible instances of non-compliance' with the
9 Governmental Code of Fair Practices."
10 And you understand that the sheriff's office is one of
11 those government agencies?
12 A. Yes.
13 Q. "The GCFP ... prohibits discrimination in the
14 operation of state and local government entities ... bars
15 discrimination on account of race, color, creed, religion,
16 political ideas, sex, age, marital status ... disability
17 or national origin in the following areas: hiring,
18 firing, training, evaluation, promotions, assignments,
19 provision of services, contracts and expenditure of funds.
20 It also prohibits retaliation."
21 Is that your understanding?
22 A. Yes.
23 Q. That's a true statement?
24 A. Yes.
25 Q. And evaluation, you understand that encompasses
1 discipline as well, you're evaluating performance?
2 A. Okay.
3 Q. Is that correct?
4 A. Yes.
5 Q. Mr. Meloy reports that "In the settlement of a
6 retaliation complaint filed by an employee of the"
7 sheriff's office, "the County agreed to commission an
8 analysis of its operations under 49-3-205 ... by an
9 independent third party."
10 Is that correct?
11 A. Yes.
12 MR. GILLEN: Objection; that's inaccurate.
13 THE WITNESS: That is inaccurate?
14 MR. GILLEN: That's inaccurate.
15 There was never anything in the settlement agreement,
16 that's an exhibit here, that says that there was any
17 commission of any type of report by Mr. Meloy. Those are
18 his words, not county words.
19 MR. KELLY: Well, Counsel, your statement is
20 argumentative. The witness has answered the question.
21 Q. (By Mr. Kelly) "The settlement agreement
22 requires the" sheriff's office "to implement any
23 recommended remedies."
24 Was that your understanding as well?
25 A. Where are you at, now?
1 Q. Last sentence in that paragraph.
2 A. No. That is not my understanding.
3 Q. What was your understanding?
4 A. To implement anything that we were in violation
5 of the Montana Human Rights Act.
6 Q. And are you aware of how violations of the Human
7 Rights Act are determined?
8 A. Well, it's got to be under discrimination,
9 religion, creed.
10 Q. No. I mean, the process.
11 A. Well, I assume it's by the Human Rights
12 Commission, to determine whether or not we violated any
13 human rights.
14 Q. And are you aware that you have to go through a
15 contested case hearing in terms of an actual violation of
16 the law?
17 A. Probably. Uh-huh.
18 Q. Okay. And is it your contention that the
19 independent review should have conducted a contested case
20 hearing regarding the sheriff's office?
21 A. Well, I think it should have pointed out
22 specifics. If we were in violation, it should have
23 pointed out specifics of what those violations are.
24 Q. Well, and didn't it say defects and not
1 I guess the settlement agreement speaks for itself.
3 A. Correct.
4 Q. Mr. Meloy says, "This report identifies instances
5 of non-compliance in the present operation and policies of
6 the" sheriff's office "and recommends remedies designed to
7 correct these deficiencies."
8 A. Uh-huh.
9 Q. He doesn't say anything about violations, does
11 A. Nope.
12 Q. And is it correct that the report identified
13 instances of noncompliance and recommended remedies
14 designed to correct deficiencies?
15 A. I don't know that he saw anything of
16 noncompliance. He did recommend a lot of ideas for us.
17 Q. Isn't it true that, for instance, you have an
18 obligation to hire and promote on the basis of merit and
20 A. Sure.
21 Q. And that's under Title 49?
22 A. Uh-huh.
23 Q. And that, in fact, you don't even post notices of
24 vacancies for lieutenants or captains to give all
25 qualified persons the opportunity to apply?
1 A. No.
2 Q. You do post notices?
3 A. No, we do not.
4 Q. So you don't -- You make a determination
5 beforehand that --
6 A. Yes. It's the sheriff's discretion.
7 Q. All of the command officers are the sheriff's
9 A. Correct, except for the sergeants.
10 Q. Pardon?
11 A. Except for the sergeants.
12 Q. And so all of the command officers are simply --
13 are within the political appointees of the sheriff?
14 A. Yes.
15 Q. Okay. And since they are -- And I understand the
16 exemption of a political appointee. One factor that you
17 can consider in appointing or selecting for a command
18 position whether they are -- adherence to your management
19 philosophy; is that correct? As an exempt political
21 A. Yes.
22 Q. And, in fact, consistency with your political
23 view of how to operate the office.
24 A. I would think that would be important.
25 Q. If they're political appointees, that is
1 important, correct?
2 A. Yes.
3 Q. And your understanding was --
4 A. I'm not sure if they're a political appointee.
5 Q. Is there anybody that's a political appointee?
6 A. The only one I would say would be the
7 undersheriff, would be a political employee.
8 Q. So your prior testimony that they're political
9 appointees --
10 A. Yeah, I don't believe that the others are. I
11 think that they're just at the discretion of the sheriff.
12 Q. And where did you get that understanding from?
13 A. That's the way it's always been.
14 Q. So 50 years ago, that's how it was?
15 A. I imagine. Yeah, it's always been that the upper
16 command is -- Heck, it used to be the sergeants until they
17 became Union, that the sheriff could pick the sergeants.
18 Now the Union stepped in on that.
19 Q. And would you agree that you have a -- you've
20 made it a very small pool of people from which you can
21 appoint, if it's just -- Let me rephrase that.
22 The practice is to appoint from within the ranks?
23 A. That is the practice.
24 Q. Have you ever known for it to deviate from that?
25 A. No. Oh, yes. Yes, I have. Way back under
1 Sheriff Dick Shaffer. He brought two or three people over
2 from the City and made them sergeants.
3 Q. And, in fact, people quit because of that?
4 A. I believe a lot of people quit because of that,
6 Q. And do you think -- And did you ever try other
7 effort to widen the pool of potential promotions to
8 lieutenants or captains since then?
9 A. No.
10 Q. And have you reviewed any of the recommended
11 practices for law enforcement agencies in selecting
12 lieutenants and captains --
13 A. Not particularly.
14 Q. -- other than --
15 A. I'm aware that some do solicit outside. I'm
16 aware of that, just by reading different things, but we
17 have never done that.
18 Q. Well, and you've never even solicited inside; is
19 that correct?
20 A. Not for lieutenants and captains, no.
21 Q. Okay. And you never give people an opportunity
22 to demonstrate through an objective process -- other than
23 the subjective decision-making of the sheriff, through an
24 objective process that they have better qualifications
25 than persons that may be appointed; is that correct?
1 A. That's correct, not for upper command.
2 Q. And where did you obtain -- Is there any
3 professional literature or standards or association
4 recommendations, that you're aware of, that suggest that
5 that's the proper way to appoint on the basis of merit and
7 A. I can't say I've ever seen anything, no.
8 Q. So it's just luck of the -- I mean, it's just
9 subjective, completely subjective decision-making by the
11 A. The upper command is. Yes.
12 Q. So that's why I'm saying, although it may not be
13 statute, do you consider it in a sense the same importance
14 as a political appointee to have that kind of upper
16 A. No. I think it's important to have somebody
17 that's very knowledgeable of the law, knowledgeable of the
18 office, and, you know, agrees with the philosophy of the
19 sheriff on which direction the office should be going in.
20 Q. Agrees with the management philosophy.
21 A. Sure. Absolutely.
22 Q. Doesn't make complaints about the management
24 A. Oh, I don't have a problem making complaints, but
25 I do expect them to be loyal when the door opens up. The
1 sheriff should have the final word. They can complain,
2 they can argue. I argued with Chuck all the time. But
3 when it was said and done, it's his decision.
4 Q. The question, though, goes to appointing someone
5 on the basis of the best merit and the best
6 qualifications. You indicated that -- full knowledge of
7 the law?
8 A. Uh-huh.
9 Q. Knowledge of their duties?
10 A. Uh-huh.
11 Q. Ability to respond bravely and accurately in
12 stressful situations?
13 A. Sure.
14 Q. Those are all -- And many of your members of your
15 force can demonstrate those qualities?
16 A. I believe that they probably can, but they don't
17 have any of the command -- they've never had any command
18 experience. That's why they're generally picked from the
19 rank of a sergeant.
20 Q. But wouldn't you -- Okay, so -- But you don't
21 allow the sergeants each to apply and be tested for --
22 A. Nope.
23 Q. -- and be examined regarding that.
24 A. No.
25 Q. You go through no objective process on it.
1 A. No.
2 Q. And your conclusion is, is that's the best way --
3 the sheriff's own subjective decision-making without any
4 objective evaluation is the best way to choose on the
5 basis of merit and qualification?
6 A. I don't know if it's the best way or not. It's
7 the way it's been done for the 32 years I've been here,
8 and it's just the way it's been done.
9 Q. And do you know that the law was passed regarding
10 the Governmental Code of Fair Practices after that -- you
11 began at the sheriff's office?
12 A. Sure.
13 Q. Do you think that you have to upgrade your
14 policies sometimes because laws change?
15 A. Well, yeah. And I think we do. But I don't know
16 that it specifically says that we have to open up all
17 lieutenant and captain's positions to everybody. I don't
18 think it specifically says that.
19 Q. If the professional and scientific literature
20 indicated to you that there are better methods for
21 choosing on the basis of merit and qualification --
22 A. We would evaluate that and see if it works for
23 our system.
24 Q. And, in fact, isn't that part of what's in the
25 Meloy report?
1 A. And, in fact, we're taking some of that to heart
2 for the sergeant and detective positions. We want to put
3 that in the contract.
4 Q. But not in the lieutenants' positions.
5 A. Not yet. But we're looking at the sergeant and
6 the detectives. We'd like to test for those and we'd like
7 to possibly offer it for outside.
8 Q. And you don't even evaluate your lieutenants; is
9 that correct, on an annual basis?
10 A. No.
11 Q. Why don't you evaluate people on an annual basis
12 who are command officers?
13 A. Because I see them on a daily basis.
14 Q. Suppose you get hit by a truck tomorrow.
15 A. Well, then, I guess Undersheriff Weston will have
16 to take care of that.
17 Q. Well, and don't you -- haven't you collected a
18 great deal of information regarding the performance of
19 these command officers over the years that you've observed
21 A. In what respect?
22 Q. In evaluating their abilities and performance.
23 A. Sure. Sure.
24 Q. And don't you think it's important to keep a
25 record of that and to also indicate areas where they may
1 need improvement?
2 A. Well, I think that they -- You know, again, you
3 know, we probably could do that. We see them on a daily
4 basis. If I see that there's an issue that one of our
5 commanders is having, we point it out to them. I go down
6 to the briefing. They let me know if there's problems
7 with particular commanders, what their issues are; we try
8 to correct that.
9 Q. But there's no uniform practice that you use --
10 A. There is not. No.
11 Q. -- like you use with the deputies.
12 A. No.
13 Q. Like you use with the sergeants.
14 A. No.
15 Q. And do you find that those are not useful?
16 A. I think they probably are. Uh-huh.
17 Q. And yet, you've made the decision that you don't
18 want to use a useful tool with respect to your lieutenants
19 and captains?
20 A. Well, I can't say we made the decision on
21 anything. It's something that we can certainly look at as
22 we're going through the new policy. It may be something
23 we want to implement.
24 Q. Did you ever raise it to Sheriff Maxwell?
25 A. Did not. No.
1 Q. Did you -- At the time that you were undersheriff
2 under Sheriff Maxwell, were you aware that evaluations of
3 deputies and sergeants was a useful tool?
4 A. Yes.
5 Q. And you never raised it to the sheriff?
6 A. No.
7 Q. Was it his management philosophy?
8 A. I don't know. Never came up.
9 Q. Mr. Meloy indicates, on page 2 of his report,
10 that he reviewed all of those documents. Do you have any
11 information that he did not review those documents?
12 A. I do not.
13 Q. Would those be an appropriate set of documents to
14 review for purposes of doing the independent analysis that
15 the sheriff's office conducted through him?
16 A. I wouldn't have any objections to any of them.
18 Q. In fact, if you were -- I mean, you would expect
19 an appropriate analysis to include those documents.
20 A. Sure.
21 Q. You might add others?
22 A. Possibly. I don't know what they'd be.
23 Q. But you haven't looked at the question as to
24 whether others should be added, other documents.
25 A. No.
1 Q. Okay. In addition to reviewing the documents, he
2 interviewed 19 employees of the sheriff's office,
3 including most of the present command-level supervisors.
4 A. Uh-huh.
5 Q. Were you interviewed?
6 A. I was.
7 Q. And that was appropriate in doing the analysis?
8 A. Sure. Uh-huh.
9 Q. And 11 officers, including two sergeants, the
10 training officer, the administrative assistant, and the
11 county human resources director, were interviewed?
12 A. Okay. Uh-huh.
13 Q. And you're aware -- You don't have any
14 information indicating that's not true?
15 A. No. Huh-uh.
16 Q. And that's an appropriate way to approach the
18 A. I think it's fine.
19 Q. The sheriff wasn't interviewed because he was --
20 he had medical problems at the time; is that correct?
21 A. That's probably correct.
22 Q. He indicates in the first full paragraph of
23 page 3 that during the course of the investigation, the --
24 he interviewed a number of rank-and-file uniform deputies.
25 Did you preclude any deputies from being interviewed
1 by Mr. Meloy?
2 A. Absolutely not.
3 Q. Okay. So anybody who wanted to talk to him could
4 talk to him?
