Transcripts - March 21, 2008
692
1 BEFORE THE WEBSTER COUNTY CIVIL SERVICE COMMISSION
2 CURTIS W. RUBY, )
)
3 Appellant, ) TRANSCRIPT
) OF
4 vs. ) PROCEEDINGS
)
5 WEBSTER COUNTY ) VOLUME III
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 8:10 a.m., March 21,
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
693
1 I N D E X
2 JIM O'BRIEN
3
4 Examination by: Page
5 Ms. Penick 701, 974, 1010
Ms. Conlin 764, 993, 994, 997
6 Mr. Driscoll 1013
Mr. O'Connor 1016
7 Ms. Valentine 1017
8 CHANCE WALKER
9 Ms. Conlin 1022, 1029, 1030
Ms. Penick 1027, 1029
10 Mr. Driscoll 1028
11 VIRGINIA CARLSON
12 Ms. Conlin 1031, 1046
Ms. Penick 1042
13
ROD STRAIT
14
Ms. Conlin 1050, 1082
15 Ms. Penick 1067, 1088
Ms. Valentine 1085
16 Mr. Driscoll 1087
17 CURT RUBY
18 Ms. Conlin 1088
19
20
21
22
23
24
25
694
1 Exhibit Offered/Admitted
2 Z 703 703
CC 703 704
3 DD 1010 1111
4 2 1108 1108
4 1109 1109
5 5 1110 1110
6 1110 1111
6 7 1111 1113
8 1113 1113
7 10 1098 1099
14 1093 1093
8 15 1104 1104
1105
9 16 1104 1104
17 1115 1115
10 19 868 869
20 868 869
11 24 867 868
27 1102
12 1103 1104
28 868 869
13 33 852 853
34 853 855
14 35 897 898, 899
511 972 972
15 532 934 935
534 921 922
16 539 886 886
540 928 929
17
18
19
20
21
22
23
24
25
695
1 P R O C E E D I N G S
2 MS. VALENTINE: We will go on the
3 record.
4 Good morning, everyone.
5 Just before going on the record
6 we had a brief discussion about retrieving some
7 computer information, and since the request was
8 from you, Ms. Conlin, might you make your
9 statement on the record?
10 MS. CONLIN: We have requested
11 the opportunity to retrieve the previous
12 documents from Exhibits C and D, and we have the
13 ability here to do at least a first step with
14 respect to that, and if that doesn't work, then
15 we'll have to do something else, but there is a
16 concern that our camp, so to speak, not have
17 access to the secure computer here in the law
18 enforcement center, and we have no objection to
19 the proposal made by the commission that in the
20 event that -- that that is not acceptable for us
21 to do it, that the county get an independent,
22 neutral IT person, a computer forensic expert,
23 to do it for us, to retrieve all the properties,
24 the dates of access, and the previous versions
25 of Exhibits C and D.
696
1 MS. VALENTINE: Ms. Penick?
2 MS. PENICK: I must state an
3 objection to the access to these documents as an
4 attempt to obtain discovery, which is contrary
5 to the rules of the commission, as I stated
6 before.
7 I don't believe this needs to be
8 stated, but I will state it anyway. To the
9 extent any versions of these documents are
10 protected by the attorney-client privilege or
11 attorney work product, those will not be
12 produced.
13 MS. VALENTINE: And was there any
14 involvement in producing -- or in creating the
15 notes that you made -- was that something that
16 was done at the direction of an attorney, or
17 were they internal documents that you used for
18 your use in doing your job?
19 THE WITNESS: They were with the
20 assistance of counsel.
21 MS. VALENTINE: I'm sorry?
22 THE WITNESS: They were with the
23 assistance of an attorney.
24 MS. PENICK: Could we clarify?
25 The original notes that you made
697
1 I'm not as concerned about.
2 I think what just went on the
3 record were versions of Exhibit C and D, and
4 those are what -- I believe there was assistance
5 of counsel in finalizing those.
6 THE WITNESS: Yes.
7 MS. CONLIN: That just cannot be
8 correct. The document was -- Both of these
9 documents have been put into evidence. The
10 previous versions of these documents under the
11 law are available to us, whatever they contain.
12 These documents are a part of the record in this
13 case. Any attorney-client privilege has been
14 waived.
15 MS. VALENTINE: I think the
16 original notes are fair game.
17 I think that versions -- I guess
18 we may have to address if there's an issue --
19 There may not be versions. There very well --
20 We may be talking on the record about something
21 that doesn't exist, but I think your original
22 notes, I think, provide it, and then we'll
23 deal -- If there are versions, we'll deal with
24 whether there's privilege involved.
25 MS. CONLIN: There will almost
698
1 certainly be available access, and there will be
2 versions, almost certainly.
3 MS. VALENTINE: I guess by
4 "versions," we can all decide what that means.
5 MS. PENICK: That's correct.
6 MS. VALENTINE: To me, is that
7 changing an "a" to a "the"? I think that's a
8 version. I think the question is whether
9 there's going to be privilege involved, and I
10 think what we need to do is see what we've got,
11 and then we can discuss whether privilege comes
12 into play or not, so --
13 MS. CONLIN: What I'm looking for
14 is what I understand to have happened over the
15 years, or year, whatever it is, that he's been
16 making these, is he would originally take a note
17 in handwriting, and then eventually, with time,
18 type it into this document.
19 MS. VALENTINE: Correct.
20 MS. CONLIN: And then he would
21 change, and has changed, the documents as time
22 has passed, and that's how I understand from the
23 testimony that these were made.
24 MS. VALENTINE: Is it -- and
25 I'm -- I don't know if this is possible or not,
699
1 but are the directions that you received
2 something that you could provide to --
3 MS. CONLIN: Are you kidding?
4 MS. VALENTINE: Okay. I didn't
5 know.
6 MS. CONLIN: As I said, we were
7 talking last night to the person who did my
8 Microsoft documents. He's a computer genius, as
9 I said, and he --
10 MS. VALENTINE: Is his name Bill?
11 MS. CONLIN: No, it's Anderson.
12 No, no. But I expected to meet him, and it
13 didn't work out for me. I was prepared.
14 And as I understand it, they
15 would prefer that we not do this anyway, is that
16 right, Bridget, that you would prefer that we
17 not use the method that we were taught last
18 night?
19 MS. PENICK: I'm not sure what
20 the method is.
21 MS. CONLIN: Here's -- All it
22 would require would be access to the two
23 documents and to the computer -- on the computer
24 in native form. Is that right, Nick?
25 NICHOLAS BAILEY: Yes.
700
1 MS. CONLIN: I was not on the
2 telephone.
3 MS. VALENTINE: All Greek to me,
4 and I'll keep it that way, but I think the
5 parties can work out an agreement in terms of
6 getting that information, whether it be using
7 your resources or using someone that the
8 sheriff's office designates.
9 Okay, fair enough.
10 MS. PENICK: One additional
11 matter before we begin. The subpoenas that were
12 served on the commission yesterday --
13 MS. VALENTINE: Yes.
14 MS. PENICK: -- is there any
15 follow-up on those?
16 MR. O'CONNOR: I did. The
17 documents I brought back were the only ones that
18 we were able to retrieve.
19 MS. PENICK: So there is no --
20 You were unable to find the list for 1997
21 or 1996; correct?
22 MR. O'CONNOR: Correct.
23 MS. CONLIN: Or 2002?
24 MR. O'CONNOR: Yes.
25 MS. CONLIN: Okay.
701
1 MS. VALENTINE: Anything further?
2 MS. CONLIN: Not from us.
3 MS. VALENTINE: All right. Let's
4 continue with testimony.
5 Ms. Penick.
6 DIRECT EXAMINATION (CONT'D.)
7 BY MS. PENICK:
8 Q. Chief Deputy O'Brien, good morning.
9 MS. PENICK: Is he still sworn?
10 MS. VALENTINE: Yes. The witness
11 is reminded that you're under oath.
12 Q. I'm going to hand you what we've marked
13 as Exhibit Z. Can you tell me what Exhibit Z
14 consists of?
15 A. These are the information that is
16 provided to victims of domestic assault. These
17 are --
18 Q. How was it provided?
19 A. They're kept in a cabinet in our office
20 in the -- There's a break room with a cabinet
21 next to the road office, and they're kept in
22 that cabinet, and periodically, they are placed
23 in the mailboxes of the deputies.
24 Q. And whose responsibility has it been to
25 give to the victims?
702
1 A. The officers on-scene.
2 Q. Now, we have quite a few pages here in
3 Exhibit Z. I'm sorry, I didn't have an
4 opportunity to number them.
5 Is it your understanding that
6 each -- every single page of this document is to
7 be given to the victims, or how does that work?
8 Or how many documents do we have here?
9 Maybe let me back up, and you can
10 explain that.
11 A. We have -- pages or documents?
12 Q. Documents. I'm sorry.
13 Can you tell from the way that
14 it's photocopied?
15 A. Well, there should be one here.
16 That's two, three.
17 This is three, four. Four, I
18 believe four.
19 Q. And what's the source of these
20 documents?
21 A. As far as?
22 Q. Where do you get them?
23 A. We get these usually from the D/SAOC
24 shelter and Children & Families of Iowa.
25 MS. PENICK: I would ask for
703
1 Exhibit Z to be admitted into evidence.
2 MS. VALENTINE: Any objection?
3 MS. CONLIN: No.
4 MS. VALENTINE: Z is admitted.
5 MS. PENICK: Okay.
6 Q. I want to follow up on some testimony
7 yesterday. We were talking about the March 30,
8 2006 shift coverage issue, and you had mentioned
9 that Tony Walter had come in --
10 A. Yes.
11 Q. -- and worked some overtime?
12 A. Yes.
13 Q. Hand you what I've marked as
14 Exhibit CC.
15 MS. VALENTINE: CC?
16 MS. PENICK: CC.
17 Q. What is this document?
18 A. It's Deputy Walter's activity log for
19 March 30th, 2006.
20 Q. And does it reflect any overtime?
21 A. Yes. It reflects that he worked 4
22 hours overtime.
23 MS. PENICK: I'd move to admit
24 Exhibit CC.
25 MS. VALENTINE: Any objection?
704
1 MS. CONLIN: No.
2 MS. VALENTINE: Exhibit CC is
3 admitted.
4 Q. Chief Deputy O'Brien, when did you
5 first learn that Curt Ruby was going to run for
6 sheriff?
7 A. When I knew for certain was when
8 it was published in the Fort Dodge Messenger
9 March 17th.
10 Q. When did you learn that he was
11 considering running?
12 A. Prior to that, I had heard -- and I
13 don't know the exact time frame, but it would
14 have been, is my understanding, Mrs. Ruby
15 changed jobs. She worked for the county. She
16 left for other employment, and it was stated to
17 me that she -- I'm not saying she had, but Curt
18 had mentioned that she had left the county so
19 that -- to avoid retaliation when he ran for
20 sheriff, but I have no idea how long ago that
21 was. I would say it was -- could have been in
22 the past year, year and a half.
23 Q. And did you say that Curt told you
24 specifically?
25 A. No, no. Curt did not tell me that.
705
1 Q. How did you become aware of this
2 information?
3 A. I heard it in the office.
4 Q. We were, I believe -- I think it would
5 be easier for you if you will take Exhibit C out
6 of the binder and look at Exhibit D as well so
7 that you don't have to flip back and forth.
8 A. Okay.
9 Q. We were at paragraph 10 on Exhibit C,
10 the search warrant situation. Can you describe
11 how that event started, your involvement with
12 that event?
13 A. My involvement, I was here at the law
14 enforcement center, I believe in the office. I
15 had overheard radio traffic from Mike Halligan.
16 He was calling for assistance in the Coleman
17 area, or just south of town, so I went there to
18 assist him. He said, I believe, he had a
19 subject on foot that had run from him.
20 Q. And at what point -- or what did --
21 When did you decide that someone was needed to
22 sit on the residence?
23 A. When it was determined that a search
24 warrant was needed, because when they finally
25 got the individual out of the house, there were
706
1 drugs involved and what appeared to be stolen
2 property, so once search warrants were obtained,
3 that's when I got more involved.
4 Q. What did you do?
5 A. I helped collect evidence, and as time
6 went on, we realized that it was going to be a
7 very extensive search warrant and that it
8 certainly wouldn't be done in that evening, and
9 that it was most likely going to go into the
10 next day.
