Transcripts - March 19, 2008
1
1 BEFORE THE WEBSTER COUNTY CIVIL SERVICE COMMISSION
2 CURTIS W. RUBY, )
)
3 Appellant, ) TRANSCRIPT
) OF
4 vs. ) PROCEEDINGS
)
5 WEBSTER COUNTY ) VOLUME I
SHERIFF'S DEPARTMENT, )
6 )
Defendant. )
7 ------------------------)
8 The above-entitled matter came on for
hearing before the Webster County Civil Service
9 Commission, commencing at 9:10 a.m., March 19,
2008, at the Law Enforcement Center, 702 First
10 Avenue South, Fort Dodge, Iowa.
11 Commission Members: JANECE VALENTINE
DARREN DRISCOLL
12 BENNETT O'CONNOR
13 A P P E A R A N C E S
14 Plaintiff by: ROXANNE BARTON CONLIN
Attorney at Law
15 Roxanne Conlin & Associates
319 Seventh Street
16 Suite 600
Des Moines, IA 50309
17 (515) 283-1111
18 Defendant by: BRIDGET R. PENICK
Attorney at Law
19 Dickinson, Mackaman, Tyler &
Hagen
20 699 Walnut Street
Suite 1600
21 Des Moines, IA 50309
(515) 244-2600
22
23
24 Reported by: Nancy S. Warren, C.S.R.
25
2
1 I N D E X
2 BRIAN MICKELSON
3
4 Examination by: Page
5 Ms. Penick 54
Ms. Conlin 137
6
7
Exhibit Offered/Admitted
8
A 61
9 A-E 61
F-H 110
10 I-W 61
X 70 71
11
1 148 149
12 23 152 153
26 216 216
13 500 144 144
501 146 146
14 502 188 189
503 188 189
15 506 188 189
519 (Same as A) 170
16 521 (Same as A) 217
528 207 207
17
18
19
20
21
22
23
24
25
3
1 P R O C E E D I N G S
2 MS. VALENTINE: Parties ready?
3 MS. CONLIN: Thank you.
4 We have two motions. The first
5 is the motion to sequester that I filed pursuant
6 to Hearing Procedure Rule 4. I have asked that
7 the witnesses be sequestered. There's been no
8 resistance.
9 MS. PENICK: If I may respond at
10 this time, I expressed to Ms. Conlin last
11 evening just a concern with the sequester
12 request, and perhaps we can work out a way
13 around it.
14 As you know, these kinds of
15 hearings, we don't know who each other is going
16 to be calling as witnesses, and so I'm not
17 certain if there is someone who might be sitting
18 in the audience, I don't even know who they are,
19 would be necessary for a rebuttal witness or for
20 additional testimony, so if we're comfortable
21 handling those as they arise?
22 I mean, I don't want to exclude
23 everybody, you know, the prospect of them being
24 a witness. I just don't know who all is here.
25 MS. CONLIN: My suggestion was
4
1 that we all act in good faith, and if it comes
2 up, we'll work it out.
3 MS. PENICK: Deal with it.
4 MS. CONLIN: I have every
5 confidence that my opponent will act in good
6 faith, and so will I.
7 MS. VALENTINE: And I guess that
8 would be my urging. If you know for sure there
9 is someone in the corner, that you know you are
10 going to call them and have them hidden in
11 disguise, that would probably not be
12 appropriate.
13 However, if there's somebody that
14 comes up, let's just deal with that at the time.
15 So I would say that the motion to
16 sequester is granted.
17 My only caveat to that is, after
18 the witness has testified, any concerns with
19 them remaining in the room?
20 MS. CONLIN: Not at all from me.
21 MS. PENICK: No.
22 MS. CONLIN: Then, having granted
23 the motion to sequester, the appointed authority
24 may have only one person present.
25 MS. VALENTINE: Right.
5
1 MS. CONLIN: And there appear to
2 be two.
3 MS. PENICK: When testimony
4 begins, we will begin with the testimony of one
5 of the officers, and the other one will be the
6 appointed authority present, and when he's done
7 testifying, he'll be --
8 MS. CONLIN: Well, I don't --
9 MS. PENICK: Are you nodding?
10 Well, the prehearing procedure,
11 there should be no issue with him hearing the
12 prehearing procedures.
13 MS. VALENTINE: I don't have a
14 problem with the prehearing procedure.
15 I guess my concern is, is it your
16 intent that you would put one individual on the
17 stand, and another individual be sitting with
18 you at counsel table as the appointed authority
19 then?
20 MS. PENICK: That's correct.
21 Chief Deputy O'Brien will be sitting with
22 me at counsel table the whole hearing.
23 Sheriff Mickelson will be the first witness.
24 MS. VALENTINE: Ms. Conlin, do
25 you have any response to that?
6
1 MS. CONLIN: No. Well, there can
2 only be one appointed authority.
3 MS. PENICK: That's correct.
4 MS. CONLIN: And so that's all
5 right with me.
6 MS. VALENTINE: Okay.
7 MS. CONLIN: I would prefer that
8 neither of these two witnesses hear the
9 testimony of the other.
10 MS. VALENTINE: So what she's
11 proposing isn't acceptable?
12 MS. CONLIN: No, no, no. It is
13 not acceptable because the idea of
14 sequestration --
15 MS. VALENTINE: Yeah.
16 MS. CONLIN: -- is to assure that
17 the testimony of each witness is that witness'
18 sole and only testimony, and not colored in any
19 way by the -- by the testimony of any other
20 witness.
21 MS. PENICK: Well, I believe the
22 response was there should be one -- Can I
23 respond?
24 I think the response is that
25 there should be one appointed official as the
7
1 designated, you know, person on behalf of the
2 authority, and that is Chief Deputy O'Brien, and
3 to make him go out of the room during various
4 bits of testimony, that's contrary to the rule
5 that says we can have him present.
6 MS. VALENTINE: Are you planning
7 on having Deputy O'Brien testify?
8 MS. PENICK: Yes.
9 MS. VALENTINE: Then I guess --
10 MS. PENICK: And Officer Ruby is
11 going to be testifying as well. I mean, he's
12 going to be sitting here hearing everything,
13 during everyone.
14 MS. VALENTINE: Correct, but
15 there's only one Mr. Ruby.
16 MS. PENICK: Right.
17 MS. VALENTINE: And we have two
18 appointed officials, essentially, and the whole
19 point of sequestration is to make sure that
20 testimony isn't tainted.
21 I guess my concern would be, if
22 you plan on having Sheriff Mickelson testify
23 first, that he would be the appointed authority,
24 he is in the room, and we sequester
25 Deputy O'Brien.
8
1 MS. PENICK: That's not how I've
2 done any hearing or trial that I've been in with
3 witnesses being sequestered. He is the
4 appointed authority for the purposes -- He's the
5 designated person under the rule, Rule --
6 MR. DRISCOLL: Bridget, if I
7 could, Deputy O'Brien is going to be your
8 representative throughout, Sheriff Mickelson
9 isn't?
10 MS. PENICK: That's correct.
11 MR. DRISCOLL: Okay. If that's
12 the case --
13 MS. VALENTINE: But he's still
14 going to be testifying.
15 MS. PENICK: How is that
16 different from Officer Ruby testifying as well?
17 MR. DRISCOLL: If they're not
18 going to have Sheriff Mickelson sitting
19 throughout the appointed authority --
20 MS. VALENTINE: So when
21 Deputy O'Brien is testifying, Sheriff Mickelson
22 will be removed from the room?
23 MS. PENICK: Correct. He'll be
24 testifying, and he'll be gone.
25 MS. VALENTINE: Would that be
9
1 agreeable, if when Deputy O'Brien is testifying,
2 if Sheriff Mickelson is removed from the room?
3 MS. CONLIN: As I understand it,
4 however, Sheriff Mickelson is testifying first.
5 MS. VALENTINE: Correct.
6 MS. PENICK: That is correct.
7 MS. CONLIN: So I would like
8 Chief Deputy O'Brien not to be present when the
9 sheriff testifies. That would be my request.
10 MS. PENICK: And I don't think
11 that's consistent.
12 MS. VALENTINE: Is that a
13 specific rule that you're --
14 MS. PENICK: That I'm referring
15 to?
16 MS. VALENTINE: Yes.
17 MS. PENICK: They say that either
18 party -- well, Rule 4, either party may request
19 the witnesses be sequestered. The appellant
20 and the appointed authority -- I skipped a
21 sentence -- or his or her designated
22 representative shall be permitted to be present
23 during the entire proceedings.
24 And Chief Deputy O'Brien is the
25 designated representative. He's entitled to be
10
1 here during the entire proceedings.
2 MS. VALENTINE: Well, I guess
3 that's what the rule says.
4 Okay. Based upon the rules that
5 we're proceeding under, it appears we will allow
6 for the testimony of the sheriff to take place,
7 and Deputy O'Brien will be your designated
8 representative of the appointed authority.
9 Further motions that we have to
10 take up?
11 MS. CONLIN: Do you have your
12 motion to quash?
13 MS. VALENTINE: You have the
14 motion to quash?
15 MS. PENICK: I do have the motion
16 to quash, and you have a motion -- There were
17 actually two motions to quash because there were
18 two subpoenas that were issued. I'm not sure --
19 There have been a flurry of E-mails in the last
20 few days.
21 There were two motions to quash
22 on the subpoenas issued to the sheriff to
23 produce various -- I think the first one
24 contained 25 items that were requested, the
25 second contained five or six. I E-mailed the
11
1 two motions to quash.
2 MS. VALENTINE: I didn't get that
3 one.
4 MS. PENICK: Do you need a
5 moment?
6 They have the subpoenas attached
7 to the back, just for ease of reference.
8 MS. CONLIN: I have an extra
9 copy.
10 MS. VALENTINE: It's all right.
11 We've got it. Proceed.
12 MS. PENICK: Well, you know, I
13 filed the motion with argument and citation, and
14 you have those, and if you'd like me to go
15 through that, I can, but, basically, the rules
16 are very clear here. This is not a case in
17 which the rules of civil procedure apply. This
18 is an informal hearing before the commission.
19 I think the rules that the
20 commission adopted emphasize the fact that --
21 the informal nature of the hearing and the
22 brevity that should be involved, and Rule 14
23 specifically provides that prehearing discovery
24 is not permitted, and that's exactly what the
25 subpoena is for, is trying to get discovery of
12
1 documents to prepare for a trial.
2 I've not served any discovery.
3 We have been able to amicably
4 exchange large numbers of documents, but the
5 requests, some of them, as you'll see in the
6 itemized responses, have already been given, or
7 the response is there are no such documents.
8 The ones I'm more concerned
9 about, however, are documents, you know,
10 requests for documents, two years' worth of
11 daily activity logs, two years' worth of
12 attendance records.
13 That requires -- you know, in the
14 court rule, it would be unduly burdensome and
15 not tending to lead to the production of
16 admissible evidence. We don't even have those
17 rules applying here, and so those are the main
18 reasons that I object to the production of the
19 items that are listed in both motions.
20 One was filed March 17th and one
21 filed March 18th in response to the two
22 different subpoenas duces tecum.
23 MS. VALENTINE: Ms. Conlin?
24 MS. CONLIN: Thank you.
25 As I understand it, the
13
1 employer's principal argument is that the
2 subpoenas should be quashed because they are an
3 attempt to do discovery. That, of course, is
4 precluded by case law, as well as the
5 commission's rule, but the commission can issue
6 subpoenas duces tecum. There would be no reason
7 for having that authority in the commission if
8 you couldn't actually do that.
9 This is not about discovery.
10 This is about getting the evidence that I need
11 to defend my client from these charges, and the
12 evidence that I need, they've got.
13 This is a proceeding that will be
14 preclusive on any further matters involving this
15 discharge.
16 Because of that, I believe that I
17 should have the opportunity to present to the
18 commission the evidence that I need to have.
19 The basis for my subpoena is not 80F.
20 The basis is what I need to have
21 to prove my case, so the commission can learn
22 all the facts that it needs to know in order to
23 make a decision. Just based on common sense,
24 as I view it, we need to know -- and they do
25 know -- They cannot just give us, as they have,
14
1 what supports the sheriff's decision. That's
2 what they have given us.
3 They have said repeatedly, "Well,
4 maybe we have it, and if we do, the sheriff
5 didn't rely on it, and, therefore, you can't
6 have it."
7 If there is an E-mail -- and I
8 don't think there is, but let us assume for
9 hypothetical purposes that there's an E-mail
10 someplace where the sheriff says, or a memo,
11 "Let's fire Curt because he's running against
12 me."
13 That would not support his
14 decision, but I sure as heck would be entitled
15 to see that, and that's the kind of situation
16 that we face.
17 Let me go through, if I may very
18 quickly, the ones that are in question.
19 I asked for the daily reports for
20 Curt, and I asked for those daily reports --
21 There's a daily log that each officer turns in
22 at the conclusion of his or her shift.
23 My client has been accused of
24 neglect of duty, not backing people up, not
25 doing what he's supposed to do. I think that
15
1 having the daily activity logs for the period in
2 question -- and I'm going to narrow it to
3 January 1. There's one incident that is charged
4 that is December 5th of 2005. The remaining
5 ones that are charged are in 2006 and 2007, so
6 those -- I would like to have daily activity
7 records for Curt Ruby from January 1 until the
8 date of his -- January 1, 2006, until the date
9 of his discharge on December 13th of 2007.
10 That's request number 1.
11 Request number 3 asks for the
12 schedules. One of the complaints is that
13 Deputy Ruby left only one person on a shift.
14 That has happened before. I don't know when,
15 but I know -- I'm reliably informed that this is
16 not the first time it happened, and nobody got
17 in trouble in the other times.
18 The daily schedule and the
19 attendance sheets, it's one piece of paper for
20 each month, so what I'm asking for here is 48 --
21 no, no -- a total of 48 pieces of paper. I
22 shouldn't try to do math in my head. 12 for
23 2006 that are attendance sheets, and 12 that are
24 schedules in 2006, 12 months of 2007 for
25 schedules, and 12 -- I think that is 48.
16
1 MS. VALENTINE: 48.
2 MS. CONLIN: Okay. That's what
3 I'm asking for, 48 pieces of paper.
4 I have asked in request 4 for
5 E-mails, and here is -- The response was, "None
6 relating to the decision."
7 That's not what I asked for. I
8 asked for E-mails relating to Curt Ruby. I'm
9 not sure this is a department that uses much
10 E-mail, but, again, I gave you the example
11 earlier. I just do not believe that the sheriff
12 can retain documents because they did not relate
13 to his decision. In other words, whatever we
14 might have, the sheriff's office might have that
15 doesn't relate to the decision, they say they
16 don't have to give us. I don't think that can
17 be the law.
18 5, I asked for audio and
19 videotapes, and, again, I'm told, "None that
20 support the decision."
21 Well, I want to see the ones that
22 don't support the decision. That's what I would
23 like to see.
24 I can narrow that. I understand
25 that the sheriff's office tapes, you know,
17
1 interactions with citizens as a general rule.
2 Knowing that, I think that this is too broad a
3 request, so I want to narrow that request for
4 the tapes for the dates mentioned in the charge.
5 I have asked in number 7 for
6 police tapes. The reason for that is on
7 December 5th, 2005, when -- when Deputy Ruby got
8 into a fierce struggle with Tony Thompson --
9 Tony Thompson was arrested and put in
10 Deputy Ruby's squad car.
11 As Deputy Ruby drove him from
12 Moorland to the law enforcement center, he was
13 screaming obnoxious threats, "Cut you up," "Kill
14 you, kill your wife," stuff like that.
15 Curt asked the dispatcher to
16 record that, and it would -- The guy was charged
17 with harassment of Deputy Ruby, so that would be
18 evidence in a criminal case. Somehow I'm told
19 that this tape has disappeared, and I would like
20 them to look again.
21 Number 8 is the attendance sheets
22 that we've already discussed.
23 Number 11 is the police file for
24 Thompson. This is a charge. It is charge
25 number 1. I have no piece of paper for that,
18
1 none. I don't have even the police file.
2 Number 17 are -- asks for the
3 police file for the search warrants that are at
4 issue, and this has to do with a September 8th
5 incident, which is the subject of no fewer than
6 four charges. Number 4, number 5, number 6, and
7 number 7 all relate to this September 8th, 2006
8 search warrant.
9 I do not have the search warrant.
10 I do not have the police report. I do not have
11 the daily activity logs for all of the officers
12 involved in that search warrant.
13 When did it start? That would be
14 one of the issues that we would -- one of the
15 things that we would like to determine.
16 Also, the defendants rely on an
17 exhibit that is a supplement for that report.
18 It is Defendant's Exhibit K. It is a statement
19 by Deputy Halligan. If they can put the
20 supplement to the report in, I ought to be able
21 to have the report.
22 Number 20 has to do with
23 charge 18, and that is a response to a suicide
24 call. The answer that I received to my request
25 was, "No documents relied on by the sheriff."
19
1 Is that because the documents
2 that exist belie the accusation made against
3 Curt Ruby?
4 What do the activity logs say?
5 What does the report at the time say? What are
6 the contemporaneous records?
7 Nobody ever talked to him about
8 this until on the day he was fired, so we would
9 like to see that. That's on December 13th of
10 2007.
11 And the one I just filed, I
12 unfortunately did not number those paragraphs,
13 and I apologize for that, but one of those
14 paragraphs asks for the -- the two -- just two
15 months of the activity reports, and the reason I
16 want those is, in number 17, charge number 17,
17 he is accused of getting his spotlight fixed
18 without permission. The traditional way to ask
19 for permission is to write it on the top of your
20 activity log. That's why I want those. I asked
21 to look at some of those.
22 18, again, is that suicide call,
23 and I asked specifically in this -- in this
24 second report for people that I know were there.
25 I asked for specific people's activity logs for
20
1 these dates because I know that they were there.
2 What I -- My broader request is
3 for everything having to do with it, and I'm
4 told, again, you didn't rely on it, and, again,
5 that's why I want to see them.
6 I asked for activity logs for
7 every officer. This is not -- I'm not asking
8 for 500 officers here -- for four days in
9 February. That is on a credibility issue that I
10 prefer not to discuss at this time. I can
11 connect it up, as we sometimes say, and then I
12 ask, as I indicated, for the activity logs.
13 So those are the things that I
14 request.
15 On the issue of burdensomeness,
16 on December 17th of 2007, a few days after he
17 was fired, Curt sent a letter to the sheriff
18 saying, "Give me everything that supports --
19 everything that -- about these various things."
20 I asked about February 19th for
21 the first set, and quite recently for the
22 second, so it's not as though they have not had
23 a great plenty of notice to gather this stuff
24 up. And if they didn't do it, I'm sure that
25 they can -- I'm sure that it would be possible
21
1 for them to do it now.
2 I also specifically asked that
3 the sheriff arrive today with the materials in
4 the event that the commission does not quash
5 these properly issued, properly served
6 subpoenas.
7 MS. PENICK: Can I respond?
8 MS. VALENTINE: Yes, you may.
9 MS. PENICK: I think there seems
10 to be a difference between the rules for the
11 hearing today. I'm relying on your rule 8, "The
12 Commission shall hear the evidence upon the
13 charge and specifications as filed by the
14 appointed authority."
15 My understanding of that rule is
16 the issues identified in the charge are the
17 issues to be heard.
18 To the extent that the appellant
19 has evidence to contradict or rebut those
20 issues, he can bring that evidence, and he can
21 present that, but nothing that I see in the
22 rules requires the sheriff to produce documents
23 for the last two years, and on many levels --
24 and I apologize. I'm going to kind of have to
25 flip back and forth.
22
1 I've heard the limitation, I
2 think, today or a narrowing of these requests --
3 Okay. Sorry about that.
4 And some of these things, as you
5 can see, I gave a detailed response as to why
6 some of them just don't exist.
7 There was an inaccurate
8 characterization or perhaps misunderstanding
9 about the police tapes, and maybe that was me
10 not understanding the cop language for the Tony
11 Thompson incident December 5th, the request
12 number 7.
13 "Police tapes," I took that to
14 mean in-car video tapes. That is -- that was
15 discovered missing shortly after the incident,
16 before any of this issue came up. I did not
17 understand that to be a request for dispatch or
18 radio recordings.
19 In any event, similar objection
20 would -- would be in place. It's not about what
21 was said, what happened during the transport.
22 It's what happened when Mr. Ruby got out of that
23 car and the way that he conducted himself in
24 front of his colleagues, the jail staff, police
25 officers.
23
1 And that's similar -- I mean,
2 those are the issues of the search warrant
3 September 8th. The commission, I would assume,
4 does not care to go down the list of hundreds of
5 items that were seized from a particular
6 residence. There's no suggestion that --
7 that Officer Ruby handled the warrant
8 properly or improperly. It was he was to be
9 stationed outside the house and secure the
10 residence.
11 So what happened inside the
12 residence, the reason for the search warrant,
13 the arrest records, the charges against the
14 individual who lived in or was using the
15 residence, that's not -- that's not something
16 for the commission to spend its time hearing or
17 to be considered at this matter.
18 And those are the -- That's the
19 rationale and the basis for the objections for
20 the particular events. I mean, I can go through
21 some of those more specific ones as well, but I
22 did that in the brief, and so if you would like
23 me to go one by one, I can.
24 I did just hear a reference that
25 Officer Ruby had requested these records back on
24
1 December 17th, 2007. That's marked as
2 Plaintiff's Exhibit 25. What he requested were
3 a formal investigative report and results,
4 including witness statements, any disciplinary
5 action taken, and specifics about allegations
6 listed in the notice of violations. He asked
7 for the documents the sheriff relied upon in
8 making the decision.
9 That's what we've given, that's
10 what we maintain we are -- we are not
11 necessarily obligated to give him because we
12 don't think that this Iowa Code 80F provides,
13 but that's the framework in which we are
14 operating.
15 Opposing counsel did request to
16 order the sheriff to show up today with the
17 documents. We received no such order. We did
18 not do that.
19 Part of the reason we're
20 objecting is the sheer volume of combing through
21 these things and pulling them. I guess it's our
22 argument, to have them go do that, and then say,
23 "Oh, sorry, it was too hard to do."
24 So if that -- if you are inclined
25 to grant this motion and to ask for documents to
25
1 be retrieved, we'll tell you, and you'll hear in
2 the testimony, that Chief Deputy O'Brien is the
3 keeper of records, and he would be the one who
4 maintains those records and has access to those,
5 and so if we need to go get those, we're going
6 to have to ask for a recess to have those
7 gathered.
8 MS. CONLIN: May I make a very
9 brief response?
10 MS. VALENTINE: You may.
11 MS. CONLIN: Thank you.
12 I think that what Ms. Penick has
13 argued underlines my problem here. Here is what
14 she said: If appellant has evidence, he can
15 bring it.
16 He doesn't have the evidence he
17 needs. This is like every other employment
18 case. The employer has got all the documents,
19 and that's why, you know, in a standard
20 employment case, we would have access to them
21 through discovery.
22 We have the subpoena duces tecum
23 properly issued by the commission, and that is
24 what we relied on.
25 Let me say another word about the
26
1 police tape for December 5th and other material
2 with respect to it.
3 The employer focuses on what
4 happened when Deputy Ruby arrived here with this
5 giant guy that he had fought with for -- quite
6 extensively for quite some time, and after he
7 got him in the car, he screamed at him the whole
8 way back.
9 First, there's a fight,
10 generating adrenaline, and then besides the
11 fight, the guy is saying, "I'm going to kill
12 your wife."
13 And so the question is, why would
14 he behave in an uncharacteristic way when he
15 gets here to the LEC? That's the question, and
16 the answer is in the tape that may or may not
17 exist at this point.
18 There is lots of language from
19 the sheriff about that he was -- that he was not
20 his usual calm self. There's lots -- in lots of
21 different documents.
22 In fact, when they refer him for
23 what I believe to be a very illegal fitness-for-
24 duty examination, one of the things that's
25 relied on, once again, is this December 5th
27
1 incident, so, certainly, it is fair for us to
2 have the tape, to present evidence about why he
3 might have been just a little bit upset when he
4 got here.
5 I'm not relying on 80F. I said
6 that in my brief, and I say it again now.
7 The sheer volume, really, it
8 isn't that much, and I have a right to those
9 things. He can get them over the lunch hour. I
10 don't want this hearing continued. That's why I
11 said bring them in the first place.
12 MS. PENICK: I have one more
13 response --
14 MS. VALENTINE: Briefly.
15 MS. PENICK: -- I want to give.
16 I mean, Ms. Conlin mentioned this
17 is like every other employment case, but this
18 isn't like every other employment case. This
19 isn't a court of law, this isn't a civil
20 proceeding.
21 I'm used to having cases in
22 court, I'm used to full discovery. I understand
23 the discomfort. I'm not real comfortable with
24 not knowing what witnesses are going to be
25 brought up. This isn't under the rules of civil
28
1 procedure. This isn't how -- this isn't a case
2 that has proceeded like court cases. This is
3 akin to -- I don't know if you've experienced
4 NLRB hearings where you literally don't know
5 who's going to be there until they walk through
6 the door.
7 This is a different kind of
8 proceedings, and the rules that you've enacted
9 apply, and I'm referring back to the rule that
10 says the evidence is going to be on the charge
11 and specifications. That -- this is to be a
12 hearing that's brief and informal. That's what
13 the rules require.
14 MS. VALENTINE: Ms. Penick --
15 MS. PENICK: Yes.
16 MS. VALENTINE: -- my biggest
17 concern, to start with, is the subpoena has not
18 been quashed at this point, and the subpoena is
19 a duces tecum that says you're required to bring
20 the following books and papers with you to the
21 time, and it's my understanding that's not been
22 done.
23 MS. PENICK: That's correct.
24 My understanding from
25 Commissioner Driscoll's E-mail is that hearings
29
1 on any motions would be handled at the time of
2 this hearing.
3 Often, there are hearings on
4 motions prior to the actual hearing taking place
5 if we're in court. We didn't have that
6 opportunity. I understand that Ms. Conlin
7 requested a brief hearing on that, and it was
8 decided by the commissioners to handle it in
9 this way.
10 MS. VALENTINE: Aside from the
11 fact that the motion wouldn't be heard until
12 today, that doesn't distinguish the
13 responsibility of the subpoena. Would you
14 agree?
15 MS. PENICK: Well, I think this
16 is a unique situation. The documents, if they
17 are, they're upstairs, they're accessible.
18 They're, in essence, here. They are just not
19 compiled in the way they're requested. They're
20 here. They're just not readily able to be
21 handed over.
22 MS. VALENTINE: Well, and as I
23 understand it from your discussion, Ms. Conlin,
24 you've narrowed your original list somewhat.
25 MS. CONLIN: I have.
30
1 MS. VALENTINE: And are the items
2 that you listed the only items that are of
3 concern to you at this point in time?
4 MS. CONLIN: Yes.
5 MS. VALENTINE: I believe it's
6 the commission's opinion that, you know, this is
7 kind of a loosey-goosey proceeding in some ways.
8 Whether this information is relevant or not and
9 the weight to be given to that evidence can be
10 determined by the commission upon receipt, but I
11 think the information is fair game for Mr. Ruby
12 and his counsel to receive that information.
13 I guess what I would wonder is,
14 can we proceed with testimony and allow for
15 gathering of that information during a break, or
16 how would the parties suggest --
17 MR. DRISCOLL: Ms. Conlin
18 suggested during the lunch hour.
19 MS. VALENTINE: Would that work
20 for both parties?
21 MS. PENICK: I'm not certain the
22 lunch hour, to facilitate taking lunch and
23 getting the -- It may be an extended lunch hour.
24 MS. VALENTINE: That would be
25 fine.
31
1 MS. PENICK: I just don't know
2 how difficult --
3 MS. VALENTINE: We can do an
4 extended lunch. I guess I just don't want to
5 put things in abeyance if we can proceed with
6 testimony, but I don't want to compromise either
7 case if we proceed with testimony.
8 MS. PENICK: Can we then go back?
9 I've got on the first subpoena, they were
10 numbered --
11 MS. VALENTINE: What I have
12 is 1 -- and if I misstate something, please let
13 me know.
14 MS. CONLIN: Yes.
15 MS. VALENTINE: 1, the daily
16 reports, and the time frame is from January 1,
17 2006, to 12-13-2007.
18 The schedules for 2006 and 2007,
19 which is request number 3.
20 I'll try and do the numbers first
21 to help you.
22 Request 4 is E-mails solely
23 related to Curt Ruby.
24 MS. PENICK: Are you talking
25 about, you know, "We're having a potluck," and
32
1 it's sent to Curt Ruby or what -- scanning
2 E-mails, you know, in discovery is a very
3 burdensome task.
4 MS. VALENTINE: I would suggest
5 they can be limited to E-mails dealing with
6 anything substantive with Curt Ruby and his work
7 or work performance or lack thereof.
8 MS. PENICK: Okay.
9 Is there a time -- I'm sorry. Is
10 there a time frame here?
11 MS. VALENTINE: I did not hear a
12 time frame, but I would suggest that would be
13 appropriate to limit the time frame.
14 MS. CONLIN: From December --
15 let's say December 1st -- or December 5th, which
16 is the date of the first charge, December 5th,
17 2005, until his discharge on December 13th,
18 2007.
19 MS. VALENTINE: Okay.
20 MS. PENICK: And it says, "from
21 anyone associated with the sheriff's office."
22 I mean, that would involve
23 reserve deputies, their E-mail access. How are
24 we to do this?
25 MS. VALENTINE: I would say these
33
1 are department access E-mails, and would it be
2 possible to limit further any E-mails sent by or
3 to the appointed authority? Would it --
4 MS. CONLIN: But it should
5 include the conduct of reserve deputies because
6 the conduct of reserve deputies is relevant, or
7 their availability.
8 MS. VALENTINE: I think it's
9 whatever the sheriff has access to.
10 MS. CONLIN: Yes, yes, yes.
11 MS. VALENTINE: If somebody wrote
12 a personal E-mail about Curt Ruby to some other
13 personal reserve, we don't care about that.
14 MS. PENICK: Are we talking the
15 sheriff's E-mail account then? Is that --
16 MS. CONLIN: How about if we
17 narrow that to the materials sent or received by
18 the sheriff or materials sent or received by the
19 chief deputy? I think that will make all of our
20 tasks easier.
21 MS. VALENTINE: Thank you. That
22 was my hope.
23 Request 5 is the audiovisual
24 tapes narrowed only to the dates mentioned in
25 the charges.
34
1 Request 7 is the police tape
2 for 12-5-05.
3 MS. CONLIN: And, again, what I'm
4 looking for there is the threats, which I
5 believe are on the dispatch tape.
6 MS. PENICK: We're talking
7 dispatch tape?
8 MS. CONLIN: Right.
9 MS. PENICK: And what is 5? All
10 audio, videotapes?
11 MS. VALENTINE: From the dates
12 mentioned in the charges.
13 MS. PENICK: So are we talking
14 in-car cameras as well?
15 All right. I'm not certain that
16 those are even on-site, to be honest, so I'm not
17 sure that those are readily retrievable today
18 while we're doing this hearing.
19 MS. VALENTINE: Do what you can,
20 and we'll deal with it.
21 MS. PENICK: All right.
22 MS. VALENTINE: And request 8 was
23 attendance sheets. I didn't catch if there was
24 a time limit there, or a time frame.
25 MS. CONLIN: Yes. I narrowed
35
1 that from January 1 of 2006 to December 13th of
2 2007.
3 MS. VALENTINE: Okay. And just
4 for Curt Ruby?
5 MS. CONLIN: Well, they're all --
6 Everybody is on one sheet of paper.
7 MS. VALENTINE: Is that different
8 than request 3, the schedules?
9 MS. CONLIN: The schedules are
10 one piece of paper, the attendance sheets are
11 another piece of paper.
12 MS. VALENTINE: Is there
13 something separate about attendance sheets
14 versus schedules?
15 MS. CONLIN: Yes.
16 MS. PENICK: I think my client is
17 puzzling here. He's not getting the difference.
18 MS. CONLIN: Let me see if I can
19 help.
20 MS. PENICK: You mean like the
21 blank one is the schedule, and the filled-in is
22 the --
23 MS. CONLIN: Yes. It's like the
24 first of the exhibits that you gave me, was the
25 schedule.
36
1 MS. PENICK: That's right.
2 MS. CONLIN: And the second that
3 you gave me for your exhibit would be the -- It
4 was E, and the first one, the first E was the
5 schedule, and the second E is the attendance
6 sheet.
7 MS. PENICK: Okay.
8 MS. VALENTINE: Okay.
9 Request 11 is the police file on
10 the Tony Thompson case.
11 Request 17 is the search warrant
12 involved on September 8th of 2006.
13 MS. CONLIN: The police file.
14 MS. VALENTINE: Is that the
15 police file?
16 MS. CONLIN: And the search
17 warrants are presumably in that.
18 MS. VALENTINE: Request 20 -- I
19 guess I'm not quite sure what information was
20 sought, but it's -- I have down it's the suicide
21 call of November 13th, '07.
22 MS. CONLIN: There are two
23 requests that relate to that suicide call. The
24 one -- No, I'm sorry. There is only this one
25 request, and what I've asked for are the -- you
37
1 know, the activity logs for the people who were
2 there, and the -- and there has got to be
3 reports and memos, and they don't go out on a
4 call, particularly like this, I wouldn't
5 imagine, without there being something in a
6 police file about it.
7 MS. VALENTINE: Okay.
8 So is that the same in your
9 unnumbered paragraph later, the activity logs
10 for all people involved with the suicide call?
11 MS. CONLIN: No.
12 MS. VALENTINE: They're separate?
13 MS. CONLIN: I think I may have
14 misspoken with that. I do not yet quite have
15 all of this stored in my head.
16 The one that -- where I asked for
17 specific people that I knew were there has to do
18 with a search warrant, but you granted my
19 request with respect to the search warrant, so
20 that's kind of moot.
21 MS. VALENTINE: All right.
22 And then two months of activity
23 reports -- or yes -- for Curt Ruby due to the
24 charge relating to the spotlight repair.
25 MS. CONLIN: Right.
38
1 MS. PENICK: I don't see that
2 referenced in your subpoena. Can you tell me
3 which paragraph that is?
4 MS. CONLIN: Yes.
5 MS. PENICK: Yes. I don't see
6 that in the subpoena.
7 MS. CONLIN: It is the first of
8 the -- Let me -- That's -- Activity logs for all
9 deputies for 11-13-07 is the suicide call, so
10 that one is moot.
11 Okay. It is number 2 of the
12 first issued subpoena. It's number 2 of the
13 first issued subpoena where I asked for all of
14 Curt's daily activity reports from January 1 of
15 2005 to December 31st of 2007. I have narrowed
16 that to ask for -- I think in my narrowing I
17 asked for March of 2006, and I think it was
18 September of 2006, those being months in
19 which -- in which charged conduct allegedly
20 occurred.
21 MS. PENICK: I just want to be
22 clear.
23 2, I thought you had limited
24 January 1, 2006, to December 13th, 2007. Are
25 you further narrowing that?
39
1 MS. CONLIN: No.
2 MS. PENICK: That would be fine
3 with me.
4 MS. CONLIN: No. I'm sorry to be
5 confused. I have not. I should have made more
6 notes. Yeah. January 1, 2006, to December 13th
7 of 2007.
8 MS. PENICK: Is there anything
9 left on the unnumbered subpoena, I guess?
10 MS. VALENTINE: The activity logs
11 for all officers for four days in February,
12 and do you know which four days those are,
13 Ms. Conlin?
14 MS. CONLIN: Yes. I gave them to
15 her.
16 February 22nd, I think, or
17 February 21st to --
18 MS. PENICK: But I don't even --
19 Is this for some credibility surprise that's
20 going to be sprung during this hearing, and I'm
21 not entitled to evidence as to what that might
22 be? I find that's a little unfair.
23 MS. VALENTINE: That's, I guess,
24 part of this process, and it is a subpoena duces
25 tecum where the evidence is fair game.
40
1 MS. PENICK: Well, you have the
2 availability to quash that if there's no -- if
3 it's not deemed appropriate in the order.
4 MS. VALENTINE: If we find it
5 irrelevant, we'll give it the appropriate
6 weight, but at this point in time, we don't know
7 if it's irrelevant.
8 MS. PENICK: Right.
9 MS. VALENTINE: So --
10 MS. CONLIN: That's the only -- I
11 think -- Yes.
12 MS. VALENTINE: So do you have
13 the exact dates, Ms. Conlin?
14 MS. CONLIN: Yes. February 21st
15 to February 24th of 2007.
16 MS. PENICK: That's the only item
17 on the unnumbered paragraph?
18 MS. CONLIN: Yes. Everything
19 else seems to be subsumed in others.
20 MS. VALENTINE: All right.
21 Are there any other further
22 prehearing matters that we need to take up?
23 MS. CONLIN: Not from us.
24 MS. VALENTINE: Ms. Penick?
25 MS. PENICK: There were some
41
1 concerns about exhibits. Did you want to talk
2 about your concerns with exhibits at this point
3 or --
4 MS. CONLIN: We can do that.
5 MS. PENICK: -- or as we go?
6 MS. VALENTINE: That's the
7 question. Are there going to be objections to
8 certain exhibits?
