Transcripts - March 19, 2008
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
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