5 A. Anybody Mr. Meloy wanted to talk to was
7 Q. And anybody -- And people were informed that
8 Mr. Meloy was going to be on the premises?
9 A. I don't know that they were. I think everybody
10 knew it, but I don't -- We didn't put a notice out.
11 Q. But no one was told, You can't speak to him?
12 A. No. Absolutely not.
13 Q. And he indicates, "The collective work experience
14 of these officers spanned a considerable length of time."
15 A. Uh-huh.
16 Q. You notice that throughout this, there seems to
17 have been a deliberate effort by Mr. Meloy not to identify
18 any particular persons?
19 A. That's fine.
20 Q. No, but, I mean, did you notice that?
21 A. Sure.
22 Q. Each of the persons that -- rank and file
23 expressed a dissatisfaction with the work atmosphere in
24 the sheriff's office.
25 A. Uh-huh.
1 Q. Did that concern you?
2 A. Of course.
3 Q. Did you try and determine what that
4 dissatisfaction was?
5 A. Yeah, I think we know what the dissatisfaction
7 Q. Okay. What was it?
8 A. I think it was an awful lot of what we're doing
9 today. There's an awful lot of Human Rights complaints
10 out there that we're trying to get behind us. Once we get
11 them behind us -- and I think over the last, oh -- I think
12 since I've been sheriff, I think that the morale has
13 boosted two-fold. We're trying to get rid of the
14 us-versus-they stigma that's been down there. Like I say,
15 I met with every deputy we have in the office in July.
16 For the most part, they had very few complaints. They
17 didn't like the ties; we eliminated that.
18 Q. Well, they're talking to the sheriff at that
20 A. To me, yes.
21 Q. Alone?
22 A. Yes.
23 Q. Do you think that a reasonable employee would
24 have a concern about not ticking off the sheriff?
25 A. Oh, absolutely not. I told them right up front,
1 Mr. Kelly, that there were no ground rules, we're just
2 here to visit, I was a brand new sheriff, I wanted to know
3 their concerns, I wanted to listen to every one of them.
4 And I think that they were -- You know, I'd be surprised
5 if they weren't candid. I think we've developed a pretty
6 good working relationship. I think the us-versus-them
7 isn't as bad as it was. I think there's still some of
8 that. But I think that was the concerns of the deputies
9 back then, is, they felt that they were not being -- they
10 were being ostracized by the command staff. And my goal
11 in the last year has been to turn that around.
12 Q. Well, and how did you assure them that making
13 themselves one of those groups that you would describe
14 complainers, I think other command officers describe
15 people as backstabbers --
16 A. Uh-huh.
17 Q. -- as wimps --
18 A. I haven't called anybody that.
19 Q. I'm just saying that they might say something
20 that would warrant -- that would warrant a repeat of the
21 practices in the past where at least people perceive and
22 have alleged --
23 A. Uh-huh.
24 Q. -- that adverse action was taken against them for
25 reporting violations of policy by command officers,
1 reporting inconsistent discipline by command officers,
2 reporting special treatment.
3 A. I want them to do that. My door is open.
4 Q. But my question is, how did they -- People have
5 said in the past, you're aware, there's going to be no
7 A. That's correct.
8 Q. Okay. For instance, Jolene Wilson files a
10 A. Right.
11 Q. This was after you became sheriff, after you
12 talked to everybody.
13 A. Right.
14 Q. After they adopted the new policy about reporting
15 Human Rights violations.
16 A. Right.
17 Q. Okay. She gets an investigation that finds that,
18 in fact, she was subject to sexual harassment in the past?
19 A. Correct. Correct.
20 Q. Okay. She meets with you and you report that,
21 but you report also that it was untimely in terms of --
22 A. Not me. No.
23 Q. Okay. Did she meet with you about it?
24 A. She did meet with me.
25 Q. You reported and you said some discipline was
1 going to be taken?
2 A. Correct.
3 Q. And at the same time you changed her duties.
4 A. Changed my duties to what?
5 Q. Changed her duties.
6 A. No. Oh. She came to me because she felt that a
7 lot of her duties were being taken away.
8 Q. But, I mean, in the same discussion that you
9 report about --
10 A. I'm going to get there. I'm going to get there.
11 Q. I apologize.
12 A. And that was the original meeting, and I said,
13 Well, let's get a meeting with the HR, the captain, and
14 she wanted Larson there, the Union rep. And so we met in
15 my office, and it wasn't until that meeting that she made
16 these allegations against the captain at that time about
17 the sexual harassment, at which point we took that far
18 more serious. Now we have two different things going on;
19 we have her job duties and we have the allegations against
20 the captain.
21 Q. And they're separate matters.
22 A. They were separate matters. Yeah, absolutely.
23 And she had given a list of the duties that Brandi had
24 and the list that Jolene had, and then she had a list of
25 the jobs that she used to do.
1 So to get rid of that issue, I met with
2 Dwight Vigness, the captain, and me, and we went over the
3 job duties to make it equal or fair or however you want to
4 put it, to see if we could make Jolene feel more of a
5 vital part of the organization. Once we did that,
6 Mr. Vigness and I met with Jolene and Brandi, and we went
7 over the --
8 Q. Duties and responsibilities.
9 A. -- proposed duties, and everything was fine.
10 Q. And at the same time, Vigness is doing an
11 investigation of the McCave allegations?
12 A. A whole different thing. Yes, that's a whole
13 different matter.
14 Q. Okay. And then he comes back with sustaining
15 it --
16 A. Right.
17 Q. -- but it hadn't occurred --
18 A. But I don't know where she'd get this -- that her
19 job duties were changed after that, because they weren't.
20 Q. Well, and my question went to you met with her at
21 some point and reported on what happened with Vigness on
22 the McCave stuff?
23 A. Met with her?
24 Q. Yes.
25 A. I never met with her alone but one time.
1 Q. Well, I think after --
2 A. That was the first time.
3 Q. Okay. And you don't recall meeting with her
4 afterwards and reporting to her that disciplinary action
5 would be taken?
6 A. That was all over e-mail. She didn't want to
7 meet. I offered to meet with her. She said, No, I just
8 need to know. And that was all done over e-mail.
9 And I have all those; you can certainly have any of
10 those you want.
11 Q. Great.
12 And you didn't, at the same time, indicate to her, by
13 the way, her duties -- certain duties, I think the
14 gardening duties --
15 A. Absolutely not.
16 The gardening duties, I told her that she could
17 certainly do those, as long they didn't interfere with her
18 regular job, and I wasn't going to be able to pay her
19 overtime to garden, that wasn't her job. I did tell her
21 Q. And that would be a reduction from her prior
22 practices, correct?
23 A. Well, I guess so, yeah.
24 Q. So that would be a change in her duties and
1 A. Well, I don't think her duty ever was to garden,
2 but I guess that would be between her and Sheriff Maxwell.
3 I don't think that I can justify paying her to garden, I'm
5 Q. Well, and the question was --
6 A. So, okay, that job duty was changed. I told her
7 she could garden all she wanted, but it wasn't going to be
8 on the county time.
9 Q. And if she testified that you explained this to
10 her in a meeting at the same time that you reported the
11 results regarding her complaint of discrimination --
12 A. It's all in the e-mail. It's all in the e-mail,
14 Q. Okay.
15 A. Absolutely. Everything I explained to her.
16 Q. And did you at any point reintegrate the two
17 issues that were described as separate matters in
18 communications with her?
19 A. No.
20 Q. Not in the meeting and not --
21 A. I don't think so. No. I don't think we ever --
22 No. They were treated as separate matters. Now, in the
23 e-mail, there may have been -- you know, she may have been
24 asking questions about both things, and it's probably in
25 there. But I'll be glad to give you all those.
1 Q. And I appreciate that. And you'll, through your
2 counsel, provide those --
3 A. Sure.
4 Q. -- to elaborate on your answer?
5 A. Happy to. Happy to. Absolutely.
6 Q. And Meloy states that most "troubling was the
7 commonly-held feeling expressed" -- and this is about the
8 rank and file -- "throughout the interviews that command
9 officers managed more by intimidation and surreptitious
10 retaliation than by commonly accepted human relations
12 A. Uh-huh.
13 Q. Have you investigated whether or not that's true?
14 A. No.
15 I've talked to all of the commanders, though, and I've
16 expressed a concern to them that two of them were seen as
17 headhunters by the rank and file and that I wanted that to
18 stop --
19 Q. Who was that? Michaelis and --
20 A. No. That would have been Lieutenant Wallis and
21 Lieutenant Schieno.
22 Q. Oh, the lieutenants.
23 A. -- and that we are going into a new philosophy
24 that we're going to be kinder and gentler command staff.
25 And they did seem to agree to that.
1 Q. And these rank-and-file officers, deputies,
2 expressed a common concern rooted in the perception that
3 management, and specifically discipline, was inconsistent?
4 A. And that could very well be. Like I say, we're
5 not perfect and we're -- I think we've come a long ways in
6 the last two years. I'm probably wrong, but I think we
7 have. And we're -- We've got these new forms, you've seen
9 Q. I did. Thank you.
10 A. We're trying to utilize them to the best of our
11 ability. We're -- I think we're making strides. We're
12 not perfect, I admit that, but I think that we're getting
14 VIDEOGRAPHER: This concludes Tape 3 of the
15 Rule 30(b)(6) deposition of Yellowstone County Sheriff's
16 Office, Jay Bell. The time is 11:39. We're off the
18 (A brief recess was taken.)
19 VIDEOGRAPHER: This is Tape 4 of the
20 Rule 30(b)(6) deposition of Yellowstone County Sheriff's
21 Department, Jay Bell. The time is 11:51. We're on the
23 Q. (By Mr. Kelly) And we're still within the Meloy
24 report, and what I'd like to do is skip over to -- past
25 the hiring -- Well, let me ask you about on page 6, the
1 recommendation that he makes. Do you have any objection
2 in the underlying portion of the change in the manual
3 would be that indicated on page 6 that falls over onto
4 page 7, in terms of recruitment of personnel?
5 A. (Reviewing document.) I have no objection to
7 Q. And in filling deputy positions, go to page 10,
8 and he makes a specific recommendation about the
9 evaluation services in paragraph (1) as an addition. Do
10 you have an objection to that?
11 A. The underlying, again, you say?
12 Q. Yes. It's always the underlying -- it's the
13 recommendation. And the recommendation is, "The"
14 sheriff's office "utilizes the evaluation services of the
15 Montana Law Enforcement Testing Consortium."
16 A. Right.
17 Q. "The Consortium establishes a pool of eligible
18 applicants from which deputy sheriff employees will be
20 A. Correct.
21 Q. "To be eligible, applicants must apply for
22 consideration to be placed in this pool by submitting an
23 application to the Consortium prior to July 1 of each
25 A. I don't know what the consortium's requirements
1 are as far as date. All the rest of that is fine. I
2 think that they allow -- I think they allow more
3 applicants throughout the year.
4 Q. That are made part of their pool?
5 A. Yeah, right. I don't think that they are -- I
6 think they have specific dates throughout the year that
7 they do the testing, so I don't know if July 1 would
8 actually work for us. But the rest of it, yeah, I agree
9 with all that. We do utilize the consortium.
10 Q. So subject to consistency in dates of your hiring
11 practice or hiring ability, that would be acceptable to
13 A. Oh, absolutely. Yeah, that's exactly what we're
14 doing, other than this date part.
15 Q. And then paragraph (6) of that hiring process
16 is -- (6)(d) is that -- a requirement for each applicant
17 to submit an application to the Montana Law Enforcement
19 A. I think they do.
20 Q. Okay. So you may have already adopted this
22 A. Yeah, I think they go right through the
24 Q. And I think he indicated in the narrative that
25 there were certain exceptions to that.
1 A. There could very well be, but I think, for the
2 most part, what he's got there is, I think, how they're
3 doing it now.
4 Q. Should it be important that they follow uniform
5 practices in hiring?
6 A. And I believe we are. Yeah. I think we're right
7 down the line with what he's got on here.
8 Q. So there shouldn't be exceptions where someone
9 gets in through a side door.
10 A. Not at all. Can't be done. Well, I guess it
11 can, but, no, it can't be done.
12 Q. Paragraph -- page 12, paragraph (10) is an
13 entirely new provision which requires that structured oral
14 interviews be conducted.
15 A. And we do that.
16 Q. You've adopted that recommendation?
17 A. We've always done structured oral interviews.
18 Q. And what do you understand to be a structured
19 oral interview?
20 A. We have three or four officers, usually a
21 commander, a sergeant, and we've adopted now a deputy on
22 the oral interview board, and they ask a specific set of
23 questions to each applicant.
24 Q. And do you have model answers?
25 A. We do not.
1 Q. And that -- Are you aware that that is part --
2 A. Yes. We are looking into that.
3 Q. And the term "structured oral interviews" in the
4 human rights field means everybody gets asked the same
5 question --
6 A. Oh, absolutely. We've always done that, but
7 you're right, the model answers need to be adopted. And
8 we are looking into that.
9 Q. And you would not have an objection to that?
10 A. No. Absolutely not.
11 Q. He also indicates the top 10 candidates from the
12 consortium list of eligible candidates shall be given
13 interviews. Do you have any objection to that?
14 A. You know, I don't know if we do 10. I don't
15 think it matters, we can do 10.