9 MS. CONLIN: Yes.
10 MS. VALENTINE: Okay.
11 Are they going to be objections
12 that are going to be dealt with in the
13 overreaching case or with specific witnesses?
14 MS. CONLIN: When the exhibits
15 come up or the discussion comes up. I dealt
16 with it in my trial brief, the section on the
17 MMPIs.
18 MS. VALENTINE: Okay.
19 MS. CONLIN: Those are the only
20 exhibits to which I will have objection. I do
21 not have any objections to any of the other
22 exhibits to the defendant.
23 MS. VALENTINE: All right.
24 MS. CONLIN: And I don't have any
25 objections to my own exhibits either.
42
1 (An off-the-record discussion
2 was held.)
3 MS. VALENTINE: The commission
4 had a brief discussion, and we're of the opinion
5 that perhaps it would be best to address the
6 exhibit that's at issue when it comes up, and
7 the likelihood is we will do an in camera review
8 based on the fact that this is an open public
9 hearing, and we are sensitive to privacy
10 concerns. We don't want there to be any undue
11 disclosure, so we will probably address that if
12 and when that exhibit or exhibits are offered,
13 just so the parties are aware how that will
14 probably be handled.
15 MS. PENICK: That's for any
16 exhibits?
17 I mean, I will have -- and I
18 suppose I can make a record of this at this
19 point, and then I'll assume you'll tell me to do
20 this as they come up -- general objections to a
21 number of exhibits relating to issues such as
22 accolades for going to New York on
23 September 11th, photos of September 11th,
24 generally, I say the feel-good or the -- you
25 know, the accolades or other comments, notes
43
1 from articles. "History of Tae Kwon Do and
2 Korea" is Exhibit 17.
3 I mean, I see those as far
4 removed from the issue that's at hand before the
5 commission. If you'd like me to take those up
6 individually as they arise, I can do that.
7 MS. VALENTINE: And we can do
8 that individually. I guess what I would
9 suggest -- and maybe this is the appropriate
10 time to remind both parties we've alluded to the
11 fact the rules of civil procedure are pretty
12 much moot, so to conserve the court reporter's
13 fingers, I would remind you that hearsay
14 objections probably aren't going to make the day
15 here. It will go to the weight of the evidence
16 and like matters, and including -- I want both
17 parties to feel like they can preserve their
18 record as they see fit, but in this type of
19 proceeding, information that's going to come in
20 is going to be sifted and judged according to
21 the weight to be given to it, but I don't want
22 that to discourage the parties from preserving
23 your record.
24 MS. CONLIN: Thank you.
25 MS. VALENTINE: With that being
44
1 said, again, please keep in mind it is a loose
2 proceeding.
3 Any other prehearing matters?
4 MS. PENICK: One other thing I
5 just noticed is there are some blowups and
6 there's some equipment. I'd ask to know if it
7 be used, if I'd have the opportunity, for
8 instance, to use the Elmo, if you'd --
9 MS. CONLIN: Oh, absolutely.
10 MS. PENICK: I'm not sure how
11 uncomfortable it's going to be, and I don't want
12 to block the view of your staff, but we'll see.
13 MS. CONLIN: And we can do -- We
14 tried other ways to do it without success, but
15 you absolutely may use it.
16 But don't write on my calendars.
17 MS. VALENTINE: As this point in
18 time, then, if there are witnesses in the room,
19 I would ask that they leave.
20 (No response.)
21 MS. VALENTINE: Well, that was
22 rousing. Okay.
23 Are we ready, then, to begin with
24 testimony?
25 MS. CONLIN: You gave us 10
45
1 minutes each for our opening statement.
2 MS. VALENTINE: All right. I'm
3 just jumping to the good stuff.
4 MS. CONLIN: Yeah.
5 MS. VALENTINE: Would the parties
6 like opening statements?
7 MS. PENICK: I'd be willing to
8 waive that, but if opposing counsel wants an
9 opportunity, then, of course, I'd take mine.
10 MS. CONLIN: Oh, yes, I do.
11 MS. VALENTINE: Okay.
12 As the rules require, you are
13 limited to 10 minutes, and we will be timing
14 you, so if you want a 5-minute signal, I'd be
15 happy to provide that, or however it's most
16 comfortable for you.
17 MS. CONLIN: I would request
18 a 5-minute signal and a 1-minute signal.
19 MS. VALENTINE: Okay.
20 MS. CONLIN: And that Nancy might
21 take a really deep breath.
22 Did you all meet Nancy Warren?
23 MS. VALENTINE: Yes, thank you.
24 Proceed.
25 MS. PENICK: Thank you,
46
1 Commissioners. My name is Bridget Penick, and
2 I'm the attorney representing Webster County
3 Sheriff's Office in this matter.
4 As is public in the record,
5 Officer Sergeant Curt Ruby was given a notice of
6 discharge on December 13th, 2007. He's appealed
7 that decision, or that notice, and it's not
8 going to take final effect until the commission
9 takes action on it, and that's the purpose of
10 this hearing today.
11 I make some of these remarks for
12 the benefit of the public, as I know the
13 commission is well-versed in what the rules and
14 the proceedings are here.
15 If there's substantial evidence
16 presented that there's a reason for termination,
17 then the commission must affirm the sheriff's
18 notice of discharge. Iowa Code 341(a).11 sets
19 forth various reasons, and the sheriff's notice
20 of discharge identifies numerous reasons that
21 constitute sufficient cause under the statute
22 for the termination of Sergeant Ruby.
23 If only one of those reasons is
24 sufficient cause, that results or should result
25 in the commission affirming the decision offered
47
1 by the sheriff for discharge of employment.
2 You will hear from numerous
3 witnesses over the course of, hopefully, not too
4 many days regarding the incidents underlying
5 this event. There's -- As you see, there's a
6 time line of nearly two years of examples of
7 failure to perform the functions of the deputy
8 role, and you'll hear from various law
9 enforcement officers regarding their individual
10 concerns, their individual interactions with
11 Sergeant Ruby, and how the job just didn't
12 appear to be getting done in the way it needed
13 to be done.
14 You'll hear examples of
15 Sergeant Ruby's anger expressed, his hatred
16 toward the sheriff, and his desire to "not let
17 him get the best of me" and to get him instead,
18 and you'll hear in far more accurate words than
19 mine as I'm describing today.
20 Ultimately, though, you'll hear
21 examples where there appear to be harm to the
22 public, and that's -- Those are incidences that
23 just cannot be tolerated by anyone who wears the
24 uniform of a deputy sheriff.
25 The evidence will show,
48
1 contrary to the arguments that the appellant may
2 make, this is not a subjective decision by
3 Sheriff Brian Mickelson for the purpose of
4 impacting an upcoming election. The news
5 indicated yesterday, yes, that Sergeant Ruby is
6 running for sheriff, and the testimony will show
7 that Sheriff Mickelson welcomed people to
8 exercise their political beliefs, do what they
9 thought was right, and vote with their
10 conscience, and do what they felt drawn to do.
11 There will be objective evidence
12 from neutral witnesses who will support the
13 allegations as set forth in the notice of
14 violations resulting in the discharge notice.
15 I want the -- I understand and I
16 believe and I urge the commissioners to conclude
17 at the end of this hearing that this process and
18 this decision is not about politics. It's about
19 the requirements that a deputy uphold the law,
20 enforce the law, and follow the rules and follow
21 the law, and in this case, the evidence will
22 show that Sergeant Ruby just did not do that.
23 Thank you.
24 MS. VALENTINE: Thank you.
25 Ms. Conlin?
49
1 MS. CONLIN: Sergeant Curt Ruby
2 is a highly decorated, well-regarded and
3 uniquely credentialed law enforcement officer.
4 He is certified as a hostage negotiator, he is
5 an EMT and a firefighter, has critical incident
6 certification.
7 His personnel file is filled with
8 commendations and thank-yous, but not one single
9 bad word, none. Not a reprimand, not a warning,
10 no discipline, not a suspension, not a demotion,
11 not a decrease in pay.
12 The first discipline that
13 Sergeant Curt Ruby got in 28 years was on
14 December 13th when he was fired. That is his
15 first-and-only discipline in 28 years.
16 The sheriff never followed the
17 rules, never did the progressive discipline,
18 never -- never conducted an investigation. He
19 simply fired the guy.
20 People in the community have been
21 stunned.
22 We believe the reason is because
23 for the last couple of years people have known
24 that Sergeant Ruby intends to run against the
25 sheriff. It is true that Curt Ruby thinks that
50
1 the sheriff is incompetent. It is true that he
2 thinks he is incapable of administering,
3 managing, and guiding the office, and he thinks
4 that the sheriff has put the public in danger.
5 But this is America. He gets to
6 think it, he gets to say it, and he gets to act
7 on it by running against the sheriff. He gets
8 to hate him too, though he doesn't, but that --
9 You will see that the sheriff became convinced
10 that he did hate him, and based the fitness-for-
11 duty examination -- the fitness-for-duty
12 examination on what he perceived to be Curt
13 Ruby's hatred of him.
14 And as I said, he gets to do it.
15 This is America. No thought police. You get to
16 think what you think and say what you need, the
17 law says, the Constitution says, and he can't be
18 fired for it. He is a civil servant employee
19 who gets just cause discharge only.
20 But he was fired for it, and many
21 of the charges are based on what Curt Ruby said,
22 what he thought. Some are based on what they
23 think he meant when he said quite innocuous
24 things, and some are based on distortions of
25 what he said.
51
1 The charges are nonspecific. In
2 some cases, we can't even figure out what they
3 are. Some go back two years. It's an
4 unconscionable delay in bringing these matters
5 even to his attention, let alone using them
6 as -- as a reason for discharge.
7 The charges are also filled with
8 subjective statements about Curt Ruby, like he's
9 rude, he's insolent, and so on. Some are
10 downright strange.
11 I quoted from Thurgood Marshall
12 in the case of Cohen versus California, "One
13 man's vulgarity is another's lyrics," one of my
14 favorite quotes because, in fact, that's true.
15 People see things quite differently. Depends on
16 perspective.
17 There is apparently a
18 disagreement about whether or not the
19 Constitution applies to Curt Ruby. I think it
20 does. The Iowa case is Bennett -- and there are
21 dozens, which is after Sieg, incidentally,
22 S-i-e-g, and there are, of course, dozens and
23 dozens of federal cases that say the United
24 States Constitution applies.
25 According to the sheriff, any one
52
1 of these incidents alone constitutes sufficient
2 reason for removal.
3 Now, it certainly tells us where
4 the sheriff is coming from if he believes that
5 writing on the top of the activity log that he
6 used his own cell phone is cause for discharge
7 or getting the squad car that he used repaired
8 or teaching women self-defense or giving a
9 45-minute speech to a bunch of kids at the
10 Presbyterian church on scuba diving.
11 Most troubling, according to the
12 sheriff, is there are three incidents of
13 domestic violence mentioned in the charge, and
14 the sheriff says those are the most troubling.
15 If they were true, they would be the most
16 troubling.
17 The difficulty is this is the
18 go-to guy in the state of Iowa -- in the state
19 of Iowa for domestic violence. He is the law
20 enforcement expert in the state of Iowa on
21 domestic violence.
22 He has taught hundreds of police
23 officers and advocates the law and the practice
24 of securing safety for these women, some men,
25 and their children.
53
1 He's the one, the one-and-only,
2 as it happens. Virtually every advocate for
3 these women and their children was horrified
4 about his discharge and concerned and worried
5 about what will happen without his expertise in
6 law enforcement.
7 We believe that the evidence will
8 clearly show that this was an egregious abuse of
9 power by the sheriff, that the discharge was
10 based on subjective criteria, falsified
11 incidents distorted by not Curt Ruby's hatred,
12 but by the hatred that the sheriff and his chief
13 deputy felt for Curt, and, of course, fear of
14 competition.
15 This discharge is unfair to
16 Sergeant Ruby, to Webster County, and frankly,
17 to the state of Iowa.
18 It's also illegal, it's also
19 unconstitutional.
20 We believe the evidence will show
21 that the chief law enforcement officer in
22 Webster County broke the law, violated the
23 Constitution, and endangered the public safety
24 by discharging a competent, caring, and uniquely
25 expert peace officer. We've asked that he be
54
1 immediately reinstated with back pay, full back
2 pay and a public apology.
3 MS. VALENTINE: Thank you.
4 Now, are we ready to start
5 testimony?
6 MS. PENICK: Yes, ma'am.
7 MS. VALENTINE: Okay. You may
8 call your first witness.
9 MS. PENICK: We call
10 Sheriff Brian Mickelson.
11 MS. VALENTINE: We need to swear
12 you in.
13 BRIAN MICKELSON,
14 called as a witness, having been first duly
15 sworn, testified as follows:
16 MS. VALENTINE: Proceed.
17 DIRECT EXAMINATION
18 BY MS. PENICK:
19 Q. Can you identify yourself for the
20 record?
21 A. Brian Mickelson.
22 Q. What is your current position?
23 A. Sheriff of Webster County.
24 Q. How long have you held that position?
25 A. Going on twenty -- this position, going
55
1 on five years.
2 Q. Were you involved in law enforcement
3 before you became the sheriff?
4 A. Yes, I was.
5 Q. Tell me about your law enforcement
6 background.
7 A. Well, basically, I've just been in law
8 enforcement since September of 1987, and then in
9 December of '03 is when I took the position of
10 sheriff.
11 Q. What was your first role in law
12 enforcement?
13 A. Patrol.
14 Q. Were you employed by the county at that
15 time?
16 A. Yes.
17 Q. Have you been employed by the county
18 since 1987?
19 A. Yes, I have.
20 Q. What was the next position that you
21 held after patrol?
22 A. Sheriff.
23 Q. And you said you have been sheriff for
24 how long?
25 A. Going on five years.
56
1 Q. Okay.
2 When did you first become the
3 sheriff?
4 A. In December of '03.
5 Q. Was there an election in December
6 of '03?
7 A. Yes.
8 Q. Did you have any primary before the
9 election?
10 A. Yes, we did.
11 Q. Okay.
12 A. It was just a caucus.
13 Q. A caucus.
14 What was involved in the caucus?
15 A. It was just deciding the -- between
16 myself and Kevin Kruse, who was going to be the
17 Republican candidate.
18 Q. And who's Kevin Kruse?
19 A. He's one of the officers. He's a
20 lieutenant in the sheriff's department.
21 Q. Was he an employee of the sheriff's
22 department back in 2003?
23 A. Yes.
24 Q. And you were as well?
25 A. Yes.
57
1 Q. And apparently, you were successful in
2 that caucus?
3 A. Yes.
4 Q. Do you work -- Is Kevin Kruse still
5 employed by the department?
6 A. Yes.
7 Q. Do you get along okay with Kevin?
8 A. Yes.
9 Q. Did you have any difficulties working
10 with him after the caucus?
11 A. No.
12 Q. And in the actual election, did you
13 have an opponent?
14 A. Yes.
15 Q. Who was that?
16 A. Chief Deputy Jim Stubbs.
17 Q. And is Jim Stubbs still employed with
18 the department?
19 A. Yes, as a lieutenant.
20 Q. How do you get along with
21 Lieutenant Stubbs?
22 A. Good.
23 Q. Any problems working with him after the
24 election?
25 A. No.
58
1 Q. When was the next election?
2 A. That would have been in the fall
3 of '04.
4 Q. Did you have any opponents?
5 A. No.
6 Q. And when is the next election?
7 A. This fall.
8 Q. Are you running for reelection?
9 A. Yes.
10 Q. Do you know of any opponents at this
11 time?
12 A. Yes.
13 Q. Who?
14 A. Curt Ruby.
15 Q. When did you become aware that Curt
16 Ruby was going to run for sheriff?
17 A. I really can't -- I really can't say a
18 date. I don't know, because it really didn't
19 make any difference. I don't remember. I
20 couldn't tell you a date.
21 Q. Do you have any idea what year?
22 A. Well, it must have been probably
23 sometime in '06, I guess.
24 Q. Did you have a conversation with
25 Mr. Ruby about his decision to run for sheriff?
59
1 A. Yeah. That was -- Something was
2 brought up, but I can't tell you the exact date
3 or when it was, but he mentioned something about
4 this is retaliation and because he's running,
5 and I said -- and I said, "No."
6 And he said, "Well, I'm not
7 running anyway," but I don't remember when that
8 was.
9 Q. So at that point, he told you he wasn't
10 running?
11 A. Right.
12 Q. Was there any point that you learned
13 that he was running?
14 A. Yeah, but, again, I don't remember a
15 date.
16 Q. As the sheriff, what are your duties?
17 A. Well, basically making sure that -- The
18 public safety is the top priority, getting
19 the -- making sure the officers -- and that's
20 with the help of Deputy O'Brien. He basically
21 takes care of the day-to-day operations with the
22 officers because I don't have time.
23 I work with budgets and the
24 supervisors and working on grants, answering the
25 public as they come in each day, and working on
60
1 weapons permits, and just numerous, numerous
2 things.
3 Q. Do you still have duties as a law
4 enforcement officer?
5 A. Yes.
6 Q. Do you ever ride --
7 A. Yes.
8 Q. -- patrol?
9 A. Yes.
10 Q. Any other duties of a sheriff that you
11 haven't mentioned?
12 A. Well, I'm in charge of the comm center
13 right now, and then, of course, the jail. The
14 jail is under the sheriff's authority, so --
15 Q. Can you look at -- in that manilla
16 folder there are some exhibits, and I'm going to
17 have you look at Exhibit A. It's the WC-A. Can
18 you identify this?
19 A. Yeah. This is the officer's manual,
20 the duties and responsibilities manual.
21 Q. Did you prepare this?
22 A. No, I did not.
23 Q. Do you know who did?
24 A. Yeah, the ex-sheriff, Charles Griggs.
25 MS. PENICK: Would you like us to
61
1 offer exhibits as we go?
2 MS. VALENTINE: Yes.
3 MS. PENICK: We'd offer
4 Exhibit A.
5 MS. VALENTINE: Any objection?
6 MS. CONLIN: I don't have
7 objections to any of the exhibits that the
8 defendant is going to offer from A through W,
9 except for F, G, and H, so perhaps we can save
10 time by admitting all of those at the same time.
11 MS. VALENTINE: At this time
12 Exhibits A through E and I through W will be
13 admitted.
14 MS. PENICK: Thank you.
15 Q. Can you please turn to the page -- and
16 you'll see some numbers here at the bottom.
17 It's WC and a bunch of zeros and 122.
18 A. Yes.
19 Q. This is the organizational chart of
20 your department; is that correct?
21 A. That's correct.
22 Q. Can you describe a little bit for the
23 commission the structure of the sheriff's
24 department?
25 A. Well, basically, you've got -- you've
62
1 got the sheriff, and the chief deputy directly
2 under him.
3 Then an offshoot of the jail and
4 the jail administration.
5 And then you've got the
6 enforcement division, which would be the
7 detectives and the patrol, and you would have --
8 within the detectives you would have supervisor,
9 whether it would be a lieutenant or sergeant.
10 And then under the patrol you'd
11 have lieutenants, sergeants, and then the
12 regular patrol.
13 And then below them you would
14 have your different duties, your special
15 services, like your D.A.R.E. program.
16 And then you'd have your
17 sheriff's reserves.
18 And then off to the side you'd
19 have your administration, your clerks,
20 et cetera.
21 Q. Have you made any revisions to this
22 Exhibit A?
23 A. No.
24 Q. And how many pages long is Exhibit A?
25 A. Well, it looks like it is,
63
1 approximately, right at 300 pages, 299.
2 Q. What is your understanding of the
3 purpose of this Exhibit A?
4 A. These are just the -- basically, the
5 rules and the regs that the department goes by.
6 Q. Who are these rules applicable to?
7 A. Everybody, all the law enforcement
8 officers, including myself.
9 Q. Can you tell me, what is the difference
10 between a patrol deputy versus a detective?
11 A. Right now the detectives are working a
12 lot more on narcotics, but they do, basically,
13 general crime. They investigate general crime,
14 and the patrol are more of the -- They take a
15 lot of the accidents and a lot of the calls that
16 come in.
17 Q. What is the role of the chief deputy?
18 A. He, basically, is in charge of the
19 deputies. He deals with their payroll, he deals
20 with the squad cars, and, basically, their
21 day-to-day. He checks their activity logs, and
22 it's just -- He's pretty much in total charge of
23 the deputies.
24 Q. Can you turn to page marked WC 260 in
25 Exhibit A, please?
64
1 What do you see on page 260?
2 A. Basically, it's just -- it's the rules
3 and regs for the chief deputy.
4 Q. Does it set forth some duties for the
5 chief deputy?
6 A. Yes.
7 Q. Are there duties in addition to the
8 ones that you described that the chief deputy
9 handles?
10 A. Yes. He helps with the administrative
11 end of it too. I mean, he'll work -- he'll help
12 with the grants, keeping inventory of the
13 equipment that they have. Like I said, it was
14 the personnel that he deals with and the
15 vehicles.
16 Q. Who is the chief deputy?
17 A. Jim O'Brien or -- yeah, Jim O'Brien.
18 Q. Was there a previous chief deputy?
19 A. Yes.
20 Q. What was his name?
21 A. Chris O'Brien.
22 Q. How long has Jim O'Brien been the
23 deputy?
24 A. Since January, I believe, of '06.
25 Q. Sheriff Mickelson, when did you first
65
1 meet Curt Ruby?
2 A. I believe when I first started as a
3 deputy on the sheriff's department.
4 Q. Back in 1987?
5 A. Yeah. I'm guessing that was -- that
6 would be right around that time.
7 Q. When did you first have occasion to
8 work with him?
9 A. I'm guessing when he got hired on the
10 sheriff's department.
11 Q. Do you recall when that was?
12 A. No, I don't. I believe it's nine or
13 ten years ago.
14 Q. Did you work on the same shift with
15 Curt Ruby?
16 A. Yes, I've worked on the same shift with
17 Curt.
18 Q. And who was the sheriff when Curt Ruby
19 was hired?
20 A. Chuck Griggs.
21 Q. How did you get along with Curt Ruby
22 while Sheriff Griggs was the sheriff?
23 A. Good.
24 Q. Did you have any concerns or were there
25 any interactions with him that you felt were
66
1 troubling?
2 A. Oh, there was -- there was a couple of
3 times when we had -- There was one night. I
4 believe it was just when he was a supervisor.
5 We discussed doing a -- I had gotten some
6 information about a drug buy, and --
7 MS. CONLIN: I would like to
8 interpose an objection. Remote in time.
9 MS. VALENTINE: I'm going to --
10 I'm going to overrule the objection.
11 You can proceed.
12 A. I had got some information about a drug
13 buy that was going to be taking place in the
14 Moorland area. I had contacted another deputy
15 that was working with me, and we were going to
16 set -- set up kind of a sting, and we were told
17 that -- by the informant not to have any radio
18 traffic because they had scanners.
19 So I had mentioned to
20 Sergeant Ruby at that time in the comm center
21 what we were going to do, and we got set up.
22 And there was a time frame
23 coming, and he gave some radio traffic out
24 about -- pretty much about where our location
25 was, and the -- It never did -- it never did
67
1 come to fruition, so we don't know, you know,
2 if -- We don't know if we would have got them or
3 not. We have no idea.
4 Q. Any other troubling circumstances while
5 you were a patrol deputy?
6 A. One other that I can think of was when
7 we were setting up a sting on some stolen
8 stereos. There was a gentleman that was going
9 to meet us, meet another gentleman in the
10 square, and he was going to pull up, and he was
11 going to attempt to buy some stolen stereo
12 equipment.
13 MS. CONLIN: I would interpose
14 the same objection. Remote in time and cannot
15 be relied upon by the sheriff or the commission
16 in terms of whether or not Curt Ruby was
17 justifiably discharged.
18 MS. VALENTINE: Overruled.
19 A. Anyway, we were -- we were there, and
20 we mentioned this to -- I want to believe it was
21 Officer Kruse. I'm not sure which one of the
22 other officers.
23 But we were going to set up
24 outside the square and then observe what was
25 going on so that we could see if we couldn't
68
1 make an arrest on the stereos, the stolen
2 stereos. And we discussed this about no --
3 having -- We didn't get hold of P.D., but we
4 discussed about not having any squad cars drive
5 around the square because that was going to tip
6 them off, and Sergeant Ruby drove around the
7 square with his squad car.
8 And the gentleman, as soon as
9 that happened, he said -- he said, "This deal is
10 going to be off."
11 So we still couldn't prove it was
12 going to happen or not. It was just --
13 Q. Okay.
14 Was there a point when your
15 working relationship with Officer Ruby changed?
16 A. Yeah. I can't really give you a time
17 frame on that either, but I -- I knew that he
18 was -- that he was upset.
19 Q. What do you mean by that?
20 A. Well, he wouldn't -- When he'd come in
21 the office, he wouldn't look straight at me.
22 And I would say, "Hi, Curt." He would turn
23 around. He just wouldn't say anything.
24 Q. Was this while Sheriff Griggs was still
25 the sheriff?
69
1 A. No.
2 Q. Was this after you became sheriff?
3 A. Yes.
4 Q. Was there any kind of interaction that
5 had happened that you believed was the cause of
6 this treatment?
7 A. The only thing that we could think
8 about was there was -- there was an incident
9 when we had gotten some calls or gotten some
10 information from other deputies that
11 Officer Ruby was spending quite a bit of time in
12 his residence, and Chief Deputy Chris O'Brien
13 and myself asked Mr. Ruby why -- why he was
14 spending so much time there.
15 He got immediately angry and said
16 something to the effect that his mother-in-law
17 was dying, and he was -- and she was at their
18 house, and he was helping out.
19 We advised him we had no idea
20 that this was going on, and all he had to do was
21 come forward and say, "I need some extra time,"
22 or whatever, and we would have gladly given it
23 to him, but it was just an instant -- instant
24 anger.
25 Q. I'm sorry, what did you say?
70
1 A. It was just instant anger.
2 Q. Do you know when you had this
3 discussion with Officer Ruby?
4 A. I believe it was in '06, but I can't
5 tell you the date. I'm not sure.
6 Q. Was Chris O'Brien the chief deputy
7 in 2006?
8 A. Yes.
9 Q. In 2006?
10 A. Or no. In two thousand -- Yeah. He
11 wasn't, no, not in 2006.
12 Q. And you said this involved Chris
13 O'Brien; is that correct?
14 A. Yes, so maybe it was -- It must have
15 been in 2005 then because that's when Chris
16 O'Brien and I were -- He was the chief deputy.
17 Q. Can you look at what was added --
18 there's a separate tag, Exhibit WC X.
19 MS. PENICK: I'm not certain,
20 Commissioners, that you included this in the
21 blanket admission, so --
22 MS. VALENTINE: Is there any
23 objection to WC X?
24 MS. CONLIN: Well, let me see if
25 I even have a WC X.
71
1 MS. PENICK: I just gave it to
2 you this morning.
3 MS. CONLIN: Oh, I'm sorry.
4 A. I'm not sure where WC X is at, to be
5 honest with you.
6 Q. There should be a Post-it note kind of
7 identifying it at the end.
8 A. Oh, there's an X.
9 MS. PENICK: My chicken scratch.
10 MS. CONLIN: My objection to WC X
11 is remote in time, cannot be relied upon.
12 MS. VALENTINE: That objection is
13 overruled. Exhibit WC X is admitted into
14 evidence.
15 Q. You mentioned that you had a discussion
16 with Officer Ruby and Chris O'Brien, and it
17 seems as you were having a little trouble
18 pinning the date down.
19 A. Right.
20 Q. Did you make any notes of your
21 discussion with --
22 A. No, I didn't. This must be
23 Deputy O'Brien.
24 Q. And can we just be clear, when we're
25 talking about "O'Brien," if it's Chris O'Brien,
72
1 can you say "Chris O'Brien"?
2 A. Chris O'Brien.
3 Q. Okay, thank you.
4 Have you had a chance to review
5 this Exhibit X?
6 A. Yes.
7 Q. Okay.
8 Do you recall the meeting taking
9 place as described?
10 A. I remember -- I remember this meeting,
11 but -- and it doesn't state anything in there
12 about -- so I'm just wondering if this would be
13 at a different time when we discussed about
14 when -- when Officer Ruby mentioned about his
15 mother-in-law, because that -- I would have
16 thought that Chris would have put that down, so
17 this maybe is a different time.
18 Q. Okay.
19 So this is dated October 21,
20 2004; is that right?
21 A. Yes.
22 Q. And help me with some cop talk. 94-1,
23 94-2, what do those mean?
24 A. 94-1 is myself, and 94-2 is Chris
25 O'Brien.
73
1 Q. And would 94-1 be the sheriff?
2 A. Yes.
3 Q. 94-2 would be the chief deputy?
4 A. Yes.
5 Q. And so if different people come into
6 those roles, they're still assigned those
7 numbers?
8 A. Yes.
9 Q. And this describes complaints of him
10 going home early at the end of shift?
11 A. Yes.
12 Q. And you're not certain that this is the
13 discussion that you had about him --
14 A. I would say probably not.
15 Q. Okay.
16 A. Just because I'm sure that Chris would
17 have added that to it.
18 Q. So this is a different discussion about
19 Officer Ruby going home early at the end of
20 shift?
21 A. Yes.
22 Q. Okay.
23 Do you remember anything that was
24 said during this October 21 meeting?
25 A. Just something about the logs not being
74
1 filled out, and Officer Ruby would just put
2 down -- At the end of his shift, he would just
3 put down "Fort Dodge area" and not be very specific,
4 so we may have asked about that, I think, and
5 then -- and I see -- and I don't remember a lot
6 about what Officer Knippel had to say.
7 You know, he -- I think he just
8 came in and he was angry, but I think we decided
9 that evidently Curt didn't know about
10 Officer Knippel, what his -- what he was doing
11 that night, so I guess we just -- we just let
12 that go.
13 Q. The last line says that, "Ruby felt it
14 was appropriate for the night shift to handle
15 the call, being unaware that they were tied
16 up" --
17 A. Right.
18 Q. -- "to avoid overtime"?
19 A. Right.
20 Q. And Knippel's concern was that he
21 thought that Officer Ruby should have stayed on?
22 A. Right.
23 Q. And did you feel that this -- these two
24 issues were resolved during this meeting?
25 A. Yeah, I believe so.
75
1 Q. Did you consider this meeting to be any
2 kind of reprimand?
3 A. No.
4 Q. How would you characterize the purpose
5 of this meeting?
6 A. Just to discuss some concerns we had.
7 Q. Were you expecting corrected action to
8 result from this meeting?
9 A. Yeah, especially with the -- with
10 the -- on the -- what he had to write on his
11 log.
12 Q. Now, I'm sorry. I want to go back to,
13 you mentioned that there was a meeting at which
14 Officer Ruby expressed that he had been going
15 home because his mother-in-law was ill?
16 A. Yes.
17 Q. Do you recall exactly what he said
18 during that meeting?
19 A. No, other than he was -- He just was
20 upset that we would -- We did something that
21 would -- I mean, he was mad that we would ask
22 him about it, I guess, or something. He was
23 just -- He was upset that we would request why
24 he was home, I guess.
25 Q. Is it appropriate for officers to be at
76
1 home during their shift?
2 A. They take -- They can take a break at
3 their house, yes.
4 Q. And how long is the break, typically?
5 A. An hour.
6 Q. So would anything beyond an hour be
7 inappropriate?
8 A. Right.
9 Q. And was it your understanding that
10 Officer Ruby was taking more than an hour break
11 at his home?
12 A. Yes.
13 Q. And he explained that as that he had a
14 family situation?
15 A. He was helping out, yes.
16 Q. And were you aware of his
17 mother-in-law's condition at that time?
18 A. No. Neither was Chris.
19 Q. Did you notice a change as far as -- of
20 Officer Ruby's behavior after your conversation
21 with him?
22 A. He just -- he just was very angry.
23 Q. Let me make clear, did you notice a
24 change as far as him spending time at home?
25 A. Oh, I don't believe -- I don't believe
77
1 he spent as much time at home after that, I
2 guess.
3 Q. Do you know what happened to his
4 mother-in-law?
5 A. No, I do not.
6 Q. He didn't discuss it further with you?
7 A. No.
8 Q. And so you mentioned that things
9 changed after this discussion as far as your
10 interactions with him. Can you describe how?
11 A. Just -- It just seemed like he didn't
12 want to -- he just didn't seem like he wanted to
13 talk.
14 Q. Had you been pretty civil and social
15 before that?
16 A. Yes.
17 Q. Did he ever exhibit -- Well, did he
18 exhibit, I guess, anger directly towards you?
19 A. Well, I guess there's a few times,
20 yeah. Just by his demeanor and his -- There was
21 one time we -- In one of our discussions, he
22 basically did a stare-down, and just -- I guess
23 he told Chief Deputy there was going to be a
24 fight to the death and called me a son of a
25 bitch, so there was a few times in there, yeah,
78
1 I guess I could say that he was angry.
2 Q. Did he call you a son of a bitch to
3 your face?
4 A. No. Just to -- just to -- yeah, Jim
5 O'Brien.
6 Q. Do you know when that took place?
7 A. No, I do not. I don't remember any --
8 I don't remember the date.
9 Q. Again, I'd like you to look at
10 Exhibit B, if you would, please.
11 A. Okay.
12 Q. What is this document?
13 A. This is notice of discharge.
14 Q. And what's the date?
15 A. December 13th.
16 Q. Of what year?
17 A. 2007.
18 Q. And is that your signature on the
19 second page?
20 A. Yes, it is.
21 Q. Did you draft this document?
22 A. No, I did not.
23 Q. Do you know who did?
24 A. Yeah. Chief -- Chief Deputy Jim
25 O'Brien.
79
1 Q. Did you review this document before you
2 signed it?
3 A. Yes, I did.
4 Q. You have listed three reasons for the
5 discharge; is that correct?
6 A. Yes.
7 Q. And it looks like there are references
8 to Iowa Code?
9 A. Yes.
10 Q. And what does the first one say?
11 A. Incompetency and inefficiency, or
12 inattention to or dereliction of duty.
13 Q. And what does the second one say?
14 A. Insubordination, discourteous treatment
15 of fellow employees and other acts tending to
16 injure the public and/or willful failure to
17 properly conduct yourself.
18 Q. What does the third one say?
19 A. Other acts or failure to act or to
20 follow reasonable regulations prescribed by the
21 sheriff that show you to be unsuitable or unfit
22 for employment. The regulations you failed to
23 follow include, but are not necessarily limited
24 to, regulations pertaining to insubordination,
25 loyalty to the county, department, and
80
1 departmental efficiency, respect to superiors,
2 addressing superiors, cooperation between the
3 ranks, failure to report damaged or inoperative
4 equipment, neglect of duty, cooperation with
5 other agencies, incompetence, maintaining
6 communications, and personnel -- or personal
7 advertising.
8 Q. And then the last paragraph indicates
9 that there are details of the reasons and an
10 attached notice of violations; is that right?
11 A. Yes.
12 Q. All right.
13 And then the second page provides
14 a procedure for him to appeal that decision; is
15 that correct?
16 A. Yes.
17 Q. Okay.
18 Can you turn to Exhibit C,
19 please? What is the date of this document?
20 A. It looks like it's December 13th, 2007.
21 Q. How many pages is Exhibit C?
22 A. Five.
23 Q. And it's entitled "Notice of
24 Violations"?
25 A. Correct.
81
1 Q. Addressed to Sergeant Curtis W. Ruby?
2 A. Correct.
3 Q. And did you sign this document on the
4 last page?
5 A. Yes.
6 Q. Did you draft this Exhibit C?
7 A. No, I did not.
8 Q. Do you know who did?
9 A. Yes, Chief Deputy Jim O'Brien.
10 Q. Did you review this document when you
11 signed it?
12 A. Yes, I did.
13 Q. We'll go through the contents here.
14 Do you have knowledge -- Let me
15 just go through these. Let's look at
16 paragraph 1, the reference December 25 -- I'm
17 sorry, December 5, 2005. This is regarding an
18 incident on December 5, 2005; right?
19 A. Yes.
20 Q. Were you present when the situation
21 happened?
22 A. Yes.
23 Q. What do you recall?
24 A. Well, I recall that Sergeant Ruby and
25 another officer by the name of Andy Suchan were
82
1 dispatched to Moorland in reference to a
2 gentleman of -- basically out of control. And
3 then we heard on the radio traffic that they was
4 coming back, Officer Ruby was coming back with
5 him in his squad car, and he was causing a lot
6 of problems, I guess, in the back, and yelling,
7 so we ended up getting -- having some people
8 standing by in the -- in the sally port to
9 assist getting this gentleman out of the car and
10 getting him upstairs.
11 Q. Let me ask, where were you when he
12 arrived?
13 A. When he arrived, I just stepped in the
14 sally port, yes.
15 Q. What did you see?
16 A. Well, he -- When he got out of the --
17 when Officer Ruby got out of the car, he was
18 very, very excited. Stated that he couldn't --
19 he couldn't take this. He was really -- and
20 understandably so, he was cussing at the
21 individual inside, about the person he was
22 dealing with, but he said he couldn't take this
23 anymore. He had to take a break.
24 He was throwing his arms up in
25 the air and saying, "I can't do this" and "I've
83
1 got to take a break."
2 And he was very loud and very
3 boisterous. He just -- he said, "I have to have
4 a time-out. I've got to take a break."