11 So that evening I contacted, I
12 believe, Captain Quentin -- Quentin Nelson. I
13 believe he was a captain at the time, or he may
14 have been a lieutenant, but he was Fort Dodge
15 police supervisor.
16 Contacted him and talked to him
17 about being able to secure the scene until the
18 next day.
19 Q. And what did -- What plan of action was
20 determined to take place?
21 A. Plan of action was to try to secure it
22 for the evening, and everybody that was
23 involved, take a break, leave, and it was
24 determined that between the two shifts -- I
25 believe the police department was short that
707
1 night somewhat, we had two on the road.
2 It was determined between our
3 office and the Fort Dodge Police Department that
4 we would share in securing the residence, that
5 we would, essentially, take turns. In other
6 words, a Fort Dodge police officer would watch
7 for a while, and then they would trade off with
8 the Webster County sheriff's deputy.
9 Q. So how did you make those arrangements?
10 A. Through Quentin Nelson. I believe
11 Captain Thode was there also. He's now a
12 captain.
13 I talked to Quentin about all the
14 options available. We also discussed the use of
15 reserve officers, so I contacted Commander Mark
16 Gargano. He's commander of the reserves.
17 Spoke with him. I believe he
18 made some phone calls, got back with me, and it
19 was decided that -- or determined or decided
20 that there wouldn't be reserve officers readily
21 available, and that there would be an officer
22 available at 6 a.m.
23 Q. Did you talk to any of the reserve
24 officers yourself?
25 A. No, no.
708
1 Q. And so who told you that there wouldn't
2 be any available until 6 a.m.?
3 A. Commander Gargano.
4 Q. And who -- which reserve officer
5 appeared at 6 a.m.?
6 A. Commander Gargano.
7 Q. So what did you do?
8 A. We left after he -- Well, no. Excuse
9 me.
10 We made arrangements to, again,
11 split the duty between the Fort Dodge Police
12 Department and the sheriff's office, and
13 arrangements were made for Sergeant Ruby to be
14 the first officer to secure the house.
15 Q. Did you ask Sergeant Ruby specifically
16 for him to sit on the house?
17 A. I -- We talked -- No, I didn't
18 specifically ask him. I asked -- I told -- I
19 told him it could either be him or Tony Walter.
20 It didn't matter. It was up to him to decide
21 who would do that, and he said that he would go
22 ahead and do it. He said, "I'll do it."
23 Q. Was this conversation in person, or was
24 it on the telephone?
25 A. It was in person.
709
1 Q. What else do you recall about the
2 interaction between you and Officer Ruby that
3 night?
4 A. I thought that Sergeant Ruby was put
5 out, and when he said that, "I'll do it," he --
6 It wasn't a very pleasant manner.
7 He said, "Well, I'll just do it,"
8 and said he had to do a few things prior to
9 that. I believe use the rest room, get food
10 possibly.
11 So he had then left and done
12 that, and came back.
13 Q. You've heard questions in previous
14 testimony about leaving Tony Walter alone on
15 patrol while Curt Ruby sat at the house. Did
16 you consider that?
17 A. Yes.
18 Q. And --
19 A. When I talked to Quentin Nelson, the --
20 the arrangement was made that if anybody needed
21 backup, they would attempt to make provisions,
22 and it was two-fold.
23 If -- Since Sergeant Ruby was
24 going to sit and secure the house, if Tony
25 Walter needed assistance, the Fort Dodge police
710
1 would do that, would be willing to back him up,
2 or they would be willing to go send a car to
3 relieve Sergeant Ruby to free him up to be able
4 to back up Deputy Walter. That was my
5 understanding with Quentin Nelson, and I believe
6 everybody was aware of it as well.
7 Q. What do you mean, "everybody"?
8 A. Joel Lizer was aware, Thode,
9 Captain Thode was aware, Quentin Nelson,
10 Sergeant Ruby was aware that that would be the
11 plan of action.
12 Q. And then you came back to the -- Was
13 there any further interaction between you and
14 Sergeant Ruby that evening?
15 A. No.
16 Q. Then what happened the next morning?
17 A. We -- There were several officers from
18 the Fort Dodge Police Department and deputies
19 from the sheriff's department. We had got
20 trucks, obtained trucks and trailers, and
21 continued the search warrant and the seizing of
22 property.
23 Q. And did --
24 A. Until the afternoon.
25 Q. Did you get any feedback from any of
711
1 the officers on-site about Officer Ruby?
2 A. Not that morning, no.
3 Q. Did you at some point?
4 A. Yes.
5 Q. When?
6 A. Tony Walter had shown up there at some
7 point in time, and he voiced his concern -- or
8 voiced his opinion about Sergeant Ruby's
9 attitude.
10 Q. What did he say?
11 A. He said that he didn't understand what
12 was going on with Curt. He said that he was --
13 he was at it again or -- He basically just said
14 he was kind of getting fed up with it. He was
15 kind of tired of his demeanor and his behavior.
16 Q. Did he tell you what specifically he
17 was tired of?
18 A. That he didn't feel that Sergeant Ruby
19 wanted to be there whatsoever that night, be a
20 part of that search warrant, be there that
21 night, be present, and was just being rude.
22 Q. Did you get any feedback from Quentin
23 Nelson about Sergeant Ruby?
24 A. Yes. He made mention of essentially
25 the same thing; the rudeness, and, you know,
712
1 "What's wrong" or "What's going on with
2 Sergeant Ruby?"
3 Q. Did you get any feedback from Mike
4 Halligan?
5 A. Yes. He mentioned something after Tony
6 Walter did, and he said essentially the same
7 thing, and that it was -- They felt that it was
8 getting burdensome. They just thought that it
9 was, essentially, getting old.
10 Q. Now, what you've seen -- Exhibit K is
11 the statement that Mike Halligan wrote about
12 this incident.
13 A. Yes.
14 Q. How did you obtain that statement?
15 A. When he mentioned to me what was going
16 on, I told him to be patient, and it would be --
17 You know, we would try to deal with it. We
18 would see what was going on, but Curt Ruby is a
19 sergeant, and he should be accorded the respect
20 of that position, and that, hopefully, it could
21 be resolved.
22 Q. Did you ask Mike Halligan to write --
23 A. Yes.
24 Q. -- down his concerns?
25 A. Yes.
713
1 Q. Did you take any action as far as
2 following up with this situation after the fact?
3 That's not a very good question.
4 Did you take any action towards
5 Sergeant Ruby after this incident?
6 A. No, I did not.
7 Q. What did you do?
8 A. I talked to Sheriff Mickelson Saturday,
9 I guess, shortly after we had -- Actually, I
10 spoke with him that evening -- or no. Early in
11 the morning.
12 Explained the situation
13 about the search warrant, made mention about
14 Sergeant Ruby, some of the things that had been
15 said, what I had observed and experienced and
16 witnessed, and I told him the same thing on
17 Saturday, and told him that I felt we would have
18 to talk about it, myself and Sheriff Mickelson,
19 sit down and discuss the situation because,
20 obviously, I felt something was going on.
21 Q. And did you sit down and talk about it?
22 A. Yes, we did.
23 Q. Do you know when?
24 A. I think it was -- It would have been
25 the following week, possibly.
714
1 Q. Did you decide to do anything after you
2 talked about it with Sheriff Mickelson?
3 A. Yes. It was -- it was talked about --
4 A fitness-for-duty evaluation was talked about
5 and discussed between the two of us.
6 Then it was decided to contact
7 Marcia Cohan from the Iowa Law Enforcement
8 Academy, who is the staff psychologist. We
9 spoke with her at length about fitness-for-duty
10 evaluation, and then she referred us to Dr. Eva
11 Christiansen.
12 Q. And did you contact Dr. Christiansen?
13 A. Yes.
14 Q. Her records show you contacted her on
15 September 15th of 2006. Does that sound
16 accurate?
17 A. That sounds accurate.
18 Q. And what did you discuss with her?
19 A. We discussed Sergeant Ruby's actions,
20 demeanor, behavior, and she had asked about some
21 of the feedback, other observations,
22 perceptions, people that have witnessed the
23 same, and spoke to us in great detail regarding
24 the fitness-for-duty evaluation, what it
25 involves, what it entails, and felt that it
715
1 would be warranted if --
2 Q. Who felt it would be warranted?
3 A. Dr. Christiansen.
4 -- if we so desired.
5 And she asked -- She said she
6 would need additional information, she would
7 need -- she would want some observation or some
8 witnesses -- witness accounts of the behavior or
9 the actions.
10 Q. Did you provide her with that?
11 A. Yes.
12 Q. And is that what's reflected in
13 Exhibit W?
14 A. Yes.
15 Q. And in Exhibit W, the page 505,
16 is that the statement that you prepared for
17 Dr. Christiansen?
18 A. Yes.
19 Q. Is what's written in the statement an
20 accurate description of some of the concerns you
21 had at that time?
22 A. Yes.
23 MS. PENICK: And for the sake of
24 the commission's time, I'm not going to go
25 through them. I'll just point your attention to
716
1 those.
2 Q. Did Exhibit 505 include everything that
3 you were concerned with regarding Sergeant Ruby?
4 A. I would say it's a fair and accurate
5 description of --
6 Q. Are there things that have happened
7 that you did not list on page 505?
8 A. Yes.
9 Q. Well, let's move to paragraph 11. I
10 think this is the next step here. If you look
11 at Exhibit D, the paragraph that begins with,
12 "On September 18th" on page 440 --
13 A. Just a moment. I knew I was going to
14 do this.
15 Q. I'm sorry.
16 A. Okay. Which paragraph?
17 Q. It begins with "On September 18, 2006."
18 It would be the third block of text.
19 A. Yes.
20 Q. Is that an accurate description of what
21 occurred as you attempted to set up the meeting?
22 A. Yes, it is.
23 Q. Why did you feel that Sergeant Ruby's
24 behavior in your attempts to set up the meeting
25 was -- Why did you include it in the notice of
717
1 discharge?
2 A. Because he was rather -- It was
3 disrespectful. It was disrespectful, and,
4 obviously, didn't accord any respect to speak
5 of. It was very disrespectful.
6 Q. Did you consider it insubordinate?
7 A. Yes, I did.
8 Q. And you did have a meeting with
9 Officer Ruby on September 18th; is that right?
10 A. Yes.
11 Q. And the following paragraph that begins
12 on the bottom of 440 to the top of 441 of
13 Exhibit D is your description of that event; is
14 that correct?
15 A. Yes.
16 Q. And is that an accurate description of
17 what happened?
18 A. Yes.
19 Q. Why was County Attorney Tim Schott at
20 that meeting?
21 A. For legal counsel or for representation
22 of the sheriff's department.
23 Q. Why did you want him there?
24 A. Again, just for any legal advice
25 concerning the evaluation.
718
1 Q. Had you contacted him before the day of
2 this meeting?
3 A. Yes.
4 Q. Do you know when you first contacted
5 him?
6 A. It was either the day before or the day
7 of.
8 Q. Did you contact him before you talked
9 to Dr. Christiansen?
10 A. No, I don't believe so.
11 Q. Did you get any legal advice from
12 Attorney Schott?
13 A. No.
14 Q. Why not?
15 A. When we went to his office, explained
16 to him the situation and what we felt was
17 necessary and what -- essentially, that we
18 wanted to send Curt for a fitness-for-duty
19 evaluation, and he said, "I have to tell you, I
20 consider Curt Ruby a very good friend of mine."
21 And we tried to talk to him or
22 attempted to talk to him about the situation,
23 explained to him. Told him we would certainly
24 like him to be involved in the meeting.
25 He didn't have much to say about
719
1 the fitness-for-duty evaluation, didn't have --
2 didn't have anything to say about the
3 fitness-for-duty evaluation or Sergeant Ruby,
4 and agreed to be in the meeting, but was
5 reluctant.
6 Q. Why did you include the events during
7 this September 18th meeting in paragraph 12 of
8 the notice of violations?
9 A. Okay. I think I've got these.
10 Q. Looking at Exhibit C --
11 A. Okay, okay.
12 Q. Second page begins with number 12.
13 A. Yes, yes. I've got it.
14 Q. Why did you think that his behavior was
15 sufficient to include in the discharge notice?
16 A. In which one?
17 Q. During that meeting in which you
18 informed him of the fitness-for-duty evaluation
19 on September 18th.
20 A. Oh, because some of the things he said,
21 how he acted out.