16 Q. You would not have an objection to that?
17 A. No.
18 I don't know if we always have 10, to be honest with
20 Q. Well, and I believe the narrative describes the
21 fact that the records he looked at indicated that
22 sometimes it was five, sometimes it was seven; there were
23 differing numbers --
24 A. Yes.
25 Q. -- and it was not uniform.
1 A. Yes. And I have no objection to that.
2 Q. And so you would agree that it should be
3 uniformly part of the policy?
4 A. Yep. Yep. No problem with that.
5 Q. And then the consortium will provide the
6 sheriff's office EEO officer with the scores of top 10
7 candidates -- the top 10 candidates?
8 A. Uh-huh.
9 Q. They get the interviews?
10 A. Uh-huh. Yes. Sorry, yes.
11 Q. "The EEO officer will formulate written questions
12 and model answers."
13 I understand that the County is making efforts to
14 engage an EEO officer?
15 A. Yeah. That's what I understand also.
16 Q. And that would be your EEO officer as well?
17 A. It would.
18 Q. And would that be acceptable to you, for them, in
19 consultation with you -- with the sheriff's office, to
20 formulate the written questions and model answers?
21 A. Absolutely.
22 Q. "The questions must be written such that, to the
23 extent possible, objective answers can be given."
24 Agree with that?
25 A. Agree with that.
1 Q. "The questions shall not require the applicant to
2 disclose matters of a personal nature, such as marital
3 status, number of children, employment of spouses, etc."
4 A. We don't do that now, so, yes.
5 Q. "A scoring system shall be devised and provided
6 to the interview board"?
7 A. Yes.
8 Q. And that would be by the EEO officer?
9 A. I'm fine with that.
10 Q. "The scoring system must assure that the value
11 assessed by the members of the interview board relate
12 directly to the model answers established by the EEO
15 A. I'm perfectly fine with that.
16 Q. "The interview board may not ask questions of the
17 applicants beyond those established for the interviews."
18 A. That's fine.
19 Q. And that's -- in fact, that last statement is
20 your understanding of what is now the intended practice?
21 A. Correct.
22 Q. Even before implementing these recommendations?
23 A. Yes.
24 Q. The next recommendation is, "Upon completion of
25 the interview process for each applicant, each member of
1 the interview board shall score the applicant."
2 And that's a practice currently?
3 A. Currently.
4 Q. "The interview board shall not discuss the
5 interview with one another and shall not form a composite
7 A. That has not been the practice.
8 Q. And that's -- Do you understand that that's to
9 segregate the group scoring and hand it back to the EEO
10 officer to do an objective scoring?
11 A. Yeah.
12 I'm fine with that.
13 Q. "At the conclusion" -- And here it is: "At the
14 conclusion of all the interviews, the EEO officer shall be
15 given the scores made by the interview board and shall
16 compile a total score for each candidate."
17 A. Yeah, I'm perfectly fine, once we get an EEO
19 Q. "The EEO officer should then compile a list
20 consisting of the top three candidates with respective
21 scores indicated on the list."
22 A. Correct.
23 Q. And that's agreeable?
24 A. Oh, yeah.
25 Q. "The applicant with the highest total score" will
1 be first "offered the position."
2 A. That's correct.
3 Q. On (12), there's just an addition of, "At the
4 completion of this selection process, those applicants who
5 are still in consideration may be required to complete
6 additional psychological tests" --
7 Do you do those now?
8 A. We do.
9 Q. -- "and background checks."
10 A. Yes.
11 Q. And that's not in the current policy, but --
12 A. But we do it.
13 Q. Okay. So it would just be memorializing your
14 current practice?
15 A. Uh-huh.
16 Q. On promotions, we go to the recommendations on
17 page 20. The additions to your current practice would be
18 subparagraph (3), "The EEO officer shall notify all
19 existing qualified deputies of the promotional opportunity
20 for sergeant."
21 Is that agreeable?
22 A. We do that now.
23 Q. "After receiving applications from interested
24 candidates, the EEO Officer shall administer a written
25 test to" those "candidates."
1 A. And that's perfectly fine. We do that now.
2 Q. Except that it's from your office, you
3 administer, or is it --
4 A. Well, we administer it, but it comes from out of
6 Q. It's Stannard?
7 A. Yeah. It's a test that we order in from a
9 Q. And I apologize, I didn't say "standard"; I said
10 Stannard, S-T-A-N-N-A-R-D, and Associates, who do these
11 kinds of tests.
12 A. Yes. That's who we get it from. Yes.
13 Q. "Based upon the results of the written test, the
14 EEO Officer" will "compile a list of the top five
15 candidates for oral interviews."
17 A. Acceptable.
18 Q. "An interview board shall be appointed by the
19 Sheriff, consisting of one command employee of" the
20 sheriff's office "and two other command law enforcement
21 officers from another agency."
22 A. That's all they want, huh? Okay, I'm fine with
24 Q. "The structured oral interview process set forth
25 for deputies shall be followed in conducting and scoring
1 the interviewed candidates."
2 So same uniform process.
3 A. Uh-huh.
4 Q. And that's acceptable?
5 A. That is acceptable.
6 Q. "The EEO Officer shall assign a score to the
7 current and past evaluations of each candidate."
9 A. Uh-huh.
10 Q. "After completion of the oral interviews, the EEO
11 Officer shall total the scores of the written testing, the
12 oral interviews and current and past evaluations," period.
13 A. I'm fine with all of that.
14 Q. "The written testing shall be weighted 30%, the
15 Oral interviews, 50% and the current and past evaluations,
17 That's an objective measure.
18 A. Uh-huh.
19 Q. Is that agreeable?
20 A. Sure.
21 Q. "The candidate with the highest score shall
22 receive the promotion."
23 A. I'm okay with all that.
24 MR. KELLY: Do you want to answer your phone?
25 MR. GILLEN: No, that's a nonresponsive call.
1 Thank you.
2 Q. (By Mr. Kelly) "When command positions
3 (lieutenants and captain) become open, the same process
4 required of sergeants shall be utilized in selecting
5 candidates for promotions in these positions."
6 Acceptable or not?
7 A. Not yet. Not yet acceptable.
8 Q. And why, again, is that not acceptable?
9 A. Because I think that these are folks that report
10 directly to the sheriff, and the sheriff ought to be able
11 to have some say on who he's going to select for the upper
12 command positions.
13 Q. And you can think of no -- you're not aware of
14 any objective uniform process that could be utilized to at
15 least narrow the candidates for those --
16 A. I'm not saying we can't explore something like
17 that, but I'm not ready to accept this particular aspect
18 of this, no.
19 Q. And I apologize if I asked this before, but have
20 you reviewed any of the professional literature in law
21 enforcement about this issue?
22 A. At this time, I have not. But if this is going
23 to be an issue that we're going to get stuck on whenever
24 we come to one of these hearings, then I think we better
25 start exploring some of those.
1 Q. And will you do so before this hearing?
2 A. I don't know. Before the 2nd?
3 Q. No, the 2nd of June.
4 A. Yeah, I will do what I can to see what else is
5 out there. Sure.
6 Q. Just to see what's available?
7 A. I will certainly look out there.
8 Q. And see what's consistent with finding people who
9 have the best qualifications and merit?
10 A. Uh-huh. Yeah, I will do that. But right now,
11 I'm not ready to accept what Mr. Meloy has written on
12 those parts.
13 Q. Lieutenants and captains are excluded from --
14 A. Right now.
15 Q. -- a uniform process right now.
16 A. Right now.
17 Q. And are left to the subjective discretion of the
19 A. At this time, yes.
20 Q. At this time, subject to possible change in the
22 A. Time will tell.
23 MR. GILLEN. Yeah. Absolutely.
24 Q. (By Mr. Kelly) Training. A very simple --
25 Page 22.
1 A. Uh-huh.
2 Q. "Continuing EEO training for employees. All
3 employees, including the Sheriff, shall attend not less
4 than three hours of training in fair employment practices,
5 emphasizing duties under Title 49, every year for the
6 years" '09 through '11 -- and I guess '09 doesn't count
7 anymore; let's say 2010 through '12 -- "and every second
8 year thereafter."
9 A. Yeah, I'm okay with that.
10 Q. That makes sense, doesn't it, to --
11 A. Yeah, I'm perfectly fine with that.
12 MR. GILLEN: That was everybody.
13 MR. KELLY: Pardon?
14 MR. GILLEN: That was everybody. Not just --
15 THE WITNESS: Yeah, it should be everybody.
17 Q. (By Mr. Kelly) Transfer and Assignments,
18 page 23.
19 A. Where are you at now? 23.
20 Q. And there's no changes until paragraph (5). And
21 this was -- I think you touched on this earlier in your
22 testimony. In Transfers and Assignments, "If a" -- The
23 recommendation of Mr. Meloy is, "If a newly created
24 assignment becomes" --
25 A. I'm not with you.
1 Q. Page 24?
2 A. Oh, I'm sorry, I'm on 23. Okay, I'm with you
4 Q. I was just referring to the section of the
6 A. Uh-huh.
7 Q. And the new recommendation is, "If a newly
8 created assignment becomes available, existing employees
9 shall be notified of the new assignment and shall be
10 permitted to compete for this assignment in the same
11 manner that promotion decisions are made."
12 A. Yeah, we agree. We're trying to get that into
13 the policy -- or into the...
14 Q. Into the manual?
15 A. No. Into the contract with the deputies.
16 That's going to be one of our recommendations.
17 Q. And presently, does the contract prohibit that?
18 A. Doesn't.
19 Q. So it's just a question of getting the language
20 into the contract?
21 A. (Nodding head.) Yes. I'm sorry.
22 Q. And then it would also be in the manual?
23 A. I don't think it has to be in both. It would be
24 in contract. I mean, it can be; it doesn't matter to me.
25 The thing is, is I want to make sure that the Union buys
1 off on this, because we just went through a -- We're
2 trying to put in a rotating detective up in the detective
3 division, if I may expound on this a little bit.
4 Q. Sure.
5 A. And I wanted the Union's input on that, on how
6 they would like this person selected. And -- because it's
7 always been seniority rules in the past, and I think that
8 that's just kind of silly for these types of positions,
9 because I agree, we need to get the most qualified people
10 up there. So I sent it to the committee we have, labor
11 and management committee, and the best the Union could
12 come back with was seniority. So it didn't do me much
13 good to get it to them.
14 But I would like to propose that in the contract for
15 them this year.
16 Q. Were you aware that the head of the Union has
17 indicated that he has -- And this is the deputies' union?
18 A. Uh-huh. It is.
19 Q. Qinton?
20 A. Oh, that guy, yeah.
21 Q. The state director --
22 A. Yes.
23 Q. -- has reviewed this Meloy report and has
24 indicated that they are, in fact, agreeable to it.
25 A. I know that, but oftentimes Mr. Quinton and
1 Mr. Chatriand don't seem to have much control over our
2 Union here.
3 Q. Oh, you mean the Union members.
4 A. The deputies. Uh-huh.
5 I understand what their -- what their part is, but...
6 Q. So if at all possible within the constraints of
7 the Union contract, you will adopt subparagraph (5).
8 A. Absolutely. Happy to do it.
9 Q. On Extra-Duty Employment Coordinator -- and
10 that's, in fact --
11 A. Where is that one at, now?
12 Q. Page 24 still.
13 A. All right.
14 Q. Page 24.
15 A. Shoot.
16 Q. It's just below the one we just looked at.
17 THE WITNESS: Strike that.
18 I don't know if I can say that or not, but -- All
19 right, go ahead.
20 Q. (By Mr. Kelly) You can certainly say it. It
21 doesn't really have much -- as I've been informed by the
22 court reporter, it has no effect on the record.
23 It says, "The Extra-Duty Employment Coordinator shall
24 notify all employees of potential extra-duty assignments
25 and shall keep a list of past assignments in order to
1 distribute such assignments equally among all interested
3 Is that acceptable?
4 A. Well, I don't know that that's not happening now.
5 Q. But, I mean, putting it in -- And the key is,
6 you're very specific in your manual about follow this
8 A. Uh-huh.
9 Q. And if it goes in the manual, it has the weight
10 of an order from the sheriff.
11 A. Uh-huh. I'm with you.
12 Q. And doing this, even if it's a informal practice,
13 it stops being informal so that there can be exceptions
14 and departures from practice and it becomes a policy.
15 A. Okay. I can't say I accept this totally --
16 Q. Okay.
17 A. -- and the reason being, is, you may have a half
18 a dozen deputies that work constantly; they take the crap
19 details and they take the good details. And then all of a
20 sudden a premium, good detail comes up, and some deputy
21 that hasn't worked anything in two years wants to work
22 that. Now, is that fair?
23 I mean, I'm not saying that I accept this -- I mean,
24 we can certainly look at -- you know, I'm willing to let
25 the Union even have some input on this. But it's not fair
1 to some of these deputies that work their butts off for
2 this office on extra duty and then they get denied a real
3 premium detail because somebody else put in for it and
4 we're trying to make it fair. Because, you know, this
5 person hasn't worked in two years. Well, that isn't fair.
6 Q. Well, and don't --
7 A. So there's got to be some discretion here. You
8 know, it's not a perfect system, I'll agree with you, and
9 it's been a heartburn forever, and I'd just as soon we get
10 out of extra duty, to be honest with you.