5 And the rest of the -- There was
6 the jail staff and some police officers there,
7 and some -- and I believe Chief Deputy Jim
8 O'Brien.
9 And the gentleman was taken out
10 of the -- out of the car and put in the
11 restraining chair and taken upstairs.
12 Q. Where was Officer Ruby when the
13 gentleman was taken out of the car?
14 A. I don't remember.
15 Q. Was he there?
16 A. I don't remember where Officer Ruby
17 went.
18 Q. Did he assist in removing the --
19 A. I don't believe so.
20 Q. -- the suspect from the car?
21 A. I don't believe so.
22 Q. Okay.
23 Why do you think that this
24 incident demonstrates anything inappropriate?
25 A. It was just -- I mean, officers deal
84
1 with this on a daily basis, pretty much. They
2 deal with people spitting at them, they deal
3 with people hitting them.
4 And I can understand him being
5 upset, but it was just to the extent that he was
6 upset, that -- stating that, "I can't" -- "I've
7 got to take a break. I can't deal with this."
8 It was just -- it was just to
9 that -- it was -- It seemed to go just a little
10 bit too far as far as his anger.
11 Q. Did you consider it to be appropriate
12 for him to walk away?
13 A. At that time, yeah, just because there
14 was enough people there to get the gentleman --
15 I mean, that's -- That would have been
16 appropriate just so he could get, you know,
17 helped calm down.
18 Q. Do officers typically assist in the
19 removal of suspects from their car and transport
20 to the jail?
21 A. It depends on the -- depends on the
22 circumstance. If there was an individual like
23 this that's out of control, yes, we do -- we do
24 assist.
25 Q. I'm sorry. I mean, does the individual
85
1 who arrests the suspect or has the suspect in
2 the car usually help out with that transport to
3 the jail --
4 A. Yes.
5 Q. -- or is it -- I just wasn't sure if it
6 was within the duties that once they get in the
7 sally port, that other people take over.
8 A. No.
9 Q. Paragraphs 2, 3 -- well, 2 and 3
10 reference Sergeant Ruby expressing dislike and
11 discontent for you to Chief Deputy O'Brien.
12 Were you present during either one of those
13 conversations?
14 A. No, I was not.
15 Q. Paragraph 4 references March 30, 2006,
16 Sergeant Ruby knowingly allowed his shift to
17 operate with one deputy. Were you aware of that
18 situation when it occurred?
19 A. No, I was not.
20 Q. Okay.
21 Do you know when you became aware
22 of it?
23 A. I'm not sure if it was a day or two
24 after Chief Deputy O'Brien made me aware of it.
25 Q. Did you direct him to investigate the
86
1 situation?
2 A. No. That's -- that's basically what he
3 does.
4 Q. Do you know what the result was or the
5 conclusion was of that situation?
6 A. I think he ended up talking to a couple
7 of the officers. He ended up talking to someone
8 from the P.D., and then he ended up talking to
9 one of our officers, and I think he ended up
10 talking to Curt too, but I can't tell you what
11 the -- what the outcome was.
12 Q. You weren't involved in any resolution
13 of that?
14 A. No.
15 Q. Okay.
16 Let's go to number 7 referencing
17 May 12, 2006. "Sergeant Ruby informed
18 Sheriff Mickelson and Chief Deputy O'Brien
19 of his displeasure with the department.
20 Sergeant Ruby stated that if anyone from the
21 Department ever wanted to contact him while off
22 duty that they should forget it because he would
23 make certain he was not available."
24 Were you present during this
25 conversation?
87
1 A. I was present for half of it. I
2 believe Sergeant Ruby was in talking to
3 Chief Deputy O'Brien during the first part of
4 it, and then he left, and I went into the -- to
5 Jim's office to see what transpired.
6 And then I believe Officer Ruby
7 came back in and said, "By the way, I'm not
8 going to -- I'm not going to answer my phone" or
9 "You can call me on my cell phone. I'm not --
10 You're not going to be able to get hold of me on
11 my cell phone."
12 And pretty much was mad, and just
13 kind of stormed out.
14 Q. What prompted you to go into
15 Chief Deputy O'Brien's office?
16 A. Well, I just heard -- I don't know what
17 I was doing at the time, but I heard some
18 talking going in there, so I wanted to hear what
19 it was about.
20 Q. Was it normal conversation level?
21 A. I don't remember, to be honest with
22 you.
23 Q. And so you went in, and then you said
24 Officer Ruby returned?
25 A. Yes.
88
1 Q. Okay.
2 And he mentioned he was going to
3 make himself unavailable --
4 A. Yes.
5 Q. -- off-duty?
6 A. Yes.
7 Q. Why was this a problem?
8 A. Well, basically, all officers are --
9 They're pretty much on call 24/7, and -- unless
10 they happen to have had a few drinks and get
11 called, and they will not be -- they will not be
12 brought back to duty.
13 Q. Do you know whether -- I guess, did you
14 have any conversation with Curt Ruby about this?
15 A. No, no. He just -- he just basically
16 spoke his piece and just left.
17 Q. Did you follow up with him about it?
18 A. No.
19 Q. Why not?
20 A. You know, I don't -- I don't really
21 know. Jim and I discuss a lot of things, but
22 we're -- You know, at the time a lot of this was
23 going on we had a murder trial. There was a
24 lot -- It's just a busy office, so there's
25 things that we didn't -- There's probably things
89
1 we should have addressed that we didn't.
2 Q. Number 8 references Sergeant Ruby
3 engaging in public endorsements, advertising
4 and speaking based on his employment with
5 the department without the approval of
6 Sheriff Mickelson.
7 Did you have occasion to talk
8 with Officer Ruby about any public endorsements
9 or speaking opportunities?
10 A. I believe he did come in one time and
11 asked if he could do something, and as far as --
12 as far as self-defense classes, and I said
13 that's all right as long as -- You know, we
14 can't -- It just can't be under the auspices of
15 the sheriff's department is all.
16 Q. What do you mean by that?
17 A. Well, it just can't be -- It just can't
18 have -- it just can't have "sponsored by," or
19 the sheriff's department can't be involved in it
20 in any way as far as, you know, we were -- you
21 know, we were endorsing it or whatever, and it
22 just can't be Deputy Sheriff Curt Ruby doing
23 this, you know, from the sheriff's department.
24 Q. Okay.
25 So if an advertisement said,
90
1 "Deputy Sheriff Curt Ruby is going to teach
2 self-defense," would that be a concern for you?
3 A. Yeah.
4 Q. Why is that?
5 A. It just -- It could be a liability
6 issue for the sheriff's department.
7 Q. Can you explain?
8 A. Well, I'm sure -- and I have no qualms
9 about Officer Ruby's ability. It's the idea, if
10 somebody takes it wrong and something happens,
11 there's a possibility it could come back and sue
12 the sheriff's department.
13 Q. So if an advertisement said, "Curtis
14 Ruby is going to teach tae kwon do," would that
15 have been okay?
16 A. Yeah.
17 Q. If it said, "Sergeant Curt Ruby,"
18 that's where you have the concern?
19 A. Right.
20 Q. Did you personally -- Did you see any
21 of these advertisements?
22 A. No, I did not.
23 Q. Okay.
24 Did you learn about them --
25 A. Yeah.
91
1 Q. -- at some point?
2 A. Yes. Chief Deputy Jim O'Brien made me
3 aware.
4 Q. Paragraph 9 indicates that, "Prior to
5 August 2007, Sergeant Ruby had been assigned to
6 the night shift since July of 2006. During
7 the time that Sergeant Ruby was assigned
8 to the night shift, Sheriff Mickelson
9 and Chief Deputy O'Brien received negative
10 feedback from other deputies concerning
11 Sergeant Ruby's attitude, demeanor, lack of
12 attention to duty, motivation, and his overall
13 displeasure with the Department."
14 I want to ask you, you know, do
15 you recall any comments from other deputies?
16 A. Well, yeah. There was one that I --
17 one that I remember from Deputy Halligan, Mike
18 Halligan. He mentioned that Officer Ruby could
19 be detrimental, or just the attitude, his work
20 ethic, and he was just concerned about he -- his
21 anger towards myself and Chief Deputy Jim
22 O'Brien might be affecting his job.
23 And we had a couple of officers
24 from the police department come in and actually
25 state that Officer Ruby could be a time bomb.
92
1 Q. Do you remember who said that?
2 A. I believe one was probably -- One was
3 Officer Thode, and another one probably was
4 Officer Joel Lizer.
5 Q. Joel Lizer?
6 A. Yeah.
7 Q. Okay.
8 Did they explain?
9 A. They just said he's got a lot of
10 pent-up anger.
11 Q. Did you ask what they were talking
12 about?
13 A. You know, I don't remember. I can't --
14 I don't -- I don't recall.
15 Q. Did -- You mentioned Halligan?
16 A. Yes, Mike Halligan.
17 Q. Mike Halligan gave you some --
18 expressed some concerns. Do you recall what
19 Mike complained about?
20 A. I just think it was -- a lot of it was
21 he just didn't want to -- I mean, he seemed
22 like -- Again, it was an anger issue. I think
23 it was just his concern about his anger.
24 Q. Any other conversations with other
25 deputies that you remember at this point?
93
1 A. No.
2 Q. Okay.
3 Paragraph 10 references a
4 September 8, 2006 incident during the execution
5 of a search warrant. Were you on the scene of
6 that search warrant?
7 A. No, I was not.
8 Q. Okay.
9 Were you involved -- I guess,
10 what was your involvement in this situation?
11 A. Chief Deputy Jim O'Brien called me in
12 reference to this situation and let me know what
13 was happening.
14 Q. And what did he tell you was happening?
15 A. Well, he advised how the search warrant
16 came about, and then he said that Curt was
17 really upset that he had to sit on the crime
18 scene.
19 Q. Did he expand on that?
20 A. Well, he just said he was, I guess,
21 just angry. He was just -- He was ticked off
22 that he had to sit there and be at that scene.
23 Q. Did you talk with Officer Ruby about
24 this situation?
25 A. He came in the next day and discussed
94
1 his concerns about Jim O'Brien.
2 Q. What did he tell you?
3 A. He said that Jim O'Brien lied to him
4 and said that there were -- He asked if there
5 was reserves that could come out, and he said
6 that Jim O'Brien told him at that time there was
7 not, they couldn't get hold of any reserves,
8 and then so he was -- he was upset with
9 Officer Ruby -- or Officer Jim O'Brien.
10 Q. How did you respond?
11 A. I said I would -- I didn't -- I don't
12 know. I had no idea if anyone was contacted. I
13 said I would have to find out, talk to Jim.
14 Q. What did you do next?
15 A. Well, the first chance I got, we, Jim
16 and I, discussed it.
17 Q. Do you recall any content of that
18 conversation?
19 A. No. He just said that it wouldn't make
20 any difference if there was any there. Just
21 that was an order, and he should have -- You
22 know, that's -- that's what he was supposed to
23 have done, is sit there and guard the crime
24 scene, so --
25 Q. Do you know whether
95
1 Chief Deputy O'Brien contacted any reserve
2 officers?
3 A. I don't recall, no.
4 Q. Okay.
5 Did you follow up with
6 Officer Ruby about that situation?
7 A. No.
8 Q. Why not?
9 A. I don't -- I don't know. I can't tell
10 you.
11 Q. Paragraph 11 indicates a
12 September 18th, 2006 call from
13 Chief Deputy O'Brien to Sergeant Ruby to set up
14 a meeting to discuss his behavior on the evening
15 of September 8, 2006. Were you involved in
16 these telephone calls?
17 A. No.
18 Q. Okay.
19 Paragraph 12 indicates, "On
20 September 18, 2006, Sergeant Ruby was informed
21 that he was scheduled for a fitness for duty
22 evaluation on September 19th, 2006."
23 Were you present when this
24 conversation took place?
25 A. Yes.
96
1 Q. Okay.
2 A. He was very upset that he had to do
3 this, and I want to say this is probably the
4 time that he said, "You're doing this because
5 I'm running against you."
6 And I said, "No, I'm not."
7 And I believe he said -- Well,
8 the dates and stuff, they're not meaning an
9 awful lot to me, but I think that's the time
10 when he said, "Well, I'm not. I can tell you
11 right now I'm not running."
12 And I think I said, "Well, it
13 really doesn't make any difference to me."
14 Q. Okay.
15 Tell me how this conversation
16 took place. Where did it occur?
17 A. It occurred in my office.
18 Q. Who was present?
19 A. Chief Deputy Jim O'Brien, Webster
20 County Attorney Tim Schott, and then the deputy
21 that's -- at the time was involved in the union,
22 Jason Bahr, and then myself and Officer Ruby.
23 Q. And was this on September 18th, 2006?
24 I think we need to flip to the
25 previous page.
97
1 A. It says 19th up there, I think.
2 Q. Well, that's when the fitness-for-duty
3 evaluation was scheduled, but let me put this
4 back up here. The bottom --
5 A. Oh, on September --
6 Q. Number 12, "On September 18, 2006,
7 Sergeant Ruby was informed that he was scheduled
8 for a fitness for duty" --
9 A. Oh, okay.
10 Q. -- "evaluation."
11 Sorry. It's over two pages.
12 A. Oh, yes, okay.
13 Q. You mentioned that Tim Schott was
14 present?
15 A. Yes.
16 Q. Why was he there?
17 A. Well, we just -- We had him there just
18 because he would be the counsel for the county.
19 Q. Had you contacted Tim Schott prior to
20 this meeting?
21 A. Yes.
22 Q. Did you have any discussions with Tim
23 about the situation?
24 A. Yes.
25 Q. Do you know when?
98
1 A. No. I -- I'm not sure when, no.
2 Q. Do you know if it was before or after
3 the search warrant incident, September 8th,
4 2006?
5 A. It must have been -- I would believe
6 it's probably after the search warrant.
7 Q. Did you meet with Attorney Schott in
8 person?
9 A. Yes. Jim and myself went into his
10 office.
11 Q. And what was the purpose of your visit?
12 A. Well, we were concerned about -- we
13 were concerned that if -- We wanted to get his
14 legal advice because we were concerned about
15 Officer Ruby's anger, and we were going to -- We
16 were debating or contemplating on having him go
17 down for an evaluation, and given past histories
18 of outbursts, we were afraid that he was going
19 to go out of control, and that we were -- At
20 that time we were debating on if he did that, we
21 were going to consider immediate termination,
22 and we wanted to get his opinion.
23 Q. Are we talking about a conversation
24 with Attorney Schott in December 2006?
25 A. Yes.
99
1 Q. And you said you were considering
2 sending him for an evaluation?
3 A. Yes.
4 Q. What do you mean by that?
5 A. Well, we were just concerned about
6 his -- why -- you know, why he had so much
7 pent-up anger, and so we wanted to try to get to
8 the bottom of it.
9 Q. Did -- I'm not going to ask you the
10 content, but did Attorney Schott give you any
11 legal advice?
12 A. No. Well, he just said he didn't
13 want -- He said he couldn't give us any legal
14 advice because Curt assisted him in his -- in
15 his campaign, and he didn't want to -- he didn't
16 want to -- Basically, didn't want to get
17 involved.
18 Q. And he's the county attorney?
19 A. Yes.
20 Q. Is there any other county attorney that
21 you could go to for advice at that point?
22 A. No.
23 Q. What did you do next?
24 A. Then we went -- We talked to the
25 supervisors, and they told us to go find -- find
100
1 another source of assistance, and we contacted
2 another attorney here in Fort Dodge.
3 Q. I'm still talking about September 2006.
4 A. Okay.
5 Q. And I'm sorry if that wasn't clear. We
6 were talking about the fitness-for-duty
7 evaluation.
8 A. Oh, okay.
9 Q. And I meant in that process.
10 A. Oh, okay.
11 Well, I think we -- we ended up
12 setting a date. We just -- we ended up setting
13 a date to have him go down.
14 Q. Who did you set the appointment with?
15 A. Dr. Eva Christiansen.
16 Q. Did you have any communications with
17 her prior to this appointment?
18 A. I had a few, but Chief Deputy Jim
19 O'Brien is basically the one that talked to her.
20 Q. Okay.
21 Did you send any materials to her
22 in advance of this evaluation?
23 A. Yes.
24 Q. Can you turn to Exhibit W?
25 A. Okay.
101
1 Q. And what is this Exhibit W?
2 A. This is my -- my writing in reference
3 to my concerns.
4 Q. Let me start at the front here --
5 A. Okay.
6 Q. -- first page, so we have a time of
7 reference here. This is a fax cover sheet; is
8 that right?
9 A. Yes.
10 Q. And it is to Dr. Eva Christiansen?
11 A. Yes.
12 Q. And I'm not sure. Oh, down at the
13 bottom, fax was sent by --
14 A. Jim O'Brien.
15 Q. Okay.
16 It indicates -- I guess you said
17 there were some statements that were yours.
18 What pages are those on?
19 A. I believe page 2.
20 Q. Okay.
21 A. And possibly 3.
22 Q. Okay. For the record, it's WC 503 and
23 504.
24 Do you know when you wrote this?
25 A. No. Just prior to -- I'm guessing Jim
102
1 O'Brien probably does, but just prior to being
2 sent, I'm guessing.
3 Q. Somewhere around that time frame of
4 September 18, 2006?
5 A. Yes.
6 Q. Okay.
7 And can you -- I'm sorry. Can
8 you read your handwriting here?
9 A. Yeah.
10 "I have serious concerns in
11 reference to Officer Curt Ruby's mental state.
12 He has an attitude that everyone is against him.
13 He has a serious hatred towards me. I'm not
14 sure but I think part of it stems from quite
15 some time ago when myself and Chief Deputy Chris
16 O'Brien got information that Curt was spending a
17 lot of time at his residence while on duty.
18 Chris and myself confronted Curt in Chris'
19 office and he became quite angry, stating that
20 his mother-in-law was dying and she was staying
21 with them. We told Curt we were not aware of
22 the situation and he should have told us and we
23 could have made some arrangements."
24 MS. VALENTINE: If I can
25 interrupt, Ms. Penick, just to save on time for
103
1 our hearing purposes, this is introduced into
2 evidence.
3 MS. PENICK: Okay.
4 MS. VALENTINE: So if we're going
5 to read all the evidence and introduce the
6 evidence, it might be a little onerous for
7 everyone.
8 MS. PENICK: Okay.
9 MS. VALENTINE: I don't want to
10 inhibit your questioning at the same time.
11 Please recognize that we're trying to move
12 along.
13 MS. PENICK: I will try to do
14 that as best I can.
15 Q. You are reading some of your concerns.
16 Do you understand what your main concerns were
17 at this point? Can you summarize those for us?
18 A. I guess it just boils down to why he
19 had so much anger, I mean, and it led over to
20 that domestic in Moorland, and it just seemed
21 like we needed to -- needed to get an answer.
22 Q. Attached to the fax are statements, two
23 additional statements. The one on page 506, do
24 you know who prepared this statement?
25 A. I believe that was Tony Walter, I
104
1 believe.
2 Q. Did he give this to you?
3 A. No. He gave that to
4 Chief Deputy O'Brien.
5 Q. Did you have a conversation with Tony
6 Walter about his concerns regarding Curt Ruby?
7 A. Not -- not at that time, I didn't, no.
8 I believe Jim did.
9 Q. And then there's another statement
10 attached. Do you know who -- who wrote this
11 statement that begins page 507, 508?
12 A. I want to say it's Officer Halligan.
13 Q. Okay.
14 Did you have discussions with
15 Officer Halligan --
16 A. No, I didn't.
17 Q. Okay.
18 A. Not about this, I didn't.
19 Q. Okay.
20 So you sent this material to
21 Dr. Christiansen?
22 A. Yes. Jim did, yes.
23 Q. All right.
24 And you had a meeting with Curt
25 Ruby on September 18th telling him that you had
105
1 made the appointment for him?
2 A. Yes.
3 Q. And you mentioned that Jason Bahr and
4 Tim Schott were also present?
5 A. Yes.
6 Q. Who did most of the talking?
7 A. I believe I did.
8 Q. Can you summarize what you said?
9 A. I just -- I believed -- and I'm not
10 sure if we had this recorded even either. I
11 wanted to reiterate --
12 MS. CONLIN: I'm sorry. Would
13 you please read back what he said at the
14 beginning?
15 I'm having some trouble hearing
16 you.
17 (Requested portion of the record
18 was read.)
19 MS. CONLIN: Thank you.
20 A. -- that we were just concerned, and we
21 wanted to get -- we wanted to get some
22 professional help.
23 Q. Did Officer Ruby say anything?
24 A. You know, I don't remember. I think he
25 was angry, but I can't tell you what was said.
106
1 Q. What do you mean, "he was angry"?
2 A. Well, I think he pointed his finger at
3 Jim O'Brien and said, "You're the one that
4 should go down, not me," or something like that.
5 Q. Anything else that you remember him
6 saying?
7 A. No. No, I do not.
8 Q. Okay.
9 You said that he was angry. What
10 made you believe that he was angry?
11 A. Well, his facial expressions and the
12 way he -- I'm thinking that he leaned over and
13 pointed his finger at Jim. Just --
14 Q. Did he direct any kind of anger towards
15 you?
16 A. I don't remember.
17 Q. Any kind of dirty looks, anything like
18 that that you remember?
19 A. At that time, I don't remember.
20 Q. Okay.
21 I believe you said you think this
22 is the time where you think he said, "This is
23 the time you think I'm running for sheriff, but
24 let me tell you I'm not"?
25 A. Yes. I think that was the time that
107
1 happened.
2 Q. Do you remember his specific words?
3 A. I think he said something, "You're
4 doing this for retaliation and because I'm
5 running" -- or "because you heard I'm running
6 against you for sheriff, but I want to tell you
7 I'm not."
8 Q. Now, you just mentioned the word
9 "retaliation." Did he say those phrases just as
10 you described just now?
11 A. That's -- that's the way I recollect,
12 yes.
13 Q. Okay.
14 Did you respond?
15 A. I just said, "No, I'm absolutely not."
16 Q. Did Jim O'Brien say anything during the
17 meeting?
18 A. You know, I can't recall.
19 Q. Did Tim Schott say anything?
20 A. I don't believe he did.
21 Q. Did Jason Bahr say anything?
22 A. I don't believe he said anything
23 either.
24 Q. Okay.
25 Had you sent any other officers
108
1 for fitness-for-duty evaluations at that point
2 in time?
3 A. At that point in time, no, we hadn't.
4 Q. Have you since then?
5 A. Yes. We sent -- We were advised on one
6 of our hirings we had to send one down.
7 Q. And for the sake of confidential
8 personnel records, at this point I'm not going
9 to ask you to name that individual.
10 A. Right.
11 Q. But when you said, "we were advised,"
12 what do you mean by that?
13 A. When -- when somebody in law
14 enforcement gets hired, it's required for them
15 to go out and get an MMPI, and during the
16 response from the MMPI, suggested that we send
17 this individual back down for reevaluation, and
18 we did.
19 Q. Okay.
20 Did you have an MMPI when you
21 were hired?
22 A. Yes.
23 Q. Did you ever have a follow-up?
24 A. No.
25 Q. Do you know whether Officer Ruby had an
109
1 MMPI when he was hired?
2 A. Yes.
3 Q. Did you ever have an opportunity or an
4 occasion to review that?
5 A. Just recently, yes.
6 Q. And why?
7 A. That's just part of what Dr. Eva was
8 dealing with, I guess, so --
9 Q. What do you mean?
10 A. Well, just our conversations with
11 Dr. Eva Christiansen.
12 Q. Did she reference the previous MMPI?
13 A. Yeah, I believe she did.
14 Q. Okay.
15 Do you recall what she said?
16 MS. CONLIN: Wait a minute.
17 Objection, and this is probably a time when we
18 need to take that up.
19 MS. VALENTINE: Is it appropriate
20 to assume we're getting towards wanting to
21 introduce the exhibits that have been objected
22 to?
23 MS. PENICK: Yes.
24 MS. VALENTINE: I think we should
25 take a moment to --
110
1 MR. DRISCOLL: Is there an
2 alternate conference room where we --
3 MS. CONLIN: Might I suggest that
4 we take a little, tiny break also?
5 MS. VALENTINE: Can we go off the
6 record?
7 (A recess was taken from 11:18 a.m.
8 until 11:30 a.m.)
9 MS. VALENTINE: Okay. We'll go
10 back on the record.
11 The commission had an in camera
12 review of Exhibits F, G, and H, and has
13 determined that all those exhibits, F, G, and H
14 may be deemed admissible. They will be sealed,
15 and the counsel is instructed to -- while they
16 can ask questions of a general nature in terms
17 of whether those documents were relied upon, no
18 specific questions can be asked of the parties.
19 And if that is objected to by
20 either counsel, we can address separate
21 questions individually, but the public will not
22 be a part of that discussion.
23 So, any further matters on
24 Exhibits F, G and H in light of that instruction
25 from the commission?
111
1 MS. CONLIN: None from me.
2 MS. PENICK: Let me just make
3 clear, one of the -- as far as lines of
4 questioning, if I'm getting into something where
5 it looks like, for example, follow-up situations
6 and considered as -- you know, factors
7 considered, would you like to have testimony of
8 that without -- in private, or shall I tell you
9 what the testimony is, you can decide whether to
10 even take it? Is that what you'd like to do?
11 MS. VALENTINE: I would suggest
12 you need to be very careful in your questioning.
13 MS. PENICK: Sure.
14 MS. VALENTINE: And leave it to
15 the extent of whether that was relied upon.
16 MS. PENICK: Right.
17 MS. VALENTINE: And if there was
18 information contained within those exhibits,
19 whether that was relied upon or followed up on
20 or used in any fashion.
21 MS. PENICK: Okay. You'll stop
22 me if I --
23 MS. VALENTINE: We will.
24 MS. PENICK: -- go too far.
25 MS. VALENTINE: We will.
112
1 MS. PENICK: I will attempt not
2 to. I'm just not quite sure the approach, but
3 we'll get through, okay?
4 Are you ready for me to --
5 MS. VALENTINE: Continue.
6 MS. PENICK: -- continue?
7 Can you read back the last
8 question and answer, please?
9 (Requested portion of the record
10 was read.)
11 MS. PENICK: I suppose that is
12 testimony you'd not like to hear.
13 MS. VALENTINE: That is correct.
14 MS. PENICK: Is that testimony we
15 can take in closed session, or are you just
16 specifically excluding that testimony?
17 MS. VALENTINE: The commission
18 will read those exhibits in full and consider
19 them and allow the weight they deem them
20 appropriate.
21 If there's further questioning
22 you feel is appropriate into the specifics of
23 those exhibits, that would need to be done, yes,
24 privately.
25 Q. Did you receive an evaluation report
113
1 from Dr. Christiansen?
2 A. Yes.
3 Q. And for the record, that is Exhibit G.
4 Did you review the report?
5 A. Yes.
6 Q. Without going into any of the
7 specifics, did you understand that there was to
8 be any follow-up course of action as a result of
9 that report?
10 A. Yes.
11 Q. Did you have any follow-up discussions
12 with Officer Ruby about those requirements?
13 A. I didn't. I believe Chief Deputy Jim
14 O'Brien did.
15 Q. Do you know whether the instructions in
16 the report were complied with by Sergeant Ruby?
17 A. I don't -- I would say no.
18 Q. That wasn't a good question.
19 No, they weren't or, no, you
20 don't know?
21 A. No, they weren't.
22 Q. I'm sorry.
23 I'd like to go now to
24 paragraph 14, Exhibit C you're still on. I'm
25 hesitating because I've made a mark on my paper
114
1 with a date correction, and I think it's in
2 pencil. You'll see there's a cross-out of
3 July 7 and a mark of July 25th regarding this.
4 Can you see that?
5 A. Yes.
6 Q. And then on July 25th, 2007, regarding
7 a domestic call.
8 Can you please turn to Exhibit R?
9 Your paragraph 14 references that
10 Sergeant Ruby responded to a domestic assault
11 call, that "Sergeant Ruby failed to properly
12 follow-up the incident." He did not ensure the
13 safety of the victim, nor did he try to make
14 contact with the alleged offender who was inside
15 the residence.
16 Exhibit R, do you -- Can you
17 identify Exhibit R?
18 A. That's the incident report.
19 Q. For what?
20 A. For a domestic abuse that occurred at
21 2112 South 15th.
22 Q. Do you know who prepared the report?
23 A. I believe it was Officer Ruby.
24 Q. Do you see a date on the report?
25 A. Yes. That would have been the 25th,
115
1 July 25th of '07.
2 Q. How did you become aware of this
3 incident?
4 A. I was -- I was called in the morning on
5 the 26th by the victim, Virginia Carlson.
6 Q. Can you turn to page 336 of Exhibit R,
7 please?
8 A. Okay.
9 Q. Is this your handwriting?
10 A. Yes.
11 Q. And what's the date?
12 A. The 26th of July, '07.
13 Q. And this references a call you took
14 from Virginia Carlson?
15 A. Yes.
16 Q. And do you recall when she called?
17 A. Yeah. It's approximately at quarter to
18 nine.
19 Q. And I don't need you to read this
20 exhibit, but what did you -- what did she tell
21 you?
22 A. Well, she said that she was assaulted
23 last night and that her hair was pulled numerous
24 times, and she wanted -- She basically wanted to
25 know from me what she should have done, and she
116
1 said she wasn't very -- She really didn't
2 want -- didn't want to file charges, but she was
3 kind of wondering what she should do.
4 I've known her for quite some
5 time.
6 Q. Okay.
7 What happened next?
8 A. Well, then her daughter Virleen called
9 me, and approximately 10 to 15 minutes later,
10 stating that we was really -- She was more
11 upset. She said the officers didn't do
12 anything. She told them she was there when her
13 dad pulled her mom's hair and slammed her leg --
14 or attempted to slam her leg in the door. Her
15 hair was pulled numerous times, and she was
16 afraid for her mother's safety. And she said,
17 "They didn't even -- didn't even talk to Dad,
18 and they" -- You know, she was upset that
19 something wasn't done.
20 Q. What did you do when you got off the
21 phone?
22 A. I went in, talked to Chief Deputy Jim
23 O'Brien, and he was already aware of the
24 situation, and he was -- he was in the process
25 of making out a complaint for the arrest of Vic
117
1 Carlson.
2 Q. Did he tell you how he became aware of
3 the situation?
4 A. I think it was through the logs, I
5 believe, the daily logs.
6 Q. What happened next?
7 A. Mr. Carlson called me and said he was
8 coming in. He was mad about another issue, so
9 he was coming in, and while he was waiting out
10 in the south lobby, he was served with the
11 information from -- by Luke Fleener.
12 And on his way past my office --
13 he was very upset with me, and I told him, I
14 said -- I told him, "You know better than this."
15 And he mentioned then -- I said,
16 "You can't do this."
17 And he says -- well, he said some
18 things, but then he said, "You're damn right I
19 pulled her hair and slammed her leg in the
20 door."
21 Q. How did you react?
22 A. Well, that's when I said, "Then you're
23 deserving -- you deserve to get what you're
24 getting."
25 I had known him for a long time
118
1 too.
2 Q. Why did you include this incident as a
3 violation that was a reason for termination?
4 A. Because knowing the possibilities that
5 could have happened, it's -- it is something
6 that kind of -- I was -- I was kind of taken
7 back by it because of all people that I would
8 have thought would have known to protect a
9 female, it would have been Curt; but from what I
10 heard from the people that were there, I truly
11 believe, I think an arrest should have been made
12 that night.
13 Q. Can you look at page 332, please, of
14 Exhibit R, and the narrative portion at the
15 bottom, and I think you said you believe that
16 was Officer Ruby writing that?
17 A. Yes.
18 Q. Okay.
19 Did you look at this narrative on
20 that day that Virginia called in?
21 A. No, I didn't. I guess Deputy O'Brien
22 must have.
23 Q. The narrative states that, "Vic Carlson
24 became angry at his wife Virginia and pulled her
25 hair during an argument."
119
1 And it says, "She is hesitant
2 regarding charges however in lieu of charges at
3 this time R.P." -- What does "R.P." mean?
4 A. Reporting party.
5 Q. -- "and I" -- and then you'll have to
6 go to the next page -- "decided a report and a
7 follow up with DSAOC would be okay for now."
8 What's D-S-A-O-C?
9 A. That's D/SAOC.
10 Q. Did you agree with this result?
11 A. No.
12 Q. Why not?
13 A. Well, if you were looking at it,
14 pulling the -- admitting that her hair was
15 pulled should have been automatic arrest.
16 Q. Can you turn to Exhibit S, please? I
17 guess, for point of reference while we're doing
18 that, if you look at Exhibit C, paragraph 15
19 references an August -- it said 8, but it's been
20 changed to 6, 2007 incident, Sergeant Ruby
21 responding to a domestic assault involving an
22 injury to the victim, that he failed to properly
23 follow up, and did not ensure the safety of the
24 victim.
25 Are you familiar with what
120
1 happened in this situation?
2 A. I believe that one was -- Well, I can
3 look and see the --
4 Q. And I'm sorry, it's at Exhibit S.
5 A. Yes. There was an assault that took
6 place in Duncombe.
7 Q. How did you become aware of that
8 situation?
9 A. Through Chief Deputy Jim O'Brien.
10 Q. Did you do any of the follow-up
11 regarding the situation on Exhibit K?
12 A. This one, no, I did not.
13 Q. I'm sorry, Exhibit S. My apologies.
14 Did you have an opportunity to
15 review that file?
16 A. Yes, I did.
17 Q. Do you know when?
18 A. I'm not sure exactly when. It was -- I
19 can't -- I can't tell you exactly when, no.
20 Q. Can you look at page 349 of Exhibit S,
21 please?
22 A. Yes.
23 Q. I'm not going to put my copy up because
24 I've got some markings on it and that wouldn't
25 be fair, but --
121
1 MS. CONLIN: Here.
2 MS. PENICK: Do you have one?
3 Thank you.
4 Q. Did you review this -- this note --
5 A. Yes.
6 Q. -- from Curt Ruby?
7 A. Yes.
8 Q. Was there anything in this note that
9 concerned you?
10 A. Well, first of all, it says that Alicia
11 had been assaulted, not giving a lot of details.
12 Q. Does it say, "no details"?
13 A. Yeah.
14 And then there's an aware of a
15 history. It says, "I am aware that he has a
16 history of abusing her."
17 And there was one -- I guess she
18 was -- She left, and he is angry and wanted to
19 file charges against the guy that struck him in
20 the face while assaulting -- Yeah. There was
21 another gentleman there that left and said he
22 was -- It was written down that the guy struck
23 him in the face while he was assaulting Alicia.
24 And it says, "I told him no."
25 I'm guessing there's a lot of
122
1 things in there. He said 10-200, which could
2 lead to drugs. Possibly this gentleman was high
3 on drugs also.
4 But it struck me -- it struck me
5 as strange why there wasn't an arrest when he's
6 basically admitting that she was assaulted.
7 Q. And you said there was not an arrest at
8 this time?
9 A. No.
10 Q. Do you know whether the perpetrator was
11 arrested?
12 A. I believe so, yes.
13 Q. And you say it struck you strange.
14 A. Yeah.
15 Q. Why?
16 A. Well, I mean, if there's -- Again, if
17 there's a domestic assault and one has occurred,
18 it's an automatic arrest.
19 Q. Why did you include this August 8th,
20 2007 incident in your -- I'm sorry, August 7th
21 incident in your termination notice?
22 A. Because it's basically showing -- It's
23 showing there's a problem there with domestics,
24 which he's been an expert on for many years, and
25 it's just -- It had me concerned for the welfare
123
1 of these women.
2 Q. Can you turn to Exhibit -- Well, we'll
3 do paragraph 16 first on Exhibit C. The
4 reference is, "On October 4, 2007, Sergeant Ruby
5 responded to a domestic dispute involving injury
6 to the victim."
7 Indicates he failed to properly
8 follow up and properly ensure the safety of the
9 victim.
10 "He failed to inform the officer
11 of jurisdiction of the domestic assault and
12 subsequent hospitalization of the victim."
13 If you will turn to Exhibit T,
14 Exhibit T is the file regarding that particular
15 incident. What was your understanding of what
16 happened in this October 4th, 2007 incident?
17 A. My understanding was that this lady was
18 assaulted in Duncombe by her husband. She went
19 to the grocery store in Duncombe, and the
20 manager, the manager of the store saw her
21 injuries, and told her he would take her to the
22 hospital.
23 Then he calls -- I guess it was
24 him. He might have called before he took her to
25 the hospital, but the call was taken by
124
1 Lieutenant Jim Stubbs, and he, from my
2 understanding, relayed the information to
3 Sergeant Ruby, who went to -- who went to
4 Duncombe.
5 Q. And what happened next?
6 A. It was my understanding that he was
7 looking -- I was under the impression he was
8 looking for a welfare check on the gentleman
9 that assaulted his wife. It could be possibly
10 suicidal.
11 And the lady that was in the
12 hospital because of her injuries eventually did
13 get out with nobody taking a report, nobody --
14 nobody taking pictures, nobody basically doing
15 anything in reference to this domestic. It just
16 so happened --
17 Q. Until when?
18 A. Until that evening when a bunch of us
19 went and actually located the husband, who was
20 located by Lieutenant -- or by Sergeant Fleener
21 out by Brushy. We were looking -- looking for
22 him to be -- to arrest him.