22 Q. Such as?
23 A. He was very upset. He, as I can recall
24 it -- and, of course, we expected some sort of a
25 reaction, obviously, but what specifically
720
1 stands out is that he mentioned that it was in
2 retaliation, but didn't specify retaliation for
3 what.
4 And I remember him scooching
5 ahead on the desk and saying -- He pointed at me
6 and said, "He's the one that needs to go for an
7 evaluation," and then, again, reiterated, "This
8 better not be in retaliation, or else."
9 And when he pointed his finger at
10 me, he said, "Better watch your back."
11 Q. Did you say anything back?
12 A. No. I didn't say a word.
13 Q. Did he say anything about running for
14 sheriff during that September 18th meeting?
15 A. That was directed at Sheriff Mickelson,
16 and he mentioned that he also felt that this
17 was connected in some way to him -- or
18 Sheriff Mickelson being aware of the fact that
19 Curt was either running for sheriff or
20 considering running for sheriff, and he said,
21 "But that's not the case," or that's not what
22 the deal is.
23 So I guess he was accusing
24 Sheriff Mickelson of that's what this
25 fitness-for-duty evaluation was, and then on the
721
1 other hand, saying, "I'm not doing that anyway,
2 so you're," essentially, "making a mistake."
3 Q. So it was your understanding as of
4 September 18th, 2006, that he was not planning
5 to run for sheriff based on what he told you?
6 A. Yes.
7 Q. And Sergeant Ruby went to see
8 Dr. Christiansen on September 19th; right?
9 A. Yes.
10 Q. And she prepared a report after that
11 evaluation; is that correct?
12 A. Yes.
13 Q. And that report is contained in
14 Exhibit G; is that right?
15 A. I'm not seeing that here, but is it --
16 MS. VALENTINE: It's sealed.
17 It's pulled. It's sealed. It's in an envelope
18 in the back of the exhibit book.
19 MS. CONLIN: But we'll stipulate
20 that Exhibit G is, in fact, the report.
21 Q. Did you review a copy of Exhibit G?
22 MS. PENICK: Can the witness look
23 at this as he testifies?
24 MR. DRISCOLL: Is there an
25 objection to that?
722
1 MS. VALENTINE: He's already seen
2 it.
3 MS. CONLIN: Sure, absolutely.
4 MR. DRISCOLL: They're in the
5 folder in the back, the sealed exhibits.
6 MS. PENICK: I'm sorry for the
7 confusion.
8 A. Okay.
9 Q. Did you review a copy of the report
10 when it was received by the sheriff?
11 A. Yes, I did.
12 Q. And it's dated October 2nd of 2006; is
13 that right?
14 A. Yes.
15 Q. Now, you know that the contents of the
16 report itself are under seal and that you can't
17 testify about those, so I'm going to ask you
18 some questions. You need to be cognizant of
19 that as you answer them, all right?
20 A. All right.
21 Q. Is it your understanding that there
22 were some action steps that needed to be taken
23 by Sergeant Ruby as a result of the evaluation?
24 A. Yes.
25 MS. CONLIN: May we confer for a
723
1 moment?
2 MS. VALENTINE: Yes.
3 (An off-the-record discussion
4 was held.)
5 MS. CONLIN: I have indicated to
6 Bridget that I do not have objection to a
7 discussion, a general discussion of the
8 follow-up steps. I don't think that's an
9 invasion of his policy. I think that's fair
10 game.
11 MS. VALENTINE: Okay, fair
12 enough.
13 Q. What was your understanding of those
14 follow-up steps?
15 And from the exchange that just
16 happened, that means you can say what it is that
17 you understood what he was to do.
18 A. I guess I'm a little confused on -- I
19 know that he was to do a follow-up.
20 Q. What do you mean by "a follow-up"?
21 A. Revisit Dr. Eva Christiansen.
22 He was also to do a follow-up
23 with myself and Sheriff Mickelson.
24 Q. Were there some -- You can describe
25 what you believed were the action items that
724
1 Officer Ruby needed to take.
2 A. Okay. I just want to clarify what
3 paragraph that that would be, and what page and
4 what paragraph?
5 Q. Well, I'm asking what your
6 understanding is, but I'd be referring to
7 page 309.
8 A. 309, the last paragraph?
9 Q. If you want to review that, you can.
10 MS. PENICK: Are we on the same
11 track here?
12 MS. CONLIN: For the record,
13 Bridget and I are conferring because I want her
14 to be able to use the portions of the report
15 that she wants to, and so maybe you need to take
16 a moment to look at it. I've shown you the ones
17 that I think pertain, but maybe you need to just
18 take a moment.
19 MS. VALENTINE: And if it would
20 be helpful, the commission has read the report
21 and knows what the report contains, so --
22 MS. PENICK: So we don't need to
23 reiterate what those steps are.
24 MS. VALENTINE: Not unless you
25 want to utilize your time that way.
725
1 MS. PENICK: Well, let's move on.
2 MS. CONLIN: Before we do that,
3 the portions of the report that I do not have an
4 objection being a matter of record are on
5 page 310, the last page, the first full
6 paragraph, "In my closing conversation."
7 MS. VALENTINE: Okay.
8 MS. CONLIN: And the second
9 paragraph on the page, "I believe it will be
10 helpful."
11 MS. VALENTINE: Okay.
12 MR. DRISCOLL: Is there any
13 objection to that being a part of the record on
14 the part of the sheriff's department, those two
15 paragraphs that we can discuss during
16 cross-examination?
17 MS. PENICK: No, no, no.
18 MS. VALENTINE: And, again, for
19 record clarifications, the records still will be
20 sealed, but for purposes of examination, the
21 parties are allowed to discuss those paragraphs.
22 MS. CONLIN: Well, I don't need
23 to have that portion sealed. I want to make
24 that clear.
25 MS. VALENTINE: I understand.
726
1 Thank you.
2 Q. Did you have a follow-up meeting with
3 Sergeant Ruby after -- on or about October 20th?
4 A. No.
5 Q. Did you attempt to?
6 A. Yes.
7 Q. And how did you go about that?
8 A. I placed a phone call to Sergeant Ruby
9 to set up a follow-up with myself and
10 Sheriff Mickelson, according to the report, and
11 he said he did not recall that or did not know
12 anything about it.
13 And I said it was listed right in
14 the report of Dr. Eva Christiansen, and that
15 according to the report, he was aware of it, as
16 well as we were, and he said he just didn't
17 recall.
18 I asked him if -- for
19 clarification, if he would want to call
20 Dr. Christiansen, or I could, and he said,
21 "Fine. Go ahead. You can go ahead."
22 So I called Dr. Eva Christiansen
23 and explained the situation to her, and she told
24 me in her opinion that there was no --
25 MS. CONLIN: Hearsay, just for
727
1 the record.
2 MS. VALENTINE: Overruled.
3 A. She informed me Curt would be well
4 aware of the follow-up, that there was follow-up
5 to be done in the office.
6 Q. Did you contact Sergeant Ruby again to
7 try to arrange for that follow-up?
8 A. Yes. I called him, told him I had the
9 report. I had looked at it again, I had called
10 Dr. Christiansen. She had informed me or
11 confirmed the fact that this was to take place.
12 And he wasn't interested in doing
13 it, said he'd prefer not to, and towards the end
14 of the conversation it was mentioned that he --
15 he felt that we didn't -- we wouldn't want to do
16 it any more than what he would.
17 Q. What did you say?
18 A. I told him that it's my understanding
19 that it was something that needed to be done,
20 and he essentially just said, "I'd prefer not.
21 I prefer not to do it," and that was the end of
22 the conversation.
23 Q. If you look at Exhibit C,paragraph
24 number 13, you've included this -- these
25 discussions about the attempt to arrange the
728
1 follow-up in your notice of discharge
2 violations. Why?
3 A. Because he had -- He apparently had no
4 interest in doing what he had agreed to do -- or
5 agreed to do between him and Dr. Christiansen,
6 which was a part of what he was required to do.
7 Q. Now, did Dr. Christiansen make some
8 recommendations to the sheriff's office to do as
9 far as to make the situation better with
10 Sergeant Ruby?
11 A. Yes.
12 Q. And what were those?
13 A. One of them was to leave him on the
14 shift that he was on for a period of time to
15 kind of give him the opportunity to -- I
16 wouldn't say be insulated, but tend to be away
17 from the mainstream, and to limit contact
18 between Sergeant Ruby and me.
19 So I called her back about that
20 particular comment and explained to her that I
21 was the chief deputy, and she said, "Well, by
22 all means, if there's contact, there's contact."
23 You know, that there shouldn't be
24 that avoidance there, but the idea was to have
25 him on nights and give him the best opportunity
729
1 of doing what he had agreed to do.
2 Q. Did you do that?
3 A. Yes.
4 Q. Now, to lay foundation for the exhibit
5 that's been entered as Exhibit F -- it's in that
6 sealed envelope, and that's the MMPI results
7 from May 20th of 1997 by Marcia Cohan, a
8 psychologist?
9 A. Yes.
10 MS. CONLIN: For the record, we
11 would object to any testimony concerning
12 Defendant's Exhibit F for the reasons we've
13 previously urged.
14 MS. VALENTINE: And I guess I
15 would just caution Counsel that I don't think
16 this witness has much to probably testify to
17 about Exhibit F.
18 MS. PENICK: It's limited. I
19 want you to know why -- Well, it's limited.
20 MS. VALENTINE: Okay.
21 Well, proceed, but with great
22 caution.
23 MS. PENICK: Sure.
24 MS. VALENTINE: And we may
25 interject.
730
1 MS. PENICK: Absolutely.
2 Q. Did you have occasion to review
3 Exhibit F, the 1997 MMPI results?
4 A. Yes.
5 Q. When did you do that?
6 A. After I had received the report from
7 Dr. Christiansen.
8 Q. And was it the report itself that led
9 you to look at the previous -- I'm sorry.
10 Was it Dr. Christiansen's report,
11 the contents of which we can't discuss, that led
12 you to review the previous MMPI results?
13 A. Yes.
14 Q. What was your thought or reaction when
15 you reviewed this report, Exhibit F?
16 And I'm not asking you to
17 describe anything within it.
18 A. I thought that the report was very
19 indicative of what I had observed, witnessed,
20 and experienced.
21 Q. And this report was from 1997?
22 A. Yes.
23 Q. And are you talking about what you had
24 experienced in 2005, 2006?
25 A. Yes.
731
1 Q. Now, let's turn to point 14 in the
2 notice of violations, Exhibit C. This is the
3 Victor Carlson domestic situation, and you may
4 put the sealed documents back. I don't want
5 those to be out.
6 A. We've got enough here.
7 Q. Let's turn to tab R, please.
8 How did the incident with Victor
9 and Virginia Carlson first come to your
10 attention?
11 A. This came to my attention the morning
12 after the incident.
13 Q. How?
14 A. Every morning I go through the officer
15 activity reports, and either myself or both
16 myself and the detectives will check incident
17 reports, go through them.
18 I saw this incident report and
19 read it, and, of course, I saw on the log it
20 said 10-16, so that's obviously something that
21 kind of raised a flag.
22 Q. And what is 10-16?
23 A. A domestic assault or domestic violence
24 or assault call. That's a 10 code for that.
25 Q. And so you read Exhibit R then, I guess
732
1 the first two pages, 332 and 333?
2 A. Yes.
3 Q. And do you know what time of day you
4 would have done this?
5 A. It was -- it was somewhere
6 between 8:00, 8:30, somewhere in there.
7 Q. In the morning?
8 A. Yes. It was early in the morning. It
9 was right shortly after I had got into my
10 office.
11 Q. What was your reaction when you read
12 that, this incident report?
13 A. My reaction was that Mrs. Carlson had
14 been assaulted.
15 Q. What did you do?
16 A. I -- Luke Fleener, Detective Luke
17 Fleener was in the office, the road office, and
18 I went to him and told him that I felt this
19 needed to be followed up on, that a complaint
20 needed to be filed, and that Mr. Carlson needed
21 to be arrested.
22 Q. And we've heard the testimony as to how
23 that situation played out.
24 A. Correct.
25 Q. Why did you include this Victor Carlson
733
1 incident in your notice of discharge violation?
2 A. It's dereliction of duty.
3 MS. CONLIN: I did not understand
4 what he said.
5 (Requested portion of the record
6 was read.)