11 Q. And I have two questions about extra duty.
12 A. Sure.
13 Q. One is, if you adopt a system like this, you've
14 eliminated -- it just becomes next on the list, and so
15 the assignments --
16 A. But there isn't a next on the list.
17 Q. Well, and that's what -- It's my understanding,
18 and maybe it's a matter of clarification, is, if there are
19 assignments, persons who get assignments -- so that it
20 will be random selection, essentially, by events rather
21 than cherry picking.
22 A. But it, for the most part, is, because not every
23 deputy signs up for extra duty. So if I'm going to -- Am
24 I going to go to every deputy and say, Do you want to work
25 this? Do you want to work -- I mean, I'm going to have to
1 hire another secretary. Because we do an awful lot of
2 extra duty, which may be going by the wayside.
3 Q. So that may eliminate the need for it?
4 A. It may. It may. We'll have to see what the
5 auditor comes up with on her check here, but it may go
7 Q. Right. There was some testimony yesterday
8 because there were payroll records indicating that
9 Lieutenant Schieno, for instance, received overtime.
10 A. No. He shouldn't have received overtime.
11 Q. That's what his testimony was; it wasn't really
12 overtime, although he was getting paid time-and-a-half --
13 A. No. Straight time.
14 Q. -- for special events.
15 A. Oh, that could be.
16 Q. And they categorized it as --
17 A. That could be. It depends on the event, sure.
18 That could be.
19 Q. And they categorized it as overtime.
20 A. That could be. There are some specific incidents
21 where a commander could get time-and-a-half on extra duty
22 work, correct.
23 Q. And where is that policy; do you know? Is there
24 a policy on that or is that just practice, again?
25 A. That's just practice, again.
1 Q. And his understanding was, in the past, they used
2 to be paid by the vendors directly.
3 A. That is correct.
4 Q. And that now the County has assumed the
5 responsibility and receives payment from the vendors.
6 A. That is correct.
7 Q. And do you know if the vendors -- And he also
8 testified that the vendors did not pay deductions from --
9 payroll deductions, retirement benefits, et cetera.
10 A. All of that is correct.
11 Q. And that now, with the county payroll, all of
12 those benefits are, in fact, included.
13 A. That is correct.
14 Q. And did you find out whether or not there has
15 been a substantial increase in the liability because of
16 assuming -- the fact that you're now paying employer
17 benefits and retirement benefits for all these hours,
18 where the vendors weren't paying those before?
19 A. The liability is what, now?
20 Q. The amount of pay.
21 A. Right.
22 Q. They were just getting straight pay from the
23 vendors without deductions.
24 A. Right. Either 25 or $30 an hour.
25 Q. Right.
1 A. Correct.
2 Q. And now they're getting hourlies with all the
3 benefits that the employer has to pay.
4 A. Right.
5 Q. Have you made a determination as to whether or
6 not that's much more costly for the County?
7 A. Oh, I'm sure that it could very well be, because
8 the County puts in for the -- puts into the retirement
10 Q. And they also pay FICA and they pay --
11 A. And that's where the auditor is starting to have
12 some heartburn, with saying that we probably will not be
13 able -- if her audit is correct, we won't be able to do
14 the straight pay any longer and have to go into an
15 overtime situation. And I'm afraid that we'll be losing
16 an awful lot of this extra duty because these schools
17 can't pay overtime and whatnot.
18 So down the road, it may be a moot point, but we're
19 waiting to see what the auditor says. And if she says
20 that we are in violation of FLSA, we are going to change
22 Q. And if there is substantial costs that you don't
23 have in your budget for these additional --
24 A. Sure. That would take --
25 Q. -- you may eliminate it on that basis.
1 A. Oh, absolutely.
2 Q. Okay. So paragraph (3) may become moot --
3 A. It may be. Yeah, we'll have to wait and see,
4 but --
5 Q. -- and in any event, may be subject to agreement
6 with certain modifications.
7 A. Well, there would have to be a lot of
8 modification. Because I don't have the answer, Mr. Kelly,
9 on how to make it fair and equitable, because it's just so
10 all over the chart on how to -- You know, sometimes she
11 gets in such a bind she does call deputies down the list
12 trying to find somebody to work something because nobody
13 signed up, and she begs and pleads.
14 MR. GILLEN: Who is "she"?
15 THE WITNESS: Mary. Mary does that.
16 Q. (By Mr. Kelly) Thank you.
17 Your administrative coordinator?
18 A. Yes.
19 I mean, it's just all over the board. I'd just as
20 soon turn it over to somebody else.
21 Q. Well, and you're aware that when something is
22 subject to so many factors, including the discretion of
23 the individual responsible, that there's more risk of some
24 inappropriate factors entering into the decision-making.
25 A. Well, there may be the -- the appearance of that.
1 Q. Well, and just as humans --
2 A. There's not anything intended, of course. But,
3 you know, this is one of those if somebody can come up
4 with a better light bulb, hey, I'm ready to listen,
5 because it's all over the map.
6 Q. Okay. And it may be moot.
7 A. And it may be. Yeah.
8 Q. Page 25, Evaluation Procedures begins, and the
9 only recommendations are on 26. Now, this goes to "Each
10 supervisor's evaluation must include performance of duties
11 under the Governmental Code of Fair Practices, adherence
12 to Section 49-3-201(1)." That is, "application of equal
13 opportunity and anti-retaliation policies and procedures,
14 preparing and maintaining records of employment decisions,
15 including hiring, promotion, assignment and disciplinary
17 And you understand this goes to every supervisor would
18 be evaluated under this recommendation?
19 A. Sure. And I don't have a problem with that. I'm
20 all right with that.
21 Q. Okay. And as an example -- Doesn't this make
22 sense, especially since you have certain duties --
23 A. Uh-huh.
24 Q. -- regarding recordkeeping of employment
25 decisions that right now may not be kept in records?
1 A. Yeah, it may have happened, you know, before, but
2 it's just nothing that's come under our radar, you know,
3 to do that. But I'm okay with it.
4 Q. No. (6), this is a recommendation: "Command
5 officers and supervisors shall also be evaluated to
6 determine their compliance with the purposes and goals of
7 these policies, including, but not limited to whether
8 their performance has improved the morale of their
9 subordinates, whether they have performed duties
10 consistent with the anti-discrimination and
11 anti-retaliation policies. Any command officer who fails
12 to meet these standards will be placed on a mandatory
13 quarterly evaluation and subject to additional training
14 and supervision for purposes of corrective action and
15 improvement until such time as the officer achieves an
16 acceptable evaluation."
17 Is that acceptable?
18 A. Yeah.
19 Q. The last one is (9): "The EEO Officer," who we
20 were referring to before, "shall develop guidelines for
21 evaluation and shall review all employee evaluations to
22 assure uniformity in the evaluative process."
24 A. Will this person also review the deputies'
25 evaluations for uniformity and correctness?
1 Q. My understanding is that this goes to all
3 A. Okay. I'm okay with that.
4 Q. And I think, again, uniformity is the guiding
5 light here.
6 A. Uh-huh.
7 Q. Discipline, recommendations.
8 A. Where are we at now?
9 Q. I am at 29.
10 A. Okay.
11 Q. That you put in your policy manual, 1.3.-02.17,
12 that there is a duty not to discriminate or retaliate.
13 A. Sure. I'm okay with that.
14 Q. Okay. In fact, it's what -- and I think
15 Mr. Vigness has described it as this is zero tolerance.
16 A. Uh-huh.
17 Q. The sheriff's office "will not tolerate, to any
18 extent, discrimination or retaliation prohibited by any
19 state or federal law, including, but not limited to,
20 the ... Human Rights Act, the Governmental Code of Fair
21 Practices, the First and Fourteenth Amendments of the
22 U.S. Constitution and the Montana Constitution's
23 Individual Dignity Clause, as well as other state and
24 federal civil rights laws and regulations."
1 A. Sure. Yeah.
2 Q. And Purpose, there is a recommendation to add a
3 paragraph (4) to the Purpose, and it states, "It is one of
4 the purposes of this policy to ensure that adverse actions
5 will not be taken against any officer or employee because
6 the officer or employee was exercising rights under a
7 collective bargaining agreement or any statute or
8 regulation guaranteeing freedom from discrimination under
9 state or federal law."
10 A. Like I said, they're all untouchable, as far as
11 I'm concerned. I'm through with them. So, yeah, that's
13 Q. Should be part of the manual.
14 A. Absolutely. They're untouchable.
15 Q. And then we go to Anti-Retaliation Requirements.
16 We're moving much faster through this than I anticipated.
17 He recommends, Mr. Meloy, in his 49-3-205 analysis,
18 that you add a specific anti-retaliation clause, stating,
19 The sheriff's office "will not discharge, expel,
20 blacklist, or otherwise discriminate against an individual
21 because he or she has opposed any practices forbidden
22 under state and federal anti-discrimination laws or
23 because he or she has filed a complaint, testified,
24 assisted, or participated in an investigation or
25 proceeding under these laws."
2 A. Yeah, I'm fine with that. I think my last
3 statement explains that.
4 Q. "A significant adverse act against a person
5 because" -- And here's the definition that I was referring
6 to you before in the regulations: "A significant adverse
7 act against a person because the person has engaged in
8 protected activity or is associated with a person who has
9 engaged in protected activity is illegal retaliation.
10 Protected activity means the exercise of rights under
11 state or federal anti-discrimination laws and may include,
12 but is not limited to, (a) aiding or encouraging others in
13 the exercise of rights under state and federal law,
14 (b) opposing any act or practice made unlawful by state or
15 federal law, (c) filing a charge, testifying, assisting or
16 participating in any manner in an investigation proceeding
17 or hearing to enforce any state or federal
18 anti-discrimination laws."
19 Is that acceptable?
20 A. Uh-huh. You bet.
21 Q. When the sheriff's office -- Going on now to the
22 recommendation. "When the" sheriff's office "has actual
23 or constructive knowledge that proceedings are or have
24 been pending to enforce a provision of state or federal
25 anti-discrimination laws, any significant adverse action
1 taken by the" sheriff's office "against a complainant or
2 participant while the proceeding is pending, or within
3 six months following the final resolution of the
4 proceeding, creates a disputable presumption that the
5 adverse action was in retaliation for the protected
7 Is that agreeable?
8 And just for your information --
9 A. You know --
10 MR. GILLEN: If that's the state of the law.
11 THE WITNESS: If that's the state of the law,
12 that's fine. I'm still having trouble -- Well, hell, it
13 doesn't matter. Yeah, that's fine.
14 Q. (By Mr. Kelly) And are you aware that a
15 disputable presumption --
16 A. Yeah, that's what I don't like, but that's all
18 Q. Well, and do you know -- Are you aware that if
19 you have evidence that it did not play a role in the
20 adverse action, that then you've overcome the presumption?
21 A. I think you'd have a real difficult time with
23 I understand. Go ahead.
24 Q. Grounds for Disciplinary Action. There is only a
25 single amendment to the specified grounds, which includes
1 sleeping, job abandonment, harassment. Paragraph (n)
2 recommended by Mr. Meloy in his analysis is, "Violation of
3 any anti-discrimination or anti-retaliation provision of
4 state or federal law."
5 Is that acceptable?
6 A. Yep.
7 Q. A new paragraph (4): "Grounds for discipline or
8 dismissal shall be consistent with state and federal laws
9 and regulations."
10 A. I agree.
11 Q. It's hard not to agree with that one.
12 A. I agree with that one, yep.
13 Q. Minor and Major Complaints Defined, he adds a
14 paragraph (3): "A major complaint" -- in his
15 recommendations, "A major complaint includes, but is not
16 limited to, an intentional or willful violation of the
17 anti-discrimination or anti-retaliation provisions of
18 state and federal law."
19 A. Uh-huh. Well, to be honest with you, I'd just as
20 soon get rid of that stupid minor and major complaint
21 terminology altogether. I think it should just be a
22 complaint and then we investigate it appropriately, but...
23 Q. But based on the manual right now --
24 A. I'm fine with what he's put there, but that's --
25 the other way, I would like to see it, is, we don't break
1 it down to minor and major.
2 Q. Well, in this instance, he's actually quoting the
3 criminal provisions of Title 49?
4 A. Yeah. No, I'm perfectly fine with what he's got
5 here, but I'm just saying, down the road, we may eliminate
6 minor and major complaints. We'll see. But, of course,
7 this will all be part of it, you know, how you investigate
8 it, but we may just get rid of that terminology.
9 Q. You may not make the segregation between minor
10 and major.
11 A. Correct.
12 Q. On a side note, who -- how do you determine --
13 A. That's why I'd like to get rid of it.
14 Q. And my question was going to be, how do you
15 determine the -- once you've only had allegations and you
16 don't have evidence, and you have to make, under your
17 policy, a determination whether something is major or
18 minor, how do you determine it?
19 A. You know, that's, again, a subjective. That's
20 why I'd like to get rid of it. Because, you know, if
21 you're in violation of a law, you know, you break the law,
22 you violate a policy multiple times, it could bump you
23 into the major category; you steal, that type of stuff.
24 If you're rude to a citizen, that's probably a minor
25 complaint, you know. But it is very subjective. That's
1 why I think we need to -- Personally, I would like to get
2 rid of that distinction. I think a complaint's a
3 complaint; investigate it as it is, and you go from there.
4 Q. And that subjective analysis can lead to
5 different procedures.