23 Q. Do you know whether -- Who's Delbert
24 Smith?
25 A. He is the Duncombe and Otho officer.
125
1 Q. Do you know whether Delbert Smith was
2 the one who eventually took the report from the
3 woman?
4 A. I believe he -- I don't know. I don't
5 know. He didn't know about the -- he didn't
6 know about the assault.
7 Q. How do you know that?
8 A. That's what came back to me. He
9 didn't. He wasn't aware because we all went
10 looking for this gentleman that evening, and he
11 was with us, and at that time he advised he
12 didn't know anything about the domestic.
13 Q. What do you feel is the problem
14 with the way this situation was handled by
15 Sergeant Ruby?
16 A. Well, I think a report should have been
17 made. She should have been checked on at the
18 hospital, and there is nothing stating that this
19 gentleman -- He supposedly threatened her, that
20 he was going to kill her, so there was nothing
21 stating that he couldn't have went to the
22 Hamilton County Hospital and accomplished his
23 mission.
24 And her face was -- when I saw
25 her that evening, I could tell she had been --
126
1 she had been thumped pretty bad.
2 Q. Why was this incident from October 4th
3 included in the termination notice?
4 A. It's just another -- another thing that
5 happened within a very short period of time,
6 reference domestics, that we were both concerned
7 about.
8 Q. Did you talk to Officer Ruby about this
9 situation?
10 A. No, we did not.
11 Q. Did you take any kind of action?
12 A. Against -- No. We did -- We started
13 talking about what our options were, and then we
14 started to -- We ended up talking -- I believe
15 we ended up talking to our attorney.
16 Q. Who's that?
17 A. Tim Schott.
18 Q. Did you get advice from Tim Schott at
19 this time in 2007?
20 A. No.
21 Q. What did you do next?
22 A. We -- we went, talked to our
23 supervisors, and they advised to get different
24 counsel, to seek different counsel.
25 Q. Did you do that?
127
1 A. Yes, we did.
2 Q. Did you get advice from that second
3 counsel?
4 A. We did. And it took a while, but he
5 got back with us eventually stating that he had
6 some conflicts, so he couldn't -- he couldn't do
7 it, so he advised us on another -- another
8 attorney.
9 Q. And did you secure another attorney at
10 that point?
11 A. Yes, we did.
12 Q. Do you know when this was taking place,
13 what time period?
14 A. To be honest with you, I can't tell you
15 for sure.
16 Q. Did you have -- What course of action
17 did you decide to pursue?
18 A. Termination.
19 Q. Did you do anything before you made the
20 decision to terminate? Were there any other
21 meetings with Officer Ruby?
22 A. I don't -- I don't believe so.
23 Q. Do you recall a meeting in November
24 of 2007 regarding a follow-up with
25 Dr. Christiansen?
128
1 A. Yes. She -- I believe that was handled
2 pretty much by Jim, but I was involved in some
3 of the conversations.
4 Q. Did you have a meeting with
5 Officer Ruby about going back to see
6 Dr. Christiansen?
7 A. I think -- I think Chief Deputy Jim
8 O'Brien tried to get that attempted or -- Yeah.
9 No. I guess we all did. I guess
10 we had to sit down for another evaluation.
11 Q. I'm going to reference you to
12 paragraph 19 in Exhibit C which references a
13 meeting with Sheriff Brian Mickelson and Chief
14 Deputy O'Brien and on November 15th, 2007, in
15 regard to a follow-up evaluation.
16 A. Yes.
17 Q. Was that the conversation that you were
18 just describing?
19 A. Yes.
20 Q. This paragraph indicates that
21 Sergeant Ruby exhibited insolent and
22 disrespectful behavior to superiors?
23 A. Yes.
24 Q. What did he do?
25 A. He got very mad, and that's when he had
129
1 his stare, his stare-down.
2 Q. What do you mean by that?
3 A. He just had a -- just had -- I mean,
4 he'd just give an evil stare, and just kept
5 staring, and he was very, very upset about
6 having to go down again.
7 Q. Who did he stare at?
8 A. Me.
9 Q. Did he say anything?
10 A. I don't remember. I said something
11 about, "You don't have to stare."
12 And he said, "Well, you're
13 staring at me."
14 And, you know, he just said -- he
15 just thought it was because he was running
16 against me, I guess. I don't know.
17 Q. And what did you say?
18 A. I said, "Absolutely not."
19 Q. Did you tell him why you wanted him to
20 go back?
21 A. Well, we just -- We said we were
22 concerned about all these things that kept
23 adding up to his temper, and not -- you know,
24 there was other things that were involved with
25 other deputies that were saying what's been
130
1 going on, and we just -- a cumulative of
2 everything that had happened.
3 Q. Did you discuss any of the follow-up
4 steps that Dr. Christiansen had recommended in
5 her previous report?
6 A. I don't -- I don't recommend -- I don't
7 recommend.
8 I think Jim did the biggest share
9 of the talking in this last meeting.
10 Q. And when was the next meeting that you
11 had with Sergeant Ruby?
12 A. I don't -- I don't remember.
13 Q. Was there any other meeting with him
14 before the meeting in which you informed him of
15 his termination?
16 A. I don't believe so.
17 Q. Your Exhibit C is dated December 13,
18 2007. Do you know if you met with him on that
19 date?
20 A. I believe we did.
21 Q. Do you know who was present?
22 A. I think it was -- I'm not sure if -- I
23 know it was myself and Jim O'Brien, and I
24 believe Jason Bahr, and I want to say -- I'm not
25 sure. I'm not sure if there was anybody else
131
1 there or not.
2 Q. Are you sure Jason Bahr was there?
3 A. At the termination?
4 Q. Right.
5 A. I can't -- I just can't recollect. I
6 don't remember.
7 Q. Who did the talking during the
8 termination meeting?
9 A. That's the one that -- I think that's
10 the one that Jim did the biggest share of the
11 talking.
12 Q. Well, you mentioned the November 15th
13 meeting about the evaluation that Jim talked
14 primarily about?
15 A. Right.
16 Q. Who told Curt, "We're ending your
17 employment"?
18 A. I think I did.
19 Q. Do you know what you said?
20 A. I think that we're -- I don't remember
21 exactly how it was said. I think I said, "This
22 is time we're going to be parting ways."
23 Q. How did he respond?
24 A. Oh, I mean, he didn't -- It wasn't real
25 bad. He just said, "Guys, guys, guys, what are
132
1 you doing, what are you doing, what are you
2 doing?"
3 Something onto that order, I
4 guess.
5 Q. Anything else you remember about that
6 meeting?
7 A. He just had that stare again, and he
8 was insolent, or I guess I don't know how you'd
9 say it. Just disrespectful.
10 Q. What makes you perceive that he was
11 being disrespectful?
12 A. Well, I guess the whole time during
13 this, all these proceedings, I just took for
14 granted that, whether he had problems with me or
15 Jim, the office of sheriff should be respected.
16 He could -- he could disagree, but getting loud,
17 boisterous, hollering, and swearing and things
18 like that is -- staring is -- I would consider
19 disrespectful.
20 Q. Why did you decide to terminate his
21 employment at that particular time in December
22 of 2007?
23 A. I guess it was just a cumulative thing
24 of everything that was -- you know, that was
25 happening. We tried -- Jim, again, tried to --
133
1 tried to get him to go back down for an
2 evaluation, and that didn't work, so we just --
3 It was time that we needed to finally step up
4 and -- and do this.
5 Q. Was there one particular issue that
6 stood out as this is it, this is the thing?
7 A. No.
8 Q. Why didn't you let him go sooner?
9 A. We don't -- we don't know. We hadn't
10 got a good idea. Nobody wanted to -- we
11 discussed this. You know, nobody wants to end
12 anybody's career, and it's -- it's -- That's not
13 something that anybody wants to do, and it's
14 just -- it's just -- You know, we've walked on
15 eggshells, everybody in the office had walked on
16 eggshells, or all the deputies walked on
17 eggshells because of the temper, and it was a
18 time that we just needed to do this.
19 Q. And when you say, "We discussed this,"
20 who are you talking about?
21 A. Well, Jim and myself.
22 Q. Do you dislike Curt Ruby?
23 A. No.
24 Q. Do you hate him?
25 A. No.
134
1 Q. You've heard, at least in the opening
2 statement here, that Curt Ruby thinks that you
3 let him go because he's running against you for
4 sheriff.
5 A. Right.
6 Q. Is that true?
7 A. Absolutely not.
8 MS. PENICK: I'm finished with my
9 direct exam.
10 MS. VALENTINE: And what great
11 timing. I think that that will --
12 MS. PENICK: Try to oblige.
13 MS. VALENTINE: Yes. We'll take
14 a break for lunch.
15 MS. CONLIN: Could I make a
16 little record before we do that? Very brief.
17 MS. VALENTINE: Very brief.
18 MS. CONLIN: I had no idea that
19 there were other attorneys involved, of course.
20 Now that I do know that, and
21 because the sheriff cannot recall the dates, I
22 would ask that a call be made to the attorney to
23 check the time records or check the bills, you
24 know, just to establish the time when this
25 attorney was consulted about terminating Curt
135
1 Ruby, the time frame. You know, anything that
2 would refresh his recollection to establish when
3 he visited with this attorney. Certainly --
4 MR. DRISCOLL: I don't know what
5 your position is, but if you would be agreeable,
6 during the break, if he wants to call the other
7 attorneys that were involved, I mean, I don't
8 see why he'd have a problem refreshing his
9 recollection. I mean, there obviously might be
10 a claim of privilege --
11 MS. PENICK: Content.
12 MR. DRISCOLL: -- about that.
13 MS. PENICK: We do have other
14 witnesses that have better recollections of
15 those dates, so that should take care of that
16 problem.
17 MR. DRISCOLL: Would you be
18 satisfied by that?
19 MS. CONLIN: I need the
20 information in order to cross-examine him, if
21 possible.
22 MS. PENICK: If possible, we can
23 do that.
24 MR. DRISCOLL: I suppose after
25 that you can cross-examine him, and if you can't
136
1 do it nicely, we'll do it that way.
2 MS. CONLIN: I'm going to be
3 throwing subpoenas out all over town.
4 MS. PENICK: Thank you.
5 MS. VALENTINE: Do the parties
6 feel that we could at least make some major
7 headway if we would resume at 2:00?
8 MS. CONLIN: Fine with me.
9 MS. PENICK: That will work.
10 MS. VALENTINE: Off the record.
11 (A recess was taken from 12:07 p.m.
12 until 2:03 p.m.)
13 MS. VALENTINE: Are the parties
14 ready to continue? As my memory serves correct,
15 we are ready for cross-examination.
16 MS. CONLIN: Yes. I would like
17 to know if we know when the attorney was called,
18 the attorney who gave information about
19 termination.
20 MS. VALENTINE: Do we have any
21 further information about that?
22 MS. PENICK: Yes. If you want
23 to -- Brian called him at lunchtime, and he had
24 no record because he didn't bill him for it.
25 MS. CONLIN: Okay.
137
1 Who is that person?
2 THE WITNESS: Jim Fitzgerald.
3 MS. CONLIN: Also, for the
4 record, I would like to reserve the right to
5 re-call any person for cross-examination once
6 I've had the opportunity to review the documents
7 which have been provided to me at this time.
8 MS. VALENTINE: The same will be
9 granted.
10 MS. CONLIN: Thank you.
11 CROSS-EXAMINATION
12 BY MS. CONLIN:
13 Q. Good afternoon, sir.
14 A. Good afternoon.
15 Q. What is your educational background?
16 A. Graduated from high school in 1968,
17 from junior college in 1970, and from BV -- I'm
18 not sure what year -- with a bachelor's in
19 business, B.A.
20 Q. And what was your degree from -- Was it
21 Iowa Central?
22 A. Yes.
23 Q. What was that?
24 A. Liberal arts.
25 Q. And did you have a specialty in any
138
1 particular kind of business?
2 A. No. I had a minor in psychology that
3 was -- other than that, no specialty.
4 Q. What formal training did you have or
5 have you had in law enforcement?
6 A. The academy and updated classes every
7 so often -- every year we have to keep up
8 certification through furthering education.
9 Q. How many hours a year are you supposed
10 to do?
11 A. I think it's 12 hours every two years.
12 Q. Aside from continuing education and the
13 Iowa Law Enforcement Academy, have you had any
14 other training in law enforcement?
15 A. No, I guess not.
16 Q. Is it correct that you went from being
17 a patrol deputy to sheriff without ever being a
18 sergeant?
19 A. Correct.
20 Q. And you applied for sergeant?
21 A. Correct.
22 Q. How many times?
23 A. Numerous times. I'm guessing maybe
24 three.
25 Q. Were you ever on the list?
139
1 A. I think I was once or twice. I can't
2 tell you for sure.
3 Q. Have you had any courses in human
4 resources? By that I mean managing people,
5 coaching, counseling.
6 A. Just through -- I'm guessing just
7 through BV. We had -- That's part of the
8 business degree, I'm guessing.
9 Q. Have you read any books or articles on
10 managing people or offices or --
11 A. No.
12 Q. -- administering offices?
13 A. No.
14 Q. Do you have any philosophy on coaching
15 and counseling the deputies that work with you?
16 A. I believe in open-door policy, that
17 they can come in and talk to me at any time with
18 anything they would like to talk about, and I
19 believe, you know, treating them like -- like I
20 would like to be treated, and just like, you
21 know, we do anybody that's even incarcerated.
22 Q. I'm directing this more to the issue of
23 when a deputy has done something wrong. Do you
24 have some philosophy about how that should be
25 handled?
140
1 A. We usually -- usually bring somebody in
2 and discuss the situation, yes.
3 Q. Try to get them to correct whatever it
4 is they're doing wrong?
5 A. Yes. We give -- and a lot of times
6 it's just the discussions between myself and the
7 chief deputy.
8 Q. Do you mean that the chief deputy is
9 doing something wrong or that you and the chief
10 deputy are discussing what some deputy did
11 wrong?
12 A. Yes. And just the options of what
13 actions we need to do and what steps we need to
14 take.
15 Q. Have you had any courses in management
16 or administration?
17 A. Yes.
18 Q. Would that be in connection with your
19 BV degree?
20 A. Correct.
21 Q. When you go to the law enforcement
22 academy or do your continuing education, are any
23 of those courses about coaching, counseling,
24 administration, or management?
25 A. I don't believe so.
141
1 Q. Have you read any books on the subjects
2 of management or administration?
3 A. No.
4 Q. Would you agree with me that the
5 purpose of imposing discipline on an employee is
6 to try to correct their behavior?
7 A. It can be, yes.
8 Q. Is there another reason?
9 A. Well, I mean, if -- You mean -- okay.
10 State that again.
11 Q. Would you agree with me that the
12 purpose of imposing discipline --
13 A. Okay.
14 Q. -- on an employee is to try to correct
15 their behavior so they can do it better the next
16 time?
17 A. That's -- that's one way, unless it's a
18 direct -- unless it's a flagrant, something
19 flagrant, and that requires immediate attention,
20 I'm guessing.
21 Q. Well, you mean -- Give me an example of
22 what you mean by "something flagrant."
23 A. Well, maybe stealing or something
24 that's -- you know, something that's in that
25 order.
142
1 Q. Like a crime?
2 A. Right.
3 Q. Would you agree with me that in order
4 for the discipline to be effective in correcting
5 the behavior, it should be imposed close in time
6 to when the offense occurs?
7 A. That's probably true.
8 Q. And would you agree with me that if
9 you're going to coach, counsel or discipline an
10 employee, that action needs to be documented?
11 A. It should be, yes.
12 Q. If you were aware of a deputy who was
13 not following the law, it would be your sworn
14 duty as sheriff to correct him immediately;
15 right?
16 A. We correct the situation first, I'm
17 guessing, and then we have to deal with the
18 individual.
19 Q. All right. Well, not quite my
20 question.
21 If you knew you had a deputy who
22 wasn't following the law, wouldn't it be
23 incumbent on you as the chief law enforcement
24 officer to tell the deputy and to make sure that
25 the deputy followed the law?
143
1 A. I should do that, yes.
2 Q. All right.
3 And if it was just a mistake,
4 then if you told the deputy that he was making a
5 mistake about the law, then he could stop doing
6 it?
7 A. I suppose that's correct.
8 Q. Are you familiar with progressive
9 discipline?
10 A. Yes.
11 Q. Do you use progressive discipline?
12 A. In some instances, yes.
13 Q. What would be the determining factor as
14 to whether or not you used progressive
15 discipline?
16 A. I guess it depends on the violation.
17 Q. That doesn't help me too much.
18 What type of violations would you
19 use progressive discipline for and what would
20 you not use progressive discipline for?
21 A. That's a question that I really don't
22 know if I could even answer truthfully.
23 Q. All right.
24 Would you agree that the idea
25 behind progressive discipline is that imposing
144
1 lower levels of discipline will get the
2 employee's attention and encourage him or her to
3 correct the behavior?
4 A. I would say that is probably possible,
5 yes, yes.
6 Q. All right.
7 Sheriff, I've handed you what I
8 have marked as Plaintiff's Exhibit 500 entitled
9 "A Handbook for Employees of Webster County"
10 bearing Bates stamp RBC 190 through 208. Are
11 you familiar with this pamphlet?
12 A. If this is our -- If this is our
13 workbook, yes, I should be.
14 Q. Okay.
15 This handbook appears to apply to
16 all employees at Webster County; correct?
17 A. Yes.
18 MS. CONLIN: We would offer
19 Exhibit 500.
20 MS. VALENTINE: Any objection?
21 MS. PENICK: No objection.
22 MS. VALENTINE: Exhibit 500 is
23 received.
24 Q. This one was effective beginning in
25 July of 1998, Sheriff, and I want to call your
145
1 attention to Bates page 197. Are you there?
2 A. Yes.
3 Q. Tell me when you get there. Okay,
4 great.
5 Look under 2.11, and it says,
6 "Separate confidential files shall be kept for
7 the following records and shall be locked and/or
8 sealed with limited access," and the fourth --
9 the third bullet point says medical records are
10 supposed to be kept in a -- I believe a separate
11 file.
12 Is that -- Do you understand that
13 to be true?
14 A. Yes.
15 Q. Turn now, if you would, to page 205 --
16 A. Yes.
17 Q. -- okay? This is the part of the
18 Webster County handbook that deals with
19 progressive discipline and indicates that, "Each
20 case shall be considered on its own merits with
21 due consideration to the nature of the offense,
22 the cause, the background, the likelihood of
23 rejection, and the attitude of the offender.
24 "Certain offenses can be
25 corrected using progressive discipline.
146
1 Situations that the County believe will respond
2 to corrective discipline will normally be
3 handled as follows:"
4 As far as with counseling,
5 progressive discipline starts with counseling;
6 correct?
7 A. Correct.
8 Q. And then there's a written warning;
9 correct?
10 A. Yes.
11 Q. And then there is suspension?
12 A. Yes.
13 MS. CONLIN: All right.
14 Here is Exhibit 501, which became
15 effective August 1st of 2006, and it is the
16 Employee Information Handbook -- Exhibit 501 is
17 the Employee Information Handbook effective
18 August 1, 2006.
19 We would offer Exhibit 501.
20 MS. VALENTINE: Any objection?
21 MS. PENICK: No.
22 MS. VALENTINE: 501 is received.
23 Q. If you would turn first to page 237,
24 Sheriff, and under "Personnel Files and
25 References" -- Tell me when you're there.
147
1 A. Yes.
2 Q. Okay, great.
3 It says -- I'm looking at the
4 fourth paragraph that begins, "Employee
5 personnel files may contain, but are not limited
6 to, the following:"
7 And among the things that are
8 supposed to be in personnel files are
9 disciplinary records and commendations. Do you
10 see where it says that?
11 A. Yes.
12 Q. And it also reiterates that, under
13 "Health and medical records," "Employee health
14 and medical records will be kept in a file
15 separate from employee personnel files";
16 correct?
17 A. Correct.
18 Q. The exhibit that is the 1997 MMPI,
19 which is Defendant's Exhibit F, that was found
20 right in Sergeant Ruby's regular personnel file;
21 correct?
22 MS. PENICK: Objection to this
23 question. As far as where documents are within
24 personnel files is irrelevant to the issues and
25 the notice of discharge.
148
1 MS. VALENTINE: Overruled.
2 A. I can't tell you because I don't know.
3 Q. Okay. Well, let's continue with this,
4 and then we'll look at that personnel file.
5 Turn, if you would, to page 250,
6 and you will see that there are still the same
7 kind of steps for progressive discipline.
8 Are you there?
9 A. Yes.
10 Q. Counseling, written warning, suspension
11 or termination; correct?
12 A. Correct.
13 Q. Throughout the time that you were
14 sheriff, the Webster County handbook provided
15 for progressive discipline; correct?
16 A. Yes.
17 Q. Here is Mr. Ruby's personnel file, and
18 you will find that in your notebook. It's
19 number 1.
20 A. This one here (indicating)?
21 MS. CONLIN: Number 1, Exhibit
22 Number 1, which we would offer at this time.
23 MS. VALENTINE: Any objection?
24 MS. PENICK: Just a
25 clarification. No, no objection.
149
1 MS. VALENTINE: Exhibit 1 is
2 received.
3 MS. CONLIN: And for the record,
4 I have actually removed the MMPI from this, now
5 that I remember, because I did not want it to be
6 a part of the record, so it's actually not in
7 here. I will get the original as it was
8 provided to us, and I can tell you what the --
9 what Bates numbers the MMPI was. The MMPI was
10 WC 11 through 14. Can we stipulate to that?
11 MS. PENICK: I'm sure you're
12 telling me the truth. Let me make sure.
13 Absolutely.
14 MS. CONLIN: Okay, great.
15 Q. Sheriff, I have been through this, and
16 I imagine you have as well. Did you review this
17 personnel file before you fired Sergeant Ruby 12
18 days before Christmas?
19 A. No, I didn't.
20 Q. Are you aware that in this personnel
21 file there is not any reprimand?
22 A. No, I'm not aware.
23 Q. You don't know whether there is or not?
24 A. I never went through his file.
25 Q. All right.
150
1 So you wouldn't know whether or
2 not there was reprimands, disciplines --
3 A. No.
4 Q. -- suspensions, decreases in pay or
5 rank?
6 A. No.
7 Q. You never reprimanded him?
8 A. No.
9 Q. You never disciplined him?
10 A. Well, I don't know if you -- having
11 somebody go down for an MMPI, I don't know
12 whether that's discipline or not. We were --
13 You know, I don't know if you have that
14 considered discipline. We considered that a
15 counseling.
16 Q. Really.
17 So you considered sending him for
18 a fitness-for-duty examination to be discipline?
19 A. Well, I guess counseling, something
20 defined some way to, you know, getting to the
21 point of the anger, I guess.
22 Q. Well, the counseling that's described
23 in Exhibit 501 doesn't seem to have much to do
24 with the kind of counseling that Eva
25 Christiansen did, but, in fact, she wasn't his
151
1 psychologist; correct?
2 A. No.
3 Q. She wasn't doing counseling?
4 A. No.
5 Q. All right.
6 And the counseling here is
7 supposed to be when the employee's supervisor
8 gives the employee a verbal warning. Do you
9 understand that?
10 A. Well, I can't -- I don't think there's
11 anything I can say about -- What I want to say,
12 it's in the report, and I can't say what I want,
13 so I mean, should I -- I don't know what I can
14 say.
15 Q. Well, my question to you is, did you
16 understand or do you understand that counseling
17 as a form of discipline is supposed to be when
18 the employee's supervisor gives the employee a
19 verbal warning?
20 A. I guess I didn't understand that, no.
21 Q. Okay.
22 Did you ever suspend
23 Sergeant Ruby?
24 A. No.
25 Q. Did you ever decrease him in pay?
152
1 A. I don't believe so, no.
2 Q. Did you ever decrease him in rank?
3 A. No.
4 Q. Exhibit 23, that is the auditor's
5 office personnel file. Have you ever seen that?
6 A. No.
7 MS. CONLIN: We would offer
8 Exhibit 23.
9 MS. VALENTINE: Any objection?
10 MS. PENICK: Object to the
11 relevance.
12 MS. VALENTINE: Ms. Conlin, any
13 response to the objection?
14 MS. CONLIN: Well, I would think
15 that the record of an employee's service would
16 be quite relevant to the question of whether or
17 not he ought to be able to continue it.
18 MS. VALENTINE: Ms. Penick?
19 MS. PENICK: If you look through
20 the information, it's salary information,
21 information about benefits and such.
22 MS. VALENTINE: Is that exhibit
23 in here?
24 MS. CONLIN: Oh, I'm sorry. I'm
25 so sorry. Those exhibits are in those folders
153
1 because they were so large.
2 Let me say for the record that
3 the purpose of introducing both personnel files
4 and every single page, except for WC 11 through
5 14, is to show for the record that there is not
6 one bad word in here, no discipline, no
7 suspension, no warning, no decrease in salary,
8 no decrease in rank. That's why they are here.
9 MS. VALENTINE: We'll overrule
10 the objection.
11 23 is admitted.
12 Q. Is it correct, Sheriff, that you were
13 on the list from which Sergeant Ruby was
14 promoted, the Civil Service list?
15 A. I can't say for sure, but I probably
16 was.
17 Q. Your special election was December 9th
18 of 2003?
19 A. I can't remember the exact date, but
20 I'm guessing. If you have it, that's probably
21 what it is.
22 Q. In any event, 12-9-03 sounds about
23 right to you?
24 A. Yes.
25 Q. And when Lieutenant Stubbs ran against
154
1 you in the special election, you were aware that
2 Sergeant Ruby supported Lieutenant Stubbs?
3 A. At that time, no, I was not aware.
4 Q. Would it be consistent with your best
5 recollection that you became aware that Curt was
6 thinking of running against you in the spring of
7 2006?
8 A. That's possible. I can't tell you for
9 sure when it was.
10 Q. While you have been the sheriff, have
11 you actually disciplined other deputies?
12 A. Yes.
13 Q. Have you given them warnings?
14 A. Yeah, maybe verbal warnings. I don't
15 recollect, but I think we probably did some
16 verbal warnings to them, I'm guessing.
17 Q. Have you suspended anybody?
18 A. Just for a short period of time.
19 Q. All right.
20 Have you demoted anybody?
21 A. For a short period of time.
22 Q. Have you fired anybody?
23 A. No.
24 Q. Well, except for Sergeant Ruby?
25 A. Right.
155
1 Q. When you attended -- When did you
2 attend the law enforcement academy?
3 A. 1987 -- or 1988, the spring of -- the
4 winter of 1988.
5 Q. While you were there, were you taught
6 the importance of carefully documenting what
7 steps you took as a law enforcement officer?
8 A. Yes.
9 Q. Taught that it was important to
10 document?
11 A. Yes.
12 Q. Taught that the importance of
13 documentation is because our memories can be
14 faulty?
15 A. Right.
16 Q. And that it is essential that you
17 document very close in time to the occurrence?
18 A. Yes.
19 Q. And the reason for that is so that your
20 memory will be as fresh as possible?
21 A. Yes.
22 Q. Were you also taught that in any
23 situation, people's perceptions about what's
24 going on can be very different?
25 A. Yes.
156
1 Q. An example that comes to my mind is
2 eyewitness testimony. Have you ever --
3 A. Yes.
4 Q. I imagine at the law enforcement
5 academy, and perhaps in your personal
6 experience, you've had people who have all seen
7 the same person and described that person as
8 5 foot 4 to 6 foot 4?
9 A. Correct.
10 MS. CONLIN: I want to address to
11 the commission, I would like to ask about a
12 couple of disciplines that I know about. The
13 purpose of doing that would be to show what
14 others have done without being discharged and to
15 compare it with the actions that are alleged
16 against Sergeant Ruby. I might prefer to do
17 that, I think everyone might prefer to do that,
18 in a closed session, if you will permit me to do
19 that at all.
20 MS. VALENTINE: Are names
21 necessary?
22 MS. CONLIN: No, they are not.
23 MS. VALENTINE: Any objection to
24 that?
25 MS. PENICK: If we can exclude
157
1 the names and refer to them as -- I'm not sure
2 how.
3 Q. I think that you will recognize what
4 I'm talking about, Sheriff. If you do not, I'll
5 tell your counsel, and she can come and tell
6 you. How is that?
7 A. Okay.
8 Q. One of your deputies, in the fall
9 of 2006, his wife's family had hunters on the
10 land. Do you recall that?
11 A. Yes.
12 Q. And he went to that location in
13 uniform?
14 A. Yes.
15 Q. And he took his wife with him?
16 A. Yes.
17 Q. And they went in a squad car?
18 A. Yes.
19 Q. And he got out of the squad car?
20 A. Yes.
21 Q. And he had an M16?
22 A. No, that's not what I was -- I don't
23 think he had an M16.
24 Q. Had some kind of a large,
25 nonrevolver-type weapon?
158
1 A. I'm not -- I'm not -- To be honest with
2 you, I don't know --
3 Q. Okay.
4 A. -- which weapon he had. I don't
5 remember.
6 Q. Do you know that it was not a
7 police-issue weapon?
8 A. That I can't recall either. I don't
9 remember, honestly don't remember.
10 Q. And whatever weapon it was, he fired it
11 in the direction of the hunters?
12 A. That was part of the investigation that
13 we don't know about yet. I mean, I don't -- We
14 couldn't prove.
15 Q. Okay.
16 And he didn't radio in, besides?
17 A. Right.
18 Q. How many violations would that be, do
19 you think?
20 A. Numerous ones.
21 Q. And in connection with that, what was
22 his punishment?
23 A. He lost pay for a week, and he was -- I
24 believe I'm right. He lost pay for a week, and
25 he was suspended from -- Now, see, that's -- If
159
1 I say -- That's going to give up who he is if I
2 say something. I don't know if that's good or
3 not.
4 MS. PENICK: A certain one of his
5 duties was relieved, and he's one of the few who
6 does that particular duty.
7 MS. VALENTINE: If it's in light
8 of duty, can we just say he was suspended from
9 doing certain duties?
10 MS. CONLIN: Yes.
11 Q. How's that?
12 A. Yes. He was suspended from doing
13 certain duties for I want to say six months to a
14 year.
15 Q. Would you agree that what he did was,
16 in fact, a matter of public safety?
17 A. It could have been, yes.
18 Q. And did you send him for a fitness-for-
19 duty examination as a result of that?
20 A. No, we did not.
21 Q. You discussed with Ms. Penick that you
22 are not the author of the general orders which
23 are Defendant's Exhibit A?
24 A. Correct.
25 Q. Have you read them all?
160
1 A. The whole book?
2 Q. Yes.
3 A. Probably not, no.
4 Q. All right.
5 They do all remain in full force
6 and effect; correct?
7 A. Yes.
8 Q. And you -- How long have you been the
9 sheriff?
10 A. Going on five years.
11 Q. So if you wanted to change them, you
12 could?
13 A. Yes.
14 Q. But you have not done so?
15 A. No. We are in the process of doing so,
16 some, yes.
17 Q. Turn, if you would, now, to Exhibit C.
18 MS. PENICK: That would be the
19 red binder.
20 A. The red?
21 Q. We're going to change binders now.
22 Thank you.
23 We're going to be looking at B
24 and C together.
25 This document that is Defendant's
161
1 Exhibit B is titled "Notice of Discharge From
2 Employment"; is that right?
3 A. Yes.
4 Q. And you signed it?
5 A. Yes.
6 Q. And the three -- There are three
7 paragraphs?
8 A. Yes.
9 Q. And then the document that's
10 Defendant's C, the "Notice of Violations," is it
11 correct that Defendant's Exhibit C is the
12 explanation for the three charges on Defendant's
13 Exhibit B?
14 A. Yes.
15 Q. And have you ever compared
16 Defendant's B with Defendant's C to see what of
17 these numbered paragraphs 1 through 25 fit under
18 what of the three charges?
19 A. No, I haven't.
20 Q. Has anybody done that?
21 A. I am guessing that Chief -- my guess is
22 that Chief Deputy O'Brien did.
23 Q. All right, put this down.
24 And each of these 25 charges
25 represent misconduct on the part of Curt Ruby;
162
1 correct?
2 A. Yes.
3 Q. Each of the 25 things is an act of
4 misconduct?
5 A. Correct.
6 Q. And each of those 25 things is
7 sufficient by themselves to justify discharge?
8 A. No, not each one.
9 Q. Do -- Well, I'm surprised by your
10 answer because in the brief, that's what it
11 says, so -- but to your mind as the hiring and
12 firing person, it's each of them is not --
13 A. Correct.
14 Q. -- sufficient for discharge by itself?
15 A. Correct.
16 Q. The general orders, I think you said,
17 apply to you, as well as everyone else?
18 A. Correct.
19 Q. I'd like for us to look at "General
20 Order," 519, and -- I beg your pardon. I have
21 separated this big book into littler pieces for
22 my ease of handling, and so Exhibit 519 -- Do
23 you want a copy of this?
24 MS. PENICK: Yeah.
25 MS. CONLIN: That is WC 230
163
1 through 234. Wait a minute. Look in there and
2 see if you've got a marked copy.
3 235. I'm sorry, 235. We're
4 bringing it to you. No marked copies there?
5 Okay. Good for me.
6 Q. And all these are dated the same date,
7 3-4-98, and this one has six pages, and the
8 subject matter is "Personnel and Discipline,"
9 and if you will look at section 10, that is
10 titled "Disciplinary Penalties," and it too sets
11 out a group of things that are part of
12 progressive discipline, the things that you can
13 do as a part of progressive discipline; right?
14 A. Yes.
15 Q. And 12, "Establishing Elements of a
16 Violation," in summary, says, basically, you
17 don't need a formal complaint; right?
18 A. Yes.
19 Q. And there have never been any citizen
20 complaints against Sergeant Ruby, have there?
21 A. Not that I'm aware of.
22 Q. If you'll look at 21, you will see that
23 pursuant to this general order, "Every alleged
24 act of misconduct must be investigated," so each
25 of these 25 things, because they are all acts of
164
1 misconduct, should have been investigated;
2 correct?
3 A. I guess you could say that, yes.
4 Q. Okay. That's not me saying that.
5 A. Yeah.
6 Q. That's your general order; right?
7 A. Yeah.
8 Q. And your general order also says that
9 the investigation must be reduced to a written
10 report; correct?
11 A. Yes.
12 Q. So each of these 25 things would have a
13 written report of the investigation with it?
14 A. Yeah.
15 Q. Correct?
16 A. Yeah.
17 Q. And it goes on to tell us what needs to
18 be in those -- in those reports for each of
19 these 25 things, and it includes these several
20 things, and the investigating deputy, the person
21 assigned to investigate each of these 25 things
22 is supposed to prepare a written report
23 including all of the things mentioned in
24 paragraph 21; correct?
25 A. Correct.
165
1 Q. That was not done?
2 A. No.
3 Q. So you are in violation of this general
4 order?
5 A. Evidently.
6 Q. And 22 says that in every such report
7 there is also supposed to be a conclusion, and
8 it lists the kind of conclusions: unfounded,
9 exonerated, not sustained, sustained, or not
10 involved.
11 And, again, you are in violation
12 of that, this paragraph 22 of the general order?
13 A. Evidently.
14 Q. The final hiring authority lies with
15 you; correct?
16 A. Yes.
17 Q. For the sheriff's department?
18 A. Pretty much so, yes.
19 Q. And the final firing authority lies
20 with you as the sheriff?
21 A. Yes.
22 Q. The report is supposed to contain --
23 and I take it nobody was assigned to investigate
24 these 25 things; right?
25 A. Not investigate per se, no.
166
1 Q. Well, one of the other things you're
2 supposed to do, I think, is to give a copy to
3 the deputy; is that right?
4 A. If it says it in there, that's probably
5 true.
6 Q. Paragraph 18.
7 A. Okay.
8 Q. In the general orders at WC 260, there
9 is a list of the jobs and responsibilities of
10 the chief deputy.
11 A. Yes.
12 Q. Let's look at that. Can you turn to
13 that, please? Are you there?
14 A. Is that 260?
15 Q. 260, WC 260 of Defendant's Exhibit --
16 A. I don't believe I've got --
17 Q. Oh, it's in your other book. Yes,
18 Defendant's A. Could you take a moment -- Oh,
19 you're not there yet.
20 A. Here, I am.
21 Q. Take a moment, if you would, please,
22 Sheriff, and familiarize yourself with the
23 duties of the chief deputy and what that person
24 is supposed to have.
25 You were the one who selected Jim
167
1 O'Brien?
2 A. Yes.
3 Q. Correct?
4 A. Yes.
5 Q. Did he have any administrative
6 experience when he was selected?
7 A. I don't know.
8 Q. Did you ask him?
9 A. No.
10 Q. Did he have any supervisory experience
11 when you made him chief deputy?
12 A. Yes.
13 MS. PENICK: Objection to
14 relevance.
15 MS. VALENTINE: Overruled.
16 A. Yes, he did.
17 Q. What supervisory experience did he
18 have?
19 A. He supervised the drug division,
20 drug -- the people under him working with the
21 drugs.
22 Q. Did he have any experience in preparing
23 training and performing as an instructor?