7 Q. Why do you say that?
8 A. Well, according to the narrative, she
9 was assaulted. Her hair was pulled, and her leg
10 he shut in the door, slammed in the door, and
11 then I realized that there wasn't a complaint
12 along with this, nor had the alleged perpetrator
13 been talked to, contacted or interviewed.
14 Q. I want to make clear. The incident
15 report itself, 332 and 333, when you reviewed
16 it, did it only have Sergeant Ruby's handwriting
17 on it that morning?
18 A. Yes.
19 Q. And I don't see a mention of a leg
20 being shut in the door on that narrative, do
21 you?
22 A. No.
23 Q. So at that point, you were aware that
24 her hair had been pulled?
25 A. Yes, yes.
734
1 Q. And that, in your opinion, should have
2 resulted in a complaint?
3 A. Yes.
4 Q. Paragraph 15 of your Exhibit C
5 references the Chris Long situation, which is
6 tab S, Exhibit S. Are you there?
7 A. Yes.
8 Q. When did you become aware of this
9 situation with Chris Long and Alicia Wardlow?
10 A. I became aware of it when this was in
11 my basket, or at my office.
12 Q. And I'm sorry. Which page are you
13 referencing?
14 A. I am referencing page 349. I mean,
15 that's how I became aware of it.
16 Q. Okay.
17 And do you know when this
18 appeared in your basket, page 349?
19 A. It was, I believe, the next day, the
20 day after, or two days after the incident.
21 Q. The incident, according to the
22 complaint, happened on August 6th, Monday,
23 around 2 a.m., and there's a reference, if you
24 can look with me right around here (indicating),
25 that "he called me Mon. evening."
735
1 And so this was obviously
2 prepared after Monday evening, wasn't it?
3 A. Right.
4 I believe it was the Tuesday, and
5 this incident, I believe, occurred on
6 Sergeant Ruby's last day of his shift before his
7 two days off.
8 Q. What was your reaction when you
9 reviewed this notation?
10 A. I was shocked.
11 Q. What shocked you?
12 A. The whole thing. I just -- I was -- I
13 was really taken aback. It was a shock to the
14 conscience.
15 Q. Tell me -- Start at the beginning and
16 tell me what you found shocking.
17 A. That an assault had occurred on this
18 particular subject, the perpetrator was
19 obviously in the area at some point in time.
20 There were the issues of children
21 involved, the perpetrator left, came back.
22 The perpetrator, as I understand
23 it, or as I read this, was possibly under the
24 influence of alcohol or a controlled substance.
25 There was a witness, as I
736
1 understand it, that came to her defense that was
2 there, and nothing was done. Essentially,
3 nothing was done.
4 Q. What did you do?
5 A. I believe I got ahold of
6 Sergeant Detective Luke Fleener.
7 Maybe Bahr was there, Jason Bahr,
8 Detective Bahr. Showed this to him,
9 explained -- He read it, and told him that I
10 felt action needed to be taken. This
11 gentleman -- I mean, this needed to be followed
12 up on. This gentleman needed to be located and
13 a complaint filed because it was apparent that
14 she had been assaulted, and it was also apparent
15 that there was a history of domestic violence
16 between these two subjects in the past.
17 Q. Now, I want you to look at page 351,
18 the daily activity report for August 5th, which
19 would run, because this is the night shift, I
20 understand into that Monday morning, and this
21 does reference a 10-16 on that evening; is that
22 right?
23 A. Yes.
24 Q. Do you know if you reviewed the
25 activity report on Monday morning, and then got
737
1 the narrative the following day or --
2 MS. CONLIN: Bridget, excuse me.
3 What is that exhibit?
4 MS. PENICK: Oh, this is of the
5 same exhibit. It's page 351.
6 MS. CONLIN: Oh, I'm sorry.
7 Q. Did you understand the question?
8 A. Yes.
9 I would have looked at that
10 prior. What's the date on that? I'm sorry.
11 MS. PENICK: I'm sorry.
12 Q. It says "8/5/07." It was the daily
13 activity report from that specific night, and I
14 think you told me the narrative was written up a
15 day later.
16 A. Right.
17 Q. So did you do anything when you -- Do
18 you know, first of all, whether you had reviewed
19 page 351 on that Monday morning?
20 A. No. The activity logs are turned in,
21 and then they're processed through the clerks.
22 Q. Uh-huh.
23 A. And I usually get them the same day,
24 but there's -- occasionally, I don't get them
25 the same day, depending on -- They log all of
738
1 these because of the contract towns, the
2 agreement with the contract towns.
3 Q. Do you know -- for example, in the
4 Victor Carlson situation, there was a 10-16
5 referenced on the activity report, and then
6 there was an incident report also?
7 A. Yes.
8 Q. Do you know whether you checked to see
9 if there was an incident report for this 10:16
10 at the Chris Long residence?
11 A. Yes, I believe I did.
12 Q. And did you find one?
13 A. No.
14 Q. I'm just trying to figure out when --
15 When did you decide, "Gosh, we need to do
16 something here"?
17 Was it the activity report or was
18 it the narrative that you received the next day?
19 A. It was the narrative. It was -- it was
20 certainly the narrative.
21 Q. Why did you include this Long-Wardlow
22 incident as a discharge violation in Exhibit C,
23 paragraph 15?
24 A. Because it's a dereliction of duty.
25 Q. What do you mean by that?
739
1 A. The safety -- the safety of the victim
2 wasn't ensured. There were no interviews.
3 The perpetrator was there on two
4 occasions and left, possibly intoxicated or
5 under the influence of a controlled substance.
6 There's a witness involved that
7 allegedly protected or stepped in on Alicia's
8 part, and when it's mentioned that she wanted to
9 leave with the children, that is typically one
10 of the most dangerous times in -- potentially
11 dangerous or volatile time in a domestic
12 situation, is when somebody is going to leave,
13 and particularly when there's children involved.
14 Q. Paragraph 16 of your notice of
15 violations, Exhibit C,references the situation
16 with Tammie Chase and Rickey Chase.
17 A. Yes.
18 Q. And we've heard testimony regarding
19 that incident from various witnesses, so I'm not
20 going to ask you what happened on that -- during
21 that situation, but has the previous testimony
22 covered your understanding of what occurred?
23 A. Yes.
24 Q. And why did you include this incident
25 in your notice of discharge?
740
1 A. Well, it's not -- it's not the same
2 circumstances, but it's very similar to the
3 Alicia Wardlow. There was no follow-up with the
4 victim.
5 The perpetrator was at large
6 while she was seeking medical attention, and
7 there was -- She had no police presence with
8 her, and, again, he was at large.
9 And there was no report filed,
10 and the information was not passed on to
11 Chief Delbert Smith, who is the chief of police
12 of that community.
13 Q. Back on Exhibit C,paragraph 17
14 references an unauthorized repair of equipment.
15 Why did you include this in the discharge
16 notice?
17 A. Because it was just -- The repair was
18 unauthorized. It was just done on its own. I
19 didn't find out about the repair until after I
20 received an invoice from Electronic Engineering.
21 Q. Is that a violation of the -- Well, you
22 state that it's a violation of specific general
23 orders; is that correct?
24 A. Yes, it is.
25 Q. Let's move to number 18. This is the
741
1 possible suicidal subject, and I understand you
2 were involved in this specific incident.
3 A. Yes.
4 Q. What's your recollection as to what
5 happened that day?
6 A. There was a call about a female in a
7 trailer with a sawed-off shotgun threatening to
8 shoot herself, and cars were dispatched to that
9 location.
10 I was in the office,
11 Detective Fleener was in the office, and,
12 obviously, when you receive a call like that,
13 you're going to help out or assist in any way
14 that you can.
15 I believe also there was a call
16 placed to the -- the sheriff's office from the
17 Department of Human Services regarding this call
18 from a social worker, and it was dispatched
19 through the comm center.
20 So Luke Fleener and myself went
21 to that location, and when we arrived there,
22 Sergeant Ruby and Deputy Richardson were there
23 just outside the trailer park, and as we
24 approached, they drove on. They just drove
25 away.
742
1 Q. Why is that inappropriate?
2 A. Because in any type of a -- Well,
3 obviously, it's a suicidal situation, or it
4 involves a firearm, number 1. The person is
5 inside of a structure, so she certainly can be
6 considered barricaded, or it could become a
7 barricaded situation, and I didn't know if
8 anybody was in there with her or not.
9 And it's very important for
10 everyone to be on the same page, to get
11 together, talk about the situation and say, you
12 know, "You'll do this, I'll do that. I'll go
13 here, and here's what we'll attempt" or "Here's
14 what we'll try to do to resolve the situation."
15 Q. And that did not occur?
16 A. No.
17 Q. Now, you mentioned that Sergeant Ruby
18 and -- I'm sorry, go ahead.
19 A. Deputy Richardson.
20 Q. -- and Deputy Richardson both drove
21 away; right?
22 A. Yes.
23 Q. And you've included this incident as an
24 example as part of the discharge notice for
25 Sergeant Ruby; right?
743
1 A. Yes.
2 Q. Did you do anything with respect to
3 Deputy Richardson as far as disciplinary action
4 for this incident?
5 A. No.
6 Q. Why not?
7 A. Sergeant Ruby was the senior and
8 ranking deputy on the scene, and he was in
9 charge.
10 Q. Okay.
11 A. And he should have known better. We
12 should have all collectively got our thoughts
13 together.
14 Q. I'm not quite following you.
15 You're saying that
16 Deputy Richardson was following the lead of his
17 superior officer?
18 A. Essentially, yes. There's a little bit
19 of a difference here, and I think we heard it
20 earlier.
21 Sergeant Ruby went down a street
22 or a roadway around to the other end.
23 Deputy Richardson had driven up and stopped
24 where we did.
25 Q. Did you have an opportunity to confer
744
1 with Deputy Richardson --
2 A. Yes.
3 Q. -- at that point?
4 A. Yes.
5 Q. Okay.
6 And why did you include this
7 November 13, 2007 incident in the discharge
8 notification?
9 A. Because it's -- it's insubordination.
10 There was no cooperation between the ranks or
11 amongst anybody regarding this particular
12 situation, and it indicates just general
13 disloyalty, or lack of loyalty.
14 Q. When you say "insubordination," tell
15 me -- explain that to me, why these actions
16 demonstrated insubordination.
17 A. Well, me as the ranking officer coming
18 on the scene -- let alone the idea that we
19 should all get along together. Whether there's
20 ranking officers there or not, there's going to
21 be a senior deputy.
22 Luke had called, informed them
23 that we were on our way, and it was rather
24 apparent that when we were seen, they drove into
25 the -- they drove into the complex.
745
1 Q. Are you saying he didn't step down to
2 allow you to take charge?
3 A. I wouldn't necessarily have to take
4 charge.
5 Q. Okay.
6 A. But he couldn't even -- He didn't even
7 wait for anybody, and, obviously, he just didn't
8 wait.
9 Q. Paragraph 19 in Exhibit C references
10 a meeting with you and the sheriff and
11 Sergeant Ruby regarding a follow-up evaluation.
12 Why did you call that meeting?
13 A. Because the original report required
14 and stipulated that there were some -- it
15 required a follow-up.
16 Q. That report required a follow-up about
17 a month later, didn't it?
18 A. Yes, approximately.
19 Q. And you're having the follow-up over a
20 year later; right?
21 A. Yes.
22 Q. Why the delay?
23 A. Because of Sergeant Ruby's avoidance
24 the first time that he had been contacted about
25 the follow-up, and, of course, he had alleged
746
1 that he didn't know anything about it. Didn't
2 realize that to be the case or believe it to be
3 the case, and taken into consideration
4 Dr. Christiansen's recommendation that Curt be
5 on nights, give him as much room as possible,
6 allow him to do what he had agreed to do, and it
7 was knowing that there was going to be a shift
8 change in July, which was actually delayed
9 because of -- I believe somebody was sick, and
10 Sergeant Ruby didn't come into the day shift
11 until approximately August 9th.
12 So it was determined that once he
13 got -- once he was back on days, we would be
14 able to get a better idea or feel for what was
15 going on.
16 Q. And so he was back on days in early to
17 mid-August; is that right?
18 A. Yes.
19 Q. And --
20 A. First part of August.
21 Q. And did you -- What was your
22 understanding as far as any change in his
23 attitude or demeanor?
24 A. It was apparent that there was no
25 change.