6 A. Oh, absolutely. Yeah.
7 Q. And different outcomes.
8 A. Absolutely right.
9 Q. He recommends that you add to the procedures for
10 receiving and forwarding a complaint a sentence as
11 follows: "A complaint may be made against employees of
12 the" sheriff's office --
13 A. Uh-huh.
14 Q. -- "including, but not limited to civilian
15 employees, sworn law enforcement officers, command
16 officers, the Undersheriff or the Sheriff."
17 A. Okay.
18 Q. That is agreeable, is it not?
19 A. Yeah.
20 Q. At the end of that paragraph, he recommends
21 adding, "The name of the complainant will be identified to
22 the person(s) who are the subject of the complaint."
23 A. What if we don't have the name? What if it's
25 Q. Well, and it would appear that the substantive
1 aspect of that recommendation is that, as in all legal
2 proceedings, unless there's a specific petition and basis
3 for using a pseudonym, that a person is obliged, if they
4 wish to make a complaint, to identify themselves. I mean,
5 there are circumstances --
6 A. There are circumstances where we get anonymous
7 complaints from people, and I think they all need to be
8 investigated, looked into.
9 Q. Someone knows the identity, correct?
10 A. No. No.
11 Q. Can you give me an example?
12 A. Sure. Calls in, Deputy Smith was a jerk to me.
13 I don't want to give you my name, but he investigated
14 something and -- or He was a jerk to my friend and I'm not
15 going to tell you who I am.
16 So we talk to Deputy Smith: Hey, we got this
17 complaint. Did you go out to such-and-such?
19 How was your attitude?
20 It was fine.
21 Done. We have nothing to -- we have nothing to --
22 Q. Have you ever sustained an anonymous complaint?
23 A. I think we probably have.
24 Q. But you have no knowledge --
25 A. Well, not off the top of my head. But I think
1 you can go to a deputy, you know, take that instance, and
2 the deputy may say, Yeah, I was having a bad day, or
3 The guy was a jerk to me and I raised my voice and I
4 shouldn't have.
5 You know, we get those types of things.
6 Q. You're familiar with the fundamental elements of
7 due process?
8 A. Uh-huh.
9 Q. One of those is, is that you identify the person
10 who was --
11 A. I fully understand that. But as the sheriff, I
12 think it's my responsibility to investigate all complaints
13 against my officers, whether they're anonymous or not. I
14 think I have that responsibility to the citizens, and --
15 you know.
16 Q. Okay.
17 A. So I'm having trouble with that one, so we'll --
18 Q. Okay. But there may be methods by which one
19 could improve the due -- Anonymous complaints have been
20 discouraged and, in fact, prohibited --
21 A. Discouraged?
22 Q. Discouraged.
23 A. We discourage them?
24 Q. Not you guys.
25 A. Oh.
1 Q. -- in almost other -- any legal proceeding
2 involving fundamental fairness and due process.
3 A. I understand. But they're not my deputies out
4 there getting the anonymous complaints. I want to make
5 sure they're doing the right job --
6 Q. Okay, so that specific --
7 A. Yeah, I'm not buying off on that one yet. Sorry.
8 Q. Paragraph (2): "A person making a complaint
9 shall not be subjected to any act of retaliation, however
10 minor, because he or she has" made "a complaint."
11 A. I'm okay with that one.
12 Q. Paragraph (3), in addition to the current manual,
13 the recommendation is, "The employee receiving an oral or
14 written complaint shall assist the complainant with
15 information about the appropriate process, but will not
16 otherwise encourage or discourage the complainant from
17 making a formal complaint in accordance with this policy."
18 A. That's perfectly fine.
19 Q. When -- As a departure from this for a moment,
20 the Smith complaint came in -- Chandra Hirschi comes into
21 the office.
22 A. Uh-huh.
23 Q. Lieutenant Schieno has testified that he decided
24 he was going to do taped interviews immediately.
25 A. Right.
1 Q. There was no written complaint.
2 A. That's probably right.
3 Q. The written complaint -- That was on
4 December 11th, the written complaint was on December 19th.
5 A. Okay.
6 Q. Your policy states that that's not the procedure.
7 A. Probably not.
8 Q. And did he get permission from you?
9 A. To?
10 Q. To do audiotaped interviews immediately of
11 Chandra Hirschi.
12 A. Didn't need my permission.
13 Q. And when else has that occurred when a complaint
14 has come in --
15 A. Well --
16 Q. Let me give the context.
17 A. I'm sorry. I'm sorry.
18 Q. -- when the two lieutenants conduct an audiotaped
19 interview of a complainant who has the capacity and
20 competency to fill out a formal complaint?
21 A. Well, again, speaking for the sheriff's office, I
22 don't know of any off the top of my head.
23 Q. So the only one the sheriff --
24 A. I'm not saying that's the only one that has done
25 it. No, I'm not saying that at all. I know these two
1 lieutenants do share an office. It all depends on the
2 specific circumstance of the complaint. I believe the
3 lieutenant probably testified that he was visiting with
4 her and when he heard the severity of the complaint, he
5 felt that it was time to get a taped statement, get it on
6 record, and that's why he did it that way.
7 Q. Well, you could receive serious complaints
8 frequently, correct?
9 A. We do on occasion.
10 Q. And those first go through -- the ones you're
11 aware of, other than the Smith one, go through written
12 complaint and then designated major or minor.
13 A. I would have to check the vault to see how they
14 were handled in the past.
15 Q. Do you know, today --
16 A. Is it a hard, fast rule that they have to have a
17 written complaint before -- but is it written in stone?
18 You know, I think a complaint is a complaint. They can
19 take it over the phone and it can start the investigation
20 then. They can take it --
21 Q. So you're saying that the practice --
22 A. I get complaints, you know, in a letter form on
23 occasion and we start looking into it. So I don't think
24 that the complaint form is as important as you're trying
25 to make it out to be, in my mind.
1 Q. Well, and my question goes to is your policy, in
2 fact, what the deputies and the commanders are supposed to
4 A. Yes.
5 Q. And aren't they instructed repeatedly, I think
6 three different times, from my frequent reading of your
7 policy manual --
8 A. Uh-huh.
9 Q. -- that they are instructed and ordered to follow
10 the procedures in the manual?
11 A. They are instructed to do so.
12 Q. And there is no statement saying "except when you
13 don't want to" or "except when you" --
14 A. It is not in there. No.
15 Q. -- or "except when you don't think it's a good
17 A. No.
18 Q. It's not flexible.
19 A. I think it is flexible. I think policies are
20 guidelines. I think there is some flexibility to the
22 Q. And have you ever informed the deputies that
23 that's how you view the policies?
24 A. Oh, I don't think I've ever said that
25 specifically, no.
1 Q. Have you ever reported to the deputies that you
2 think that certain policies will be -- will be lax in
3 their enforcement?
4 A. No, but I think that if they follow the general
5 guidelines of the policy, I think that that satisfies the
7 Q. But if you have procedures to follow, aren't they
8 supposed to follow procedures?
9 A. They should, but sometimes you have to deviate
10 from the procedures. Sometimes you do that.
11 Q. And do you say in your manual that you're
12 permitted to determine the circumstances when you can
13 deviate from the procedures?
14 A. We do not.
15 Q. And, in fact, you order them to follow the
17 A. I don't order them. They know what the policy is
18 and they follow procedures, for the most part. Every now
19 and then, it gets skewed.
20 Q. Well, and you -- As you've seen from the
21 documents we've reviewed today, John Smith was disciplined
22 for making belittling statements.
23 A. No. He was disciplined for other things, but we
24 lost that in the --
25 Q. No, this was a separate incident in which
1 Lieutenant Wallis and Lieutenant Schieno disciplined him
2 for making belittling statements.
3 A. Did he get a letter?
4 Q. Yep.
5 A. Yeah, this is far more than belittling
7 Q. What was far more than belittling --
8 A. This incident we're talking about here with the
9 Hirschi thing.
10 Q. No. This was after the Hirschi thing. It was a
11 conversation between Schieno and Wallis and Smith.
12 A. I'm losing you here somewhere. I've lost you
13 here somewhere.
14 Q. That's okay. I don't know if you actually saw
15 that one. They disciplined him, gave him a year letter
16 for making belittling statements in a conversation with
17 them and they cited the provision of the policy.
18 A. Sure.
19 Q. So how is someone supposed know when you can
20 deviate and when you can't deviate from the policy?
21 A. You don't.
22 Q. Don't you think that there should be -- people
23 should be given the knowledge of what behavior they should
24 engage in and what they shouldn't engage in?
25 A. Well, I think that they know what behavior they
1 should engage in. I think that they -- you know, maybe
2 they jumped the gun in getting the taped statement. But
3 it was still the complaint. That was the complaint they
4 took. That was the avenue they took in getting the
5 complaint. Whether it's written on a piece of paper or
6 whether it's taped, it's still a complaint that needs to
7 be investigated.
8 Q. No one --
9 A. Now, if she would have written it out and then
10 they took a taped statement, what's the difference? I
11 mean, where would it have been different here?
12 Q. She did, in fact -- she did, in fact, make a
13 written complaint that could have been followed without
14 audiotaped interviews. It just seems very unusual --
15 A. Well, there would have been an audiotaped
16 interview --
17 Q. Subsequently.
18 A. Absolutely. So why couldn't they just go ahead
19 and do that now?
20 Q. Because the policy says that you're supposed to
21 follow a procedure, and the reason, as I understand the
22 policy and what it appears to indicate, is that it's
23 supposed to give notice of what the actual allegations are
24 and not allow command officers to solicit or encourage
25 statements before the person has put their name on
1 something in order -- because they may have a bias towards
2 that deputy, because they may have a bias towards the
3 complainant. You're supposed to follow the procedures so
4 you don't treat someone favorably in one respect, the
5 complainant in this case, and unfavorably in another
6 respect, Deputy Smith in this case. You follow the
7 procedures like you follow it with everyone else.
8 A. I don't believe she was treated favorably, but --
9 Q. She got 7500 bucks three weeks later.
10 A. That wasn't my issue.
11 Q. But, in fact, wouldn't you say that that's
12 favorable treatment?
13 A. I don't know that it was.
14 Q. Would receiving $7,500 in the ordinary instance
15 for a complainant who has -- the investigation hasn't even
16 been completed, has received $7500, don't you think that's
17 favorable treatment?
18 A. That was a decision made by the county attorney's
20 Q. But in your view and in your experience as the
21 sheriff's office, is that an unusual occurrence?
22 A. No. I believe it was an occurrence to prohibit
23 it being larger -- a larger sum than that.
24 Q. Well, and was it an unusual occurrence, was my
1 A. Well, I think that the whole circumstance was an
2 unusual occurrence.
3 Q. And in what respect?
4 A. From the breaking in of the door on through.
5 Q. And, in fact, didn't an independent arbitrator
6 find that he acted absolutely properly?
7 A. Doesn't mean I have to agree with it, but you're
9 Q. Do you know the law on exigent circumstances?
10 A. I do know the law on exigent circumstances.
11 Q. Can you tell me the last case in which --
12 A. I cannot, but I can tell you right now that --
13 Q. Bodies slammed against a wall and shouts occur
14 and --
15 A. I'm okay with the initial action taken. I think
16 we could have justified that.
17 Q. Well, I think it was justified based on the
18 arbitration decision.
19 A. Oh, I know you do. I disagree. After that, I --
20 You know, if I have another deputy do the same thing,
21 Mr. Kelly, I'm not going to do a thing with it, unless he
22 swears at the kids.
23 Q. Did you, in fact --
24 A. I don't agree with it, but that's the way the
25 law -- that's the way it is now, it appears.
1 Q. Did you understand that there was questions of
2 credibility and that Chandra Hirschi was found not to be
4 A. I don't think you can find that you can say that,
5 that she's not credible.
6 Q. Well, people do it all the time in jury trials --
7 A. What do you have to base that on, Mr. Kelly, that
8 she is not a credible person?
9 Q. The statements that she made in her own
11 A. What do you mean, "the statements she made" --
12 Q. The audiotapes.
13 A. What's wrong with them?
14 Q. They're inconsistent with themselves.
15 A. Well, I think I'm probably a little inconsistent
16 with my first deposition that I gave you, but as time goes
17 by, you kind of forget things. But I don't think that you
18 can rule her as being incredible -- or incredible -- not
20 Q. That was the finding, and that's binding on the
22 A. You're going to say that about my captain, he's
23 not credible because he made a mistake on where he parked
24 his car during the chase.
25 Q. That's entirely possible.
1 A. You can say that about anybody.
2 Q. No. No. In terms of specific incidents -- For
3 instance, your testimony today may not be credible when
4 compared against other evidence.
5 A. May not be.
6 Q. The testimony that was given in front of an
7 independent arbitrator, rather than a lieutenant who may
8 have had a bias against John Smith, and based on
9 audiotapes by lieutenants of the patrol division who have
10 indicated that they have certain negative feelings about
11 John Smith --
12 A. Sure.
13 Q. -- those things may not be credible.
14 A. And, you know, I guess that's...
15 Q. It's the call of an adjudicator.
16 A. It's the call of an adjudicator. Thank you.
18 Q. So we got off from following procedure. But you
19 still are concerned --
20 A. Yeah, we're still going to take anonymous
21 complaints. Sorry.
22 Q. Right, the anonymous complaints.
23 But the question is, too, are you going to investigate
24 at least -- Will it be your practice or is it your
25 practice to investigate when somebody departs from
1 procedures that are set out in the manual?
2 A. Sure. We can do that. I'm going to have to hire
3 two more people, but we can do that.