24 A. I don't know.
25 Q. Did he have any experience -- Was he
168
1 knowledgeable about Equal Employment Opportunity
2 law, as well as state and federal law covering
3 employment?
4 A. I can't tell you that either.
5 Q. So it's possible that you were also in
6 violation of this general order when you
7 selected Jim O'Brien as your chief deputy?
8 A. It's possible, yeah.
9 Q. Let's look now -- Again, you're in the
10 red book, so turn, please, to Exhibit X. I just
11 wanted to clarify your previous testimony.
12 You had a meeting with
13 Sergeant Ruby about this allegation; correct?
14 A. Correct.
15 Q. And as I read this and as I heard your
16 testimony, after you had this meeting with him,
17 everything was fine?
18 A. Yeah. As far as I can recollect, yes.
19 Q. Okay.
20 So you met with him?
21 A. Yes.
22 Q. Might be fair to say you counseled him?
23 A. Yeah. We discussed what was going on,
24 yes.
25 Q. And then whatever you didn't like, he
169
1 stopped doing?
2 A. Evidently, yes.
3 Q. The person -- Let me say this: Each
4 squad car has a video camera; correct?
5 A. I think they all do now, yes.
6 Q. Okay.
7 And what I understand the
8 officers are supposed to do is record any
9 contact with the citizen?
10 A. Correct.
11 Q. And they activate it at the beginning
12 of the contact and unactivate it when it's over?
13 A. Correct.
14 Q. Is that right?
15 A. Yes.
16 Q. And it is Chief Deputy O'Brien who is
17 supposed to keep those tapes and keep them safe?
18 A. Correct.
19 Q. And he is supposed to maintain them for
20 six months?
21 A. Yes.
22 Q. All right.
23 I am going to introduce this
24 exhibit even though you have just testified to
25 it. Exhibit 502, RBC 391 and 392. These are --
170
1 these are the policy and procedures for in-car
2 audio and video equipment.
3 Do you recognize them as such,
4 Sheriff?
5 A. Yes.
6 Q. Exhibits B and C were not prepared by
7 you; correct?
8 A. No.
9 Q. Chief Deputy O'Brien did them?
10 A. Yes.
11 Q. Do you know how he did them?
12 A. I do not know that, no.
13 Q. Okay.
14 Well, I guess what I'm asking
15 you, do you know if he had notes from which he
16 prepared these materials?
17 A. I couldn't tell you.
18 Q. All right.
19 I believe that it's clear, but
20 just to be on the safe side, with respect to
21 all 25 of the charges brought against Curt Ruby,
22 he was never given a warning; right?
23 A. I don't believe so, no.
24 Q. Or suspended or demoted?
25 A. No.
171
1 Q. And your concerns with respect to
2 these 25 violations are not documented anywhere,
3 except here; correct?
4 A. Yes, as far as -- Yeah.
5 Q. All right.
6 You don't have any notes?
7 A. Other than what was given to Dr. Eva?
8 Q. All right.
9 That's, I think, Exhibit W?
10 A. Yeah.
11 Q. Other than these two things,
12 Defendant's C -- actually, Defendant's D is what
13 Deputy O'Brien prepared as well, so we have
14 that, we have C, we have B, we have the stuff
15 you sent to Eva Christiansen, but what we don't
16 have is any documents or any memos about your
17 concern about these 25 things.
18 A. I didn't make any notes, and any time
19 we discussed things it was Jim O'Brien who made
20 the notes, or Chris, and I didn't -- Well, I
21 didn't make any notes.
22 Q. Would it be correct that whenever you
23 and Chief Deputy O'Brien specifically talked
24 about one of these 25 things that happened, that
25 it would be Chief Deputy O'Brien who was taking
172
1 the notes?
2 A. Yes.
3 Q. I'm a little confused about when you
4 decided to fire Curt Ruby. Can you tell me?
5 A. I don't know the date, and I'm guessing
6 it was right close to the day that we had him
7 come in.
8 Q. December 13th?
9 A. Yeah. I don't -- I can't honestly tell
10 you the date.
11 Q. All right.
12 What was the immediate
13 precipitating factor that caused you to
14 discharge him on December 13th?
15 A. I -- It wasn't really -- It really
16 wasn't any specific one at that time. It was
17 just kind of a culmination of everything that
18 had happened. I don't think there was anything
19 specific.
20 Q. Well, if you'll look at Defendant's
21 Exhibit C, you will see that the date of the
22 last charge before his discharge is the
23 November 27th incident, and this has to do with
24 him writing something on his daily activity
25 report, an unnecessary remark.
173
1 Do you see -- You can just look
2 up there. That's -- It is paragraph 21, okay?
3 A. Okay.
4 Q. Can you tell us what that remark was?
5 A. I think it had something to do with his
6 cell phone, but I don't --
7 Q. How could that possibly be offensive?
8 A. It really wasn't all that offensive to
9 me.
10 Q. Who was it offensive to?
11 A. Jim O'Brien brought that to my
12 attention, and he put that -- I mean, that's
13 just something that Jim O'Brien -- Jim O'Brien
14 basically put this together, so --
15 Q. All right.
16 So the immediate precipitating
17 factor, the last charge that you have in
18 these 25 charges is the November 27th event;
19 correct?
20 MS. PENICK: Objection to the
21 characteristics. He clarified there was no
22 immediate precipitating factor.
23 MS. CONLIN: Okay. Let me
24 rephrase.
25 Q. The last charge is the charge of
174
1 November 27th; correct?
2 A. It looks like it, yes.
3 Q. And there is nothing else on here that
4 is dated anytime after November 27th.
5 A. Okay.
6 Q. So there was nothing that immediately
7 preceded his discharge?
8 A. No.
9 Q. Do you know when Deputy O'Brien first
10 started preparing the notice of violations?
11 A. I'm sorry, I don't.
12 Q. Are you familiar with Exhibit D?
13 A. I think I've probably seen it, yes.
14 Q. When would you have seen it?
15 A. I'm guessing sometime after he had
16 finished it.
17 Q. Do you know when he finished it?
18 A. No, I don't.
19 Q. Who chose the items to be mentioned in
20 D and in C?
21 A. Who showed the items?
22 Q. Who chose them? Who decided this will
23 go into this -- one of these two documents?
24 A. I don't know. I'm guessing it was
25 probably Jim O'Brien.
175
1 Q. Did you have a file in your office
2 in which you kept materials relating to
3 Sergeant Ruby?
4 A. No.
5 Q. Did you go over Exhibit D at any time
6 with Chief Deputy O'Brien?
7 A. I -- I probably did. I can't -- I'm
8 sure I probably did, but --
9 Q. When you went -- Well, you just don't
10 remember at this time?
11 A. I don't remember, no.
12 Q. I think that it will be useful for us
13 to go over the charges that resulted in the
14 discharge of Sergeant Ruby after 28 years of
15 service, and I thought we might begin with
16 number 1.
17 A. Where's that at? And that is? Where
18 is that at?
19 Q. That would be -- I'd like you to keep
20 with you Exhibit C and D.
21 A. C and D, okay.
22 Q. Okay.
23 December -- I'm going to get this
24 up here in a minute, but this is the Tommy
25 Thompson incident?
176
1 A. Correct.
2 Q. Do you know anything about Tommy -- not
3 Tommy Thompson, Tony Thompson. Do you know
4 anything about this guy?
5 A. A little, yes.
6 Q. Why don't you tell the commission what
7 you know about the guy.
8 A. He likes to fight, and he likes his
9 drugs.
10 Q. And he's kind of a giant guy?
11 A. Yeah, he's a good-sized guy.
12 Q. And, in fact, to your knowledge, has he
13 ever been arrested? He's been arrested a lot?
14 A. Yes.
15 Q. He has a really extensive criminal
16 record?
17 A. I'm sure he probably does.
18 Q. Lots of it is violent?
19 A. Lots of -- I'll bet lots of it is.
20 Q. And do you know of any instances where
21 he's been arrested where he has not resisted?
22 A. I really -- I really don't know. I
23 couldn't answer that, but I know he's been
24 violent numerous times.
25 Q. All right.
177
1 What Sergeant Ruby is accused of
2 in connection with this is he was unnecessarily
3 agitated toward the subject. Please tell us
4 what in the world that means.
5 A. Well, I guess -- I guess it was -- I'm
6 not sure as much as the obscenities and the
7 vulgarities as the -- just the idea of not
8 wanting to -- not wanting to deal with it.
9 Q. I beg your pardon?
10 A. Not wanting to deal with it.
11 Q. No, no. We're not even there yet.
12 A. Okay.
13 Q. We're not there yet.
14 He became unnecessarily agitated
15 toward the subject. Do you remember, when you
16 say that, that he was unnecessarily agitated, at
17 the scene or when he got back to the LEC?
18 A. When he got back to the LEC. I'm
19 guessing that's what he meant when he put that
20 in there.
21 Q. Well, I thought you told us he just
22 exited the car and said, "I'm done with this
23 guy," pretty much.
24 A. Well, no. He did say that.
25 Q. Okay.
178
1 A. Yeah.
2 Q. All right.
3 And then upon arrival -- the
4 reason I thought unnecessarily agitated toward
5 the subject before he got to the LEC is because
6 the next sentence begins with the words, "Upon
7 arrival at the LEC, Sergeant Ruby exited his
8 patrol car and began to display anger,
9 belligerent behavior, and was yelling
10 obscenities and vulgarities about the subject."
11 Can you tell us specifically what
12 he said?
13 A. No, I can't. I don't remember what was
14 said. I know he was angry, but I don't remember
15 what he said.
16 Q. Are you sure he said obscenities?
17 A. I can't -- To be honest with you, I
18 can't tell you what he said --
19 Q. Okay.
20 A. -- as far as the obscenities and the
21 vulgarities because I don't remember that.
22 Q. Well, are you sure he said any
23 obscenity?
24 What is the difference between an
25 obscenity and a vulgarity?
179
1 A. Pretty much the same thing, I'm
2 guessing.
3 Q. Well, are you sure he said anything
4 that was obscene?
5 A. No.
6 I didn't make this one up. I
7 mean, I didn't write this up, and there's others
8 that heard, and I can't tell you -- I did not --
9 I can't remember him saying anything like that.
10 The only thing I recall is him
11 saying he did not want to deal with it, so --
12 Q. Well, we're going to get to that, but I
13 want to focus on the obscenities and the
14 vulgarities. Am I correct you were there when
15 he arrived?
16 A. I came in shortly when he came in
17 there, I believe.
18 Q. Was he still in his squad car when you
19 came?
20 A. I don't think. I think he was getting
21 out.
22 Q. Well, he's got the door open, he's
23 getting out. Is that what you mean?
24 A. I think so, yes.
25 Q. So if there would have been obscenities
180
1 and vulgarities, you would have been in a
2 position to hear them; correct?
3 A. Yeah, but sometimes you don't focus on
4 some things and you focus on another, and I
5 wasn't focusing on it at the time. I don't
6 think I was focusing on any vulgarities.
7 Q. Okay.
8 Well, can you describe his -- You
9 said he was angry?
10 A. Yes.
11 Q. Would it be inappropriate for him to be
12 angry after he engaged in an extensive and quite
13 brutal fight with this giant guy?
14 A. No.
15 Q. When you say he's belligerent, was he
16 belligerent toward you?
17 A. No.
18 Q. Would it be unusual for a law
19 enforcement officer who has struggled pretty
20 desperately with a giant guy to get him, first,
21 handcuffed, then they had to drag him to the
22 car, and then he wouldn't get in the car, and
23 then all the way there he's kicking the back of
24 the seat, and he's screaming that he's going to
25 kill him and he's going to kill his wife, he's
181
1 going to cut him up --
2 MS. PENICK: Objection to the
3 testimony by Counsel.
4 MS. VALENTINE: Is there a
5 question?
6 MS. CONLIN: Pretty soon.
7 Q. Would you be -- might you be a little
8 bit belligerent toward the fella?
9 A. Well, to be honest with you, I've been
10 there, done that. I've been in situations where
11 we've had to fight with somebody, and I've been
12 threatened and I've been assaulted and I've been
13 spit upon, and there is times that, I guess,
14 yes, you're going to be angry.
15 It depends how far you take it, I
16 guess. You're going to definitely be angry.
17 You can't not be angry when you're treated that
18 way.
19 Q. Well, he didn't take it out on that
20 guy, on the prisoner at all?
21 A. No.
22 Q. He didn't use excessive force?
23 A. No.
24 Q. Never used excessive force?
25 A. No.
182
1 Q. So what he did, as I understand it, is
2 exit his car, maybe say some bad words, and say,
3 pretty much, "Get him away from me"; correct?
4 A. Yeah.
5 Q. Did you learn standard police
6 procedure, Sheriff, about what you're supposed
7 to do when you have -- when you have struggled
8 with a subject?
9 A. No.
10 Q. Then you might not be aware of the fact
11 that standard police procedure requires that you
12 turn the subject over to someone else as rapidly
13 as you can. Do you know that?
14 A. No.
15 Q. Do you know that standard police
16 procedure, likewise, permits an officer that has
17 been involved in a struggle of this sort that
18 has been described to have some time to calm
19 down?
20 A. Yeah.
21 Q. Does that seem reasonable to you?
22 A. Yeah.
23 Q. Okay.
24 Well, he took himself -- He said,
25 "I need to take a break."
183
1 Was that unreasonable?
2 A. I guess I've never been -- I've never
3 been involved in that before, but I guess it
4 could -- It's possible it could be reasonable,
5 yes.
6 Q. Well, you wouldn't want to put him back
7 on the street --
8 A. No, definitely not.
9 Q. -- if he's got adrenaline moving
10 through his veins?
11 A. No.
12 Q. Well, he knew enough to stand down;
13 correct?
14 A. Yeah.
15 Q. And you're critical of him for that?
16 A. Just the way it was done is all.
17 Q. Well, how would you have had him do it?
18 A. Well, just to come out and say, "I need
19 a break. I need to get away from him."
20 Q. So this is a matter of style?
21 A. No. Just the way it was done. I mean,
22 he was very angry, very vocal, very -- I mean,
23 it was just -- I don't know. It was just loud,
24 and "I'm not going to deal with this."
25 If it would have been, you know,
184
1 say, "I need a break" or "I need" -- you know,
2 "He got to me, and I need to sit down," or
3 whatever, but it wasn't that way.
4 Q. Well, it was that way, except it was
5 just too loud for you; is that correct?
6 A. Well, it was more than loud, but --
7 Q. All right.
8 I notice, Sheriff, in connection
9 with this there are -- there are no general
10 orders listed that he violated. Do you see
11 that?
12 A. No, I don't. Yeah, probably not.
13 Q. You said that officers deal on a daily
14 basis with this kind of thing. In fact, your
15 officers do not have to struggle with people
16 that they arrest very often, do they?
17 A. Hopefully, we don't, now that we've got
18 the TASERs.
19 Q. Well, before that?
20 A. Before that we've had to, yes, and
21 especially with committals.
22 Q. I beg your pardon?
23 A. Especially with committals.
24 Q. Oh, committals. Oh. I thought you
25 were naming somebody.
185
1 A. No.
2 Q. Okay.
3 Well, maybe you do fight every
4 day. Do all of your officers get in fights
5 every day?
6 A. No, they don't every day.
7 Q. And your criticism of him in your
8 direct testimony that he went, quote, a little
9 bit too far; correct?
10 A. Yes.
11 Q. Part of the reason that this surprised
12 you is because this was very uncharacteristic
13 behavior for Sergeant Curtis Ruby; correct?
14 A. On a situation like that, I would say
15 yes.
16 Q. Not a guy who shouts very much?
17 A. Well, not in -- not in a situation like
18 that, no.
19 Q. Not a guy who swears as a general rule?
20 A. Well, not as a general rule.
21 Q. It was appropriate for him to walk
22 away; right?
23 A. Yes.
24 Q. Did you ever tell Curtis Ruby that as a
25 result of the incident of December 5th, 2005,
186
1 that his conduct was in question?
2 A. No.
3 Q. Never talked with him?
4 A. No.
5 Q. Never did an investigation?
6 A. No.
7 Q. And there's not a piece of paper that
8 exists with respect to this?
9 A. No, not that I know of, unless Jim
10 does. I don't know of anything.
11 Q. Did you ever tell him that he could be
12 fired for what he did on December 5th, 2005?
13 A. No. No, I did not.
14 Q. Are you aware that the officer with him
15 was Officer Suchan?
16 A. Yes.
17 Q. All right.
18 Did you ever talk to
19 Officer Suchan about what occurred?
20 A. I didn't, but I believe -- I think Jim
21 did.
22 Q. Let me show you Exhibit 506.
23 Exhibit 506 is the court file for Tony Thompson.
24 While we're at it, let's look at Exhibit 505 --
25 or I beg your pardon. 503. Here is -- Did I
187
1 give you one?
2 MS. PENICK: No.
3 CRYSTAL WHITNEY: I have an extra
4 copy.
5 MS. CONLIN: Good.
6 Q. I thought the commissioners should see
7 that picture. This is -- Do you recognize the
8 guy?
9 A. Yeah.
10 Q. That is, in fact, how he looked that
11 night; right?
12 A. Right.
13 Q. This is actually his mug shot for that
14 night, and if you'll turn in this document, you
15 will see that picture as a part of the court
16 file.
17 MS. PENICK: For the record, I
18 would object to the relevance of these two
19 exhibits. I don't believe they're relevant.
20 MS. VALENTINE: Overruled.
21 Q. There it is, it's on RBC 469. I think
22 that is the same.
23 Was it the cussing that bothered
24 you?
25 A. No.
188
1 Q. Other deputies cuss; obscenities,
2 vulgarities not all that unusual?
3 A. Right.
4 Q. Correct?
5 A. Right.
6 Q. They don't get fired for it?
7 A. Right.
8 Q. Some deputies use the "F" word with
9 some regularity; is that correct?
10 A. Probably.
11 Q. We're done with the first charge.
12 MS. VALENTINE: Ms. Conlin, while
13 we're there, did you want to offer 503 and 506?
14 MS. CONLIN: Thank you very much.
15 Yes, I do want to offer 503 and 506.
16 MS. VALENTINE: Oh, and we
17 have 502, the A/V procedures?
18 MS. CONLIN: Yes.
19 MS. VALENTINE: The audio/video.
20 MS. CONLIN: Yes. Thanks for
21 reminding me.
22 I would like to offer Plaintiff's
23 Exhibit 502.
24 MS. VALENTINE: Any objection to
25 502?
189
1 MS. PENICK: Yes.
2 MS. VALENTINE: Any objection
3 to 503?
4 MS. PENICK: Those are the two I
5 objected to.
6 MS. VALENTINE: That will be
7 overruled.
8 502, 503, and 506 are admitted.
9 MS. CONLIN: Okay.
10 Q. Now, the next one, number 2, let's
11 break that out.
12 Before we move to number 2, let
13 me ask you this, Sheriff: How is charge
14 number 1 in the notice of violations detrimental
15 to the public, or is it not?
16 A. Probably to the public, it's not.
17 Q. Okay.
18 Number 2 says, "In January 2006
19 Sergeant Ruby openly expressed his dislike and
20 discontent for Sheriff Mickelson, telling
21 Chief Deputy O'Brien he couldn't stand
22 Sheriff Mickelson and he would get even with
23 Sheriff Mickelson even if it meant a 'fight to
24 the death.'"
25 Anything about that that's
190
1 detrimental to the public?
2 A. No.
3 Q. Did he ever threaten you directly?
4 A. No.
5 Q. And the problem here is he didn't like
6 you; right?
7 A. Evidently.
8 Q. But the problem, the charge, is the guy
9 doesn't like you. You think he doesn't like
10 you?
11 A. Well, the problem is it's showing anger
12 towards -- It means a fight to the death. That
13 could mean he's going to kill me.
14 Q. Well, that -- First of all, we'd have
15 to know for sure he said it; right?
16 A. Right.
17 Q. One of the things we might want to do
18 is investigate that he said it?
19 A. Well, I'm going by my chief deputy.
20 Q. All right.
21 Well, let's see what your chief
22 deputy says about this, and that would mean look
23 at Exhibit D. Exhibit D is violations prepared
24 by Chief Deputy O'Brien.
25 "In January 2006, I spoke with
191
1 Sgt. Ruby about his anger and discontent. He
2 openly expressed his dislike and discontent for
3 Sheriff Mickelson, telling me he couldn't stand
4 Sheriff Mickelson and he would, 'get even with
5 him for what he had done to Mrs. Ruby even if it
6 meant a fight to the death.' Sgt. Ruby became
7 irate and derogatory while doing so."
8 So that would be, potentially,
9 Chief Deputy O'Brien's word against Curt Ruby's
10 word; correct?
11 A. Correct.
12 Q. And I take it that you -- Well, would
13 you believe Chief Deputy O'Brien?
14 A. Sure.
15 Q. But you would not believe Sergeant Ruby
16 if he said he never did any such thing?
17 A. I probably wouldn't because I know his
18 anger.
19 Q. I beg your pardon.
20 A. I probably wouldn't because I know he
21 does not like me.
22 Q. Well, Sheriff, have you ever known him
23 to lie? I mean ever.
24 A. I don't -- I can't answer that question
25 truthfully. I don't know.
192
1 Q. He's never lied to you, has he?
2 A. I don't know.
3 Q. All right.
4 Well, insofar as you know, he's
5 never lied to you?
6 A. As far as I can recollect, no.
7 Q. All right.
8 So what is this -- Do you know
9 what he means, what Chief Deputy O'Brien means
10 when he quotes Curt as saying he would get even
11 with you for what you did to Mrs. Ruby?
12 A. The only thing we could think of -- and
13 we've asked, and he won't tell us -- is I think
14 it has to do with when Mrs. Ruby's mother was
15 staying with them and she was ill. That's the
16 only thing I can think of.
17 Q. Okay.
18 Do you know whether or not
19 Sergeant Ruby actually did discuss with Chris
20 O'Brien the fact that his mother-in-law was
21 living with them, that she was dying, and that
22 he was going to take -- he was going to need
23 some time to spend with his family?
24 A. As far as I know, Chris did not tell me
25 that because we discussed this. We discussed
193
1 it, so as far as I know, he didn't.
2 Q. You didn't investigate that?
3 A. Chris told me -- Chris didn't say
4 anything about it, so we -- You know, he was
5 there when we discussed it.
6 Q. Curt was?
7 A. No, Chris.
8 Q. Oh, all right.
9 Again, in this specification of
10 charges, there are no general orders indicated
11 that this conduct violates. Do you see that?
12 A. I don't know if it's there as a general
13 order. Basically, it's insubordination.
14 Q. Huh?
15 A. Insubordination on that one.
16 Q. Oh, I'm sorry. I'm looking at the
17 wrong thing. There are all kinds of general
18 orders. I apologize, Sheriff.
19 If there was any truth to him
20 making a threat to fight you to the death,
21 wouldn't you need to write him up right away for
22 something like that?
23 A. I didn't hear about this until later,
24 and we discussed this, and I don't even remember
25 what we came up with, but --
194
1 Q. What you came up with?
2 A. Yeah.
3 Q. What do you mean?
4 A. I don't remember how we decided we were
5 going to deal with it. I don't remember.
6 Q. You didn't do anything.
7 A. That's right, we didn't.
8 Q. And you didn't even tell him. You
9 didn't even give him a chance to reply or say
10 his version of what happened?
11 A. No. No, we didn't.
12 Q. And you don't have any notes about it?
13 A. No.
14 Q. Now, you indicated in connection with
15 the termination that you didn't know whether or
16 not you had recorded that meeting, which leads
17 me to ask you whether or not you have recording
18 devices that are activated in your office.
19 A. Only -- Yes, we do. Now -- Well, there
20 isn't any in there now.
21 Q. Were there?
22 A. Yes.
23 Q. During what period of time?
24 A. Just the times that we met -- and I
25 guess Jim can tell exactly when that was because
195
1 he's the one that set this stuff up.
2 Q. Was it -- It wasn't just a tape
3 recorder; right?
4 A. Right.
5 Q. It was something concealed?
6 A. Audio/video, yeah.
7 Q. But the people in the office wouldn't
8 know it was there?
9 A. No.
10 Q. Would not know that they were being
11 tape-recorded?
12 A. No.
13 Q. And under what circumstances did you
14 use that?
15 A. Just to record the conversation.
16 Q. Was it voice-activated?
17 A. Yes.
18 Q. So whenever anyone came to visit you
19 during this time frame, whenever that was, they
20 would be being tape-recorded, correct, as long
21 as they were speaking?
22 A. No. We just had it in the times that
23 we were discussing with Sergeant Ruby. We
24 didn't have it running the whole time.
25 Q. You just -- Okay. You had a concealed
196
1 recording device?
2 A. Correct.
3 Q. That did both audio and video; correct?
4 A. Correct.
5 Q. And the only person you ever used it on
6 was Curt Ruby?
7 A. Just for the times that we had
8 discipline, that we were talking about the trips
9 or the committals -- committals, the -- going
10 down to see Dr. Eva, and I think that's about
11 it.
12 And Jim -- like I said, Jim set
13 them up. Jim could explain it more than I can.
14 Q. All right.
15 Where would those tapes be?
16 A. He's got them.
17 Q. Okay. I don't.
18 A. Okay. I think our -- I think the
19 attorney has them.
20 Q. Okay.
21 MS. PENICK: For the record,
22 that's one of the tapes that is being -- the
23 issues that's being looked for.
24 One of the recordings,
25 apparently, the video came through, but the
197
1 audio is not audible, so they're working to try
2 to restore that.
3 MS. CONLIN: Thank you.
4 Q. Okay.
5 The charge is -- and I've got
6 Exhibit D up there. Let me put the charge, the
7 actual charge.
8 Curt Ruby never got Exhibit D,
9 Chief Deputy O'Brien's document; correct?
10 A. I can't tell you. I don't know.
11 Q. You didn't give it to him?
12 A. No.
13 Q. Okay. Well, we've got it now. Not up
14 to his termination?
15 A. I can't tell you that. I don't know.
16 Q. All right.
17 Exhibit C is all about what Curt
18 Ruby said; correct?
19 A. The whole -- This whole thing, you
20 mean?
21 Q. No, no, no. Just 2.
22 A. Just 2. Yes, I believe so.
23 Q. All right.
24 And he was critical of you;
25 correct?
198
1 A. Evidently.
2 Q. He was critical of the way you ran the
3 department?
4 A. I -- I don't know. All I know is
5 what's on the board up there.
6 Q. All right.
7 Charge number 3 has to do with
8 February of 2006, and once again, it's about
9 what Sergeant Ruby said; correct?
10 A. Yes.
11 Q. He expressed his dislike for you. Do
12 you think that it is forbidden for him to
13 dislike you?
14 A. No.
15 Q. But a charge that is part of the basis,
16 or maybe could have caused his discharge all by
17 itself, is that he said he didn't like you;
18 right?
19 A. I don't know what he said.
20 Q. Again, expressed to Deputy O'Brien, in
21 particular, his dislike for Sheriff Mickelson?
22 A. Right.
23 Q. Okay.
24 So we're talking about speech
25 here; right? Not actions, speech?
199
1 A. Correct.
2 Q. And in Chief Deputy O'Brien's
3 materials, that is a little more detailed about
4 what exactly he said, and it says February 2007,
5 but it is clear from the context that that is
6 actually February 2006, and apparently,
7 Chief Deputy O'Brien initiated the conversation
8 about anger, attitude, demeanor, and in that
9 conversation he said he expressed his
10 displeasure with the department and with you,
11 and he stated people were out to get him, and
12 certain deputies were tampering with his
13 mailbox.
14 Did you know about that, that he
15 thought people were tampering with his mailbox?
16 A. I found out about it later, yes.
17 Q. When?
18 A. I don't know. A day or two after --
19 I'm not sure when, but a day or two later.
20 Q. Did you ever conduct an investigation
21 of that?
22 A. I asked around, yes. I couldn't find
23 anything other than somebody might have stuck
24 something in there or -- inadvertently or
25 anything. I couldn't find anything that
200
1 substantiated somebody was tampering with his
2 mailbox.
3 Q. Were there any other deputies who
4 indicated that their mailboxes had been also
5 tampered with?
6 A. I can't tell you. I don't know.
7 Q. Don't remember?
8 A. I didn't have anybody. That doesn't
9 mean that Jim didn't.
10 Q. All right.
11 "He also said He believed there
12 was a click or conspiracy and a certain few,
13 'were out to get him.'"
14 Did he ever say that to you?
15 A. No.
16 Q. Did he ever say anything like that?
17 A. Not that I'm aware of, no.
18 Q. Do you know why Chief Deputy O'Brien
19 eliminated the detail that's in Exhibit D from
20 Exhibit C?
21 A. No, I can't tell you.
22 Q. All right.
23 And, again, here, there are no
24 general orders that are indicated as violated in
25 Exhibit C?
201
1 A. Correct.
2 Q. Did you ever tell Sergeant Ruby that he
3 could be disciplined or even fired for what he
4 was saying?
5 A. No.
6 Q. And you didn't write him up?
7 A. No.
8 Q. Didn't try to counsel him?
9 A. No.
10 Q. Notice of violation number 4 has to do
11 with -- Are we able to see that? There we go.
12 This is the scheduling problem;
13 correct?
14 A. Yes.
15 Q. And the gravamen of this offense that
16 resulted in his discharge is that on March 30th
17 of 2006 he knowingly allowed his shift to
18 operate with one deputy in violation of
19 departmental rules.
20 I have looked, Sheriff, and I've
21 been unable to find a departmental rule on that.
22 Can you point me in the right direction?
23 A. There's nothing -- there's nothing in
24 the rules as far as written down, no.
25 Q. Well --
202
1 A. That's something that Jim O'Brien can
2 explain a lot better than I probably can.
3 Q. All right.
4 Who makes the schedule?
5 A. Jim O'Brien.
6 Q. Sergeant Ruby doesn't have a thing to
7 do with the schedule; correct?
8 A. Except if there's changes.
9 Q. I beg your pardon?
10 A. Except if there's changes to the
11 schedule.
12 Q. Okay. Like what?
13 A. Vacations that come up or somebody
14 wants a day off. Then the person that's in
15 charge of that shift -- ever since I've been
16 with the department, we've had a sheet in the
17 lieutenant's drawer that is the schedule, and
18 that's -- and then if anybody wants to check to
19 see if somebody has got that off, they go to
20 that schedule, and if they would like a day off,
21 then what they do is they take a request form,
22 fill it out, and they give it to their ranking
23 officer to handle that -- handle that request.
24 And then it goes to Chief Deputy O'Brien to make
25 sure that that shift is covered.
203
1 Q. A sergeant can't sign off on a vacation
2 day that changes his schedule, can he?
3 A. That changes the schedule that the --
4 Yes. The sergeants can, yes.
5 Q. Okay.
6 I thought you just told me it has
7 to go through the chief deputy.
8 A. Well, he signs off on it, but he gives
9 it to the chief deputy so the chief deputy knows
10 what's going on.
11 Q. Okay, all right.
12 So Chief Deputy O'Brien had to
13 know what you accuse Curt Ruby of knowing;
14 correct?
15 A. Yes.
16 Q. Was he disciplined?
17 A. He didn't know that -- he didn't know
18 that it wasn't not covered.
19 Q. He had everything that Sergeant Ruby
20 had; correct?
21 A. Yes, but that's something you're going
22 to have to explain to him. He did not -- That's
23 why -- that's why this is in there, because he
24 did not know. It was all of a sudden there was
25 just one person working that shift.
204
1 Q. I need to return for a moment to the
2 one that we did, number 3, which is about him
3 expressing that he was displeased with you, and
4 he didn't like you. Is there any way in which
5 you see that as detrimental to the public?
6 A. No.
7 Q. Okay.
8 There is a little more detail in
9 Chief Deputy O'Brien's material, and this is --
10 He says, "On March 30, 2006, Sergeant Ruby
11 knowingly allowed his shift to operate with one
12 Deputy. He was aware of the scheduling and took
13 his scheduled day off anyway, without ensuring
14 his shift was covered, leaving a fellow officer
15 alone on duty."
16 And do you recall who that was?
17 I've got the schedules here. Let's do that.
18 A. I think it was Deputy Rod Strait.
19 Q. Okay.
20 Here is Exhibit 528, RBC 419.
21 This is -- The yellow is my highlighting, and I
22 just did that so we could tell who was on what
23 shift. The top shift is -- What hours do those
24 first three folks work?
25 A. That's a six-to-two shift.
205
1 Q. Daylight?
2 A. Yes, in the morning.
3 Q. And the detectives work about nine to
4 five, roughly?
5 A. They work different hours.
6 Q. And then the shift on which
7 Sergeant Ruby was at the time of March of 2006
8 was what hours?
9 A. Two to ten.
10 Q. All right.
11 And then the next one, I assume,
12 would be ten to six?
13 A. Correct.
14 Q. All right.
15 So this is the original schedule;
16 correct?
17 A. Yes, I believe so.
18 Q. Do you remember when Deputy Richardson
19 had an injury?
20 A. Yes.
21 Q. Okay.
22 Do you know why there's a line
23 through Deputy Richardson on this schedule?
24 A. That might have been the time that he
25 was off. I don't know. Must have been.
206
1 Q. The new schedule that's written at the
2 top, do you know whose handwriting that is?
3 A. No, I don't.
4 Q. If you look at this -- and assuming
5 that the line open -- Do you think the line
6 through Richardson means that he's not working
7 at all?
8 A. Correct.
9 Q. Okay.
10 Look, then, at December 30th -- I
11 mean, I'm sorry, March 30th of 2006.
12 A. Yes.
13 Q. Okay.
14 And on this schedule you will see
15 that on that day Ruby is scheduled off. On that
16 day Jason Bahr is scheduled off. On that day we
17 know that Richardson was probably not going to
18 be there, at least on this schedule, and so on
19 the original schedule as made, it's going to be
20 Rod Strait all by himself; correct?
21 A. Yes.
22 Q. Okay.
23 And let's look at the attendance
24 sheet, which is Defendant's Exhibit E. There's
25 some handwriting on the top that I don't --
207
1 MS. VALENTINE: Excuse me.
2 Ms. Conlin, did you want to offer --
3 MS. CONLIN: I did. I am so
4 sorry.
5 MS. VALENTINE: -- Exhibit 528?
6 MS. CONLIN: Yes. I would offer
7 Exhibit 528.
8 MS. VALENTINE: Any objection?
9 MS. PENICK: No.
10 MS. VALENTINE: Exhibit 528 is
11 received.
12 Q. Okay.
13 This is Exhibit E, and on
14 the 30th we see the following: It appears as
15 though Richardson was there the whole month. Do
16 you see that?
17 A. Yes.
18 Q. Okay.
19 And the "V" means vacation;
20 correct?
21 A. Correct.
22 Q. Who granted that vacation?
23 A. The -- the officer that's on that shift
24 is supposed -- That would have been -- That
25 would have had to have been Curt.
208
1 MS. PENICK: Excuse me. Roxanne,
2 I did find something, the documents we just
3 copied for you.
4 MS. CONLIN: Okay.
5 Q. Okay. I've got a bit better copy here,
6 and I don't think that that stuff has any
7 particular meaning, but do you have -- As I
8 understand it, there should be a vacation slip
9 for this; right?
10 A. Yes.
11 MS. CONLIN: All right. We would
12 request that vacation slip. I didn't do this
13 before because this is a relatively recent
14 document, a substitute for a previous Exhibit E,
15 and I would ask that the commission ask the
16 sheriff's office to give us that vacation slip
17 from Richardson. That will tell us who signed
18 it. It will also tell us when it was made.
19 MS. PENICK: I can respond right
20 now that was searched for, and it does not -- in
21 the file, there is none.
22 MS. CONLIN: Did you look in
23 Richardson's file?
24 MS. PENICK: It was searched for
25 according to the process that they looked for
209
1 these.
2 MS. CONLIN: I'd sure like to ask
3 that it be looked at in his file or in any other
4 place that it might exist.
5 MS. PENICK: We'd like to see
6 that too.
7 MS. CONLIN: Okay.
8 Q. This is a vacation day apparently
9 granted after the original schedule?
10 A. Yes, apparently.
11 Q. Now, this came to your attention a
12 couple of days later; is that right?
13 A. I believe so, yeah.
14 Q. I think that's what you told us
15 earlier.
16 And did you call in Sergeant Ruby
17 and ask him, "What in the world happened?"
18 A. I think -- I want to say Deputy Jim
19 O'Brien did, Chief Deputy Jim O'Brien did.
20 Q. Well, according to this, he didn't do
21 it until -- not this, but according to the
22 charges, the first time that Sergeant Ruby was
23 ever approached about this was April 10th
24 or 11th. I think it's part of the charges.
25 Were you a party to that
210
1 discussion?
2 A. No, I don't believe so.
3 Q. Do you know whether an investigation
4 was conducted as to what happened?
5 A. That's something you'll have to ask
6 Chief Deputy O'Brien.
7 Q. You know he wasn't written up for it?
8 A. No.
9 Q. Not counseled, not disciplined?
10 A. No.
11 Q. And you indicated in your direct
12 examination that he -- and I think that's
13 O'Brien -- talked to someone from the department
14 about this; correct?
15 A. Correct.
16 Q. Why would someone from the police
17 department be asked about this?