747
1 Q. What led you to decide to actually have
2 him go meet with Dr. Christiansen again?
3 A. Because it needed to be -- It
4 was required to be done according to
5 Dr. Christiansen and the agreement between her
6 and Sergeant Ruby.
7 Q. I understand that he was required to
8 follow up with you.
9 Are you saying that he was
10 required to follow up with her as well?
11 A. Yes.
12 Q. And did you contact Dr. Christiansen
13 regarding -- Obviously, you contacted her to
14 schedule the follow-up. Did you discuss with
15 her the appropriateness of the follow-up?
16 A. Yes.
17 Q. What did she say?
18 A. She felt that, given the circumstances,
19 it was appropriate.
20 Q. Did you seek any other advice prior to
21 scheduling this follow-up?
22 A. Yes. We approached County Attorney Tim
23 Schott again.
24 Q. Do you know when?
25 A. I believe it was in late August.
748
1 Q. Late August of 2007?
2 A. Yes.
3 Q. Were you -- Do you feel you got any
4 advice from him at that time?
5 A. No.
6 Q. What was the next step as far as
7 obtaining advice?
8 A. Next step was Sheriff Mickelson
9 consulted the board of supervisors and inquired
10 of them about retaining private counsel.
11 Q. Was that request approved?
12 A. Yes.
13 Q. Do you know whether that would be
14 reflected in any supervisor minutes?
15 A. That I do not know.
16 Q. And did you consult with outside
17 counsel?
18 A. Yes.
19 Q. Do you know when?
20 A. There was a bit of a delay in him being
21 able to talk to us. It was probably -- it was
22 two weeks. Seemed like it was approximately two
23 weeks.
24 Q. After you got the approval from the
25 supervisors?
749
1 A. Yes.
2 Q. And did you obtain any advice from -- I
3 think you've already mentioned, it's been
4 mentioned that it was Attorney Fitzgerald?
5 A. Yes.
6 Q. And were you able to get any advice
7 from Attorney Fitzgerald?
8 A. He needed to check with everyone in his
9 firm to determine if there would be any
10 conflicts of interest, and within two or three
11 days he had contacted Sheriff Mickelson,
12 informed him that it would, in fact, be a
13 conflict of interest.
14 Q. Did you obtain outside counsel at some
15 point?
16 A. Yes.
17 Q. Do you know when?
18 A. It was shortly after we determined --
19 or that we were told there was a conflict of
20 interest with Mr. Fitzgerald. I don't know the
21 exact date.
22 MS. CONLIN: Would you read that
23 back, please?
24 (Requested portion of the record
25 was read.)
750
1 MS. CONLIN: Thank you.
2 Q. I want to follow up on the
3 November 15th, 2007 meeting. Again, in
4 Exhibit D, your page 442 to 443 describes what
5 happened during that meeting with you and the
6 sheriff and Sergeant Ruby.
7 Is that an accurate description
8 as far as what happened?
9 A. Yes, it is.
10 Q. You included Sergeant Ruby's actions
11 during that meeting as one of the discharge
12 violations in paragraph 19 of Exhibit C. Why
13 did you include it?
14 A. Because of his behavior and demeanor
15 during the meeting which --
16 Q. Are there specific examples that strike
17 you as particularly inappropriate or offensive?
18 A. One that struck me was I know there was
19 some conversation between Sergeant Ruby and
20 Sheriff Mickelson, and Curt was not happy about
21 this at all. There was -- It was mentioned that
22 it was based on lies, and that's what started it
23 originally, the first evaluation, based on
24 nothing but lies, and he asked or said to
25 Sheriff Mickelson, "What's the matter? Are you
751
1 that afraid of me?"
2 And mentioned running for
3 election, and at some point in time there was an
4 exchange of words, and Sergeant Ruby essentially
5 said, "Why don't you just step aside right now?"
6 to Sheriff Mickelson.
7 Q. Did Sergeant Ruby go to meet with
8 Dr. Christiansen after your November 15th
9 meeting?
10 A. Yes, he did.
11 Q. And did you get any feedback from
12 Dr. Christiansen regarding that meeting?
13 A. Yes.
14 Q. And Exhibit H is the letter that you
15 got back from Dr. Christiansen with respect to
16 that meeting; is that right?
17 A. Oh, it's going to be in --
18 MS. CONLIN: I do not have an
19 objection to unsealing this document.
20 MR. DRISCOLL: Is there any
21 objection by the sheriff's department on
22 unsealing Exhibit H?
23 MS. PENICK: No.
24 MS. VALENTINE: We can unseal it.
25 Q. That means you can pull that H out and
752
1 put it back in the binder.
2 MR. DRISCOLL: Put it back in the
3 binder.
4 MS. PENICK: Probably grab the H
5 tab too.
6 Q. And Exhibit H tells you that the
7 consultation was postponed for a period of time,
8 until December 10th. Is that right?
9 A. Yes.
10 Q. And did the December 10th consultation
11 ever occur?
12 A. No.
13 Q. If you turn to Exhibit I, which should
14 be in the red book, Exhibit I is addressed to
15 Sheriff Mickelson. Did you have an opportunity
16 to review it on or -- well, upon receipt?
17 A. Yes.
18 Q. And this letter from Attorney Fisher
19 indicates that they'd like to postpone the
20 meeting until they can determine what these
21 alleged problems are with Sergeant Ruby; is that
22 right?
23 A. Yes.
24 Q. The second paragraph of Exhibit I,
25 the last sentence is, "When Curt saw
753
1 Dr. Christiansen on November 16th, she told him
2 that his last MMPI test was excellent."
3 Do you see that?
4 A. Yes.
5 Q. Did you have any conversation with
6 Dr. Christiansen as to that characterization?
7 A. Yes. I called and let her know, you
8 know, that we received this from Monty Fisher,
9 and then I asked her for her clarification on
10 that particular sentence.
11 Q. And what did she tell you?
12 MS. CONLIN: Wait. That's
13 objectionable, and I would object. I'm sorry.
14 MS. VALENTINE: I think we're
15 treading on some very thin ice there, so let's
16 not discuss what his understanding is in terms
17 of the content of that report.
18 MS. PENICK: And that's not
19 what -- I want to get to the point of whether or
20 not she said it was excellent.
21 MS. CONLIN: Well, that is the
22 content.
23 MS. PENICK: You've got that in a
24 letter here as an exhibit in the record.
25 MS. VALENTINE: I guess I'm
754
1 leaning towards having -- if you want to ask the
2 witness if she characterized it as excellent or
3 not, but leave it at that.
4 MS. PENICK: Okay.
5 MS. CONLIN: I would retain my
6 objection.
7 MR. DRISCOLL: Is this because of
8 the privacy issue, essentially?
9 MS. CONLIN: Yes, of course.
10 MR. DRISCOLL: Would you be
11 agreeable to doing this in a closed session to
12 ask about questions? Is that acceptable?
13 MS. VALENTINE: Yeah. Do we want
14 to go there now?
15 MS. PENICK: I really have just
16 two questions about this, so if we --
17 MR. DRISCOLL: If we could clear
18 the room just for these couple of questions, and
19 then we'll let people back in, is that
20 acceptable?
21 MS. CONLIN: Yes, it is.
22 MR. DRISCOLL: If everyone except
23 the parties involved could leave the room.
24 MS. CONLIN: And I would suggest
25 perhaps we could do these two questions, and
755
1 then have a little break.
2 MS. VALENTINE: We can do that.
3 MS. PENICK: Sounds good.
4 (Page 756 is sealed.)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
757
1 (A recess was taken from 9:37 a.m.
2 until 9:53 a.m.)
3 (Hearing reconvened in open
4 session.)
5 Q. We were talking before the break about
6 the rescheduled meeting with Dr. Eva
7 Christiansen for Sergeant Ruby that was going to
8 happen on December 10th of 2007. Did that
9 meeting happen?
10 A. No.
11 Q. Who canceled that consultation?
12 A. I did.
13 Q. Why?
14 A. Because through discussion with
15 Counsel, it was decided to cancel the
16 appointment.
17 Q. Were you going to do something else
18 with respect to Sergeant Ruby's situation?
19 A. Yes.
20 Q. What did you decide to do?
21 A. Dismissal.
22 Q. I want to touch on paragraph 20 and 21
23 before we talk about the dismissal, just to wrap
24 those up.
25 Paragraph 20 in Exhibit C
758
1 references a statement by Sergeant Ruby that the
2 in-car camera hadn't been working for quite some
3 time?
4 A. Right.
5 Q. Why did you include that in the notice
6 of discharge?
7 A. Because I wasn't informed that it
8 hadn't been working, and if it hadn't been --
9 Q. I'm sorry. You mean prior to the time
10 that he informed you of November 15th?
11 A. Yes. I believe there may have been a
12 notation made that it wasn't working, but I was
13 told at that time that it was not working, and,
14 obviously, I -- There had been no repair that I
15 was aware of, or asked for any repair.
16 Q. What do you mean, "there may have been
17 a notation"?
18 A. I think there was a notation on a log
19 about this particular incident. Or not the
20 incident, but the camera on the activity log.
21 Q. Okay.
22 A. And I can't say that it was
23 specifically Sergeant Ruby's log. I see a few
24 of those from time to time.
25 Q. Okay.
759
1 And so --
2 A. If it wasn't working and it hadn't been
3 working for a long time, it should have been
4 repaired.
5 Q. Right.
6 And are you saying the notation
7 on the log is not considered a request for a
8 repair?
9 A. No.
10 Q. Okay.
11 What was the process, I guess, if
12 you need a piece of equipment fixed?
13 A. A lot of -- For instance, if somebody
14 says, "I think my transmission is slipping, I
15 may have transmission problems," they make a
16 note of it so that they're aware of it, it's
17 documented. And if it continues, then it will
18 be addressed, it will be looked into.
19 Sometimes there is nothing wrong.
20 Sometimes there isn't a problem, but if they
21 think there's a problem, it's usually noted.
22 Q. What do you mean, "noted"? You mean
23 you said that this is noted?
24 A. Right.
25 Q. And then, I guess, where's the --
760
1 What's the next step as far as getting something
2 fixed?
3 A. If the problem -- if there was a
4 problem --
5 Q. Right.
6 A. -- and it needs to be repaired, I would
7 be contacted.
8 Q. In person?
9 A. Yes, before something is taken to a
10 repair facility.
11 Q. Okay.
12 And are you aware whether this
13 in-car camera was taken to a repair facility?
14 A. I had never seen an invoice or a bill,
15 no.
16 Q. And you wouldn't have wanted to see an
17 invoice or bill before you authorized it; right?
18 A. Correct.
19 Q. Okay.
20 So what didn't happen here that
21 should have?
22 A. The camera was apparently just left
23 inoperable, or not working. If it's not
24 working, it wasn't addressed.
25 Q. So you're saying that if there was a
761
1 note on an activity log one time, that's not
2 enough to --
3 A. No. If there's a problem with the
4 camera, it needs to be addressed, it needs to be
5 fixed, taken care of.
6 Q. Right, right.
7 Okay. And so when you see a note
8 on a log that says a camera isn't really working
9 right, you didn't understand that to mean, "Jim,
10 I need to go get this fixed"?
11 A. No, because I had no idea what's going
12 on with the camera.
13 Q. Did you ask him about it?
14 A. No.
15 Q. And are you -- are you certain that
16 there was a note on a log regarding this camera?
17 A. No, I'm not.
18 Q. Number 21 mentions a comment at the top
19 of the 11-27-2007 daily activity report.
20 A. Yes.
21 Q. Why did you include this situation in
22 the notice of discharge?
23 A. Because it is -- It's nothing short of
24 a snide comment.
25 Q. Okay.
762
1 And what was the comment on the
2 activity report?
3 A. I believe that used a cell phone
4 numerous times today to enhance job performance.
5 Q. And if you look at Exhibit Q just for a
6 point of reference, is that the activity log
7 that you're referencing?
8 A. Yes.
9 Q. And are you -- Okay.
10 Now, paragraphs 22 through 25 in
11 the notice of violations, are there any
12 additional incidents or violations set forth in
13 those paragraphs?
14 A. I don't understand.
15 Q. Well, my understanding is that those
16 are summaries of the general circumstances. I
17 just want to make sure if I'm correct.
