Transcripts - March 20, 2008
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 direct.
15 MS. VALENTINE: Sustained.
16 I'm sorry?
17 MS. CONLIN: Then I would move to
18 reopen redirect.
19 MS. VALENTINE: That would be
20 allowed.
21 Q. 17, had the spotlight on his vehicle
22 repaired. Do you see that?
23 A. I'm getting to that.
24 Thank you.
25 Q. Well, you don't really need to look at
341
1 it.
2 A. Okay.
3 Q. The only question I have is, having
4 the spotlight on his vehicle repaired would not
5 be detrimental in any way to the public, would
6 it?
7 A. No, it would not.
8 Q. And 19 has to do with the meeting that
9 you had with him on November 15th. That would
10 not be detrimental to the public, would it?
11 A. No.
12 Q. Nor would 21 about the unnecessary
13 remark at the top of his activity log?
14 A. No.
15 Q. Nor would -- if 22 is about these
16 hazardous material trainings, 22 would also --
17 isolating himself during the hazardous material
18 training would not be detrimental to the public;
19 is that correct?
20 A. That's correct.
21 Q. Do you take time to drive around in the
22 county?
23 A. Every chance I get, yes.
24 Q. And would you be out regularly?
25 A. No. Not regularly, no.
342
1 Q. How often?
2 A. It's kind of, I guess, once every two,
3 three weeks maybe you'd get out on something.
4 It depends on if there's an accident or if
5 there's something that I can get involved with
6 or I need to help with. I mean, it's just -- It
7 just varies.
8 Q. And the rest of your duty time you
9 spend here?
10 A. Yes.
11 Q. The other deputies are out and about
12 all the time?
13 A. Yes.
14 Q. Patrol deputies; right?
15 A. Yes.
16 Q. And during the election of -- the
17 special election of 2003, you were a patrol
18 deputy; correct?
19 A. Correct.
20 Q. And so you would have been out in the
21 county all during your shift, usually every day?
22 A. Yes.
23 Q. And you would be in Badger?
24 A. Yes, I would go to Badger.
25 Q. Do you know where Curt lives?
343
1 A. Yes.
2 Q. Have you ever driven -- Did you drive
3 by it during the special election process?
4 A. I don't know. I might have.
5 Q. Okay.
6 The oral counseling document,
7 which is Exhibit X, why don't you turn to that.
8 Where was that found?
9 A. This one was -- You mean this report?
10 Where was this report found?
11 Q. Yes.
12 A. That's Jim O'Brien's. He has it, or he
13 had it.
14 Q. All right.
15 You said in connection with your
16 redirect examination that you didn't ever do
17 progressive discipline because you didn't think
18 it would work; right?
19 A. Yes. I guess that would probably be a
20 good answer.
21 Q. And yet yesterday you've told us that
22 after this oral counseling that's documented in
23 Exhibit X, everything was fine about the issue
24 that you talked with him.
25 A. In that case it probably was, yes.
344
1 Q. All right.
2 So the one time that you did oral
3 counseling and documented it, in fact, it did
4 work?
5 A. Yeah. I guess you could say it did in
6 that case, yes.
7 Q. And ordinarily, whether the counseling
8 was oral or written, it would be documented;
9 right?
10 A. Ordinarily, yes.
11 Q. You said that the way that the
12 scheduling was done had been the same for as
13 long as you remember. Do you recall that
14 testimony?
15 A. Yes.
16 Q. In fact, Sheriff, until you came on
17 board and sometime thereafter, the chief deputy
18 granted the vacation time and things like that;
19 right?
20 A. He can, yes.
21 Q. No. I mean that it was up to the chief
22 deputy. He was in charge of scheduling.
23 A. And he still is.
24 Q. At some point, however, there was a
25 change in terms of vacation. Do you recall
345
1 that?
2 A. About the amount of vacation you can
3 take, yes, at one time.
4 Q. The days, the days of vacation.
5 A. No, I don't recall that.
6 Q. All right.
7 So is it your testimony today
8 that Chief Deputy O'Brien was, in fact, in
9 charge of granting vacation days?
10 A. Yes.
11 Q. And that never changed?
12 A. Well, the chief -- the chief deputy,
13 that never changed, no.
14 Q. Okay. Well, I'm not sure what you just
15 told me.
16 A. Well, he hadn't always been the chief
17 deputy.
18 Q. Oh, I do understand that.
19 Okay. But the chief deputy is
20 the person that people go to if they want -- you
21 know, if they want to schedule vacation, a
22 vacation day.
23 A. Correct.
24 Q. Not the sergeant in charge?
25 A. Well, they go through the sergeant
346
1 first, and then it goes to -- then the chief
2 deputy reviews it.
3 Q. All right. I'm sorry that I'm
4 confused, but I am.
5 Was there a time that you recall
6 where the only person involved in granting
7 vacation was the chief deputy?
8 A. No. We always -- we always -- As far
9 back as I can remember, we had a slip that we
10 had to fill out, and then our lieutenant or
11 sergeant would have to sign off on that slip,
12 and then they would give that -- They would go
13 through -- Then it would go through the chief
14 deputy.