4 Q. Well, maybe this EEO officer --
5 A. That's what I'm hoping for. We want an EEO
6 officer to take care of all this for us.
7 Q. And we were addressing "The employee receiving an
8 oral or written complaint shall assist the complainant
9 with information about the ... process, but will not
10 otherwise encourage or discourage the complainant" --
11 A. I'm fine with that.
12 Q. Okay. That was paragraph (3) on page 34.
13 A. Yep. That's perfectly fine.
14 Q. Procedure of a Major Complaint Against an
15 Employee. And the only addition in paragraph (1)(a)
16 that's recommended is, "If the complaint comes directly to
17 the Sheriff or Undersheriff and," and he puts in,
18 "extraordinary circumstances exist and it is in the best
19 interest of the Sheriff's Office, the Sheriff or
20 Undersheriff may initiate the investigative procedure
21 without notifying the employee's Commanding Officer."
22 A. What's different than what it says now?
23 Q. All it says, it puts in "extraordinary
25 A. But why?
1 Q. Because --
2 A. I mean, I just want to see what it says now. I'm
3 just curious why it says that.
4 What page are we on; do we know? 1-4-02.
5 Q. Yeah, .04.
6 A. It's in there now.
7 Q. "Extraordinary circumstances"?
8 A. Yeah.
9 Q. So that's certainly acceptable.
10 A. It's in there. Yeah.
11 Q. Okay. (B), at the end of paragraph 1-4-02.04,
12 (1)(b), Mr. Meloy adds, "The accused shall be notified of
13 his or her rights to have an attorney present at all
14 stages of the proceeding."
15 This is a major complaint.
16 A. Yeah. They are now.
17 Q. Well, they're advised at one particular point,
18 usually at the interview stage.
19 A. Right.
20 Q. And what I believe this addition does, is, it
21 adds it to the notification of the complaint.
22 A. Oh, okay. No, that's fine.
23 Q. He adds a --
24 A. It's not going to change anything.
25 Q. -- paragraph (d): "In the event the complaint is
1 determined to be unfounded or the employee exonerated as
2 defined in 1-4-03.02(8), the exonerated party may recover
3 reasonable ... fees and costs."
4 Is that acceptable to you?
5 A. I'll have to talk with my attorney on this one.
6 I don't know. I don't have an answer on that one right
7 now. So right now, we'll leave it as no.
8 Q. Okay. And can you tell me why? If a person --
9 A. Because I don't want these guys running out and
10 getting an attorney every time we think that they have
11 violated something and then we end up paying for it.
12 Q. And this may --
13 A. They can, I agree, but it may not be my place to
14 pay for it.
15 Q. This is a major complaint issue only.
16 A. Yep, I understand. But I want to talk to my
17 attorney first before we --
18 Q. He adds a subparagraph (2)(a): "Within 24 hours
19 of receiving a copy of the written complaint, an employee
20 who is the subject of the complaint may make a written
21 request for an independent investigator who shall be a law
22 enforcement officer employed by a law enforcement agency
23 other than the" sheriff's office.
24 A. No. No.
25 Q. Let me finish with --
1 A. Oh. Sorry.
2 Q. "If the complaint is made against the Sheriff or
3 Undersheriff, the investigation shall be referred to the
4 county attorney, who shall arrange for the investigation
5 to be conducted by sworn law enforcement officers from an
6 agency other" than the sheriff's office.
7 A. I don't have a problem with the last part, but
8 I'm not going to --
9 Q. That's why I wanted to finish it.
10 A. -- I'm not going to do the first part. Nope.
11 They're not going to steer the train. Not going to happen
12 on that one.
13 Q. Is there a policy --
14 A. I have -- I'm sorry, go ahead.
15 Q. Is there a policy or procedure that permits an
16 accused employee to object to the assignment of a
17 particular investigator?
18 A. No.
19 Q. And I'm not saying you have to sustain the
20 objection, but do you have a procedure by which someone
21 can just say, I do not believe that this person is
22 qualified or unbiased to conduct the investigation?
23 A. No.
24 Q. And do you think that might be appropriate?
25 A. No.
1 Q. Page 37, Investigation of a Serious Complaint
2 Against an Employee, there's one addition to the procedure
3 in (1)(a): "Within 24 hours of receiving a copy of the
4 written complaint, an employee who is the subject of the
5 complaint may make a written request for an independent
6 investigator who shall be a law enforcement officer
7 employed by a law enforcement agency other than the YSCO."
8 That's the same language as before, and your answer
9 would be --
10 A. It's the same. No.
11 Q. But with respect to the other part, "If the
12 complaint is made against the Sheriff or Undersheriff, the
13 investigation shall be referred to the county attorney,
14 who shall arrange for the investigation to be conducted by
15 sworn law enforcement officers from an agency other than
16 the" sheriff's office.
17 A. I'm okay with it. I don't know if the county
18 attorney's office is, but that's fine with me.
19 Q. I have a question. You on occasion refer matters
20 of complaints against employees to DCI.
21 A. Uh-huh.
22 Q. And under what circumstances -- That's not in the
23 manual anyplace?
24 A. Huh-uh.
25 Q. And under what circumstances do you make those
2 A. Well, when we have a -- some deputies making an
3 allegation against a lieutenant, I thought that that was
4 appropriate to have them investigate that, to make sure
5 that these deputies feel that they were treated fairly in
6 that investigation. It's very rare that we do it. But
7 oftentimes it depends on personalities.
8 I know that Mr. Smith doesn't trust anyone in this
9 office, with the command of lieutenant or above, to
10 investigate anything, and I know he will not be satisfied
11 with whatever investigation I would have my detectives do,
12 so I think to get this one off of dead center and to get
13 it out of here, I've turned it over to DCI. It's very
15 Q. And was it the nature of the allegations that
16 caused you to do so?
17 A. No. It was the personality involved.
18 Q. And so whenever Deputy Smith makes an allegation
19 at this point or reports to you a possible violation by a
20 lieutenant, will you be following that procedure?
21 A. I don't know. We'll see. I might, because I
22 know I can't satisfy him.
23 Q. And are you aware that Deputy Smith, in terms
24 of -- We're talking about the gas incident involving
25 Lieutenant Wilson?
1 A. Uh-huh.
2 Q. And are you aware that Deputy Smith did not state
3 that he was making the complaint --
4 A. I understand.
5 Q. -- but that a third party had informed him of it?
6 A. You know, whenever Mr. Smith is involved,
7 Mr. Kelly, I have to take extra precautions.
8 Q. And did you know that there was an allegation or
9 at least a report from the anonymous deputy?
10 A. I do. That's why we're investigating it. I told
11 you, I investigate everything.
12 Q. And, in fact, the anonymous deputy came forward
13 to his sergeant; were you aware of that?
14 A. I was not aware of that. I heard he wouldn't go
15 to his sergeant, according to Mr. Smith.
16 Q. At the time that he originally made the report?
17 A. Uh-huh.
18 Q. And it wasn't really a complaint from John Smith;
19 it was a report of a complaint by another deputy.
20 A. Correct.
21 Q. So will you be -- whenever John Smith may report
22 that another deputy has made an allegation of a violation
23 by a command officer, will you be referring those to DCI?
24 A. I don't know. May have to. We'll see. I don't
1 Q. So would it be fair to --
2 A. This was an unusual circumstance.
3 Q. Would it be fair to say that because -- And
4 that's because of his involvement in these proceedings and
6 A. Absolutely.
7 Q. Are you treating any other deputy in the same
9 A. Not at this point.
10 Q. On page 38, there was an addition. It appears to
11 be simply a confirmation of your practice, but puts it in
12 the manual. In a serious investigation, an employee "is
13 entitled to be represented by an attorney at all stages of
14 the proceeding."
15 A. Sure.
16 Q. On General Requirements of the Human Rights
17 Act -- and we go to 1-3-02, a new section 19, Equal
18 Employment Opportunity Officer, the EEO officer we've been
19 referring to.
20 A. Uh-huh.
21 Q. All -- the recommendation is, "All" sheriff's
22 office "supervisory personnel shall be required to
23 recruit, train, hire, select, appoint, assign, promote,
24 evaluate, and discipline on the basis of merit and
25 qualification and without ... regard to race, color,
1 religion, creed, political ideas, sex, age, marital
2 status ... disability and national origin."
4 That's the actual law.
5 A. If that's the actual law, then it's acceptable.
6 MR. KELLY: Counsel, would you say that that's
7 not 49-3-201?
8 MR. GILLEN: I don't have the law -- I guess I do
9 have the law in front of me, but for brevity, if you,
10 Mr. Kelly, are making that representation --
11 MR. KELLY: And if you find that I'm incorrect,
12 please correct me.
13 MR. GILLEN: I would be so inclined to do so.
14 Thank you.
15 Q. (By Mr. Kelly) This is not -- "In order to
16 ensure enforcement of this policy an EEO Officer" -- and
17 this is the recommendation -- "shall be established
18 recruited and selected after a competitive hiring process
19 by a panel consisting of a designee of the" sheriff's
20 office, "County Attorney and County Commissioners."
21 Is that agreeable to you?
22 A. Yeah, that's fine with me.
23 Q. "The EEO Officer must be qualified by skills,
24 training and experience in the area of human/civil rights
2 A. Uh-huh.
3 Q. "Preference should be given to a sworn law
4 enforcement officer or a person with military or
5 comparable administrative and supervisory experience."
6 A. Preference for the EEO officer?
7 Q. Yes, based on the fact that he may be interacting
8 with a -- Your office is a law enforcement quasi-military
10 A. I'm going to hold off on that, too.
11 Q. On the military aspect?
12 A. Yep. I'm going to hold off on all that until --
13 Q. So that's the last sentence.
14 A. -- until we talk to the human resources and
15 everybody else that's going to be involved in this. I
16 don't think I can speak for the County on that, the entire
18 Q. And this is a sheriff's office policy, so --
19 A. Right. And the EEO officer would be representing
20 all of these entities, not just the sheriff's office.
21 Q. So in that respect, it just wouldn't be a
22 sheriff's office EEO officer.
23 A. No. This person would represent the entire
25 Q. Okay.
1 A. That's why I can't agree to that last sentence.
2 Q. With respect to the EEO officer -- this is
3 another recommendation -- they would be responsible for
4 "(1) monitoring employment decisions to ensure compliance
5 with Title 49 and" sheriff's office "policies,
6 (2) investigating all complaints of discrimination and
7 retaliation, (3) arranging for an investigation by other
8 law enforcement agencies of any complaint against a YCSO
9 command officer, (4) monitoring and reviewing all hiring
10 and promotion decisions, (5) monitoring and reviewing all
11 disciplinary actions to ensure compliance with the
12 discipline handling policies, (6) arranging for and
13 conducting training in all aspects of human resource
14 management, (7) monitoring and ensuring proper and timely
15 employee evaluations are completed, and (8) complying with
16 all record keeping/reporting/contracting requirements
17 under the human rights laws."
18 A. I'm okay with everything but (3) right now.
19 Q. (3) is the investigation?
20 A. I'm not -- I'm not hot on that one yet. I'm okay
21 with everything but that one.
22 Q. And (3) --
23 A. I'm not saying it won't happen, but right now, I
24 would just as soon talk to the new EEO officer about that
25 before I commit.
1 Q. And (3) would be arranging for investigation by
2 other law enforcement agencies. Would you have an
3 objection on the sheriff/undersheriff issue, because --
4 A. Back here (indicating), you've got the county
5 attorney's office doing all that. So let's just hold that
6 out for now.
7 Q. So (3) is -- All else is agreeable.
8 A. Yep. Uh-huh. Yes.
9 Q. Last -- aren't you glad -- his last
10 recommendation is, is that the sheriff's office "shall
11 include in every local contract for goods and services a
12 provision that there may not be discrimination based on
13 race, creed, color, religion, sex, national origin,
14 physical or mental disability, age, political ideas or
15 marital status by the persons performing the contract.
16 The EEO Officer is charged with responsibility of
17 monitoring compliance and reporting any instances of
18 non-compliance prior to the signing of the contract and
19 throughout the performance of the contract."
20 And for your information --
21 THE WITNESS: Is this something that the
22 sheriff's office gets involved in?
23 MR. GILLEN: I'm not testifying here, but --
24 THE WITNESS: I know you're not.
25 MR. GILLEN: -- yeah, it's already --
1 THE WITNESS: It's okay? Okay. I thought we do,
2 but I didn't know if this needed to be in our policy.
3 MR. GILLEN: We inserted that verbiage that you
4 just read, Mr. Kelly, into all of our purchasing rules and
5 regulations, which would include his office.
6 Q. (By Mr. Kelly) And by placing it in your manual,
7 if it is, in fact, a countywide policy, you have
8 encouraged the County to follow its own policy.
9 A. Uh-huh. Yeah, I don't have a problem with it. I
10 just wanted to make sure --
11 Q. It's actually a restatement of Section 49-3-207.
12 A. I just didn't know if it was appropriate in our
13 policy or if we're just going to go --
14 MR. GILLEN: It should be in all contracts,
16 VIDEOGRAPHER: Are we done with the 30(b)(6)?
17 MR. KELLY: No, not yet.
18 VIDEOGRAPHER: Okay. This concludes Tape 4 of
19 the Rule 30(b)(6) deposition of the Yellowstone County
20 Sheriff's Office, Jay Bell. The time is 12:52. We're off
21 the record.