18 A. That's what they are.
19 Q. Now, Exhibit B is the notice of
20 discharge from employment. Did you prepare
21 Exhibit B?
22 A. With counsel, yes.
23 Q. And you've cited three different
24 subsections of Iowa Code 341A --
25 A. Yes.
763
1 Q. -- .11.
2 And you're not a judge; is that
3 right?
4 A. That is right.
5 Q. And you're not a lawyer?
6 A. Correct.
7 Q. But your understanding is that the --
8 Is your understanding that the violations set
9 forth in Exhibit C demonstrate violations of
10 these or reasons for discharge under these
11 sections of 341A.11 as set forth in Exhibit B?
12 A. Yes.
13 Q. Why did you decide to terminate Curt
14 Ruby's employment in December of 2007?
15 A. Based on the totality of the
16 circumstances, the situation, and based on
17 information from the reports --
18 Q. What reports?
19 A. Dr. Eva Christiansen.
20 -- that -- that things weren't
21 going to change, that there was -- that things
22 were not going to change; that the actions and
23 demeanor and behavior just wasn't going to
24 change; and towards the end, the domestic
25 situations were rather alarming, particularly
764
1 because Curt is known as very knowledgeable of
2 domestic situations, and it was apparent that
3 not only the victims were at danger, but
4 possibly the general public in situations
5 handled like this.
6 Q. I want to ask, who made the decision to
7 terminate Curt Ruby's employment? Is that
8 something that you recommended to the sheriff?
9 Did he decide it on his own? What was that
10 process?
11 A. It was discussed between myself,
12 Sheriff Mickelson, and counsel.
13 Q. Why didn't you terminate Curt Ruby's
14 employment sooner?
15 A. We wanted to give him all -- all the
16 time and opportunity to change, to do what he
17 had agreed to do with Dr. Christiansen, to
18 resolve whatever matters there were, and the
19 bottom line is nobody wants to see -- see this
20 ultimate termination of anyone.
21 Q. Sergeant Ruby is claiming that his
22 discharge is because he's running for sheriff.
23 Did you decide to terminate his employment
24 because he had aspirations to become the
25 sheriff?
765
1 A. Absolutely not. This -- this was --
2 this started a long time ago.
3 MS. PENICK: I'm finished with
4 direct exam.
5 MS. VALENTINE: Thank you.
6 Cross-examination?
7 MS. CONLIN: Yes, thank you.
8 CROSS-EXAMINATION
9 BY MS. CONLIN:
10 Q. Let's start, if we could -- Shall I
11 call you Chief?
12 A. You don't -- No.
13 Q. What should I call you?
14 A. Jim.
15 Q. All right.
16 Exhibit Z are the various
17 pamphlets. Maybe I can get it up on the -- Oh,
18 you found it. Good.
19 MS. CONLIN: May I suggest that
20 the commissioners also have the originals,
21 because these are pretty difficult to read, and
22 I also believe that we have maybe some that are
23 confused. On the first page, the one on the
24 furthest side is in Spanish, but the middle one
25 is not.
766
1 MS. PENICK: I can clarify that.
2 Would you want that on the record or do you want
3 me to --
4 MS. CONLIN: Well, yes, perhaps.
5 MS. PENICK: Because I
6 photocopied these.
7 The first page is two pages
8 trifolded, so it really was front to back,
9 trifolded. So the first two pages with the
10 Spanish on it and then the next page with the
11 victim's rights, that's the English portion.
12 That was one trifold document.
13 The third page and the fourth
14 page was also a front and back, a single insert
15 into that trifold document, and so those first
16 four pages were all contained within one trifold
17 document with the insert, and we can get the
18 original for the commission.
19 MS. CONLIN: Okay.
20 MS. PENICK: And then the next
21 one, two, three, four pages are the -- It was a
22 folded piece of paper that was skinny and long,
23 and so the front is the cover, and the second
24 page is what was inside on the bottom -- I'm
25 sorry -- inside on the top when you open it.
767
1 The third page is what was on the bottom, and
2 the fourth page is the back.
3 And then the next four documents
4 is the same brochure in Spanish, and then the
5 final two documents was that hot pink glossy
6 card that I lightened so that we could read it.
7 I did not enlarge it, though.
8 MS. CONLIN: Yes.
9 MS. PENICK: And it's the front
10 to the back.
11 MS. CONLIN: Thank you so much.
12 It's a little better than the pink, hot pink.
13 Thank you very much. That's very helpful.
14 MS. PENICK: Sure.
15 Q. Could you turn to that hot pink
16 document?
17 MS. VALENTINE: And for the
18 record, that's the last two pages of Exhibit Z?
19 MS. CONLIN: Yes, that's my
20 understanding.
21 Q. Are you there?
22 A. Yes.
23 Q. Where did that come from?
24 A. That came from our office.
25 Q. Okay.
768
1 That was one of those that was in
2 your office for the use of the peace officers;
3 right?
4 A. Yes.
5 Q. Do you have a lot of those?
6 A. I would say quite a few. We --
7 Q. The reason I ask is when
8 Deputy Halligan came back in was the last --
9 were the last two pages the one that he had in
10 his truck, or do you know?
11 A. I do not know.
12 Q. All right.
13 In the course of your testimony,
14 you have several times provided for the record
15 what I believe were direct quotes. I'll give
16 you an example. In connection with paragraph
17 number 2 you added -- in addition to what's in
18 Exhibit D, paragraph 2, you added in your
19 testimony the words, "No one will get one up on
20 me."
21 And there were several others.
22 I'm just wondering where you get those direct
23 quotes that are not part of the material.
24 A. Recollection.
25 Q. All right.
769
1 So, for example, with respect to
2 number 2, you were able to recall today events
3 that happened in, I believe, January of 2006,
4 and you were able to provide to us direct quotes
5 from -- what would it be now -- more than two
6 years ago?
7 A. My recollection of the quote, yes.
8 Q. Do you have any notes more than what we
9 already have seen?
10 A. No.
11 Q. So in giving the direct quotes that you
12 gave with respect to the various paragraphs in
13 the notice of violation, those direct quotes not
14 included are exclusively from your recollection?
15 A. Yes.
16 Q. Let's talk about this cut-and-paste
17 situation. When would you have started the
18 document from which you cut and pasted this?
19 A. It probably wasn't until the March 30th
20 incident.
21 Q. That would have been the --
22 A. Vacation.
23 Q. All right.
24 Well, not Curt's vacation. He
25 was off; right?
770
1 A. The vacation incident, yes, he was off,
2 yes, ma'am.
3 Q. And when did you last make changes to
4 the document, do cutting and pasting?
5 A. I believe changes were made right up
6 until either the 12th or the 13th.
7 Q. Of December?
8 A. Yes.
9 Q. Did you create Exhibit C,which is the
10 final notice, from Exhibit D?
11 A. This was created with counsel.
12 Q. Exhibit C?
13 A. C?
14 Q. Yes.
15 What I'm asking is, as I
16 understand it, Exhibit D is earlier than
17 Exhibit C; right?
18 A. Yes.
19 Q. Okay.
20 So my question is, did you -- did
21 you do any cutting and pasting from Exhibit D to
22 get to Exhibit C?
23 A. I believe so, yes.
24 Q. Did you -- When you say it was created
25 with counsel, Exhibit C,did you provide counsel
771
1 with Exhibit D, or did you make Exhibit C with
2 the advice from Exhibit D? Does that make any
3 sense at all?
4 A. No, but everything was provided to
5 counsel. Everything was provided to the
6 attorney.
7 Q. Right.
8 I understand that part, but what
9 I'm asking is more with reference to how
10 physically Exhibit C was created. Can you
11 answer that question? Who did it? What
12 computer was it done on?
13 A. Mine.
14 Q. Okay.
15 So --
16 A. I'm just trying to get all these --
17 Q. I understand. Do you need a minute?
18 A. No. I think that is correct.
19 Q. All right.
20 So Exhibit C was created from
21 Exhibit D on your computer?
22 A. Yes.
23 Q. I hope I said that right. Let me say
24 it again just in case.
25 A. And I do need a moment.
772
1 Q. Okay.
2 A. Okay.
3 Q. Okay.
4 I'm going to say it again just to
5 make sure that my understanding of the record is
6 clear.
7 Exhibit C was created by you on
8 your computer from Exhibit D?
9 A. No.
10 Q. Okay.
11 Then how was it -- Where was it
12 created and by whom?
13 A. The attorney.
14 Q. Okay.
15 Did -- and the attorney had your
16 Exhibit D?
17 A. Yes.
18 Q. And the attorney made a -- It was the
19 attorney who chose from Exhibit D, in
20 consultation presumably, what would be in
21 Exhibit C?
22 A. In consultation, correct.
23 Q. And who besides yourself were involved
24 in those consultations?
25 A. Myself and Brian Mickelson.
773
1 Q. All right.
2 Now I want to move back to your
3 office computer and ask you what word processing
4 program you use.
5 A. I believe Word 2000.
6 Q. As I understand your testimony, you
7 began consulting with counsel about the
8 termination in August -- or actually, that's
9 not -- Let me begin again.
10 In August you consulted counsel
11 for some reason about Curt Ruby; correct?
12 A. Yes.
13 Q. Did you consult counsel about Curt Ruby
14 because you were concerned that whatever you did
15 might result in litigation?
16 A. No.
17 Q. All right.
18 You thought that he would just go
19 quietly into the night and not sue you?
20 A. I don't -- I don't know. I can't
21 answer that.
22 Q. Okay.
23 Well, what was the purpose in
24 consulting counsel then?
25 A. Guidance in -- guidance.
774
1 Q. All right.
2 And if you did something wrong,
3 then he could sue you; right?
4 A. Yes.
5 Q. So, in fact, if you were consulting
6 with counsel to get guidance, the guidance was
7 so that you would not do anything wrong, and he
8 couldn't sue you?
9 A. That was not specifically discussed
10 that way, ma'am, no.
11 Q. I'm not suggesting that.
12 A. Oh.
13 Q. I'm talking about your motivation in
14 seeking counsel.
15 A. It started with the first evaluation.
16 Just having counsel available --
17 Q. Okay.
18 A. -- to field or answer any questions.
19 Q. All right.
20 And the reason that you wanted
21 counsel available to answer questions was so you
22 could do everything right.
23 A. Correct.
24 Q. All right.
25 And the reason you wanted to do
775
1 everything right was so that your conduct would
2 conform to the law; correct?
3 A. Correct.
4 Q. And you were aware at the time that you
5 consulted with counsel that if you did not
6 follow the law, you would be subject to
7 litigation.
8 A. Okay.
9 Q. True?
10 A. I wasn't informed that, no.
11 Q. I'm not asking you any information that
12 you might have received. We're still talking
13 about why, your motivation why.
14 Is it correct that the reason you
15 consulted counsel to get advice was so that you
16 would do things right, and he couldn't sue you?
17 A. Correct.
18 Q. All right.
19 When you terminated him, was it
20 your expectation that he would appeal?
21 A. I didn't -- I did not know what would
22 happen, honestly.
23 Q. Did you think there was a chance that
24 he would not sue you?
25 A. Again, I did not know what would
776
1 happen. I knew that there was the opportunity
2 for appeal, according to 341A, but I had no idea
3 what -- what would transpire upon dismissal.
4 Q. All right.
5 On the day that you terminated
6 him, December 13th, he called his wife; correct?
7 A. Correct.
8 Q. From the office?
9 A. Correct.
10 Q. Brian Mickelson's office?
11 A. Correct.
12 Q. And he told her to call Monty; correct?
13 A. Correct.
14 Q. And you knew at the time that Monty was
15 his attorney?
16 A. I assumed that.
17 Q. You knew that, didn't you?
18 A. I knew that he said, "Call Monty."
19 Q. And you knew that Monty Fisher was his
20 attorney on December 13th?
21 A. Yes.
22 Q. Did you also realize that at some point
23 it would be possible for him, Curt, to sue you
24 in state and federal court if you violated his
25 constitutional rights?
777
1 A. Yes.
2 Q. Changing subjects.
3 What is your formal training in
4 law enforcement?
5 A. My formal training in law enforcement
6 is attendance for 12 weeks at the Iowa Law
7 Enforcement Academy, Camp Dodge.
8 Q. What is your degree in?
9 A. I have an associate of arts degree, and
10 I am currently finishing a bachelor's in
11 criminal justice.
12 Q. All right.
13 And is your associate degree also
14 in criminal justice?