15 Q. All right.
16 Yesterday you told me that you
17 understood the law to be that, in cases of
18 domestic violence, all such cases, arrest was
19 mandatory. Do you recall that testimony?
20 A. Yes, I did say that.
21 Q. Today you have changed that testimony?
22 A. Yes.
23 Q. Did you have a discussion with someone?
24 A. Yes.
25 Q. Did you look at the law?
347
1 A. Yes.
2 Q. In fact, you were wrong?
3 A. I was wrong.
4 Q. And, in fact, in order for arrest to be
5 mandatory, there must be bodily injury?
6 A. Correct.
7 Q. How does a deputy determine whether or
8 not there has been bodily injury?
9 A. Well, depends on what's happened. If
10 it's -- if it's a bruise, if it's a cut, if it's
11 a hair-pulling, if it's -- Those would be --
12 those would be considered bodily injuries.
13 Q. By whom?
14 A. By a normal person, I guess.
15 MS. CONLIN: Would you read that
16 answer back?
17 (Requested portion of the record
18 was read.)
19 Q. Do you know of any definition in the
20 law with respect to what constitutes bodily
21 injury?
22 A. There is, but I can't state it
23 verbatim.
24 Q. Can you state it at all?
25 A. No.
348
1 Q. Do you know what questions a -- or what
2 information the deputy needs in order to know
3 whether or not bodily injury occurred?
4 A. Witness statements.
5 Q. No. I'm sorry. Let me clarify before
6 you go on because that's not what I'm asking.
7 What does -- If -- Let me see if
8 I can say it this way: Ordinarily, would you
9 agree with me that in order for arrest to be
10 mandatory under 236.12, it is -- you would
11 expect to see something visible on the person?
12 A. Ordinarily, yes.
13 Q. Okay. I do want to clarify earlier
14 discussion.
15 If a deputy wants a day off and
16 the shift commander, lieutenant or sergeant, is
17 not available, then he or she can go directly to
18 the chief deputy?
19 A. Correct.
20 Q. Okay.
21 MS. CONLIN: That's all I have.
22 MS. VALENTINE: Any further
23 recross -- or redirect?
24 MS. PENICK: I must.
25
349
1 FURTHER REDIRECT EXAMINATION
2 BY MS. PENICK:
3 Q. There was reference in your recross
4 that -- to Exhibit X.
5 A. Okay.
6 Q. The documentation of the discussion
7 that Chris O'Brien and you had with Curt Ruby
8 back in 2004, and you indicated that -- I think
9 you said everything was fine after this event?
10 A. I mean as far as this situation goes,
11 yes.
12 Q. What do you mean; as far as the
13 specific violations identified?
14 A. Yeah. I would say so, yeah.
15 Q. Was everything fine with respect to
16 Officer Ruby's attitude towards you after this
17 event?
18 A. No.
19 Q. Can you explain that?
20 A. It just -- When we discussed things, he
21 just gets mad, so the anger -- the anger just
22 was still there.
23 Q. And forgive me. This event was -- one
24 of the issues discussed in this conversation was
25 the fact that he was going home early; is that
350
1 right?
2 A. I -- If that's what it says. I don't
3 remember, yeah.
4 Q. Do you want to look at it or --
5 A. I can, yes.
6 Oh, okay. Yes, yeah. He just --
7 He was going home early, and evidently he -- for
8 whatever reason, his going home early stopped.
9 Q. And then you had had conversations with
10 him about the reasons, and you're thinking maybe
11 it was a different conversation where you
12 learned about his --
13 A. Yeah. That was probably a different
14 conversation.
15 Q. Let me finish. Where you learned about
16 his mother-in-law's illness?
17 A. Yes.
18 Q. And I believe you testified that it was
19 after the discussions about Mr. Ruby's
20 mother-in-law that you noticed him becoming very
21 angry towards you; is that correct?
22 A. Yeah, I believe so. Yes.
23 Q. Would you say there was a noticeable
24 difference in the behavior at that point?
25 A. Yeah.
351
1 And I guess we -- I tried to find
2 out why, and I couldn't get any -- I mean, he
3 just said it was because of that incident, and
4 we didn't advise -- We didn't know. I didn't
5 know. I had no idea, so I mean -- but just the
6 anger was still there about it.
7 Q. And is it your understanding that the
8 anger stems from that incident?
9 A. I guess that's got to be part of it,
10 yes.
11 Q. Did you hear Officer Ruby say that he
12 would never forgive you because of what you did
13 to Mrs. Ruby?
14 A. I don't know if he told me that or he
15 told Jim O'Brien. I don't know.
16 Q. Now, I want to clarify this discussion
17 about the law and domestic violence, and I
18 don't -- I want the record to be clear as far as
19 when you knew what the law was. You just didn't
20 discover today what the law means, did you?
21 A. No.
22 Q. Was your testimony yesterday a
23 situation in which you simply misspoke?
24 A. Correct.
25
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