22 (A brief recess was taken.)
23 VIDEOGRAPHER: The time is 1:03. This is Tape 5
24 of the Rule 30(b)(6) deposition of Yellowstone County
25 Sheriff's Office, Jay Bell. We're on the record.
1 Q. (By Mr. Kelly) I'm asking you to direct your
2 attention to Exhibit 7, which looks -- is that list of
3 major and minor complaints.
4 A. That's 14. I think I've got it over here
6 MR. GILLEN: There it is.
7 Q. (By Mr. Kelly) And in the interest of time and
8 efficiency, I'm just going to take you through the major
9 complaints right now.
10 A. Okay.
11 Q. And you've indicated that you didn't have a
12 chance to prepare to actually testify about Exhibit 7; is
13 that correct?
14 A. Correct.
15 Q. But perhaps based on your knowledge and
16 awareness, you can identify certain information.
17 On No. 1, a deputy sheriff allegedly was subject to a
18 complaint for impersonating an officer. That's a criminal
19 violation, correct?
20 A. It is a criminal violation.
21 Q. And that was Weiland?
22 And I'll show you what has been marked as Exhibit
23 No. 42.
24 (Deposition Exhibit 42 was marked for identification.)
25 MR. GILLEN: Mr. Kelly, may I --
1 THE WITNESS: I'm sorry, I don't know.
2 Q. (By Mr. Kelly) Okay. And that's why I'm -- That
3 (indicating) might refresh your memory.
4 MR. GILLEN: We'd have no objection to leaving
5 the record open to supplement if you just can't find
6 cases. And that's because I failed to advise my client.
7 MR. KELLY: And that may -- I appreciate that. I
8 actually was going to ask that at the end of this list.
9 And I don't want to go through, obviously, the minor ones.
10 MR. GILLEN: No, sir. We need to be prepared for
11 this, and I wasn't.
12 MR. KELLY: Appreciate that.
13 THE WITNESS: Okay, it's starting to look
14 familiar again. I apologize, I didn't recall this one.
15 Q. (By Mr. Kelly) Well, and that's the only
16 documents that I had that might refresh your memory.
17 A. Okay. And that -- Yes. Okay.
18 Q. And Weiland, in fact, represented him as being a
19 deputy -- he wasn't a deputy sheriff.
20 A. He was a transport officer.
21 Q. And he went over to Laurel and he represented
22 that he was a deputy sheriff?
23 A. Right.
24 Q. And, in fact, he represented he was a specific
25 deputy sheriff.
1 A. That is correct.
2 Q. He wasn't just impersonating one, but
3 impersonating one who actually works for the sheriff's
5 A. Right.
6 Q. Did you do an investigation of that?
7 A. I believe he may have terminated his employment
8 prior to having to do a full investigation.
9 Q. Okay. Did you report him -- Had he ever engaged
10 in protected activities?
11 A. Not that I'm aware of.
12 Q. Did you file any criminal charges against him?
13 A. No.
14 Q. Can you tell me why you didn't do that?
15 A. I think we were just glad to get rid of him. He
16 was having other issues at the same time.
17 Q. And I don't mean to be facetious about this, but
18 have you ever taken that attitude about citizens of the
19 county who have engaged in crimes that --
20 A. Glad to get rid of them? Yeah, I probably have.
21 Q. Instead of arresting them? Are you aware of any
22 incident where you may have done that?
23 A. No. I'm kidding. No.
24 Q. No. 2, we have had testimony that a allegation of
25 a sexual assault, major violation, was made against a
1 deputy sheriff in June of '07.
2 A. Yes.
3 Q. And that it was Swecker?
4 A. Correct.
5 Q. And that it was a false allegation?
6 A. It was.
7 Q. And, in fact, the charges were brought against
8 the person making the complaint?
9 A. They were.
10 Q. Do you know if she was convicted on that?
11 A. I don't.
12 Q. No. 3, we've not been certain about this one.
13 Booking clerk, July of '07, misuse of county computer
14 system. It was major violation, but only a letter of
15 written warning.
16 A. Uh-huh.
17 That might have been Flickinger.
18 Q. And her first name? Barb?
19 A. What is it?
20 Q. Barb?
21 A. No, I don't think so. I don't recall -- I don't
22 know for sure if that's who that was.
23 Q. And do you know what particularly -- What do you
24 recall about her having done in misusing?
25 A. If it was her, I believe she was looking for,
1 might have been looking up her -- Let's see. I don't
3 Q. Do you recall if she was accessing NCI --
4 A. I believe she was, and using it for personal use,
5 but I don't recall exactly what she was using it for.
6 Q. And is accessing that database, in fact, a
7 criminal violation?
8 A. It can be. Uh-huh.
9 Q. Did you file charges against her?
10 A. No.
11 Q. Is she still working?
12 A. No.
13 Q. Was she terminated; do you know?
14 A. I believe -- I believe we did terminate her at a
15 later date for further violations.
16 Q. For those violations?
17 A. No, I think for other violations that came up, if
18 this is the right person.
19 Q. Okay. And do you remember what the termination
20 was for?
21 A. No.
22 Q. But a termination would be as a result of a major
23 violation of policy?
24 A. Yes.
25 MR. KELLY: And, Counsel, would you just
1 double-check on that?
2 MR. GILLEN: What number is that, Counsel?
3 MR. KELLY: That's No. 3, booking clerk. Because
4 it would have ordinarily been included in the major
5 violations piece.
6 THE WITNESS: And it may not have been the
7 Flickinger woman. She may have been before '05. So we'll
8 have to check on that to see who this was.
9 Q. (By Mr. Kelly) Thank you.
10 No. 4 is misuse or abuse of county property by a civil
11 department staff member in February '07; had been working
12 there since 1979. Is that DuPuis?
13 A. Probably. Uh-huh.
14 Q. A letter of written warning was issued?
15 A. Uh-huh.
16 Q. Do you know what the abuse of the county property
17 was; was that also accessing the CJIS --
18 A. No. No, it wasn't anything like that. We never
19 looked at her for that.
20 I think she may have taken her county car to a -- to a
21 doctor's appointment or something. Again, we'll have to
22 check on that.
23 Q. Personal use?
24 A. Yeah. I think so.
25 Q. A quick question.
1 A. Uh-huh.
2 Q. Two of the civil staff secretaries are assigned
4 A. Two of the -- The civil supervisor and the
5 records warrant supervisor.
6 Q. And the supervisor, we're not talking the
8 A. No.
9 Q. Okay.
10 A. They supervise the offices.
11 Q. Mary only gets a free tank of gas a week?
12 A. She gets nothing.
13 Q. Okay.
14 A. Where did you get that?
15 Q. I looked in a lot of information, just checking
16 out information I'd gotten.
17 A. No. She gets nothing.
18 Q. And the civil -- the supervisor needs the car for
19 what purpose? Is that Suzanne or is that the other one,
21 A. Suzanne is the civil supervisor.
22 Q. Okay. And she gets a car?
23 A. Because the sheriff thought the supervisors --
24 the sheriff at that time felt that the supervisors all
25 deserved vehicles.
1 Q. Just as a perk?
2 A. Just as a perk.
3 And he gave her that one, and then Carla got hers, but
4 she's on call a lot more. She has to come down quite a
5 bit. When a secretary calls in sick in the middle of the
6 night or something like that, she has to come in. But
7 then they pay the County 300-and-some a month for the use
8 of those vehicles.
9 Q. For the back and forth from their homes?
10 A. Yes.
11 Q. And that's essentially to comply with tax
13 A. Correct.
14 Q. Initially, they weren't refunding for those
16 A. Oh, not at the very beginning of that, no. But I
17 don't know how many years they've been doing that now.
18 Q. Okay. Do command officers -- Captain Michaelis
19 has a car.
20 A. Uh-huh.
21 Q. You have car.
22 A. Uh-huh.
23 Q. Do you reimburse for -- And Captain Michaelis
24 indicated in his testimony he primarily just goes from his
25 house to his office. Do they reimburse for their expenses
1 for doing that?
2 A. No.
3 Q. And why is that?
4 A. Because they're on call 24 hours a day.
5 Q. All deputies and all sworn law enforcement
6 officers are; is that correct?
7 A. That's correct. That's why we've given all
8 officers with five years or more a take-home car as a
9 reward for that, as a perk.
10 Q. No. 5, deputy sheriff, inappropriate materials on
11 personal computer. This occurred in June of '06, and that
12 person started in November of '01.
13 A. Uh-huh.
14 Q. Do you recall that one?
15 A. Nothing found, it looks like, so, no, I don't.
16 Q. 6, misuse of funds, terminated, reserve deputy.
17 Do you remember that one?
18 September '06, actually started a month earlier. It
19 seems like a short tenure.
20 A. Boy, it does, doesn't it?
21 I should. Misuse of funds.
22 Q. And terminated means it was after the result of
23 an investigation?
24 A. Yeah.
25 I don't know who that would have been.
1 Q. Okay. No. 7, August 28th, '06, the sheriff's
2 coroner, Keith Montgomery, misuse of computer. He was
3 only given a verbal warning, and this was a major
5 A. Well, it may have started out as a major
6 violation but turned out that it probably wasn't, is my
8 Q. Did you review that one?
9 A. I'm sure I probably did in '06, but --
10 Q. I understand. You haven't prepared today to look
11 at it?
12 A. No.
13 Q. Okay. Are you aware that, in fact, he admitted
14 to regularly accessing CJIS information, in part, he
15 contended, for child support reasons and, in part, out of
16 his own curiosity?
17 A. I think he would have gotten more than a verbal
18 warning --
19 Q. If it was just curiosity?
20 A. -- if this is the same one.
21 Again, we'll have to check on that one, see which one
22 that one is.
23 Q. Accessing it over a period of several years for
24 his own curiosity would represent a major violation?
25 A. I would think so.
1 Q. Has he ever engaged in protected activities?
2 A. No.
3 Q. 9/26/05, this is Romero. The sheriff accused him
4 of making a false statement in his Union grievance.
5 A. Okay.
6 Q. And I believe we talked about that already.
7 A. Uh-huh.
8 Q. And I may have asked it, but shouldn't the
9 finding on this have been exonerated, that it was legal
10 and proper for him to make a statement in his Union and
11 Human Rights complaint that he was subject to
12 investigation for? Isn't that legal and proper behavior?
13 A. That was legal and proper behavior.
14 Q. Okay.
15 A. That's why it was dismissed.
16 Q. But exonerated is the actual category, correct,
17 under your policy manual?
18 A. Yeah, probably. Uh-huh.
19 Q. So at least in terms of how it was characterized,
20 it's a departure from the policy?
21 A. It probably was. Uh-huh.
22 Q. December 19th, '08, we have talked generally
23 about this, and it's Smith's Beas Lane issues?
24 A. Okay. Uh-huh.
25 Q. March of '03, deputy sheriff, violation of office
1 policy and procedure. The person started in 12/94;
2 disciplinary action was justified, two days off with
3 pay --
4 A. Without pay.
5 Q. I'm sorry, without pay, and then taken off the
6 FTO position and the hostage negotiation team.
7 Was that McCollum?
8 A. Must have been. Uh-huh.
9 Q. That was a failure to respond?
10 A. Correct.
11 Q. Can you elaborate on that a little bit?
12 A. He was at breakfast one morning and there was a
13 disturbance out in the Laurel area, and when dispatch
14 contacted him to respond, he said, Well, monitor it, and
15 see if it -- if it gets any worse, let me know. That
16 wasn't the proper response, so he was disciplined for
18 Q. He didn't think it was just a guideline?
19 MR. GILLEN: He'd just gotten his breakfast,
20 didn't he?
21 THE WITNESS: He'd just gotten his breakfast,
22 yeah. Yeah.
23 Q. (By Mr. Kelly) That wouldn't a exceptional
24 circumstance to depart from procedure?
25 A. Yeah, it was not good.
1 Q. Was that considered when you decided to promote
2 McCollum to sergeant?
3 A. Oh, I'm sure it was. This was back in what?
4 Q. '03?
5 A. '03. Uh-huh.
6 Q. And then prior to that time, he was -- there were
7 certain allegations of sexual harassment sustained against
8 him. There's been testimony on the Metra Park incidents.
9 Do you recall that?
10 A. I remember some alleged sexual -- sexual --
11 Q. Harassment?
12 A. -- harassment incidents, but I don't remember the
14 Q. So I believe Lieutenant Wilson investigated that.
15 A. Could very well have.
16 Q. And there may be documentation on that?
17 A. Oh, I'm sure there should be, yeah.
18 Q. No. 11, deputy sheriff, felony assault and racial
19 discrimination. October of '03 is when the start date
20 was --
21 A. Uh-huh.
22 Q. -- and the incident occurred in February '05. Do
23 you recall this one?
24 A. No. I thought it was one that happened down at
25 the Metra, but the timing isn't right.
1 Q. I think that there's been two or three
2 speculative answers on who this might be. You have no
4 A. Huh-uh. No. I thought it was Minkoff and
5 Wallis, but that was back in the '90s, I think. So I
6 don't recall who this one was. Obviously, it was
7 unfounded or something.