15 A. No.
16 Q. What's that in?
17 A. Liberal arts.
18 Q. No major area of study?
19 A. No.
20 Q. Is it correct that you went from being
21 a patrol deputy to being the chief deputy
22 without being promoted to sergeant, lieutenant,
23 or captain?
24 A. That is correct.
25 Q. Did you apply to be a sergeant ever?
778
1 A. I tested, yes.
2 Q. But were you ever on the eligible list?
3 A. I don't believe I was, no.
4 Q. So when -- How many times did you take
5 the test?
6 A. Just once.
7 Q. All right.
8 And do you know about when that
9 was?
10 A. It was under former Sheriff Chuck
11 Griggs, and I have no idea of the year or the
12 date.
13 Q. And when you tested, you were not one
14 of the people that passed the test, so to speak;
15 correct?
16 A. Correct.
17 Q. In your degrees or in your current
18 studies, have you had any training in
19 counseling, coaching employees?
20 A. I don't understand what you mean by
21 "training."
22 Q. Well, I mean by training any kind of
23 human resources courses, you know, how to -- how
24 to make sure that people follow the rules, how
25 to conduct discipline.
779
1 A. I've taken classes, yes.
2 Q. At what point in time? Was it in
3 connection with your associate's degree?
4 A. No.
5 Q. Currently?
6 A. Yes.
7 Q. How recently?
8 A. Be over the past two years.
9 Q. All right.
10 Have you read any -- Tell me
11 the -- if you had one course or more than one.
12 A. In?
13 Q. Coaching, counseling, personnel
14 matters.
15 A. I would say more than one.
16 Q. That's a good idea. Go to your resume.
17 Perhaps that will help us.
18 Were you looking to see what
19 courses you took?
20 A. Yes.
21 Q. Tell me.
22 A. Tell you --
23 Q. What courses you took.
24 A. "Character and cops: Ethics in
25 policing," "Heavy hands" --
780
1 Q. I beg your pardon?
2 A. "Heavy hands," which is an introduction
3 to family violence.
4 Q. Well, maybe I'm not making myself
5 clear.
6 Where are you looking on your
7 Exhibit Y, which is your resume?
8 A. I'm -- Ma'am, I'm on page -- it's not
9 numbered, but it would be the third page in.
10 Q. Okay, all right.
11 These are readings?
12 A. Yes.
13 Q. And in connection with your course
14 work?
15 A. Yes. Some are required readings, some
16 were in conjunction with the course work.
17 Q. All right.
18 And the first you mentioned was
19 "Character and cops: Ethics in policing." How
20 does that relate to counseling, coaching, and
21 personnel matters?
22 A. The material in that book -- Which one
23 are we referring to?
24 Q. I'm referring to the "Character and
25 cops: Ethics in policing."
781
1 A. And the question is?
2 Q. How does that relate to personnel
3 matters, coaching, counseling, discipline, that
4 kind of thing.
5 A. There is a great deal of information in
6 that literature concerning the police culture,
7 the different types of employees in the police
8 culture, performance --
9 Q. Okay.
10 A. -- things of that nature. In general,
11 I'm not --
12 Q. I'm not what?
13 A. I'm not being specific. In general,
14 that is some of the material that's in the book.
15 Q. All right.
16 You indicated, I think,
17 yesterday, though I've kind of lost track of
18 time, that you -- or maybe it was
19 Sheriff Mickelson who said that your supervisory
20 experience was when you were the head of the
21 narcotics division; correct?
22 A. I believe so, yes.
23 Q. How many people were you supervising?
24 A. There were two.
25 Q. Who were they?
782
1 A. It was Brad Wilkins, and I believe Luke
2 Fleener.
3 Q. For what period of time would -- More?
4 A. No. I'm thinking back here, ma'am. I
5 don't know -- I don't know the exact period of
6 time.
7 Q. Ballpark.
8 A. Oh, boy. It would have been '04, '05.
9 Q. All right.
10 And Agent -- you mentioned
11 Fleener. Was he also a detective at that time?
12 A. Yes. That's changed a lot, so I -- I
13 need to think through that.
14 Q. Okay. Well, take your time.
15 A. Because of personnel issues.
16 Q. Not too much time.
17 A. Okay.
18 Q. But try to think through it and --
19 A. He -- I believe so, yes.
20 Q. In the narcotics division itself, were
21 the two people that you mentioned in that
22 division?
23 A. I don't understand.
24 Q. Okay.
25 Were -- Who was -- Besides
783
1 Deputy Fleener, who was the other person you
2 mentioned?
3 A. He -- He's an officer from the Fort
4 Dodge Police Department. His name is Brad
5 Wilkins.
6 Q. Okay.
7 So perhaps I'm not understanding.
8 His supervision in connection with his
9 employment directly would be somebody in the
10 Fort Dodge Police Department?
11 A. Yes. I spearheaded the operation.
12 Q. All right.
13 And then Luke Fleener was
14 assigned to the detective division?
15 A. I believe so, yes.
16 Q. And he would have -- Is there someone
17 in charge of the detective division?
18 A. Yes.
19 Q. Who was that?
20 A. The chief deputy or the sheriff.
21 Q. Were you the chief deputy at the time
22 that you were the head of the narcotics
23 division?
24 A. No, ma'am.
25 Q. So the only person in the narcotics
784
1 division of the sheriff's office was you; is
2 that right?
3 A. And I believe Luke Fleener.
4 Q. Then I'm misunderstanding you.
5 I thought he was a detective
6 supervised by the chief deputy, who was not you.
7 A. But there's a general crime.
8 Q. Yes.
9 A. There's narcotics, and usually somebody
10 oversees general crime, someone oversees
11 narcotics, and they all answer -- unless it's a
12 lieutenant or a sergeant, which it was for a
13 while.
14 Lieutenant Kruse, who was here
15 yesterday, was a detective for quite some period
16 of time, so he was an ultimate supervisor for
17 anyone below him in the detectives division, but
18 he would answer to the chief deputy, ultimately.
19 Q. At the time that you were the head of
20 the narcotics division, you were a deputy;
21 correct?
22 A. Correct.
23 Q. You had no rank?
24 A. Correct.
25 Q. And now Sergeant Fleener was also a
785
1 deputy?
2 A. Correct.
3 Q. And so the two of you were of equal
4 rank?
5 A. Correct.
6 Q. In terms of disciplining employees,
7 could you agree that if you were aware of a
8 deputy who was not following the law, it would
9 be your duty as chief deputy to correct him
10 immediately?
11 A. To correct him immediately or correct
12 him, period?
13 Q. Well, if you've got a deputy who's not
14 following the law -- right?
15 A. Yes.
16 Q. -- wouldn't you want to make sure that
17 he started following the law right away?
18 A. As soon as possible, yes.
19 Q. And the reason you'd want to do that is
20 so he could correct his behavior and start
21 following the law?
22 A. Correct.
23 Q. And you wouldn't want to make the
24 mistake of -- of letting him continue to violate
25 the law?
786
1 A. Correct.
2 Q. And in order to make sure that he
3 wasn't violating the law, you would have to talk
4 to him?
5 A. Correct.
6 Q. You are familiar with the progressive
7 discipline policies of -- in the general orders,
8 as well as in the Webster County handbook?
9 A. Yes.
10 Q. And the idea behind progressive
11 discipline is that imposing the lower discipline
12 will get the employee's attention to encourage
13 him to correct his behavior; is that true?
14 A. Of that theory?
15 Q. Yes.
16 A. Yes.
17 Q. Okay.
18 And as I understand it, your
19 excuse for not following progressive discipline
20 with Sergeant Ruby is because he got angry.
21 A. That's my excuse?
22 Q. Yes. That's what I understood. If
23 that's not correct, you should tell me.
24 A. I don't recall saying that, ma'am.
25 Q. What is the reason why you did not use
787
1 progressive discipline with Sergeant Ruby?
2 A. It goes back to the original
3 evaluation.
4 Q. The original evaluation, Exhibit G, the
5 fitness-for-duty examination done --
6 A. Yes.
7 Q. Okay.
8 A. Yes.
9 Q. All right.
10 The -- You found something in
11 Exhibit G that told you that you need not follow
12 progressive discipline with Sergeant Ruby; is
13 that a correct understanding?
14 A. Could you say that again?
15 Q. Sure.
16 In Exhibit G you found some
17 reason or some indication that you need not
18 follow progressive discipline when you were
19 dealing with Sergeant Ruby. Is that what you're
20 telling us?
21 A. No.
22 Q. What are you telling us?
23 A. I found to -- I found -- or we were
24 made aware of an underlying -- or --
25 MR. DRISCOLL: I think --
788
1 MS. CONLIN: Let me withdraw the
2 question and see if we can do it another way.
3 MS. CONLIN: I can't.
4 Q. So we'll leave it at, in Exhibit G
5 there was something that indicated to you that
6 progressive discipline would be somehow
7 inappropriate with respect to Sergeant Ruby;
8 correct?
9 A. Would you repeat that?
10 MS. CONLIN: Why don't you.
11 (Requested portion of the record
12 was read.)
13 A. I would say that it indicated that that
14 could be the possibility, that that could be
15 possible.
16 MS. CONLIN: I hate to do this,
17 but I do need the room cleared so that I can try
18 to pin this down.
19 MS. VALENTINE: I agree. We're
20 going to have to ask the public members to be
21 removed from the room, and we will bring you
22 back in just as soon as we can.
23 (Pages 789 through 805 are
24 sealed.)
25
806
1 MS. VALENTINE: So the record is
2 clear, the sealed portion of that testimony is
3 now concluded. The public members are returning
4 to the room, and we can continue.
5 MS. CONLIN: Thank you.
6 Q. What else besides Exhibit G did you
7 rely on for not using progressive discipline in
8 connection with the employment of Curt Ruby?
9 A. I want -- a pattern of avoidance.
10 Q. I beg your pardon?
11 A. A pattern of avoidance.
12 Q. I mean aside from anything in
13 Exhibit G. That's your experience, is a pattern
14 of avoidance, is what you're talking about?
15 A. Yes.
16 Okay. So the actions and
17 behaviors -- action, behaviors -- the actions
18 and behaviors --
19 Q. All right.
20 A. -- and conduct.
21 Q. Is it correct that you became aware, as
22 did many members of the department, that Curt
23 Ruby was planning on running or even might
24 possibly run against the sheriff in the spring
25 of 2006?
807
1 A. I -- I don't know exactly when, as I
2 mentioned previously this morning. I mentioned
3 a time frame. I don't know when that was.
4 Q. Changing subjects to Exhibit C.
5 Do each of the 25 paragraphs --
6 It's in your -- I think it's in your books.
7 A. Well --
8 Q. Did you take it out?
9 A. Yes, ma'am.
10 Q. Got it now?
11 A. Yes.
12 Q. Do each of these 25 paragraphs -- Well,
13 let me -- let me -- I understand the last three
14 paragraphs are simply summaries; correct?
15 A. On C?
16 Q. Yes. Are they summaries?
17 A. No, not on C.
18 Q. C is the final notice, the notice of
19 violations.
20 Maybe you don't have the right
21 document.
22 A. I may not.
23 Q. I'll give you one of mine.
24 MS. PENICK: C has the numbered
25 paragraphs, if that helps you, Jim.
808
1 MS. CONLIN: Right.
2 MS. PENICK: C has the numbered
3 paragraphs.
4 Q. Here, just take this one.
5 A. Thank you. I will keep this right
6 here.
7 Q. Okay.
8 At least 23, 24, and 25 are
9 summaries of the previous paragraphs; correct?
10 A. Yes.
11 Q. Okay.
12 So I'll just deal with
13 paragraphs 1 through 22 and ask you, each of
14 these paragraphs, 1 through 22, are acts of
15 misconduct on Curt Ruby's part. Is that true?
16 A. True.
17 Q. And is it your testimony that any one
18 of these 22 paragraphs would be sufficient alone
19 to justify Curt Ruby's discharge?
20 A. May I clarify again which numbered
21 paragraphs?
22 Q. 1 through 22.
23 A. In theory, yes.
24 Q. How about in fact?
25 A. Yes.
809
1 Q. All right.
2 So each of paragraphs 1
3 through 22, in theory and in fact, would be
4 sufficient all alone to justify Curt Ruby's
5 discharge; right?
6 A. Yes.
7 Q. And the general orders of the
8 department apply to everyone, including you and
9 the sheriff?