18 A. It was my understanding that the three
19 individuals were out at Officer Buske's
20 residence, and that's --
21 Q. I beg your pardon?
22 A. I was under the impression that all
23 three officers were out at Officer Buske's
24 residence. I mean, the two officers,
25 Deputy Strait and Sergeant Ruby, were out at
211
1 Officer Buske's residence discussing whatever,
2 and that's what -- That's the way it came up to
3 Officer Buske to be questioned, I guess.
4 Q. Okay. I don't think I quite
5 understand.
6 Are they all out there on
7 March 30th?
8 A. Yeah. I believe so, yes.
9 Q. And during duty hours?
10 A. Rod -- yes, during that time that the
11 shift was supposed to be covered, yes.
12 Q. Okay.
13 So what you based your decision
14 to fire him on was that he, Rod Strait and -- is
15 it Lieutenant Buske?
16 A. I think it is. He's either that or
17 captain now. I'm not sure.
18 Q. All right.
19 -- were out at Buske's residence
20 during the shift, which would be two to ten?
21 A. Correct.
22 Q. Together?
23 A. They were out there, yes, at the same
24 time, one time or other, yes.
25 Q. Okay.
212
1 And do you know what they were
2 talking about?
3 A. No, I do not.
4 Q. Okay.
5 In Chief Deputy O'Brien's
6 statement of these charges, he says that
7 Deputy Strait told him, Chief Deputy O'Brien,
8 that Sergeant Ruby was well aware his shift was
9 not covered and his fellow officer would be
10 working alone.
11 Has any -- has this ever happened
12 before when an officer has been the only one on
13 duty?
14 A. It used to be a common practice many
15 years ago.
16 Q. I mean since you've been the sheriff.
17 A. I can't say it never has happened, but
18 I can't tell you when. I know there's -- When
19 there's -- Our practice is to never let somebody
20 work by themselves.
21 Q. And that's the rule that's not written
22 down anyplace?
23 A. Right.
24 Q. Do you have other rules that aren't
25 written down anyplace that people are supposed
213
1 to follow?
2 A. We just don't -- We just -- I can't
3 tell you. I don't know.
4 Q. And he also says in Exhibit D, "I was
5 also informed by Deputy Fleener that Fort Dodge
6 Police Officer Mike Buske informed him that
7 Sgt. Ruby and Deputy Strait had been in contact
8 with each other after the beginning of the
9 shift."
10 Now, I just want to be sure that
11 I understand what this says. O'Brien is told by
12 Fleener that Buske told Fleener that Ruby and
13 Strait were in contact with each other after the
14 beginning of the shift?
15 A. That's what it looks like.
16 Q. Are you familiar with the concept of
17 hearsay?
18 A. Yes.
19 Q. Okay.
20 Do you think that generally, as a
21 police officer, as a peace officer that hearsay
22 is less reliable than direct evidence?
23 A. Probably so.
24 Q. Okay.
25 Do you know whether or not
214
1 anybody talked to Buske?
2 A. I believe Jim did.
3 Q. All right.
4 And then he says, "I attempted to
5 call Sgt. Ruby several times on his cell phone
6 and his residence...being unsuccessful, I left
7 messages on both."
8 And Sergeant Ruby didn't return
9 the call, and then he was seen at the -- Is it
10 Hemann's?
11 PUBLIC MEMBER: Hemann's.
12 Q. -- Hemann's Martial Arts later that
13 evening?
14 A. Yes.
15 Q. It was his day off. Nothing forbidding
16 him from, on his day off, practicing --
17 A. To be there --
18 Q. -- practicing martial arts?
19 A. No.
20 Q. All right.
21 MS. PENICK: Would now be an
22 appropriate time for a short break?
23 MS. CONLIN: Would it be all
24 right if I finished this one, number 4?
25 MS. PENICK: I thought you were
215
1 finished.
2 MS. CONLIN: Oh, no, no.
3 MS. PENICK: I can wait that
4 long.
5 Q. One of the ways that shifts are
6 sometimes covered is by using reserves; correct?
7 A. No.
8 Q. Okay.
9 Well, hasn't that been the
10 practice in the past?
11 A. No. It might have a long time ago, but
12 that's been suspended a long time ago. We
13 don't -- do not supplant an officer with a
14 reserve.
15 Q. You can't call a reserve in on a
16 circumstance where there's only one person on
17 duty?
18 A. No.
19 Q. That's never happened?
20 A. It might have four years ago. It
21 hasn't recently.
22 Q. While you were the sheriff, did it ever
23 happen?
24 A. It might have. I don't know.
25 Q. Exhibit 26 is a list of the Webster
216
1 County sheriff reserves. It's in your book up
2 there.
3 A. Okay.
4 MS. CONLIN: And I just would
5 like to offer that at this time.
6 MS. VALENTINE: Any objection?
7 MS. PENICK: No.
8 MS. VALENTINE: Exhibit 26 is
9 admitted.
10 Q. In the material that Chief
11 Deputy O'Brien prepared, he says that they were
12 in touch with one another, Strait and Curt,
13 after the shift started. Tell me what the
14 significance of that is.
15 A. I guess he just -- He's just showing
16 that they both knew that there was only one
17 person working, I guess.
18 Q. All right.
19 There are -- You say that this
20 violates a number of the general orders.
21 Neglect of duty is -- is one of those. It is --
22 MS. CONLIN: Let me ask the
23 commissioners. I have marked each of these
24 separately. Is it just as easy to look in your
25 book or is it handier to have these little gadgets?
217
1 MS. VALENTINE: It's easier to
2 look in the book.
3 MS. CONLIN: Fine. Then I want
4 to offer 521, if I may, and it is 138, WC 138.
5 521 is WC 138 through 141.
6 MS. VALENTINE: And it's already
7 been admitted.
8 MS. CONLIN: Oh, true enough.
9 Q. This violates neglect of duty, and the
10 one that caught my eye is the failure -- I mean,
11 take a moment, if you like, Sheriff, and review
12 that and see how he violated this --
13 PUBLIC MEMBER: Can you magnify
14 that a little more?
15 MS. CONLIN: I sure can.
16 PUBLIC MEMBER: Thank you.
17 Q. That's my underlining, needless to say.
18 It's not in the original document.
19 "Failure to report to duty at the
20 time and place designated, is that the part of
21 that that you think is violated?
22 A. Probably not.
23 Q. Which one is it then? He wasn't absent
24 without leave; right?
25 A. That's something you're going to have
218
1 to discuss with Chief Deputy O'Brien.
2 Q. Sheriff, you're the one who fired the
3 guy.
4 A. Right.
5 Q. Can you explain to me at all how he
6 neglected his duty?
7 A. He neglected his duty -- and it's not
8 written down, but he neglected his duty by not
9 covering the shift.
10 Q. But if Chief Deputy O'Brien also knew
11 that this was going to happen and that there was
12 only one person, then he too neglected his at
13 this time.
14 A. I'm not sure that he knew that. I'm
15 not sure he knew.
16 Q. I'm proposing a hypothetical.
17 A. To be honest with you, if Chief Deputy
18 knew that that was not covered, it would have --
19 Somebody would have been working that day.
20 Q. I beg your pardon?
21 A. If he knew that there was a spot open
22 and nobody -- there was only one person working,
23 he would have made sure that somebody was
24 working that shift, but with Officer Strait.
25 Q. You also say that he violated several
219
1 parts of 94-402, the first of which is loyalty.
2 Again, let me -- Take a look at that and tell me
3 how he violated that.
4 A. In this instance, I'm not sure what Jim
5 meant, but I'm guessing he meant by just not
6 having that shift covered, he left -- he left a
7 member out there by himself.
8 MS. PENICK: Roxanne, which page
9 number are you on?
10 MS. CONLIN: I'm sorry, 154.
11 Q. And then coordination, can you tell me
12 how he violated that?
13 A. Probably not coordinating with
14 Chief Deputy in finding somebody to work that
15 shift, I'm guessing.
16 Q. Okay.
17 Cooperation between the ranks,
18 tell me how he violated that.
19 A. I can't.
20 Q. As I understand it, this was
21 Sergeant Ruby's regular day off?
22 A. Correct.
23 Q. Scheduled well in advance?
24 A. Correct.
25 Q. With the permission of the department?
220
1 A. Yes.
2 MS. CONLIN: I'm done with
3 number 4.
4 MS. VALENTINE: Let's take a
5 break until 4:00, or maybe five till four. Just
6 a 10-minute break.
7 (A recess was taken from 3:50 p.m.
8 until 4:03 p.m.)
9 MS. VALENTINE: All right. Let's
10 go back on the record.
11 Q. Charge 5 has to do with charge 4.
12 Well, charge number 5 has to do with this
13 scheduling problem; correct?
14 A. Yes, I believe so.
15 Q. And it's dated April 10, 11 days after
16 this scheduling problem occurred?
17 A. That's what it looks like, yes.
18 Q. And it recites that he -- Well, you
19 were not there for any of this; right?
20 A. No.
21 Q. All right.
22 After Chief Deputy O'Brien had
23 this conversation with Curt Ruby, did he come
24 and speak with you?
25 A. I'm sure he did, but I don't recall the
221
1 conversation.
2 Q. Is there a status called on call?
3 A. Yes. Pretty much everybody is on call.
4 Q. There's not an official list of people
5 who are on call?
6 A. No.
7 Q. The rules that he is alleged to have
8 violated, respect to superiors is one, and
9 that's on WC 158, and this one I'm a little
10 curious about, and I want to discuss perhaps a
11 little more generally.
12 38 is respect to superiors, and
13 it requires everybody to accord respect at all
14 times and to refrain from critical or derogatory
15 comment on orders received from or issued by him
16 or her.
17 In this case, was any order
18 issued that Curt Ruby disobeyed?
19 A. I don't know what his conversation was
20 with Curt that day.
21 Q. Well, according to number 4, he didn't
22 have any conversation with him; right?
23 A. Right.
24 Q. He tried to call him, and he couldn't.
25 MS. PENICK: Are we on number 5?
222
1 MS. CONLIN: Right.
2 Q. The number 5, this relates to
3 number 4, which was the scheduling problem, and
4 Chief Deputy O'Brien indicated in his material
5 that he did not ever reach Curt Ruby. That's
6 how I'm wondering how he could have issued him a
7 warning. Do you know?
8 A. Well, it says there that he
9 became angry and belligerent toward
10 Chief Deputy O'Brien. There again, I'm guessing
11 that's where the two violations came from.
12 Q. I'm sorry. We're all confused.
13 A. You're looking at 5, aren't you?
14 Q. Yes, I am, and it's driving me crazy,
15 the color that I've somehow inculcated into
16 that.
17 Here is -- the number 5 is a
18 conversation --
19 A. Correct.
20 Q. -- a conversation about the March 30
21 incident; correct?
22 A. Correct.
23 Q. On April 10th was there any order
24 issued that Sergeant Ruby didn't obey?
25 A. I -- Evidently not. I don't know. I
223
1 don't believe so.
2 Q. Do you have any idea how he could have
3 been insubordinate?
4 A. I suppose -- I suppose by the way he
5 talked to Chief Deputy O'Brien.
6 Q. Define insubordination for me, please.
7 A. I really don't have anything other than
8 by being disrespectful, rude. I guess that's a
9 couple of things, I'm guessing. Not following
10 orders. I don't know.
11 Q. Do you agree that before someone is
12 punished for violating a rule, you have to
13 ascertain with certainty that the person -- that
14 the rule itself is clear?
15 A. Yes, I would say so.
16 Q. Number 6 pertains, again, to the
17 March 30th scheduling incident where, once
18 again, now three weeks from the time this
19 occurs, he has a conversation with
20 Chief Deputy O'Brien. Do you know whether or
21 not Chief Deputy O'Brien then came and spoke to
22 you about this situation?
23 A. I'm sure he probably did, but, again, I
24 don't -- I can't -- I don't recollect exactly
25 what was said.
224
1 Q. All right.
2 He -- According to
3 Chief Deputy O'Brien's perception, Sergeant Ruby
4 became enraged and loud and pointed his finger.
5 Is being loud a dischargeable offense?
6 A. No.
7 Q. Pointing a finger, is that a
8 dischargeable offense?
9 A. Not a dischargeable offense, no.
10 Q. Is being enraged?
11 A. No. It depends on what was said, I
12 guess.
13 Q. All right.
14 Well, according to
15 Chief Deputy O'Brien in Exhibit D, what he --
16 what Curt Ruby said was -- He explained the
17 information he was aware of, and then he got
18 enraged and loud and pointed his finger and
19 said, "Those are accusations, and I don't
20 appreciate it."
21 And then he stared at him in a
22 disrespectful and intimidating manner.
23 Any of those things dischargeable
24 offenses?
25 A. No, not in -- not in themselves, I
225
1 guess.
2 Q. And what Chief Deputy O'Brien says in
3 his material is that, as a sergeant and
4 supervisor, Curt Ruby was solely responsible for
5 both ensuring his shift is covered and the
6 safety of subordinate officers. Do you agree
7 with that statement?
8 A. Yes.
9 Q. That the sergeant is solely responsible
10 for ensuring his shift is covered?
11 A. Yes.
12 Q. No one shares that responsibility?
13 A. No.
14 Q. The chief deputy doesn't have a
15 responsibility to see that the shift is covered?
16 A. If the chief deputy makes out the
17 schedule and everybody knows the -- what they're
18 supposed to do to make sure everything is
19 covered, and it's up to the -- it's up to the
20 officer in charge of that shift to make sure
21 that if there's changes, that that shift is to
22 be covered.
23 Q. Okay. Well, so it's not the --
24 MS. CONLIN: May we confer?
25 MS. VALENTINE: Yes.
226
1 (An off-the-record discussion
2 was held.)
3 Q. Did you ever tell Curt Ruby he could
4 get fired for what happened on April 21st?
5 A. No, I did not.
6 Q. There is a -- One of the general orders
7 that he is accused of violating is one -- on
8 page 158 of Exhibit 1, paragraph 39, addressing
9 superiors.
10 Are you there? You've got plenty
11 of time to look it up.
12 A. Yeah, if you'd tell me where that is
13 again.
14 Q. Yes. It's 39 on page 158.
15 A. 158. Yes, I'm there.
16 Q. Okay.
17 "When addressing ranking
18 deputies, members shall observe a respectful
19 attitude and use proper titles, particularly in
20 the presence of the public."
21 Is the failure to do that a
22 dischargeable offense?
23 A. Not in itself, no.
24 Q. Are you aware, sir, that -- if you'll
25 turn to page 266 of Exhibit A, you'll find the
227
1 job description for a patrol sergeant. We have
2 reviewed this, and we do not see anything having
3 to do with scheduling. Would that be correct?
4 A. 266?
5 Q. 266.
6 A. Okay.
7 Yeah, probably not, no.
8 Q. Is that another of the unwritten rules
9 that people are supposed to follow?
10 A. Could very well be.
11 Q. On April 21st of 2006 when this matter
12 is brought up again to Sergeant Ruby, you had
13 issued no order to him; correct?
14 A. No.
15 Q. You had imposed no discipline?
16 A. No.
17 Q. You had conducted no investigation?
18 A. No.
19 Q. You had no notes?
20 A. No.
21 Q. Notice of violation 7 has to do with a
22 May 12th conversation. These three in a row
23 have to do with conversations; correct?
24 A. Yes. Evidently, yes.
25 Q. Wait a minute. Did I skip one? God
228
1 knows we don't want to do that.
2 No. That was 6. We did 6.
3 Here we go, 7, May 12th.
4 Apparently, you were a party to this
5 conversation; correct?
6 A. Part of it, yes, part of it, yes.
7 Q. Is that the one where you went into
8 O'Brien's office?
9 A. Correct.
10 Q. And where he said if you ever wanted to
11 contact him off-duty, forget it; correct?
12 A. Right.
13 Q. Did you hear him say that?
14 A. Yes.
15 Q. And did he say he was not -- not going
16 to be available?
17 A. Yes.
18 Q. All right.
19 And in the material that we have
20 from Chief Deputy O'Brien, we know that this
21 conversation on May 12th was the third one about
22 the scheduling incident that had happened now
23 where -- I don't know -- six weeks beyond that
24 March 30th incident; correct?
25 A. Yes. I don't know -- I wasn't aware of
229
1 what --
2 Q. I beg your pardon?
3 A. I wasn't aware of that discussion he
4 had with Sergeant Ruby before I went in there.
5 Q. All right.
6 Were you there when he left?
7 A. I was -- the first time or the second
8 time?
9 Q. When he left and came back.
10 A. I was there when -- I was in my office
11 when he left the first time.
12 Q. Okay.
13 And then when he came back?
14 A. I was in Jim's office.
15 Q. All right.
16 Do you know why Sergeant Ruby
17 made these alleged comments about not being
18 available?
19 A. No, I do not.
20 Q. And, again, this one says -- He says
21 he's displeased with the department; correct?
22 A. Yes. He must have, yes.
23 Q. I beg your pardon?
24 A. He must have, yes.
25 Q. I wonder, Sheriff, if you could keep
230
1 your voice up a little bit.
2 A. Sure, you bet.
3 Q. We've got this little machine down here
4 to try to prevent us from becoming icicles, so
5 it's making a little noise.
6 Do you recall that he said he
7 paid for his cell phone, and not to call him
8 when he was off-duty?
9 A. I just remember him stating he would
10 not answer his phone when he's off-duty.
11 Q. Okay.
12 Do you know how this constitutes
13 insubordination?
14 A. Just -- I'm guessing just the way he --
15 just his approach.
16 Q. Again, a matter of style?
17 A. How he dealt with the situation.
18 Q. Well --
19 A. Disrespectful. I could say that's
20 insubordination.
21 Q. Notice of violation number 8 is the
22 charge that he engaged in public endorsements,
23 advertising, and speaking on his employment with
24 the department without the approval of you.
25 He could get that approval from
231
1 Chief Deputy O'Brien as well; correct?
2 A. Yes, he could.
3 Q. Okay.
4 And that's -- and it says that he
5 used his name, his rank, his title and
6 affiliation in public fliers, local newspaper
7 advertisements, and public speaking.
8 Now, do you know what specific
9 incidents that refers to?
10 A. No. No, I don't. It was just
11 something that Jim -- something brought -- it
12 was brought to Jim's attention, and he dealt
13 with it.
14 Q. Well, now, you said in your direct
15 examination that he came and asked if he could
16 do the self-defense classes; correct?
17 A. I remember something of that. It was
18 vague, but, you know, I thought it was a good
19 idea if he, you know, wanted to do something for
20 the public as far as self-defense for women. I
21 thought that was a good idea, but not to -- He
22 was not to do it under the auspices of the
23 sheriff's department. Just do it on his own.
24 Q. Do you know who was responsible for
25 creating the fliers?
232
1 A. No, I do not.
2 Q. All right.
3 The first of those is Defendant's
4 Exhibit J. Did you ever see that?
5 A. I can't recollect if I ever did see it,
6 no.
7 Q. As I understand what you're telling us,
8 what you object to is the fact that it says,
9 "This class will be led by Sergeant Curt Ruby of
10 the Webster County Sheriff's Department."
11 Is that --
12 A. Yes, correct.
13 Q. Did you ever speak to him about this?
14 A. I think that Jim did, but I can't state
15 for sure.
16 Q. Do you know what Sergeant Ruby -- Do
17 you know whether or not Sergeant Ruby knew that
18 this kind of a flier was even going to be put
19 out?
20 A. I haven't the slightest idea, no.
21 Q. All right.
22 You never asked him?
23 A. No.
24 Q. Conducted no investigation?
25 A. I didn't, no.
233
1 Q. Do you know that Sergeant Ruby, in
2 fact, gave a disclaimer at the very beginning of
3 the class?
4 A. I found that out later, but I don't
5 know when.
6 Q. All right.
7 This is Plaintiff's Exhibit 11,
8 which is Curt Ruby's self-defense course outline
9 for 2006, and at the very beginning of the class
10 he says, "Disclaimer for school & SO," sheriff's
11 office and "SS." We will ask him what that
12 means.
13 Were you aware that when he got
14 to the class, he made it very clear to people
15 that he was not in any official capacity from
16 the sheriff's department, and that the sheriff's
17 department had no obligation or responsibility
18 for what he was doing?
19 A. I found that out later, yes.
20 Q. Well, when did you find it out? I
21 mean, after you fired him?
22 A. No, no. After -- Jim brought that to
23 my attention.
24 Q. All right.
25 And you liked the fact -- or you
234
1 at least approve of him teaching these classes?
2 A. Yeah. I thought it was good for the --
3 for the women for self-defense.
4 Q. He didn't take any salary for this?
5 A. I don't -- I don't know.
6 Q. And he didn't -- you know, didn't take
7 any comp time or anything like that?
8 A. Don't believe so, no.
9 Q. Having women be able to defend
10 themselves is a good idea?
11 A. Very good.
12 Q. All right.
13 Is there anything about him
14 teaching self-defense classes that is
15 detrimental to the public?
16 A. No, not that I can see.
17 Q. All right.
18 And then in the material provided
19 to us by Mr. O'Brien, Exhibit D, he also
20 mentions the church as a dischargeable offense.
21 Exhibit 29 records Sergeant Ruby's presence at a
22 class for young people who are going to go on a
23 trip to Okoboji about scuba diving. Did you
24 know that?
25 MS. PENICK: Where are you? I'm
235
1 sorry.
2 MS. CONLIN: Oh, I'm sorry.
3 Exhibit 29.
4 MS. PENICK: Do you have a
5 reference?
6 MS. CONLIN: On the last
7 page, 800, "Camp Sunday Highlights." They're
8 getting ready for church camp, and they thank a
9 lot of people, including right down here
10 (indicating), Curt Ruby for teaching the youth
11 about scuba diving.
12 Q. Do you see that?
13 A. I can't read it on there.
14 Q. Oh, I'm sorry. There we go. Right
15 there (indicating), "Curt Ruby for teaching the
16 youth about scuba diving."
17 Anything detrimental to the
18 public about that?
19 A. No.
20 Q. You included this, which was in March
21 also, as a part of the charges; correct?
22 A. Say that again.
23 Q. The fact that Curt Ruby taught women
24 self-defense and that he taught children about
25 scuba diving as a part of the chargeable offense
236
1 is because he said he was a sergeant when he did
2 it; right?
3 A. I don't know about the church, but
4 the -- but the other was -- was on the -- It was
5 there.
6 Q. Do you even know whether in connection
7 with this March thing, which is in the charge,
8 Sheriff, because it was the one that happened in
9 March -- July, September and March, that's the
10 church camp thing. Do you even know whether or
11 not it was said that he was a sergeant for the
12 Webster County Sheriff's Department?
13 A. I don't know. I didn't ask Jim.
14 Q. All right.
15 What's the purpose of the
16 general order on personal advertising, which is
17 on page 158?
18 A. I haven't the slightest idea because I
19 didn't make it.
20 Q. But, Sheriff, you are the sheriff.
21 It's in your general orders.
22 A. That's right.
23 Q. You can't tell me why?
24 A. I'm guessing it's the -- it goes -- If
25 I was to second-guess anything, it would be
237
1 to -- for liability purposes.
2 Q. All right.
3 That's a guess on your part?
4 A. Yes.
5 Q. Number 9 doesn't give us a date. It
6 just tells us prior to August of 2007, and it
7 talks about receiving negative feedback from
8 other deputies. Do you know who?
9 A. I want to say one of them was
10 Deputy Halligan. I think Jim received others,
11 more than I did.
12 Q. Okay.
13 There's no specifics in that at
14 all. Do you know any specifics?
15 A. Just that the -- the only one
16 that came back to me that I can recall, it
17 would just be -- The negativity was bothering
18 Deputy Halligan. He didn't want to be around
19 Curt because of the negativity.
20 Q. Well, have you ever had any
21 other deputy or deputy complain to
22 Chief Deputy O'Brien about not getting along so
23 well with another deputy?
24 A. Well, yeah.
25 Q. Happens all the time, doesn't it?
238
1 A. Not so much lately.
2 Q. And this one also does not include any
3 general orders that were violated; correct?
4 A. Evidently not.
5 Q. And this is the document from
6 Chief Deputy O'Brien, and he mentions Halligan,
7 Walter, and Suchan. Do you see that?
8 A. Yes.
9 Q. Do you know about what any of those
10 three men said?
11 A. No.
12 Q. All right.
13 Do you know why when
14 Chief Deputy O'Brien wrote the actual charges
15 that he left out all the detail that he kept --
16 that was in the original charge?
17 A. I can't tell you that.
18 Q. All right.
19 No investigation of this?
20 A. No.
21 Q. Nobody told Curt that he could get
22 fired because people were complaining about him?
23 A. No.
24 Q. Number 10 -- Let me ask you about 9.
25 Anything detrimental to the public about
239
1 Number 9?
2 A. No.
3 Q. Okay, 10. This is the search warrant.
4 Were you there at any time during
5 the execution of this search warrant?
6 A. No, I was not.
7 Q. Do you know who was there?
8 A. I believe Deputy Halligan and
9 Deputy O'Brien.
10 Q. Anybody else that you know of?
11 A. There was some -- there was some police
12 officers there, but -- and I'm not sure if
13 anybody else from our office was there. I can't
14 tell you.
15 Q. Do you know anything more about this
16 allegation than what appears in charge 10?
17 A. No, I do not.
18 Q. Do you know whether or not -- Well,
19 Curt did not -- I mean, Curt did what he was
20 told to do; correct?
21 A. Yes.
22 Q. He sat on the house all night?
23 A. Yes.
24 Q. And because he was sitting on the house
25 all night, Deputy Walter was on the street
240
1 alone; correct?
2 A. You know, I don't exactly know who was
3 out where, to be honest with you.
4 Q. If the two of them were on duty on a
5 Friday night, and this is a Friday night --
6 there is a calendar over there for the people
7 who can see it -- and one of the two was
8 assigned to sit on a house --
9 A. Correct.
10 Q. -- then only one would be out on the
11 street; correct?
12 A. Other than Chief Deputy O'Brien was
13 out.
14 Q. I beg your pardon?
15 A. Chief Deputy O'Brien was working that
16 night.
17 Q. At ten, after ten?
18 A. He was working that night. I don't
19 know how long he worked, but he was working that
20 night.
21 Q. How do you know that?
22 A. Because he called me and told me he was
23 out.
24 Q. Was he out at eleven?
25 A. I don't remember.
241
1 Q. When you say he called you and told you
2 he was out, tell me about that conversation.
3 A. He just said that they had -- He
4 explained what happened as far as Mike Halligan
5 finding -- running across this gentleman and
6 finding, chasing him down and getting a houseful
7 of stolen items, and they had to sit on the
8 house, and the next day they were going to get a
9 semi to unload all the stuff.
10 Q. So he called you about the search
11 warrant?
12 A. Correct.
13 Q. So that's what he was working on?
14 A. Well, he called me about, yes, the
15 search warrant and what had transpired, who was
16 involved, and what was going on.
17 Q. Did he tell you anything about Curt?
18 A. He said that he is -- He was upset
19 about having to sit on the -- sit and watch the
20 house.
21 Q. Do you know why he was upset?
22 A. No, I do not.
23 Q. Well, would it be possible that he
24 might be upset because you've got a practically
25 brand-new guy on a Friday night on a street all
242
1 by himself, and if something happened?
2 MS. PENICK: Objection.
3 Speculation.
4 MS. VALENTINE: Do you want to
5 rephrase?
6 MS. CONLIN: Okay.
7 Q. Hypothetically, if a responsible
8 sergeant in charge of the shift was assigned by
9 his superior officer to sit all night at a
10 house, leaving an inexperienced deputy alone on
11 the road, do you think that might upset the
12 sergeant?
13 A. Well, for one thing, he's not
14 inexperienced because he was an officer from
15 another city, so he's not -- He wasn't green.
16 Q. Well, but how long had he been with the
17 sheriff's department?
18 A. I don't remember. Not a real long
19 time, but he's definitely not a green officer.
20 Q. But he was new to the county. Would
21 that be correct?
22 A. He was familiar with the county.
23 MS. PENICK: Hypothetically
24 speaking?
25 Q. How did he become familiar with the
243
1 county? Did he live here?
2 A. Because he has to become familiar with
3 it before he goes out on his own.
4 Q. I'm afraid I don't understand.
5 A. You ride with other deputies, and
6 you --
7 Q. Okay, I got it.
8 You mentioned that Lizer and
9 Thode complained about Sergeant Ruby?
10 A. Not -- Only -- I think it was only
11 Officer Lizer that night, and Officer Quentin
12 Nelson, but he didn't complain to me. He
13 complained to Jim O'Brien.
14 Q. All right.
15 Did you rely, in making this one
16 of the dischargeable offenses, on what
17 Sergeant Halligan said in his supplemental
18 report?
19 A. I guess that's maybe one of the
20 numerous ones, I suppose. Not anything in
21 particular.
22 Q. All right.
23 I have marked as Exhibit 517
24 another copy of that report, which is Exhibit K,
25 because this one has the properties on it. And
244
1 I'm going to bring it up to you, but what I'm
2 showing you is the printout from Microsoft. The
3 title of this document in Deputy Halligan's
4 computer is "Attitude," and the time that it was
5 originally created was September 13th; correct?
6 A. If that's what it says, yes.
7 Q. Okay.
8 And so that would be several days
9 after this occurred?
10 A. Probably, yes.
11 Q. And do you know whether or not someone
12 asked Deputy Halligan to create this report?
13 A. No, I do not.
14 Q. All right.
15 And this is about his
16 observations. Is this report by Deputy Halligan
17 one of the things you relied on in sending Curt
18 Ruby for a fitness-for-duty examination?
19 A. I didn't rely on this, no.
20 Q. You did not?
21 A. No. I mean, it's probably one of the
22 many, but it wasn't just that one in particular.
23 Q. Not my question, Sheriff.
24 My question, is this part of what
25 you relied on?
245
1 A. It could have been, yes.
2 Q. All right.
3 In fact, it is something that you
4 sent to Dr. Christiansen; correct?
5 A. Jim must have, yes.
6 Q. All right.
7 It says -- this is one of the
8 things that I'm going to deal with when I talk
9 with Deputy Halligan and Chief Deputy O'Brien,
10 but I want to ask you, are you relying entirely
11 on Chief Deputy O'Brien's perception, and also
12 on Deputy Halligan's perception of what Curt did
13 and said?
14 A. Yes. I guess, as far as that incident,
15 I am, yes.
16 Q. All right.
17 Are deputies allowed to be angry?
18 A. Yeah.
19 Q. Is it correct that every now and then a
20 deputy will object to an order?
21 A. I guess I've never -- I don't know what
22 you mean by "object," but --
23 Q. Well, get angry. You know, say, "Gosh,
24 that's a dumb thing you're asking me to do," or
25 something like that?
246
1 A. Not that I'm aware of, no.
2 Q. Do any deputies ever exhibit a negative
3 demeanor?
4 A. Oh, yes.
5 Q. In this charge he is accused of being
6 offensive. Please tell me what that means.
7 A. Which charge are we talking about?
8 Q. Let me put this back up so that you can
9 look at it. I'm talking about number 10, "His
10 behavior was offensive, insolent and subordinate
11 and disrespectful," and I'm asking you how his
12 behavior was offensive, if you know.
13 A. That's something you'll have to ask
14 Chief Deputy O'Brien.
15 Q. He followed the order and sat on the
16 house; correct?
17 A. Yes, evidently.
18 Q. In what way, if any, was this conduct
19 detrimental to the public?
20 A. None.
21 Q. Number 11 is the meeting that you
22 described earlier when you sent Curt Ruby to --
23 when you called him in and told him he was going
24 to go for a fitness-for-duty examination;
25 correct?
247
1 A. Number 11?
2 Q. Yes.
3 On September 18th,
4 Chief Deputy O'Brien called Sergeant Ruby to set
5 up a meeting to discuss his behavior on the
6 evening of September 8th.
7 A. Okay.
8 Q. That's when you're going to call him in
9 and talk to him about the fitness-for-duty
10 examination; correct?
11 A. I don't -- I can't -- I don't
12 recollect.
13 Q. Okay.
14 Well, the next one, 12, tell us
15 about that.
16 A. Okay.
17 Q. Anything detrimental to the public
18 about this?
19 A. No.
20 MS. PENICK: Sorry. Which is
21 this?
22 MS. CONLIN: 11, all of 11.
23 Q. The next one is the fitness-for-duty
24 meeting itself, and you told us about that in
25 the direct examination.
248
1 Basically, is it correct that a
2 fitness-for-duty examination is to find out
3 whether or not an officer has psychological or
4 other problems that prevent him from being a
5 peace officer and carrying a weapon and
6 exercising the authority of that job?
7 A. I would say pretty much, that would
8 probably be correct.
9 Q. I beg your pardon?
10 A. I would say that's pretty much correct,
11 yes.
12 Q. All right.
13 And you said in your direct
14 examination he was angry. Would you expect any
15 officer whose mental stability is questioned to
16 react with some anger?
17 A. Could very well be, yes.
18 Q. All right.
19 He did tell Chief Deputy O'Brien
20 in your presence that he thought that
21 Chief Deputy O'Brien should be the one examined,
22 who should have his head examined; right?
23 A. Yes.
24 Q. Or that in substance?
25 A. Yes.
249
1 Q. And one of the things you objected to
2 was his facial expressions. Can you describe
3 those for me?
4 A. It's just -- I guess it's just a stare.
5 Q. Who did he stare at?
6 A. Well, I believe he stared at me. I
7 think we have part of the video.
8 Q. We do have that video?
9 A. Yeah. I think that's part of the video
10 that's -- was taken.
11 Q. And why did you videotape this?
12 A. We just wanted to make sure that if
13 anything happened, we had it -- had it on tape.
14 Q. All right.
15 He mentioned retaliation.
16 A. I -- I don't remember. I think he
17 probably did, yeah.
18 Q. All right.
19 The reason that you said you
20 consulted with Schott was because you were
21 afraid that Curt was going to go out of control?
22 A. Pretty much, yes.
23 Q. Had you ever seen him out of control?
24 A. Seen him very angry numerous times.
25 Q. Well, what's the difference, Sheriff,
250
1 between out of control and very angry?
2 A. It -- it's -- it's just been commonly
3 known that Curt can get very upset and very
4 angry. The dispatchers -- I can say this --
5 were afraid when we talked -- Everybody knew
6 that this is going to happen. They were afraid
7 he was going to do something. He gets angry. I
8 mean, that's just it. He gets very angry, and
9 we were afraid that -- We wanted to have him
10 there.
11 MS. CONLIN: All right. I'm
12 going to move to strike the voluntary statements
13 about the dispatcher because, obviously, it's
14 not a part of the charges that were brought
15 against --
16 MS. PENICK: I'd object to the
17 striking. You've let everything else in.
18 MS. VALENTINE: Overruled.
19 Q. Well, I suppose we're going to have to
20 explore that then. He was once accused of
21 pounding his fist in a -- in a -- in front of a
22 dispatcher; correct?
23 A. I -- I don't recall. I never -- I
24 don't remember that.
25 Q. Okay.
251
1 Well, then, what dispatchers are
2 afraid of Curt Ruby?
3 A. The ones that were on duty that day. I
4 can't tell you which ones.
5 Q. What day?
6 A. The day that we were going to terminate
7 Mr. Ruby.
8 Q. Oh, I see. All right.
9 So, this day some dispatchers --
10 we don't know who?
11 A. We could find out.
12 Q. Okay.
13 And to whom did they say, "Oh, my
14 God, I'm afraid of Curt Ruby"?
15 A. Oh, I think it was some officers.
16 Maybe it was Jim O'Brien.
17 Q. I beg your pardon?
18 A. I don't know. It was some officers.
19 We could find that out too.
20 Q. And were you afraid?
21 A. Yeah. I was almost ready to put my
22 vest on. I was told by other officers I should
23 put on my vest.
24 Q. Who told you that?
25 A. Numerous officers. I think Joel Lizer
252
1 was one. We had officers tell me I should wear
2 my vest.
3 Q. Okay.
4 Joel Lizer was one. Tell me --
5 A. I don't remember who all. In fact,
6 some of the deputies said the same thing.
7 Q. And this is, quote, based on his past
8 history?
9 A. Just his temper.
10 Q. Okay.
11 Why don't you tell me, you know,
12 in terms of the charges, there are several that
13 say that he got very angry. Are those -- Is
14 that what you're talking about?
15 A. I suppose part of that. Yeah, I guess
16 so.
17 Q. All right.
18 And what you said in your direct
19 examination is that you were concerned that he
20 had so much pent-up anger; correct?
21 A. Correct.
22 Q. Well, if it's pent up, it's not doing
23 anybody any harm, is it, except perhaps him?
24 A. I felt sorry because he was -- He had
25 so much hate in him. Yeah. He just had anger.
253
1 I mean, he was angry. You could see it.
2 He wouldn't talk. When I walked
3 by, he wouldn't talk to me. When I looked at
4 him, I'd say, "Good morning, hi, Curt."
5 He turned the other way. There
6 was a lot of anger he had in him.
7 Q. Well, did it ever occur to you that he
8 might not have heard you speak to him?
9 A. No, absolutely not.
10 Q. All right, all right.
11 Now, the -- I think you might not
12 have gotten my drift when I said that if the
13 anger remained pent up, that it couldn't do
14 anybody any harm, except Curt.