8 Q. Well, and I was going to ask about that, too.
9 "No further action was taken"; "No further action was
10 taken." There doesn't seem to be a categorization that
11 I've seen in the manual about this. That's why I'm
13 A. Yeah, I don't know.
14 Q. And the Minkoff -- Was Minkoff terminated?
15 A. No.
16 Q. Okay. He, however, was subject to a number of
18 A. Yes, he was.
19 Q. And the one with Wallis, what was that about?
20 A. The same thing, assault and racial discrimination
21 down at the Metra. I believe it was an African American
22 individual; felt he was assaulted by the officers and
23 discriminated because he was black.
24 Q. Substantiated or was not substantiated?
25 A. It was not substantiated.
1 Q. Okay. Are you aware of any command officers
2 using the term -- since we're on the subject --
3 A. Uh-huh.
4 Q. -- using the term "nigger" in making statements
5 or at a briefing or in a group of officers within the last
6 six months?
7 A. No.
8 Q. Would that be acceptable behavior?
9 A. No. It would not.
10 Q. Would that be a major violation?
11 A. It could very well be.
12 Q. I mean, that's a pretty offensive term.
13 A. It's very offensive.
14 Q. The last one, 12, August 11th, '05. This is the
15 original Romero incident?
16 A. Uh-huh.
17 Q. Again, he was exonerated -- I mean, it was
18 unfounded on this one.
19 A. It was unfounded. That's correct.
20 Q. So that should have been characterized as
22 A. I don't know why it's not, but, yes. It may have
23 been in the -- I don't know what she based all these off
24 of. There may be something in the file that she just put
25 "no further action" or "dismissed."
1 Q. And unfounded means there's no evidence to
2 support it, correct?
3 A. Sure. Uh-huh.
4 Q. And when you said "she might" --
5 A. It would be Mary. Yeah, she's the administrative
7 Q. Okay. I'm going to let these additional ones go
8 and see if we need an opportunity to get supplemental
9 information on Exhibit 7.
10 MR. GILLEN: For the record, we can leave any of
11 that information open for you to supplement as you desire.
12 You just simply have to notify me.
13 MR. KELLY: And we'll arrange a convenient time.
14 MR. GILLEN: Yeah, just come on by.
15 MR. KELLY: I'd say this afternoon, but I'd
16 rather not.
17 MR. GILLEN: No, that's not convenient for me.
18 MR. KELLY: And it's not convenient for me
20 Q. (By Mr. Kelly) Have you ever done a major
21 investigation of an allegation or complaint of
22 discrimination or retaliation internally in accordance
23 with the manual?
24 A. Not that I know of.
25 Q. And, for instance, the practice now, it appears
1 to be, is to bring in somebody outside of the sheriff's
2 office to do that, specifically Vigness. The one in
3 McCave was done by Vigness; is that correct?
4 A. That's correct.
5 Q. And he doesn't do audiotaped statements, and he
6 doesn't do a lot of the procedures that would be done
7 under a major or minor violation -- major or minor
9 A. Right.
10 Q. He doesn't follow your manual.
11 A. No.
12 Q. Why do you treat them differently, those
14 A. Well, we're trying to cooperate with human
15 resources and our county attorney's office. They want us
16 to bring any grievance, any complaint, any -- anything
17 that could be construed as something that may require
18 disciplinary action to them first.
19 Q. Any disciplinary action?
20 A. Anything.
21 That has been in effect for about four months now, I'm
22 going to guess. They had a training seminar for all
23 department heads and elected officials, and they would
24 like to review everything prior to the department heads
25 doing anything. Now, of course, they can't mandate that
1 of an elected official, but I think that they're probably
2 on the right track, that we should all --
3 Q. Are you abandoning your major investigation
5 A. Not right now, no. But, again, the whole policy
6 is up for review right now, and...
7 Q. Have you given any notice to the deputies or the
8 sergeants or anybody in the sheriff's office that
9 investigations may not be done in accordance with the
11 A. No. They call it --
12 Q. The command officers, I assume, know it simply
13 from discussions with you?
14 A. They do, yes. They know that if a grievance
15 comes in, we take it right over to HR and we look at it
16 and develop a plan of attack from there. If there's a
17 complaint that comes in, we do our investigation, but
18 before any discipline happens, we run it past HR and the
19 county attorney's office.
20 Q. Okay. So you still may follow your procedures --
21 A. Yes. Absolutely.
22 Q. -- with coordination with the county attorney or
23 HR -- and/or HR.
24 A. Right. We still follow our procedures.
25 Q. Okay. Are you aware of an allegation that
1 Sergeant McCollum threatened to shoot Bob Lester in the
3 A. No. I haven't heard that.
4 Q. Would that be a violation of policy?
5 A. Oh, it depends on the circumstance, if it was a
6 joke or what. That's what I say, you can't joke anymore
7 with these guys, Mr. Kelly, they all take it so serious.
8 I can't say what that was. Knowing Mr. McCollum, it was
9 probably just that.
10 Q. And if it was out of anger?
11 A. Then that will be a different story, but --
12 Q. That's why I was asking --
13 A. I agree. But that's the thing --
14 Q. But that's a pretty serious --
15 A. -- the guys take everything so literally anymore
16 that it's just -- you know, you're afraid to say anything
17 to them. And McCollum apparently hasn't gotten to that
18 point yet.
19 Q. In the ordinary case, is threatening to shoot
20 somebody in the head something --
21 A. Well, you know, again, it depends on the context.
22 Q. Okay. Have you ever told anybody you're going to
23 shoot them in the head as a joke?
24 A. Oh, I may. I told people I was going to gut
25 shoot them as a joke, sure. I don't think I ever
1 specifically said "shoot you in the head." But, sure,
2 I've made off-the-cuff comments.
3 Q. Would it be a major violation of policy for a
4 sworn law enforcement officer or supervising officer to
5 have sexual contact with an informant?
6 A. Yeah.
7 Q. Are you aware of an investigation that was done
8 of Schieno regarding that kind of conduct?
9 A. Oh, 20 years ago.
10 You're really digging deep here, aren't you?
11 Q. I just have a good memory.
12 A. Oh, my heck.
13 Yes, I am.
14 Q. And, in fact, he admitted to it?
15 A. I believe he did. Uh-huh.
16 Q. And do you know what discipline was taken against
18 A. No. That was between -- that was Sheriff --
19 Q. Were you on the --
20 A. I was on the sheriff's -- That was Sheriff
21 Mike Shaffer and Undersheriff Chuck Maxwell, were the
22 administrators at that time.
23 Q. And McCave was investigated for that as well?
24 A. I'm not sure.
25 Q. Okay.
1 A. He was investigated, but I don't know that it was
2 for a sexual thing. I don't know that he was.
3 Q. And he was investigated for the disappearance of
4 an informant?
5 A. Yes.
6 Q. And that followed what you understood to be the
7 manual -- That was like 15 years ago, 18 years ago?
8 A. Okay. Well...
9 Q. And, in fact, the informant turned up deceased?
10 A. Yes.
11 That was investigated by the Bozeman Police
13 Q. That was my question. You guys didn't do an
14 internal --
15 A. No.
16 Q. And is that case still open; do you know?
17 A. No.
18 Q. Did they find the perpetrator?
19 A. It was her boyfriend.
20 Q. And my recent information, and perhaps it's
21 incorrect, is that it's still an open case.
22 A. The --
23 Q. The actual informant.
24 A. The gal? No. No.
25 Q. And the boyfriend wound up deceased as well?
1 A. He did.
2 Q. Is that an open case; do you know?
3 A. I believe that was ruled as a suicide.
4 Q. Okay. Did you ever tell John Smith to stop
5 kicking you in the balls?
6 A. Yep.
7 Q. In fact, a couple of times?
8 A. Yep. I don't think I told him to stop. I told
9 him I knew he was doing it. I don't think I told him to
11 Q. And that's related to these proceedings that he
12 has instituted against the sheriff's office?
13 A. It's just related to everything John and I have
14 been involved in in the last five, six years. It seems
15 like every time we get together, it's oil and vinegar --
16 or oil and water, and it just doesn't mix. And I think --
17 as I mentioned earlier, I think Mr. Smith has a real ax to
18 grind with all the command staff, including myself, in
19 this office and he will do anything he can to -- to show
21 Q. And Officer Smith was, in fact, Officer of the
23 A. Yeah, some time back. Right.
24 Yeah, I don't know what happened to John over the last
25 five or six years, but something has sure soured him.
1 Maybe it's me. I don't know.
2 Q. Would you -- Could it have been the last three
3 years that that attitude has demonstrated itself?
4 A. Could be. Yeah, it could be. Three to five
5 years, sure.
6 MR. KELLY: And I will check my notes and then I
8 Done. Thank you, sir.
9 THE WITNESS: You're welcome, sir.
10 VIDEOGRAPHER: This concludes the Rule 30(b)(6)
11 deposition of Yellowstone County Sheriff's Office,
12 Jay Bell, in the matter of Deputy Sheriff John Smith vs.
13 Yellowstone County, et al. The time is 1:28. It's
14 April 27th, 2010. We're off the record.
15 (A brief discussion was held off the record.)
16 VIDEOGRAPHER: The time is 1:31. We are back on
17 the record. This is the continuation of the Rule
18 30(b)(6), Yellowstone County Sheriff's Office, Jay Bell.
19 Q. (By Mr. Kelly) And I am going to Exhibit 7
20 again --
21 A. Okay.
22 Q. -- the list of major complaints. Was there not a
23 major complaint made against Officer Briese for drug use?
24 A. Yeah. Yeah.
25 Q. And there was an entire investigation of that?
1 A. Right.
2 Q. And, in fact, you found that he had been using
4 A. Correct.
5 Q. And, in fact, the report was from two different
6 detectives that were assigned to it that he had made false
7 statements initially that he was not using steroids during
8 the investigation?
9 A. Don't recall that. I'd have to look at that
10 report, sir. I don't recall the false statement part, I'm
12 Q. Again, we're in this Exhibit 7, and you haven't
13 looked at the documents.
14 A. Yeah, I don't -- Was that prior to '05? Is it
15 not in here?
16 Q. That was in '06.
17 A. Is it in here?
18 Q. It's not in here, and that's why my question was
19 important. I've actually been provided with some
20 documents on that. There's been some testimony from
21 Lieutenant Wilson --
22 A. Okay.
23 Q. -- and Jensen, who --
24 A. Uh-huh. Did the investigation.
25 Q. Right.
1 And what disciplinary action did you take against him?
2 A. First of all, I don't recall the false statement
3 part. I would have to review that or you can provide that
4 with me. The steroid that he was taking at the time, I
5 believe the investigators found that it was a legal
6 substance at the time he was taking it.
7 Q. Okay. And am I correct that it was possible that
8 one of the steroids that he was using had been banned
9 during the year that he admitted to taking it?
10 A. I don't recall.
11 Q. DHEA, in fact, had not been banned yet.
12 A. Okay. One of them was still --
13 Q. One, however, had been banned in the prior year
14 and he had admitted continuing to take it?
15 A. I don't recall.
16 Q. Okay. And do you remember taking any discipline
17 against him?
18 A. I don't recall at this point.
19 Q. So you'd have to review those records.
20 A. Yes, I would.
21 Q. And that's consistent with all of the items
22 listed in Exhibit 7.
23 A. Right.
24 Q. Same rule apply: If you find additional stuff on
25 Briese --
1 A. Sure.
2 Q. But I think I have all of that.
3 MR. GILLEN: Well, we'll make it available to you
4 again to make sure. That's just not a problem.
5 MR. KELLY: Okay. And Briese -- And this is to
6 conclude. I am done with that question. And just for a
7 housekeeping matter, Briese was not included in the major
8 complaints, and I assume you can just send me a letter
9 amending it and adding it?
10 MR. GILLEN: Yeah, that was a mistake, an
11 oversight. However, we'll acknowledge that and --
12 MR. KELLY: Was it intentional?
13 MR. GILLEN: No, sir.
14 MR. KELLY: And that's what I was assuming, and
15 that's why I wanted to get it on the list.
16 MR. GILLEN: Will do.
17 MR. KELLY: And we are completed. Thank you
19 THE WITNESS: You bet.
20 VIDEOGRAPHER: This concludes the Rule 30(b)(6)
21 deposition of the respondent, Yellowstone County Sheriff's
22 Office, Jay Bell. The time is 1:34. We're off the
24 (The videotaped deposition was concluded at 1:34 p.m.)
1 CERTIFICATE OF WITNESS
2 PAGE LINE CORRECTION
14 I hereby certify that this is a true and correct
16 copy of my testimony, together with any changes I have
18 made on this and any subsequent pages hereto.
20 Dated on this day of 2010.
23 JAY BELL, Deponent
25 Subscribed and sworn to before me this
27 day of 2010.
30 NOTARY PUBLIC FOR STATE OF MONTANA
31 Printed Name
32 Residing at
33 My Commission Expires
1 COURT REPORTER'S CERTIFICATE
3 STATE OF MONTANA )
5 COUNTY OF LEWIS AND CLARK )
7 I, CHERYL ROMSA, Court Reporter, Notary Public in
8 and for the County of Lewis and Clark, State of Montana,
9 do hereby certify:
11 That the witness in the foregoing deposition was
12 first duly sworn by me to testify to the truth, the whole
13 truth, and nothing but the truth in the foregoing cause;
14 that the deposition was then taken before me at the time
15 and place herein named; that the deposition was reported
16 by me in shorthand and later transcribed into typewriting;
17 and that the -235- pages contain a true record of the
18 testimony of the witness to the best of my ability.
20 DATED this 17th day of May 2010.
23 CHERYL A. ROMSA