15 A. That's probably -- Yeah, that's
16 probably true.
17 Q. Now, one of the things that you thought
18 he might be angry with you about -- and let's
19 look at this material in Exhibit W, which is the
20 stuff you sent to Eva, and there are -- As I
21 look at this, there are -- You're sending him
22 for a fitness-for-duty examination; correct?
23 A. Correct.
24 Q. And in your material, there are two
25 incidents that you note, and one is about his
254
1 mother-in-law dying; correct?
2 A. Correct.
3 Q. All right.
4 And the other is the Tony
5 Thompson matter; correct?
6 A. Correct.
7 Q. All right.
8 And I don't see any other
9 specific incident mentioned; right?
10 A. Right.
11 Q. All right. Let's see.
12 And you think the anonymous, the
13 one on 506 is Walter?
14 A. Yes, I'm pretty sure it is. I think
15 Chief Deputy O'Brien has got that.
16 Q. Pardon me?
17 A. I think Chief Deputy O'Brien has got
18 that information.
19 Q. Now, the first thing that actually
20 happened after the September 8th search warrant
21 was Curt Ruby coming to you; correct?
22 A. Correct, yes.
23 Q. He came to you, and he said,
24 "Chief Deputy O'Brien lied. He said that there
25 were no reserves available"; correct?
255
1 A. Yes, he did say that. Yes.
2 Q. Did you conduct any investigation of
3 whether or not that was so?
4 A. I asked -- I asked Jim, and he said
5 that he told me that -- If I recollect right, at
6 the time they called, there wasn't anybody
7 available, and they wanted somebody right away.
8 And I don't remember if -- even
9 if there would have been -- even if there would
10 have been other deputies, when a superior
11 officer asks somebody to do something, they
12 don't second-guess them. They just -- You know,
13 they do -- I mean, if a superior officer says,
14 "I want you to sit on this house," that's what
15 the officer will do.
16 Q. He did, didn't he?
17 A. Yeah.
18 Q. Okay.
19 Sheriff, you've got two incidents
20 in your report. You've had an opportunity to at
21 least briefly refer to the other materials, and
22 I want to ask you to tell us all the reasons why
23 you sent Curt Ruby to a fitness-for-duty
24 evaluation.
25 A. Well, pretty much they're all here, but
256
1 there's a lot of them that had to do -- the main
2 reason had to do with disrespect and
3 insubordination, and the domestics.
4 Q. You sent him to the fitness for --
5 A. Oh, the fitness. Excuse me.
6 I guess his anger.
7 Q. All right.
8 Exhibit 514 is a fax from Eva
9 Christiansen dated 9-15-06 with an attachment
10 called the "Psychological Fitness for Duty
11 Evaluation, What Every Police Officer Should
12 Know."
13 Have you seen this before?
14 A. I don't believe I have. Not lately I
15 haven't anyway.
16 Q. It's addressed to you.
17 A. Yeah. I never got it.
18 Q. So you never read it?
19 A. No.
20 Q. Did you look into in any way what the
21 requirements are to send someone for a
22 fitness-for-duty examination?
23 A. Jim O'Brien did.
24 Q. All right.
25 Do you know what those are?
257
1 A. No.
2 Q. Do you know whether or not people were
3 asked whether they thought that Curt Ruby was
4 violent? By "people," I mean deputies and
5 police officers.
6 A. Can't say, don't know.
7 Q. Okay.
8 The fitness-for-duty examination
9 was scheduled at 9:30 the next morning,
10 September 19th. Do you recall that?
11 A. Yeah. I suppose if that's what it
12 says, yeah.
13 Q. And as I understand it, he had been on
14 nights since like July, I think you said.
15 A. I believe so, yes.
16 Q. Okay.
17 And did you take that into
18 consideration when you scheduled him at 9:30 in
19 the morning?
20 A. Jim scheduled him a day off or
21 something. I don't know how it was, but Jim --
22 Yeah, he took that into consideration. I think
23 he got an extra day off, I think. I don't know.
24 Q. In the conversation -- I guess if we're
25 going to get a tape, then we can know for sure
258
1 what he says. Have you had a chance to look at
2 that tape recently?
3 A. No, I haven't.
4 Q. All right.
5 And is that the one that there's
6 some audio?
7 MS. PENICK: Just a minute.
8 Yeah. We don't have a tape of this one that I'm
9 aware of.
10 MS. CONLIN: Oh.
11 Q. It was taped?
12 A. Evidently, maybe it didn't take. I
13 don't know. I'd have to find out, so --
14 Q. Okay. Well, we better go backwards a
15 little bit then.
16 Do you recall that Curt said that
17 he had heard at the beginning of your term that
18 you intended to get rid of him?
19 A. I don't remember him saying that, but
20 maybe he did.
21 Q. All right.
22 Do you recall that he felt that
23 you were sending him to this fitness-for-duty
24 examination in part as retaliation for his
25 complaining about Deputy O'Brien lying to him?
259
1 A. I know he -- I know he said that was --
2 He was being retaliated against because he came
3 in and talked to me, yes.
4 Q. And, of course, because he was going to
5 run against you?
6 A. Yeah. I think he said that too.
7 Q. Do you remember any discussion about
8 Lieutenant Buske during this?
9 A. No, ma'am.
10 Q. Do you recall Buske being interviewed
11 by Chief Deputy O'Brien about working on
12 Lieutenant Buske's house while on duty?
13 A. No, ma'am.
14 Q. As I understand your testimony, nothing
15 having to do with the fitness-for-duty
16 examination itself is relied on by you for
17 discharge; is that correct?
18 A. No.
19 Q. It's not correct?
20 A. That's -- You're correct.
21 Q. All right.
22 MS. PENICK: Could you read that
23 back for me, please?
24 MS. CONLIN: Yes. How about if I
25 do this again? I don't want it read back. I
260
1 don't want to hear it.
2 Q. The fitness-for-duty examination itself
3 is not a part of the reason for discharge?
4 A. No.
5 Q. I'm still not sure I got that right.
6 In other words, you didn't fire
7 him for anything that happened during the
8 fitness-for-duty examination?
9 A. Correct.
10 Q. Okay, fine. Sorry.
11 It had to do with the meeting
12 itself?
13 A. Well, that's -- I don't know. That
14 might have been part of it, but --
15 Q. No. I mean, what you base your
16 discharge on is what happened on September 18th,
17 not what happened on September 19th. 18th is
18 when the meeting was. 19th is when the
19 fitness-for-duty examination actually occurred.
20 A. Right, correct.
21 Q. Sheriff, would you agree that a
22 fitness-for-duty examination was a rather
23 extreme thing to do?
24 A. It -- I would say it's an extreme
25 thing, yes.
261
1 Q. And that it should be done only when
2 everything else has failed?
3 A. It -- I can't really answer it that way
4 either. I know it's extreme, but we felt we had
5 reason to do it.
6 Q. All right.
7 Would you agree that it's only
8 appropriate where the usual channels of review;
9 coaching, counseling, and discipline have failed
10 to effect substantial change?
11 A. Again, I just feel that we did it at
12 the time that we deemed appropriate, so I can't
13 tell you -- I can't give you any other answer
14 than that.
15 Q. All right.
16 Did you expect her to find him
17 unfit for duty?
18 A. No.
19 Q. Why did you send him then if you didn't
20 think she would find him unfit?
21 A. Because I wanted to see if they -- if
22 she could find some way when we talked to her to
23 find what's causing it.
24 Q. She found that he was fit; correct?
25 A. Do you want me to tell you what's in
262
1 there?
2 Q. No.
3 A. Okay. I don't want to answer then.
4 MR. DRISCOLL: No.
5 Q. All right. Let's do it another way.
6 When he came back, you put him
7 right back on the street with his gun and his
8 squad car and his badge; right?
9 A. Right.
10 Q. And you wouldn't have done that if he
11 was not fit to be a sheriff's deputy; correct?
12 A. Correct.
13 MS. PENICK: Object to the
14 characterization of the word "fit."
15 MS. CONLIN: Pardon me?
16 MS. PENICK: I'm objecting to the
17 word "fit." We've got -- A psychological
18 determination of the word "fit," are you talking
19 about?
20 MS. CONLIN: I'm talking about
21 the general use of the word "fit."
22 MS. VALENTINE: I'm going to
23 overrule.
24 A. Again, there was something in that
25 evaluation that I don't want to say.
263
1 Q. I'm not talking about the evaluation.
2 A. Okay.
3 Q. I'm saying this to you, Sheriff: Would
4 you put a guy on the road with a badge and a gun
5 and a squad car in uniform if you thought he
6 wasn't fit to serve?
7 A. No, I wouldn't.
8 Q. And you put him on the road with his
9 badge and his gun and his squad car --
10 A. Correct.
11 Q. -- after this examination?
12 A. Yes, I did.
13 Q. Okey-doke.
14 The two things that you mention
15 in your handwritten note in Exhibit W, which
16 is 503, one happened in 2004 when his
17 mother-in-law was dying; right?
18 A. Yeah, that must have been 2004. Must
19 have been, yeah.
20 Q. And one of them happened in 2005;
21 correct?
22 A. Yeah, yes.
23 Q. December 5th, 2005, is the Thompson
24 matter.
25 A. Okay.
264
1 Q. Do you know -- and I'm asking what you
2 said or what you heard said to Dr. Christiansen.
3 Did you relay any remarks to her that he is
4 alleged to have made?
5 A. As far as what has already been stated,
6 you mean, as far as --
7 Q. Anything other than that.
8 A. I really don't know what you're trying
9 to --
10 Q. When you were talking -- You talked to
11 her a couple of times on the phone; right?
12 A. Yes.
13 Q. And when you were talking to her on the
14 phone, did you say anything to her that he said
15 that we don't know from these documents?
16 A. Not that I can recollect, no.
17 Q. Did you think that Curt Ruby was a
18 danger to the public?
19 A. At what time?
20 Q. Anytime.
21 A. With the domestics, I thought there was
22 a possibility, yes.
23 Q. And that's because he did not arrest
24 the perpetrator?
25 A. Correct.
265
1 Q. And it's your view that when there's
2 domestic violence, arrest is mandatory?
3 A. Say that again.
4 Q. Any domestic violence, indication of a
5 domestic violence, mandatory arrest?
6 A. Correct.
7 MS. VALENTINE: Is this a good
8 stopping point? It is 5:00, so I just want you
9 to be aware.
10 MS. COLIN: Oh, sorry. Yes.
11 Well, sure, let's do that.
12 MS. VALENTINE: We will go off
13 the record then and resume at 8:30 in the
14 morning.
15 (Hearing adjourned at 5:05 p.m.)
16 (UNLESS OTHERWISE DIRECTED BY
17 COUNSEL OR THE PARTIES HERETO, THE STENOGRAPHIC
18 NOTES FOR THE FOREGOING HEARING SHALL BE
19 DESTROYED AFTER A PERIOD OF 3 YEARS FROM THE
20 DATE OF TAKING OF SAID HEARING.)
21
22
23
24
25
266
1 C E R T I F I C A T E
2
I, the undersigned, a Certified Shorthand
3 Reporter and Notary Public of the State of Iowa,
do hereby certify that I acted as the Certified
4 Shorthand Reporter in the foregoing matter at
the time and place indicated herein; that I took
5 in shorthand the proceedings had at said time
and place; that said shorthand notes were
6 reduced to print under my supervision and
direction by means of computer-aided
7 transcription, and that the foregoing pages are
a full and correct transcript of the shorthand
8 notes so taken.
9 I further certify that I am neither
attorney nor counsel for, or related to or
10 employed by any of the parties in the foregoing
matter, and further that I am not a relative or
11 employee of any attorney or counsel employed by
the parties hereto, or financially interested in
12 the action.
13 IN WITNESS WHEREOF, I have hereunto set my
hand and seal this 24th day of March, 2008.
14
15
____________________________
16 CERTIFIED SHORTHAND REPORTER
and NOTARY PUBLIC
17
18
19
20
21
22
23
24
25
267
1 BEFORE THE WEBSTER COUNTY CIVIL SERVICE COMMISSION
2 CURTIS W. RUBY, )
)
3 Appellant, ) TRANSCRIPT
) OF
4 vs. ) PROCEEDINGS
)
5 WEBSTER COUNTY ) VOLUME II
SHERIFF'S DEPARTMENT, )
6 )
Defendant. )
7 ------------------------)
8 The above-entitled matter came on for
hearing before the Webster County Civil Service
9 Commission, commencing at 8:40 a.m., March 20,
2008, at the Law Enforcement Center, 702 First
10 Avenue South, Fort Dodge, Iowa.
11 Commission Members: JANECE VALENTINE
DARREN DRISCOLL
12 BENNETT O'CONNOR
13 A P P E A R A N C E S
14 Plaintiff by: ROXANNE BARTON CONLIN
Attorney at Law
15 Roxanne Conlin & Associates
319 Seventh Street
16 Suite 600
Des Moines, IA 50309
17 (515) 283-1111
18 Defendant by: BRIDGET R. PENICK
Attorney at Law
19 Dickinson, Mackaman, Tyler &
Hagen
20 699 Walnut Street
Suite 1600
21 Des Moines, IA 50309
(515) 244-2600
22
23
24 Reported by: Nancy S. Warren, C.S.R.
25
268
1 I N D E X
2 BRIAN MICKELSON
3 Examination by: Page
4 Ms. Conlin 271, 340, 352, 361
Ms. Penick 332, 349
5 Ms. Valentine 357
Mr. Driscoll 358
6
LUKE FLEENER
7
Ms. Penick 363, 443
8 Ms. Conlin 402
9 MICHAEL HALLIGAN
10 Ms. Penick 445, 513
Ms. Conlin 469
11
MIKE KENYON
12
Ms. Penick 516
13 Ms. Conlin 535
14 DARREN ROBINSON
15 Ms. Penick 541, 560
Ms. Conlin 554, 566
16
KEVIN KRUSE
17
Ms. Penick 567, 586
18 Ms. Conlin 577
19 JASON BAHR
20 Ms. Penick 588
Ms. Conlin 598
21
DELBERT M. SMITH
22
Ms. Penick 610
23 Ms. Conlin 618
24 JIM O'BRIEN
25 MS. PENICK 622
269
1 Exhibit Marked/Offered/Admitted
2 11 270 270
25 323 323
3 29 270 271
31 423 425 425
4 32 439 439
507 331 331
5 512 314 314
514 271 271
6 517 271 271
525 324 324
7 526 413 413
533 475 475
8 535 290 290
9 Y 624 625
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
270
1 P R O C E E D I N G S
2 MS. VALENTINE: Thank you for
3 agreeing to a little earlier start time, and our
4 apologies for being a little late in dealing
5 with a subpoena.
6 If I recall correctly, we were
7 in the process of cross-examination of
8 Sheriff Mickelson, so continue.
9 MS. CONLIN: But I believe you
10 mentioned that there were exhibits.
11 MS. VALENTINE: Yes, thank you.
12 See, I told you I would forget.
13 As I recall, you had discussed
14 Exhibit 11. Are you offering Exhibit 11?
15 MS. CONLIN: I am.
16 MS. VALENTINE: Any objection?
17 MS. PENICK: No.
18 MS. VALENTINE: Exhibit 11 is
19 received.
20 There was also mention to
21 Exhibit 29. Offering 29?
22 MS. CONLIN: Yes.
23 MS. VALENTINE: Any objection?
24 MS. PENICK: No.
25 MS. VALENTINE: And Exhibit 514,
271
1 are you offering 514?
2 MS. CONLIN: I am.
3 MS. VALENTINE: Any objection?
4 It is the fax from Eva Christiansen.
5 MS. PENICK: No.
6 MS. VALENTINE: 514 is received.
7 With some other stuff, but that's the front page
8 of it.
9 MS. PENICK: It's this
10 (indicating).
11 MS. VALENTINE: And then 517,
12 which part of 517 has already been admitted,
13 but 517 includes the cover sheet.
14 MS. PENICK: No objection.
15 MS. VALENTINE: Okay. All of
16 those exhibits will be received then.
17 You may continue.
18 MS. CONLIN: Thank you.
19 CROSS-EXAMINATION (CONT'D.)
20 BY MS. CONLIN:
21 Q. Good morning, Sheriff.
22 A. Good morning.
23 Q. Yesterday we were discussing the
24 selection of Jim O'Brien, and I want to make
25 clear that you selected him effective
272
1 January 23rd, 2006?
2 A. I am not exactly on the date, but if
3 you looked it up, I would say that's true.
4 Q. Okay.
5 The board of supervisors'
6 minutes, which is a public record --
7 A. Okay.
8 Q. -- indicates that's the effective date.
9 A. Yes.
10 Q. All right.
11 And, then, that's after his
12 brother Chris stepped down?
13 A. Correct.
14 Q. And you were the person who made the
15 selection?
16 A. Correct.
17 Q. We talked also yesterday about the
18 bulletproof vest that someone suggested you
19 wear. When the meeting we are discussing
20 occurred, did you disarm him?
21 A. No.
22 Q. You could have?
23 A. I suppose.
24 Q. In fact, you never, ever took his
25 weapon away until you fired him on
273
1 December 13th?
2 A. No.
3 Q. Let's talk a little bit about your
4 expectations.
5 Were you aware -- Let me withdraw
6 that and begin again.
7 Do you have any notes or
8 documents on the phone calls that you or O'Brien
9 made to Eva Christiansen?
10 A. I do not. Jim might, but I do not.
11 Q. All right.
12 Did you ever speak with her
13 directly?
14 A. Not without Jim present. We usually
15 spoke to her on speakerphone.
16 Q. All right.
17 When there was a -- notice of
18 violation 13 talks about the follow-up that was,
19 according to this, to be arranged, and I'm
20 wondering if it was Chief Deputy O'Brien that
21 you told to call Curt Ruby about following up
22 with the fitness-for-duty examination.
23 A. No. I believe he did that on his own.
24 Q. All right.
25 He made the call?
274
1 A. Yes.
2 Q. Or calls, as the case may be.
3 Did you ever give Curt Ruby a
4 copy of Eva Christiansen's report, which is
5 Exhibit G?
6 A. I did not, no.
7 Q. Let's look now at 13, which is the
8 issue of the follow-up. Did you ever have any
9 further meeting with Sergeant Ruby on the
10 fitness-for-duty examination?
11 A. No, I don't believe I did.
12 Q. Did you ask -- Did you indicate that
13 such a meeting should be arranged?
14 A. I don't remember if I talked to
15 Chief Deputy O'Brien about that or not.
16 Q. We'll move now to the domestic violence
17 issues, number 14, and that is the July 7th one
18 involving Mrs. Carlson.
19 A. Okay.
20 Q. You have no notes of that?
21 A. I didn't take any notes. Well, I
22 took -- Yeah. I wrote something down, but I
23 don't have -- They're here somewhere, that I
24 wrote down what she said.
25 Q. As a part of the official report?
275
1 A. Right.
2 Q. Okay, I have that.
3 Anything else?
4 A. No.
5 Q. And as I recall, you never discussed
6 this domestic violence call with Sergeant Ruby?
7 A. No.
8 Q. In Chief Deputy O'Brien's Exhibit D, he
9 says that Sergeant Ruby never made an attempt to
10 speak with the offender who was inside the
11 residence at the time, and the offender himself
12 lodged a complaint with you for Sergeant Ruby's
13 failure to make contact with him. Do you recall
14 that?
15 A. He said something. He was upset why he
16 didn't talk to him, I guess, yeah. He did say
17 something to me about that.
18 Q. Are you sure?
19 A. I'm pretty sure he said something like
20 that, yes.
21 Q. Well, you --
22 A. I didn't have it written down, but --
23 Q. Well, let's turn to Exhibit R, which is
24 the official police report, and that does have
25 your material in it, Sheriff, and it is at
276
1 page 336 and 337, and take a look. I think
2 those are the only two that are yours, so let's
3 talk about that.
4 A. Okay.
5 Q. I don't see anything about his making
6 any complaint to you. Would you have noted
7 that?
8 A. I probably would have, but I don't --
9 It's vague, and I don't remember a lot about --
10 about his saying that, but I want to say that
11 later on sometime he mentioned he wished he
12 would have come and talked to him too, but I
13 didn't write it down.
14 Q. All right.
15 Let's look at Exhibit N, which is
16 236.12 of the Iowa Code. Have you got it?
17 A. Yes.
18 Q. If you'll look at subsection c, you'll
19 see that you are required to provide an abused
20 person with immediate and adequate notice of the
21 person's rights.
22 A. Correct.
23 Q. And it's supposed to be a statement
24 written in English and Spanish, and you are
25 supposed to ask the person to read the card, and
277
1 ask the person whether or not he or she
2 understands the following rights, and there
3 follows a whole paragraph, some numbered, of
4 things that the card is supposed to contain.
5 A. Correct.
6 Q. Sheriff, do you have such cards?
7 A. Yes.
8 Q. Do you provide them --
9 A. Yes.
10 Q. -- to all the deputies?
11 A. Yes.
12 Q. And when did you start to do that?
13 A. I think we've been doing it for as long
14 as I can remember.
15 Q. How are they provided?
16 A. We've got them in our -- in our office,
17 that they can pick them up anytime when they run
18 low.
19 Q. Where are they located?
20 A. Right now, I'm not 100 percent sure.
21 I'd have to ask Chief Deputy Jim.
22 Q. Let's move to the second domestic --
23 and as I understand it, this note -- number 14
24 is, in your opinion, sufficient by itself to
25 require discharge as a discipline; correct?
278
1 A. It could be, yes.
2 Q. All right.
3 Would that be also true of
4 paragraphs 15 and 16, which are the others
5 dealing with this issue?
6 A. Yes.
7 Q. You never told Sergeant Ruby that he
8 could be fired?
9 A. No, I did not.
10 MS. PENICK: I need a moment to
11 confer, if that's okay.
12 (An off-the-record discussion
13 was held.)
14 MS. VALENTINE: You may continue.
15 MS. CONLIN: Thank you.
16 Q. While we're still on paragraph 14, in
17 the charges, your Exhibit C,nothing happens
18 between October 20th of 2006 until July 25th
19 of 2007. Do you see that?
20 A. Okay. State that again.
21 Q. Sure.
22 The charges -- There's a charge
23 number 13 that is October 20th, I think.
24 A. Yes.
25 Q. Okay.
279
1 The next one, 14, is July 25th;
2 correct?
3 A. Mine says July 7th, but --
4 Q. Well, that's because that's a typo.
5 A. And you say it was July --
6 Q. 25th. Oh, those are our originals.
7 That's all right. Those are not the originals,
8 are they?
9 MS. PENICK: That is the
10 original.
11 Q. Oh, no, don't.
12 A. Okay.
13 Q. So July 25th is the actual date. We
14 agree with that?
15 A. Okay.
16 Q. So that's about nine, ten months;
17 correct?
18 A. Correct.
19 Q. And nothing happened in those nine or
20 ten months that resulted in a charge of
21 misconduct on Sergeant Ruby; correct?
22 A. Yes.
23 Q. When you made the charge with respect
24 to Mrs. Carlson, did you take into account the
25 fact that she told you that she did not want him
280
1 arrested?
2 A. I think she told me that she didn't
3 know what to do.
4 Q. Well, let me see.
5 A. That's what I'm recollecting anyway.
6 Q. Let's look at R again and see. That's
7 not quite my recollection.
8 The bottom of 336, turn to 336 --
9 A. Yes.
10 Q. -- which is your handwritten note.
11 Beginning at the third line from the bottom at
12 the end, "she said" --
13 A. Yes, there you go.
14 Q. Are you there?
15 A. Yeah.
16 Q. "She said she really didn't want to
17 push the issue with the deputy's last night, but
18 now wishes she had."
19 A. Right.
20 Q. Do you agree that the victim himself or
21 herself should have some say in what happens
22 with his or her life?
23 A. Depends on the safety, I guess, of the
24 victim.
25 Q. It's true, is it not, that Victor
281
1 Carlson, that -- Are there any other domestic
2 violence charges against Victor Carlson?
3 A. Not that I'm aware of.
4 Q. Now, let's do Alicia Wardlow. You
5 indicated on your direct examination with
6 respect to paragraph 15 -- that is the Alicia
7 Wardlow matter -- that you had reviewed the
8 police report at some time later; correct?
9 A. Yes. I believe so, yes.
10 Q. You were not aware of it at the time?
11 A. No.
12 Q. Didn't discuss it with Sergeant Ruby?
13 A. No.
14 Q. Didn't tell him he could be fired for
15 it?
16 A. No.
17 Q. Didn't try to correct the behavior that
18 you saw as wrong?
19 A. No.
20 Q. When did you review this?
21 A. I don't remember. It couldn't have
22 been too much after it was brought to my
23 attention.
24 Q. Who brought it to your attention?
25 A. I believe it was -- I believe it was
282
1 Chief Deputy O'Brien. There was a gentleman
2 that came in and wanted to write a statement
3 concerning this, and I asked what was going on,
4 and then they kind of gave me a heads-up.
5 Q. Well, we know when that was because
6 we've got the statement, and it's dated.
7 A. Okay.
8 Q. Again, do you believe that the victim
9 has the right to have a say in whether or not
10 her assailant is arrested?
11 A. And, again, it depends on the
12 circumstances. If I believe that that person
13 was assaulted, I would say no.
14 Q. That's your understanding of the law?
15 A. Yes. If there was bodily injury, I
16 believe that would -- I believe I would say no.
17 Q. The charge here was written by -- it's
18 in the handwriting of Sergeant Fleener. Did you
19 ever discipline Sergeant Fleener for this?
20 A. No, I did not.
21 Q. Exhibit 526, which you don't -- I don't
22 think you have that up there. You may, but
23 don't bother to look for it. That is the
24 police -- or the court file for the Wardlow
25 case. Have you ever seen that before?
283
1 A. No.
2 Q. Move to 16, and that is the Tammie
3 Chase matter. Were you directly involved in
4 that?
5 A. The only involvement I was was later
6 on, attempting to locate the -- the individual
7 that assaulted the victim.
8 Q. Okay.
9 That would be four, five o'clock
10 in the afternoon that same day?
11 A. Yeah, around five o'clock. Yes.
12 Q. And Sergeant Ruby was working six to
13 two on this day; correct?
14 A. Correct.
15 Q. All right.
16 And we've got a big bunch of
17 documents with this. When you said that you
18 were involved in trying to locate him --
19 A. Yes.
20 Q. -- were you part of the --
21 A. Search of the house?
22 Q. Yes.
23 A. Yes.
24 Q. And were you there when he was arrested
25 on Brushy Creek Road?
284
1 A. No. I was still in Duncombe looking.
2 Q. I beg your pardon?
3 A. I was still in the town of Duncombe
4 looking.
5 Q. All right.
6 And as I understand your direct
7 testimony, you thought that what Sergeant Ruby
8 should have done was go to the hospital and
9 check on her; correct?
10 A. Yeah. Taken an incident report, given
11 her her rights, and taken some pictures, and
12 basically make sure that she's safe.
13 Q. All that happened later on in the day,
14 and Delbert Smith did that; correct?
15 A. After she got back to her house, yes.
16 Q. All right.
17 A. I don't know what time.
18 Q. Was she with somebody at the hospital?
19 A. I can't tell you. I don't know.
20 Q. Have you reviewed this report recently?
21 A. No.
22 Q. When the offender was arrested, was --
23 What was he doing?
24 A. I believe he was in his car.
25 Q. Well, was he looking for something or
285
1 someone?
2 A. I couldn't tell you.
3 Q. Do you know when she got out of the
4 hospital?
5 A. That I don't know either.
6 Q. By the time -- By after two, of course,
7 Sergeant Ruby would not be there; correct?
8 A. No.
9 Q. He never met Tammie Chase, as far as
10 you know?
11 A. As far as I know, no.
12 Q. And we don't have any notes or
13 documents or tape recordings about this
14 situation; right?
15 A. No.
16 Q. And as I understand it, the issue here
17 is that Sergeant Ruby did not go to the hospital
18 and conduct an investigation and file a
19 complaint?
20 A. Correct.
21 Q. Do you know why Sergeant Ruby was sent
22 to Duncombe?
23 A. I don't because I didn't -- I wasn't
24 privy to the conversation between him and
25 Lieutenant Stubbs.
286
1 Q. Do you know that he was sent to check
2 on the welfare of Mr. Chase?
3 A. I didn't know that.
4 Q. Did you know that he was -- that the
5 person who called to ask that her husband would
6 be checked on was, in fact, Mrs. Chase?
7 A. I couldn't tell you. I didn't hear
8 that, no.
9 Q. Do you know whether or not Curt told
10 Delbert Smith that an assault had occurred?
11 A. I can't say. I don't know. I was told
12 he didn't, but I can't say for sure.
13 Q. Who told you that?
14 A. I believe Jim O'Brien.
15 Q. Did you talk directly yourself to
16 Delbert Smith about this ever?
17 A. No, I did not.
18 Q. And this -- this too, number 16, is one
19 that he could have been discharged with just by
20 itself?
21 A. Probably, right.
22 Q. Next is the October 9th incident, and
23 that is that he had a spotlight on his patrol
24 car that he got repaired without prior approval.
25 Is that it?
287
1 A. Correct.
2 Q. What do you personally know about that
3 situation, if anything?
4 A. I don't really know anything about it
5 other than what Jim O'Brien told me.
6 Q. Did he tell you that, in fact, the
7 amount at issue was $310?
8 A. He might have. I couldn't tell you for
9 sure.
10 Q. Did you know whether or not he had, in
11 fact, notified Chief Deputy O'Brien through his
12 activity log?
13 A. No, I did not know that.
14 Q. One would want to get the spotlight
15 repaired as soon as it was broken; right?
16 A. Yes.
17 Q. It's important to have a squad car in
18 good working order?
19 A. I agree.
20 Q. All right.
21 If you knew about it, I assume
22 that you would authorize him to get it repaired.
23 A. Correct.
24 Q. All right.
25 Here is Defendant's Exhibit P.
288
1 Would you look in your book? That's the
2 invoice.
3 A. Yes.
4 Q. I'm just curious about this. It
5 says -- have you turn to the second page. It
6 says that you were the contact person for this
7 bill.
8 A. They might have sent the bill to me,
9 but I never -- I don't usually get the bills.
10 They come to Jim O'Brien, and then I look them
11 over, and I sign them.
12 Q. All right.
13 You never asked Sergeant Ruby
14 about this?
15 A. No, I did not.
16 Q. Never told him he could be disciplined?
17 A. No, I did not.
18 Q. The next one is on November 13th of
19 2007, and that is the suicide call. Did you
20 have any direct involvement in that situation?
21 A. No, I did not.
22 Q. You're relying on the report that you
23 got from Jim O'Brien?
24 A. Yes.
25 Q. Who was involved in that situation?
289
1 A. I believe that was Sergeant Ruby and
2 Officer Richardson, and I think Officer Fleener,
3 and then Chief Deputy O'Brien.
4 Q. Okay.
5 Fleener and who else?
6 A. Richardson.
7 Q. Okay.
8 A. And then Curt and Jim.
9 Q. Okay, all right.
10 Again, you never talked to Curt
11 about this?
12 A. No, I did not.
13 Q. Had you decided to fire him by this
14 time?
15 A. No.
16 Well, I don't think so. I
17 don't -- I don't know what time. I doubt it.
18 Q. Again, no discipline?
19 A. No.
20 Q. Never talked to him about it?
21 A. No.
22 Q. Never asked him for his side of the
23 story?
24 A. No.
25 Q. Do you know what happened to the person
290
1 who was at risk for suicide?
2 A. Don't remember what happened.
3 Q. We were provided Exhibit 535 yesterday,
4 and those are the activity sheets for
5 Sergeant Ruby and Sergeant Richardson, and we
6 were not provided with Luke Fleener's activity
7 report, but it would probably also show, or
8 should show that he was at the suicide?
9 A. It should, yes.
10 MS. CONLIN: We would offer
11 Exhibit 535.
12 MS. VALENTINE: Any objection?
13 MS. PENICK: No.
14 MS. VALENTINE: Exhibit 535 is
15 admitted.
16 Q. Did you tell me that the chief deputy
17 was there?
18 A. Yes.
19 Q. Does the chief deputy do activity logs?
20 A. No.
21 Q. How is his time accounted for?
22 A. It's just getting -- He's there every
23 day and getting his work done. That's how his
24 time is accounted for, I guess.
25 Q. 19 is with respect to November 15th,
291
1 and that is your second requirement that he
2 undergo a fitness-for-duty examination; right?
3 A. Right.
4 Q. All right.
5 And did you take anyone in the
6 room with you besides Jim O'Brien and Curt Ruby?
7 A. I don't remember. That one, I guess,
8 is on tape, so --
9 Q. All right.
10 And he was told it was a
11 follow-up examination; correct?
12 A. Correct.
13 Q. Do you know whether, in fact, that was
14 true?
15 A. Yes. I believe it was talking -- end
16 up talking to Dr. Eva. It was -- That's what
17 she was recommending.
18 Q. She was recommending?
19 A. I think she said something like that
20 when we discussed with her.
21 Q. Oh, you called her?
22 A. Yes.
23 Q. And when you called her, what did you
24 tell her?
25 A. Well, just as our concerns that -- and
292
1 if I -- There's some things I can't say that was
2 on the other report, so --
3 MS. PENICK: Can we just make
4 clear, I understand we don't want testimony
5 about what her conclusions were in the report,
6 but discussions and things that were discussed
7 between you and her certainly are okay, aren't
8 they?
9 MS. VALENTINE: I think it just
10 depends on the nature of what was discussed.
11 So if you provided information
12 beyond what's in this record, I think that
13 that's fair game, unless you would be violating
14 somebody else's privacy concerns.
15 A. Well, basically, what I would be saying
16 is what -- I don't think you want to hear. I
17 mean, I think I might be violating his -- if I
18 discuss this too far, I mean, from our
19 discussions that we had with her.
20 Q. Okay.
21 A. Because there's a reason why, and if I
22 said the reason, then it's something that has to
23 do with the report.
24 Q. All right.
25 MS. VALENTINE: Maybe you can
293
1 rephrase the question.
2 MS. CONLIN: I'll try to do that.
3 MS. VALENTINE: Okay.
4 Q. This meeting of November 15th took
5 place 13 months before the -- after the
6 September of 2006 fitness-for-duty examination;
7 correct?
8 A. Yes.
9 Q. Did you anticipate that Curt Ruby would
10 be taking additional tests, having additional
11 testing done?
12 A. I didn't probably anticipate that, no.
13 Q. All right.
14 What was the trigger for this
15 fitness-for-duty examination or requirement?
16 A. I guess it was the items -- A lot of it
17 had to do with the items that we discussed and
18 the recurrence of the -- recurrence of the
19 things that I, again, don't -- When I discussed
20 it with her, I discussed it with some of the
21 things that she had mentioned in that report
22 that I really don't want to say now.
23 Q. Well, if we look at the material, I
24 think that we will find that in terms of the --
25 what had happened immediately prior that we --
294
1 that's charged conduct -- and let's see.
2 The one immediately before he was
3 sent to the fitness-for-duty examination was the
4 possible suicide patient.
5 A. Okay.
6 Q. And what is alleged with respect to
7 that is indifference and disrespect; correct?
8 A. Yes.
9 Q. And there's no indication that he was
10 angry or hostile or anything like that; correct?
11 A. That -- In that instance, no.
12 Q. All right.
13 Well, and the one before that has
14 to do with the spotlight. You think that
15 spotlight thing would justify a fitness-for-duty
16 examination?
17 A. No. I think we did -- I think we ended
18 up discussing with the county attorney shortly
19 after August 8th about what our options were, or
20 we needed to do.
21 Q. All right.
22 Well, I think you told me that
23 you went to him, and he wouldn't give you any
24 advice; right?
25 A. Correct.
295
1 Q. All right.
2 And then before that we have the
3 three domestic violence incidents, so we have a
4 July 7th, an August 8th, and an October 4th --
5 actually, July 25th, August 6th, and
6 October 4th, and none of those -- none of those
7 have anything to do with his being angry or
8 hostile or disrespectful or insubordinate; right?
9 A. None of those do, no.
10 Q. All right.
11 Well, we're clear back to July,
12 and as far as the charging document indicates,
13 the -- we just have two things, and one is the
14 fitness -- or one is the spotlight, and the
15 other is the November 13th incident; correct?
16 A. Correct.
17 Q. And did it take a long time to schedule
18 this second fitness-for-duty examination?
19 A. Yeah, probably did. There was things
20 that she couldn't do and she had to get fit into
21 her schedule, and we had things going, and,
22 yeah, it just -- but that's -- again, was set up
23 by Chief Deputy O'Brien.
24 Q. All right.
25 Do you recall how Sergeant Ruby
296
1 was notified of this requirement that he do
2 another fitness-for-duty examination?
3 A. Just in our office.
4 Q. Again, he had his sidearm?
5 A. Yes.
6 Q. All right.
7 You weren't wearing any
8 bulletproof vest?
9 A. No.
10 Q. And in your direct examination, I
11 believe you indicated there were ongoing
12 complaints about his attitude and behavior.
13 A. Yes.
14 Q. From whom?
15 A. From other deputies.
16 Q. Who?
17 A. I already mentioned Mr. Halligan, and
18 then other ones have contacted Jim O'Brien, so
19 that's -- It was numerous ones. You can ask Jim
20 O'Brien.
21 Q. All right.
22 A. There was also officers in the Fort
23 Dodge Police Department. We've already
24 discussed those. Again, Mr. Lizer, Mr. Thode,
25 Officer Thode, Officer Quentin Nelson. I don't
297
1 know how many others.
2 Q. We have no documentation about these
3 alleged communications; right?
4 A. No.
5 Q. No notes, no videotapes?
6 A. No.
7 Q. No nothing?
8 A. No.
9 Q. And we know, of course, you didn't talk
10 to Curt to get his side of whatever story you're
11 hearing?
12 A. No.
13 Q. And there's no charge even --
14 A. No.
15 Q. -- with respect to this?
16 A. No.
17 Q. In the course of your conversation with
18 Mr. Ruby -- Now, this was that voice-activated
19 tape, the audio/videotape system?
20 A. Yes.
21 Q. And we are going to get that tape?
22 A. Yes.
23 Q. And do we know when that might happen?
24 MS. PENICK: This is the one
25 where we've got video. The audio, we're trying
298
1 to get it to come out.
2 MS. CONLIN: All right.
3 Q. Well, let me ask you this: Do you
4 recall him saying -- you said to him that you
5 did not like his attitude?
6 A. I don't remember.
7 Q. And one of your concerns was that he
8 was avoiding you?
9 A. I could have said that.
10 Q. Was he avoiding you?
11 A. Yeah.
12 Q. Might that be because he didn't want to
13 get in any trouble with you?
14 A. He shouldn't have to worry about that.
15 Q. I agree.
16 Might it have been because he
17 didn't want to get in any trouble with you?
18 A. I suppose he could have thought that.
19 Q. All right.
20 And did you say to him, "I don't
21 know why you are mad at me"?
22 A. We probably did.
23 Q. And did you mention the letter that he
24 sent after the election congratulating you?
25 A. I mentioned the letter, yes.
299
1 Q. Do you recall that he offered to take a
2 lie detector test --
3 A. Yes.
4 Q. -- as long as the complaining person
5 would take one also?
6 A. Yes.
7 Q. Who was the complaining person?
8 A. I don't remember.
9 Q. It's not written down anyplace?
10 A. Complaining person on?
11 Q. That triggered this fitness-for-duty
12 examination.
13 A. I don't know if there was any one
14 complaining person that triggered that.
15 Q. All right.
16 Did he tell you that he had not
17 had any conflict with anybody, not coworkers or
18 not citizens?
19 A. He might have.
20 Q. All right.
21 And did he also say that he felt
22 it was in his best interest not to say too much
23 at that meeting?
24 A. I don't remember. He might have said
25 that too.
300
1 Q. All right.
2 And that -- and you told him that
3 this new fitness-for-duty examination was part
4 of the follow-up from last year?
5 A. I could have said that, yes.
6 Q. Did he tell you that he was going to
7 talk to his attorney?
8 A. I don't recollect. He could have.
9 Q. Did he tell you that he felt this was a
10 political ploy?
11 A. He might have said that too, yes.
12 Q. And that you were out to discredit him?
13 A. That's possible. Yeah, I think he said
14 that.
15 Q. And that you were worried about losing
16 to him?
17 A. He might have said that. I don't know.
18 Q. Well, do you recall that he -- that you
19 said to him that it was -- and this -- I'm not
20 giving exact quotes because I don't have exact
21 quotes, but did you tell him it was a hard job?
22 A. I might have said it's a difficult job.
23 Q. Did you tell him you did not think that
24 he would be able to do it?
25 A. I don't think I said that.
301
1 Q. Well, did he say to you in response,
2 "It might be a good idea for you to step down
3 and let me take over"?
4 A. I think he said something about
5 stepping down. We might -- We should have all
6 that on tape.
7 Q. Here's our problem, Sheriff: We don't
8 have any audio on the tape, and I don't read
9 lips, so --
10 A. Well, I think they're working on that,
11 to get the audio. They're getting upgraded on
12 the audio.
13 Q. Well, in case we don't get it, let's
14 see what you remember.
15 A. Okay.
16 Q. Did you say, "I will do anything to see
17 that you don't get into office"?
18 A. Did I say that?
19 Q. Yes.
20 A. Absolutely not.
21 Q. Did you glare at him and raise your
22 voice?
23 A. Absolutely not.
24 Q. Did Chief Deputy O'Brien read to him
25 from the psychological report of Eva
302
1 Christiansen that is Exhibit G?
2 A. I don't recollect that.
3 Q. He agreed that he would go to that?
4 A. Yes, I believe he did.
5 Q. And he did go to that?
6 A. Yes.
7 Q. And the complaint that you have about
8 this is not that he said he wouldn't go, but,
9 rather, that he was insolent and disrespectful?
10 A. Correct.
11 Q. How do you define insolent?
12 A. Rude, not respecting of the -- of the
13 office. The gestures and the staring, all of
14 that stuff would be considered insolent and
15 disrespectful, and that should come out on the
16 tape.
17 Q. Can we agree that insolent is a
18 subjective word and depends on the perception of
19 the person to whom it's directed?
20 A. I suppose.
21 Q. And that would also be true of
22 disrespectful?
23 A. Correct.
24 Q. The next one is, on November 15th,
25 while retrieving a videotape, Sergeant Ruby
303
1 informed O'Brien that his in-car camera hadn't
2 been working properly.
3 Do you recall that?
4 A. I wasn't involved with that.
5 Q. Who is in charge of the in-car camera
6 tapes?
7 A. The officers are to have their tapes,
8 but the detectives and Jim O'Brien take care of
9 the ones that are -- come out of the cars.
10 Q. Okay. I'm afraid I'm not
11 understanding, perhaps because I'm not familiar
12 with the procedure.
13 You say that the deputies take
14 care of their tapes?
15 A. Inside the car, yes. They have the
16 tapes in the car. They have an extra one or two
17 in the car with them, and then when they're done
18 with them, they go to -- I believe they go to
19 Jim.
20 Q. Okay, all right. Now I understand.
21 Blank tapes they've got in the
22 car?
23 A. Correct.
24 Q. After there is stuff on the tapes, they
25 give it to Jim O'Brien?
304
1 A. Correct.
2 Q. And he's supposed to keep them safe?
3 A. Correct.
4 Q. Do you know how long he's supposed to
5 keep them for?
6 A. I don't know how long he keeps them.
7 Q. Have there been some problems with
8 these tapes?
9 A. Not that I'm aware of.
10 Q. All right.
11 Do you know anything about this
12 system that's used?
13 A. To record the tapes?
14 Q. No. Yeah. You know, like is it -- is
15 there a brand name, anything like that?
16 A. There is. I've got one in my car. I
17 can't tell you what brand name it is.
18 Q. All right.
19 How long has this tape system
20 been in effect?
21 A. That's something you'll probably have
22 to ask Chief Deputy O'Brien.
23 Q. Before you were sheriff, did you have
24 such a thing in your car?
25 A. No.
305
1 Q. So the whole thing started after you
2 became the sheriff?
3 A. Yes.
4 Q. If there was something actually wrong
5 with this taping system, you would have to get
6 it repaired; correct?
7 A. Correct.
8 Q. And Officer Ruby, like all other
9 deputies, they use the same squad car; correct?
10 A. Yes.
11 Q. And that squad car's video system was
12 never repaired; correct?
13 A. I can't tell you that. I don't know.
14 Q. Well, there would be a bill for it?
15 A. Yeah. I still couldn't tell you
16 whether it was repaired. I don't know.
17 Q. Okay.
18 And you didn't check?
19 A. No.
20 Q. 502 is the --
21 MS. PENICK: It's already been
22 admitted.
23 MS. CONLIN: Oh.
24 Q. On the second page, it says that,
25 "Recorded tapes will be maintained for at
306
1 least 6 months."
2 Do you see that?
3 A. Yes.
4 Q. Where would the -- If there was
5 something wrong with the videotaping equipment,
6 where would it get repaired, do you know?
7 A. I believe the people that sold it would
8 have to send some repair person to look at it.
9 Q. Somebody comes here rather than taking
10 the car there?
11 A. Correct.
12 Q. Has anybody ever come here, do you
13 know?
14 A. I don't know.
15 Q. The next incident is number 21, on
16 November 27th, and that is this unnecessary
17 remark at the top of his activity log; right?
18 A. Right.
19 Q. All right.
20 And that unnecessary remark,
21 which is Defendant's Exhibit Q -- are you there,
22 Q?
23 A. Yes, I've seen it.
24 Q. -- that is -- What he says here is,
25 "Note: Used personal cell phone today multiple
307
1 times to enhance job performance."
2 What in the world do you think he
3 meant by that?
4 A. Just what he said.
5 Q. What makes that a chargeable offense?
6 A. You'll have to ask Chief Deputy O'Brien.
7 Q. Do you notice that in connection
8 with 21 there are not any general orders that he
9 violated?
10 A. Right.
11 Q. And you recall that we discussed
12 yesterday that anytime you -- you make -- charge
13 somebody with misconduct, you have to say what
14 general order they violated?
15 A. I think you said that, yes.
16 Q. Well, I didn't say that. Your general
17 order says that.
18 A. Okay.
19 Q. Right?
20 A. Okay.
21 Q. Do you remember that?
22 A. I'll agree with you.
23 Q. All right.
24 Never took it up with him; right?
25 A. No.
308
1 Q. And this is the last noted specific
2 charge before his termination; correct?
3 A. Evidently, yes.
4 Q. The next one is 22, and that is a
5 general one. Can you provide me any specifics
6 for that?
7 A. That's something that you'll probably
8 have to get mostly from Chief Deputy O'Brien.
9 Q. All right.
10 In Chief Deputy O'Brien's
11 statement about this, he talks about the
12 hazardous material training. How long does that
13 last?
14 A. I -- I really -- I think it was a day
15 probably.
16 Q. Well, I mean, does it go all day,
17 because there are three dates listed in
18 Deputy O'Brien's material, the 3rd -- I'm
19 sorry -- the 1st, the 3rd and the 8th of
20 October.
21 A. I think we ended up splitting that up
22 for different officers so they all could attend,
23 or all could go there.
24 Q. All right.
25 So he wouldn't have been at all
309
1 of those?
2 A. You know, and I -- I don't -- That's
3 something you're going to have to ask
4 Chief Deputy O'Brien again too. I can't tell
5 you.
6 Q. What we do know is that you never asked
7 Curt about this situation?
8 A. No.
9 Q. Never found out why he might be at
10 the -- It's this room; right?
11 A. Yes.
12 Q. And these chairs?
13 A. Yes.
14 Q. Last all day?
15 A. Yeah.
16 Q. Okay.
17 A. Pretty much, yes.
18 Q. Do you know who complained about this?
19 A. No, I don't really. No, I don't.
20 Q. Okay.
21 And then -- Actually, I want to
22 return for a moment to this November -- the
23 fitness-for-duty examination, November 15th.
24 A. Okay.
25 Q. The meeting that occurred with respect
310
1 to it.
2 You have now twice sent Curt Ruby
3 to have his head examined, right, so to speak?
4 MS. PENICK: Objection.
5 Characterization.
6 MS. VALENTINE: I would ask that
7 you review the question.
8 MS. CONLIN: Well, let's see.
9 Q. The purpose for this fitness-for-duty
10 examination is to determine whether or not the
11 officer --
12 A. Is fit.
13 Q. -- shouldn't be able to carry a weapon
14 and be a peace officer; right?
15 A. If he's fit to be a peace officer,
16 correct.
17 Q. That's why it's called fitness for
18 duty; correct?
19 A. Correct.
20 Q. And I think that we have agreed that at
21 no time did you ever take Sergeant Ruby's weapon
22 from him; correct?
23 A. Correct.
24 Q. Never took his badge or his squad car?
25 A. No.
311
1 Q. And that's true right up until the day
2 you fired him?
3 A. Correct.
4 Q. He continued to work as scheduled right
5 up to the appointment on September 25th;
6 correct?
7 A. Correct.
8 Q. I'm sorry, not September --
9 A. Well, whenever.
10 Q. That was September 19th, and then he
11 was back on duty September 25th.
12 A. Okay.
13 Q. And the second time he just kept
14 working right straight through; right?
15 A. Yes.
16 Q. And you couldn't have let him back on
17 the street if you really thought he was a danger
18 to anybody; correct?
19 A. Correct.
20 Q. Did you have any conversation with Eva
21 Christiansen after October 20th, 2006, and
22 before you arranged for the second fitness-for-
23 duty examination on November 16th?
24 A. I'm sure we probably did before. I
25 can't remember what was said.
312
1 Q. Well, I want to -- I just want to talk
2 about between October 20th, which is the date
3 that you indicate in the charge was when there
4 was supposed to be some follow-up.
5 A. Okay.
6 Q. Okay.
7 October 20th of 2006, and the
8 time in November when you arranged for the
9 second fitness-for-duty examination in the year
10 2007.
11 MS. PENICK: Objection. I think
12 that that mischaracterizes the testimony. He
13 said he's done it for follow-up, not for a
14 second fitness-for-duty evaluation.
15 MS. CONLIN: All right.
16 Q. Do you know what he was told would
17 happen at this fitness-for-duty evaluation?
18 A. No. I don't -- don't know -- I don't
19 know what you mean.
20 Q. I mean, was he going to take more
21 tests? That would be the full-blown fitness-for-
22 duty examination rather than a follow-up; right?
23 A. I can't tell you. I don't know.
24 Q. Well, do you recall any conversation
25 with Dr. Christiansen that -- in which she told
313
1 you to be sure to document any reasons that you
2 had for disciplining him and to document any
3 actions that you took against him to explain the
4 situation and any policy that he violated?
5 A. I don't recollect that, no.
6 Q. Do you know whether or not any
7 examination was conducted by Dr. Christiansen on
8 November 16th?
9 A. This second time, you mean?
10 Q. Yes, I do.
11 A. I believe there was not.
12 Q. All right.
13 And that was because of this
14 attorney situation, he hadn't had a chance to
15 talk to his lawyer?
16 A. Correct.
17 Q. His lawyer was out of town?
18 A. I don't know. I don't remember what
19 the --
20 Q. All right.
21 They set up a tentative
22 appointment, Curt and Eva, for December 10th;
23 correct?
24 A. And that I'm not aware of either.
25 Q. You don't remember that?
314
1 A. No.
2 Q. All right. Let me -- Is 512 in?
3 MS. VALENTINE: No.
4 Q. I'm having handed to you
5 Plaintiff's Exhibit 512, which is a letter from
6 Dr. Christiansen dated December 18th -- It's
7 actually dated December 18th, 20076, but it is
8 my opinion that it is 2007.
9 MS. PENICK: I'll stipulate to
10 that.
11 MS. CONLIN: All right.
12 Q. And this does not contain any
13 information about Curt Ruby, except it has to do
14 with scheduling, and I give it to you so I can
15 refresh your recollection about this
16 December 10th appointment.
17 MS. CONLIN: We would offer
18 Exhibit 512 at this time.
19 MS. VALENTINE: Any objection?
20 MS. PENICK: No.
21 MS. VALENTINE: Exhibit 512 is
22 received.
23 Q. If you look down at the third line, he
24 accepted a rescheduled appointment for 12-10-07.
25 Do you see that?
315
1 A. Yes.
2 Q. And that was because he wanted to speak
3 with his attorney, and she supported the wisdom
4 of his talking to his attorney before meeting
5 with her. Do you see that?
6 A. Yes.
7 Q. And were you aware of that?
8 A. Yes.
9 Q. The rescheduled appointment was
10 eventually canceled by you; correct?
11 A. By our department, correct.
12 Q. All right.
13 You knew it was being canceled?
14 A. Right.
15 Q. By that time, you had already decided
16 to fire him; right?
17 A. We were in the process of talking to
18 attorneys, yes.
19 Q. But you had decided to terminate Curtis
20 Ruby before December 10th?
21 A. Right.
22 Q. And that's why you canceled the
23 appointment?
24 A. Yes.
25 Q. Did you ever tell Curt Ruby before
316
1 December 10th that the appointment had been
2 canceled?
3 A. I didn't.
4 Q. Do you know if anybody did?
5 A. Jim might have.
6 Q. 23 in the notice of violations talks
7 about "these actions," so I am assuming that
8 "these actions" are the actions recorded in
9 paragraphs 1 through 22. Would that be correct?
10 A. I think that's what Jim meant.
11 Q. All right.
12 I have a new word here,
13 "contemptuous behavior." Do you know what that
14 means?
15 A. Just holding somebody in contempt, I
16 guess.
17 Q. Well, can you explain a little further
18 what you meant by using the word "contemptuous"
19 here?
20 A. You'll have to ask Jim because I did
21 not use that word.
22 Q. Well, you signed this document.
23 A. I signed it, yes.
24 Q. Did you read it before you signed it?
25 A. Yes, I read it.
317
1 Q. Did you ask him what he meant when he
2 said "contemptuous"?
3 A. No, I did not.
4 Q. The court reporter is going to be very
5 annoyed with both of us if you keep talking over
6 me.
7 A. Oh, excuse me.
8 Q. She's very good, but she cannot take
9 two people at once.
10 What he was disrespectful and had
11 disregard for was the Webster County Sheriff's
12 Office and its members; right?
13 A. I believe so, yes.
14 Q. That would include all the members or
15 just --
16 A. I'm guessing a few, not all.
17 Q. Okay.
18 One of those people would be you?
19 A. I'm sure it was.
20 Q. And one of those people would be
21 Chief Deputy O'Brien?
22 A. I'm sure it was.
23 Q. 24 is, again, a summary, and points to
24 the general order pertaining to insubordination
25 in respect to superiors, and so on. Do you have
318
1 any specifics for me in connection with
2 paragraph 24?
3 A. Again, I would suggest that you talk to
4 Jim O'Brien. He would have more specifics than
5 I would probably.
6 Q. Okay.
7 And 25 is, likewise, a general
8 paragraph. Do you have anything to tell me
9 about that?
10 A. Well, I don't want to -- I don't want
11 to say what Jim meant, but I think -- I believe
12 it just was -- just not portray himself as part
13 of the sheriff's department as a sergeant in his
14 conduct.
15 Q. Just misconduct?
16 A. No, in his conduct.
17 Q. Oh, in his conduct. I'm sorry.
18 Well, tell me what you mean by
19 that.
20 A. Well, just insubordinate behavior,
21 being rude and discourteous, and I'm sure Jim is
22 going to be able to expound on it.
23 Q. All right. I will look forward to
24 talking to him.
25 All right. Do you know
319
1 whether there has been any conflict between
2 Deputy Halligan and Curt Ruby based on
3 Deputy Halligan's conduct?
4 A. I can't tell you whether there was or
5 whether there wasn't. I don't know.
6 Q. All right.
7 Did you consider whether or not
8 Deputy Halligan's two statements that he gave
9 us -- that you gave us, which are Exhibit K
10 and L, might have been motivated by personal
11 animosity?
12 A. I guess I didn't think anything like
13 that, no.
14 Q. You received a letter from Monty
15 Fisher, who was Curt's lawyer, on December 5th,
16 and it was Exhibit I. At the time that you
17 received the letter, had you made your decision
18 to terminate him?
19 A. You know, I'm not -- I would think so,
20 but I can't -- I believe so, but I think we were
21 still talking to attorneys, so I don't know if
22 there was an exact moment. I can't tell you for
23 sure.
24 Q. Was that Mr. Fitzgerald?
25 A. No.
320
1 Q. All right.
2 Who were you talking to?
3 A. Mr. Paul Ahlers.
4 Q. Over in Webster City?
5 A. Yes.
6 Q. Did the letter have anything to do with
7 your decision to terminate him?
8 A. This letter?
9 Q. Yes.
10 A. No.
11 Q. All right.
12 He points out there's no
13 complaints by any citizen ever against Curt;
14 right?
15 A. That's right.
16 Q. And he asked to have the meeting
17 postponed so that "we can get to the bottom of
18 what the alleged problem or problems are."
19 Did you ever discuss with Monty
20 Fisher what the alleged problem or problems
21 were?
22 A. No, we did not, or I did not.
23 Q. He does express his willingness to have
24 a consultation with Dr. Christiansen?
25 A. Yes.
321
1 Q. But he didn't want to take any more
2 tests; right?
3 A. Correct.
4 Q. All right.
5 When -- Do you recall when you --
6 what time of day you called? Curt Ruby was
7 working on December 13th; correct?
8 A. I believe so.
9 Q. All right.
10 And did you call him in at
11 about 10:00 in the morning?
12 A. I don't remember.
13 Q. All right.
14 Was he insolent and
15 disrespectful?
16 A. I believe -- I don't remember.
17 Q. He was sad, wasn't he?
18 A. He was -- Yeah. He was a little upset,
19 yeah.
20 Q. You said in your direct examination
21 that you were walking on eggshells because of
22 his temper; right?
23 A. Correct.
24 Q. And yet we have no indication of that
25 in the immediate period before his discharge;
322
1 correct?
2 A. Correct.
3 Q. And one of the things you complained
4 about was he wasn't around in the office very
5 much when you -- when you met with him on
6 November 15th. Do you recall that?
7 A. I never used that as a complaint, no.
8 Q. Well, I think we agreed that you -- you
9 said that he wasn't in your office very much.
10 Maybe I'm misunderstanding.
11 A. No. He just avoided -- I mean, he
12 would have just avoided us. I mean, that was
13 not a complaint that he wasn't in the office too
14 much.
15 Q. Well, I stand corrected. I remember
16 that that is exactly what you said, that he
17 avoided interaction --
18 A. Correct.
19 Q. -- with you and with Chief Deputy O'Brien.
20 A. Correct.
21 Q. All right.
22 Do you know how he was brought
23 into the office?
24 A. I didn't get involved in that
25 situation, no.
323
1 Q. Exhibit 25 in your red book -- or no,
2 I'm sorry -- in your black book, our Exhibit 25,
3 which we would offer at this time.
4 MS. VALENTINE: Any objection?
5 MS. PENICK: No objection.
6 MS. VALENTINE: Okay. It will be
7 received.
8 Q. Did you receive that letter near in
9 time to December 17th and review it?
10 A. Yes.
11 Q. All right.
12 Did you ever respond to it?
13 A. I gave it to our attorney.
14 Q. And here is Exhibit 525, which is
15 a letter from Ms. Penick to me dated
16 February 29th, 2008.
17 I want to be very careful here,
18 Sheriff. I do not want to know what the content
19 of any discussion you may have had with your
20 attorney is. I want to ask you, however,
21 whether or not you discussed with your attorney,
22 when I asked for certain documents, whether or
23 not they existed.
24 MS. PENICK: Object to -- That
25 insinuates the content of the discussion.
324
1 Attorney-client privilege.
2 MS. CONLIN: Let me think about
3 it.
4 MS. VALENTINE: Yeah. I would
5 sustain that objection.
6 MS. PENICK: And I'll further
7 object to this exhibit being admitted as an
8 exhibit, to the extent you're going to offer it --
9 MS. CONLIN: I'm going to offer
10 it.
11 MS. PENICK: This is subsequent
12 to the termination decision. How it is relevant
13 to the proceeding is beyond me.
14 MS. VALENTINE: We'll allow it.
15 It will go to the weight.
16 Proceed.
17 Q. I want to talk with you about some of
18 the general orders. Look at Exhibit A,
19 page 224, and that's called "Public Statement
20 Criticism and Official Reports."
21 Do you see it? Are you there?
22 A. Which number would that be?
23 Q. Look at 224, page 224 of Exhibit 1 --
24 or A. I'm sorry.
25 A. And I've got -- Okay. The policy?
325
1 Q. Yes.
2 A. Okay.
3 Q. Are you there, on page 224?
4 A. Yes, I am.
5 Q. Okay.
6 It says that departmental
7 personnel shall not perform any act or make a
8 statement for publication or otherwise which
9 tends to bring the department or its
10 administrative officers into disrepute or
11 ridicule.
12 Do you see that?
13 A. Yes.
14 Q. And the administrative officers would
15 include you and Chief Deputy O'Brien; correct?
16 A. Correct.
17 Q. In order to run against you, can we
18 agree that it would be necessary to make a
19 statement that would potentially bring you into
20 disrepute or ridicule?
21 A. I don't think so.
22 Q. You don't?
23 A. Huh-uh.
24 Q. Now look at "Criticism," number 3.
25 "Every member of the Department shall refrain
326
1 from making any statements or allusion which
2 discredits or disparages any member except when
3 reporting to Sheriff or Chief Deputy."
4 That means internally; correct?
5 A. Correct.
6 Q. All right.
7 And it forbids maligning any
8 member of the department; correct?
9 A. Correct.
10 Q. Again, how does that fit into running
11 against you?
12 A. That one probably doesn't. It just has
13 to do with morale, I guess.
14 Q. I beg your pardon?
15 A. That one wouldn't have anything to do
16 with -- That would just have to do with morale
17 in the department. That's the way I would take
18 it.
19 Q. Okay.
20 And number 4 is "Uncalled for
21 Remarks," and it forbids any deputy or member of
22 the department "upon the street in any public
23 place to any officer or any members of the
24 department or any other citizen make any remark
25 in regard to any officer or member of the
327
1 department into" -- I think it's supposed to be
2 disrepute "or subject it or them in the
3 sheriff's department to any ridicule."
4 MS. PENICK: I'd like to
5 interpose an objection to these questions
6 regarding these orders. I don't believe they
7 were relied upon in the disciplinary termination
8 notice, and this is going beyond the scope of
9 this hearing.
10 MS. VALENTINE: Overruled.
11 Q. There is also a duty of loyalty;
12 correct?
13 A. Yeah, I guess there is.
14 Q. All right.
15 Forgive me. I can't put my hands
16 on that one, but as I understand the various
17 rules, if Curt Ruby criticized you publicly, he
18 would be in violation of the general orders of
19 the department; right?
20 A. Correct.
21 Q. And he could be discharged for that?
22 A. It's possible, I suppose.
23 Q. The duty of loyalty, which is on
24 page 154, requires that members and employees
25 shall maintain a loyalty to the department and
328
1 their associates; correct?
2 A. Yes, yes.
3 Q. Nobody could run against you, Sheriff,
4 and still be in compliance with these general
5 orders, could they?
6 A. I would say they could.
7 Q. Well, they wouldn't be able to say that
8 you did anything wrong or criticize you in any
9 way; correct?
10 A. They wouldn't have to criticize. All
11 they have to do is say, "This is what I would
12 do," and let the people decide.
13 Q. Okay.
14 So your general orders, in fact,
15 prohibit a person running against you from
16 saying a bad word about you, basically; right?
17 A. They can disagree with me, but they
18 can't -- I mean, it depends on how they say it,
19 I suppose. I mean, if they -- You know, if they
20 just say, well, they're going to campaign, and
21 they want to campaign against me and they want
22 to go head-to-head and say, "This is what I
23 would do," and talk, you know, there's ways of
24 doing it without discrediting or just being --
25 you know, tearing somebody down.
329
1 Q. Sheriff, have you ever heard of the
2 First Amendment to the United States
3 Constitution?
4 A. Yes, I have.
5 MS. PENICK: Objection.
6 Relevance to this hearing.
7 MS. VALENTINE: Overruled.
8 Q. In fact, the general orders prohibit a
9 sheriff's deputy running against you from
10 exercising his or her constitutional rights.
11 Isn't that --
12 MS. PENICK: Objection. Pardon
13 me.
14 MS. CONLIN: I'm not quite done.
15 Q. Isn't that correct?
16 MS. PENICK: Objection. That
17 calls for a legal conclusion.
18 MS. VALENTINE: If the witness
19 can answer it, he can answer it.
20 A. I can't tell you. I don't know.
21 Q. All right.
22 Let's look at Exhibit B. That's
23 entitled "Notice of Discharge From Employment."
24 On the last page of that, Sheriff, second page,
25 you say the following: "If you appeal to the
330
1 Commission, your removal will be stayed and you
2 will be placed on paid leave pending the outcome
3 of the hearing before the Commission"; correct?
4 A. Correct.
5 Q. Then on January 16th, you wrote a
6 letter to Sergeant Ruby that, contrary to your
7 initial commitment to keep him on paid leave,
8 you were going to take him off on January 25th;
9 correct?
10 A. Correct.
11 Q. All right.
12 And then -- then, after you took
13 him off, you tried to prevent him from getting
14 unemployment compensation; right?
15 MS. PENICK: Objection. These
16 are past the termination date. These are beyond
17 the scope of this hearing, and these issues were
18 not appealed.
19 MS. VALENTINE: I'll allow it,
20 but let's not go too far down this path.
21 MS. CONLIN: I'd like to make
22 just a tiny record with respect to this. We
23 think that this conduct indicates hostility
24 directly toward Curt Ruby, and we think that is
25 material, whether or not this man is the one who
331
1 hates is -- I think is of importance and
2 relevance to the hearing.
3 MS. VALENTINE: And, again, I'll
4 allow it, but let's not go too far down this
5 unemployment thing.
6 MS. CONLIN: I'd offer
7 Exhibit 507.
8 MS. VALENTINE: Objection?
9 MS. PENICK: Yes. Objection to
10 relevancy.
11 MS. VALENTINE: Overruled. It
12 will be admitted.
13 MS. CONLIN: I'm done.
14 MS. VALENTINE: Redirect?
15 MS. PENICK: I will, and I
16 will --
17 MS. VALENTINE: Before you
18 proceed with redirect, there's been a request to
19 take a short break. We're going to do 5
20 minutes. Well, maybe 6, so it's five after.
21 (A recess was taken from 10:05 a.m.
22 until 10:13 a.m.)
23 MS. VALENTINE: All right. We'll
24 resume with redirect.
25 MS. PENICK: Thank you.
332
1 REDIRECT EXAMINATION
2 BY MS. PENICK:
3 Q. Sheriff Mickelson, I'm going to ask you
4 a few questions to clarify some items from your
5 cross-examination, okay?
6 A. Okay.
7 Q. You discussed the election that you had
8 in 2003 against Jim Stubbs for the sheriff
9 position?
10 A. Correct.
11 Q. I believe you testified that you didn't
12 know at the time that Curt Ruby was supporting
13 Jim Stubbs; is that correct?
14 A. No. I didn't at the time, no.
15 Q. Did you find out that at some point he
16 was supporting Jim Stubbs?
17 A. After the election was over.
18 Q. When?
19 A. Sometime just shortly after.
20 Q. How?
21 A. There was a note under my door.
22 Q. Explain.
23 A. Well, there was a note under my door,
24 and basically stating that -- I think it was
25 something like, "Hope there's no hard feelings,"
333
1 that, you know, "I was supporting" -- or "I'm
2 sure you knew that I was supporting Jim."
3 But I didn't keep it, so I
4 don't -- You know, it's been such a long time
5 ago, I don't know exactly what it did say.
6 Q. Did you talk with Curt Ruby about the
7 note?
8 A. I believe I mentioned something that
9 there's not -- never would be any hard feelings
10 anyway, so --
11 Q. Do you recall anything else that you
12 said to him or he said to you at that time?
13 A. I don't -- I don't recall.
14 Q. Can you turn to Exhibit A, page 233?
15 It's in the red book. I believe you discussed
16 this on cross-examination, that point 13
17 indicates, "Final departmental disciplinary
18 authority and responsibility rests with the
19 Sheriff"; is that right?
20 A. Yes.
21 Q. And other supervisory personnel may
22 take the following actions or measures, and it
23 indicates four other measures that other
24 personnel can take; is that right?
25 A. Correct.
334
1 Q. What's your understanding as to the
2 type of disciplinary action that Jim O'Brien
3 could take?
4 A. Basically, he could take any -- any of
5 the above steps, A, B, C or D, oral reprimand,
6 written reprimand, emergency suspension, or
7 written recommendation of other penalties.
8 Q. Did you rely upon Chief Deputy O'Brien
9 to do those things?
10 A. Yes.
11 Q. And then point 16 below discusses with
12 regard to when written reports of disciplinary
13 action must be submitted. It indicates that
14 they're not required for oral reprimands; is
15 that correct?
16 A. Correct.
17 MS. CONLIN: I'm sorry. What
18 page?
19 MS. PENICK: I'm at 233.
20 Q. Were there any verbal reprimands, as
21 you would use that term, issued to Curt Ruby?
22 A. I don't believe so.
23 Q. Were there verbal counseling sessions
24 with Mr. Ruby?
25 A. Yeah. I know Jim did, and I did once
335
1 in a while, yes.
2 Q. There were some questions about the
3 incident March 30 of 2006 with covering the --
4 A. Shift.
5 Q. -- missing shift, I suppose the lack of
6 someone to be on shift; right? And you were
7 asked about an unwritten rule that people were
8 expected to follow?
9 A. Correct.
10 Q. Do you know when that rule went into
11 effect?
12 A. It's been in effect as far as -- as
13 long as I've been employed with the sheriff's
14 department.
15 Q. Is that rule followed?
16 A. Yes.
17 Q. Is it followed by the whole department?
18 A. Yes.
19 Q. Has anyone ever questioned how to
20 handle such a situation to you?
21 A. No.
22 Q. Do you have any doubt that all of the
23 deputies know how to cover a shift vacancy?
24 A. I don't have any doubt, yes.
25 Q. And I just want to make clear when
336
1 something like that happens and a change is made
2 to the schedule after it's issued, whose
3 responsibility is it to coordinate those
4 schedule changes?
5 A. The officer in charge.
6 Q. And what do you mean by that?
7 A. Of that shift, the lieutenant or
8 sergeant on that shift.
9 Q. You discussed the September 18th, 2006
10 meeting in which you informed Mr. Ruby that he
11 was going to be sent for a fitness-for-duty
12 evaluation?
13 A. Right.
14 Q. And I think you mentioned at that time
15 on cross-examination that he said, "This is
16 because I'm going to run against you"?
17 A. I believe so, yes.
18 Q. Did he say anything else about running
19 against you during that meeting?
20 A. That was the first time I think he said
21 that he wasn't going to. Then he goes -- It was
22 because he was running against me, but he said
23 he wasn't going to.
24 Q. So he told you, "You think I'm running
25 against you, but I'm not"?
337
1 A. Yeah, I think that's --
2 Q. Did that matter to you?
3 A. No.
4 Q. I also -- I believe you testified --
5 You were asked about whether, if there was any
6 indication of domestic violence, then an arrest
7 would be mandatory?
8 A. Yes.
9 Q. Is that correct?
10 A. If there's any bodily injury.
11 Q. Okay.
12 I'd like you to take a quick look
13 at Exhibit R, the Carlson incident, in your
14 notes. You were asked this morning about
15 the statement that Vic Carlson made to you, and
16 if you'd look at page 336 and 337.
17 A. Okay.
18 Q. You were asked why you didn't include
19 any reference to Vic in these notes. Do you
20 remember that?
21 A. Yes.
22 Q. Do you know when you wrote these notes?
23 A. I believe it was 9:00 in the -- or it
24 was 8:45. It was in the morning of the 26th.
25 Q. On 336?
338
1 A. Right.
2 Q. And on 337, when did you write that
3 one?
4 A. About 10 minutes after the first one.
5 Q. And when did Vic Carlson talk to you?
6 A. He might have -- I'm not sure what time
7 it was. He talked to me numerous times after
8 that, but it might have been right when he was
9 arrested. I can't remember.
10 Q. Was your conversation with Vic after
11 your conversations with his daughter and his
12 wife?
13 A. Yes.
14 Q. And you just don't have a note to those
15 conversations; is that right?
16 A. No.
17 Q. Can you look now at Exhibit -- I think
18 it's 501, the handbook, page 249. You were
19 asked about the disciplinary process and
20 progressive discipline; right?
21 A. Correct.
22 Q. Is it your understanding that
23 progressive discipline is required in every
24 situation?
25 A. No.
339
1 Q. What is your understanding?
2 A. Well, what it says in the handbook,
3 "The County may use whatever discipline it
4 decides is appropriate in any situation, up to
5 and including discharge, without regard to the
6 progressive discipline guidelines explained
7 below."
8 Q. Why did you go right to discharge with
9 Officer Ruby?
10 A. I guess we talked it over. We talked
11 it over with the attorneys.
12 Q. I don't want you to discuss what the
13 attorney recommended, okay?
14 A. Right.
15 But we just -- I mean, we just
16 felt that it was time that we did something, and
17 this is what -- this is what we decided.
18 Q. Did you believe that Officer Ruby would
19 respond to progressive discipline?
20 A. No.
21 Q. Why not?
22 A. Because we tried to -- both Jim and I
23 had tried to talk to Curt numerous times, and
24 when we do, he gets angry, and it's just -- it
25 just wasn't working.
340
1 MS. PENICK: I'm finished.
2 MS. VALENTINE: Any recross?
3 MS. CONLIN: Very briefly.
4 RECROSS-EXAMINATION
5 BY MS. CONLIN:
6 Q. I want to return just a moment
7 to 17, paragraph 17, because I forgot to
8 ask you a question about that. That is the
9 October 9th, having the spotlight repaired on
10 his vehicle.
11 MS. PENICK: I'd object as being
12 beyond the scope of redirect.
13 MS. CONLIN: Then I would move to
14 reopen
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