10 A. Yes.
11 Q. If you would turn to the general
12 orders --
13 MS. VALENTINE: Exhibit A.
14 MS. CONLIN: May I have just a
15 moment? I don't have what I need.
16 519, look at page 232, please.
17 Turn to the next page. I'm sorry, page 234.
18 Look at paragraph 21, that paragraph which
19 applies to you requires that every alleged act
20 of misconduct must be investigated. Do you see
21 that?
22 A. Yes.
23 Q. And each of these paragraphs, 1
24 through 22, should have been investigated;
25 right?
810
1 A. Yes.
2 Q. And that was not done?
3 A. No.
4 Q. And each of those investigations that
5 you were supposed to do was supposed to be
6 reduced to a written report; correct?
7 A. Yes.
8 Q. And you didn't do that?
9 A. Correct.
10 Q. Did you?
11 A. No.
12 Q. And --
13 A. Other than what we have a culmination
14 of here today.
15 Q. Well, nothing we have here today
16 constitutes a written report of an investigation
17 of any of the acts of misconduct.
18 A. Okay.
19 Q. Does it?
20 A. No.
21 Q. And the general order requires that
22 certain things be included within the report,
23 the written report. Do you see that?
24 A. Yes.
25 Q. And 22, likewise, says what must be
811
1 included in the report. Is that true?
2 A. Yes. Of 21, yes.
3 Q. But we don't have any investigative
4 reports for any of these 22 violations, nor do
5 we have any decision with respect to the
6 findings. Isn't that true?
7 A. True.
8 Q. You're also supposed to give a copy to
9 the deputy involved; right?
10 A. Correct.
11 Q. And so you were in violation of General
12 Order 94-50300.00; correct?
13 A. Not to my understanding.
14 Q. You're holding and looking at a general
15 order that was in effect throughout all the
16 period of time --
17 A. Yes, ma'am.
18 Q. All right.
19 Turn now, if you would, to
20 General Order 94-40200.00, which is in
21 Exhibit A.
22 MS. VALENTINE: Counsel, do you
23 have a page number?
24 MS. CONLIN: I beg your pardon?
25 MS. VALENTINE: Is there a page
812
1 number at the bottom?
2 MS. CONLIN: 153.
3 MS. VALENTINE: Thank you.
4 Q. This also applies to you; correct?
5 A. Yes.
6 Q. It requires of you that you have --
7 paragraph 8 says that every member of the
8 department is required to establish and maintain
9 a working knowledge of these rules; correct?
10 A. Which page, ma'am?
11 Q. Oh, 155, paragraph 8.
12 Doesn't it?
13 A. Yes.
14 Q. So you were required to know of the
15 necessity of conducting an investigation and
16 writing it down for one of the paragraphs 1
17 through 22; correct?
18 A. Yes.
19 Q. And in the event of improper action or
20 breach of discipline, it will be presumed that
21 the member was familiar with the law, rule or
22 policy in question; right?
23 A. Yes.
24 Q. Did you actually know of the
25 requirement that you had to conduct an
813
1 investigation of every act of misconduct, reduce
2 it to writing, and have it in certain form?
3 A. Other than oral.
4 Q. Pardon me?
5 A. Other than oral?
6 Q. I'm sorry. What other than oral?
7 A. On -- May I reference this?
8 Q. Sure.
9 A. 223, 16.
10 Q. Two twenty --
11 MR. DRISCOLL: Are you on a page
12 number?
13 THE WITNESS: I'm sorry. Yes.
14 MR. DRISCOLL: What's the page
15 number at the bottom?
16 A. Page number at the bottom is 233.
17 Q. 233, all right. Where?
18 A. 16.
19 Q. All right.
20 And what is your --
21 A. Where it states, "except for oral
22 reprimand."
23 Q. All right.
24 And if you -- I thought that we
25 agreed that each of the paragraphs, in fact, was
814
1 an act of misconduct. Do you recall our
2 discussion of that?
3 A. Yes.
4 Q. All right.
5 And I thought we also agreed that
6 every act of misconduct was supposed to be
7 investigated?
8 A. Correct.
9 Q. And each of these is an act of
10 misconduct?
11 A. Correct.
12 Q. And none of them were investigated?
13 A. Correct.
14 Q. So the fact that oral discipline
15 doesn't have to be reduced to writing does not
16 affect the need to create an investigation of
17 each and every one of paragraphs 1 through 22;
18 correct?
19 A. According to this, correct.
20 Q. Well, that's your general orders, and
21 you are presumed to know about them; right?
22 A. Yes, ma'am.
23 Q. And you are obligated to follow them?
24 A. Yes.
25 Q. And you did not do so; right?
815
1 A. Correct.
2 Q. Would you turn to Exhibit X, please?
3 Where was this document found?
4 A. This was in an old folder. I believe
5 it was named "Chief Deputy Notes."
6 Q. All right.
7 And were there any other
8 documents in that file that pertained in any way
9 to Curt Ruby?
10 A. No.
11 Q. And what you have told us is the reason
12 that you didn't -- one of the reasons you didn't
13 do progressive discipline was because you didn't
14 think it would be effective; right?
15 A. Is that what I --
16 Q. Let me ask it another way.
17 A. Okay.
18 Q. Is it correct that one of the reasons
19 you did not do progressive discipline is because
20 you thought it would not be effective?
21 A. Correct.
22 Q. All right.
23 This progressive discipline
24 records that, in fact, when he was orally
25 counseled, that he did change his behavior, and
816
1 everything was okey-doke; correct?
2 A. Correct.
3 Q. So the one time that it is recorded
4 that Curt Ruby was orally counseled, he
5 immediately changed the behavior in question.
6 Is that correct?
7 A. Correct.
8 Q. So the oral counseling worked; right?
9 A. For a period of time.
10 Q. Deputy, Jim, can you tell me which
11 paragraphs of Exhibit C go under which
12 paragraphs of the Exhibit B, notice of discharge
13 from employment?
14 Here, let me -- Are you there?
15 Do you know what I'm talking about?
16 A. If you could repeat it again, I'd
17 appreciate it.
18 Q. Sure.
19 The notice of discharge,
20 Exhibit B, has a list of three things, three
21 general areas in Chapter 341A that Curt Ruby is
22 accused of violating; right?
23 A. Correct.
24 Q. And Exhibit C has a list of the things
25 that he is accused of doing that support these
817
1 three paragraphs; is that correct?
2 A. Correct.
3 Q. Have you compared Exhibit C with
4 Exhibit B to see which of the paragraphs in
5 Exhibit C support which of the three numbered
6 paragraphs in Exhibit B?
7 A. I don't understand the question.
8 Q. Okay.
9 For example, look at
10 paragraph 1 --
11 A. Okay.
12 Q. -- of Exhibit C.
13 A. Yes.
14 Q. Have you ever determined whether that
15 was a violation of number 1, number 2, or
16 number 3? See where I'm looking?
17 A. Yes.
18 Q. Okay.
19 Paragraph 1, is it incompetency,
20 inefficiency, or inattention to or dereliction
21 of duty?
22 A. All.
23 Q. Okay.
24 And is it also under -- Would
25 paragraph 1 go under 2 as well of Exhibit B?
818
1 A. Yes.
2 Q. And would it go under 3 of Exhibit B?
3 A. Yes.
4 Q. Okay.
5 So my question is this: Have you
6 sat down and put the paragraphs 1 through 22 of
7 Exhibit C into the categories set out in
8 Exhibit B?
9 A. No.
10 MS. CONLIN: Well, I would
11 request that the chief deputy be required to do
12 that over the lunch hour.
13 MS. PENICK: I'd object to that.
14 MS. VALENTINE: And the basis for
15 your objection?
16 MS. PENICK: Well, the basis is
17 that this document speaks for itself. This is
18 what was relied upon.
19 I am not certain that we
20 determined or had the testimony as far as
21 drafting Exhibit B. It would reflect that
22 counsel was involved in that, and so any
23 determination as to why particular code sections
24 were cited would be covered by attorney-client
25 privilege, and that's for the commission to sort
819
1 out, as far as whether these instances violate
2 these paragraphs.
3 MS. VALENTINE: I'm going to
4 sustain the objection.
5 MS. CONLIN: All right.
6 A brief for-the-record with
7 respect to this issue. Both documents are a
8 part of the record. Both documents were relied
9 upon, and my question is only directed to
10 ascertain through the testimony of the witness
11 whether or not, in fact, these paragraphs fit
12 under any of these asserted violations.
13 I understand you have made your
14 ruling. I'm making -- I'm just making my
15 record.
16 MS. VALENTINE: Thank you.
17 Q. Looking briefly through paragraph 1,
18 this is the fight with Tony Thompson and its
19 aftermath. Do you agree -- You were here for
20 Sheriff Mickelson's testimony?
21 A. Yes.
22 Q. And he said in his opinion that the
23 actions of Sheriff -- or of Sergeant Ruby after
24 he got to the department were -- or went a
25 little bit too far. Is that a correct
820
1 characterization?
2 A. Yes.
3 Q. Do you also agree with him when he says
4 it was, in fact, appropriate for Sergeant Ruby
5 to walk away when he got out of the car?
6 A. You're asking if I agree with
7 Sheriff Mickelson?
8 Q. Yes, I am.
9 A. I don't recall him walking out of the
10 car.
11 Q. Walking away.
12 A. Oh, okay. Yes.
13 Q. In your first paragraph there are no
14 violations noted, no violations of the general
15 orders. Do you have in mind what those
16 violations were?
17 A. No.
18 Q. And aside -- Well, actually, you had no
19 documents whatsoever to support paragraph 1;
20 right?
21 A. Correct.
22 Q. And the in-car tape that Sergeant Ruby
23 taped while he was transporting the prisoner,
24 that's missing?
25 A. We believe it is, yes.
821
1 Q. Have you conducted a thorough search
2 for it?
3 A. We are, yes.
4 Q. You are now conducting a thorough
5 search?
6 A. Yes.
7 Q. Okay.
8 Did you ever conduct a thorough
9 search before?
10 A. Yes.
11 Q. When was it discovered that the tape
12 was missing?
13 A. Shortly after Sergeant Ruby had
14 performed the fitness-for-duty evaluation.
15 Q. All right.
16 So the first time would have been
17 sometime in September, toward the end of
18 September of 2006?
19 A. Yes.
20 Q. And what caused you to conduct the
21 thorough search, or a search at least for that
22 video or audiotape?
23 A. I believe a copy was wanted or needed.
24 Q. By whom?
25 A. For the case.
822
1 Q. For the case?
2 A. I think. Unless there was a --
3 Q. Yeah.
4 A. I'm sorry. I'm thinking of a dispatch.
5 Q. Right. That's what I'm thinking of.
6 The tape that was made -- Well,
7 there are two tapes. There are probably two
8 tapes. One from the in-car camera; right?
9 A. Okay.
10 Q. Correct?
11 A. Correct.
12 Q. And one that Sergeant Ruby asked to
13 have made by the dispatcher as he was
14 transporting the prisoner; correct?
15 A. Yes.
16 Q. Did you look for both of those tapes?
17 A. I believe so, yes.
18 Q. And as it happens, both of those two
19 different tapes are missing?
20 A. I thought the dispatch tape was
21 recovered.
22 Q. When?
23 A. When -- During the case. I don't know.
24 Q. Why don't I have it?
25 A. Then it wasn't recovered.
823
1 Q. What makes you think it was recovered?
2 A. I thought that it was requested for
3 the -- Was it charge of harassment? I'm a
4 little confused here.
5 Q. Okay.
6 A. I am thinking of the charges against
7 Mr. Thompson.
8 Q. All right.
9 A. So if the tape wasn't reproduced then,
10 nobody would have it now.
11 Q. When was it discovered that the
12 dispatch tape was missing?
13 A. I don't know that it is.
14 Q. When did you look for it?
15 A. I didn't.
16 Q. Who did?
17 A. I don't know that anybody did.
18 Q. Well, you are aware that I asked for
19 all of the tapes having to do with any of these
20 incidents. I asked both informally by way of a
21 letter --
22 A. Okay.
23 Q. -- dated February 29th.
24 I asked formally by the issuance
25 to the sheriff's department of a subpoena duces
824
1 tecum, and somehow you didn't look for that
2 tape?
3 A. Those are being looked for. If you're
4 referring to what you've asked for at the first
5 day of proceedings, as I understand it; correct?
6 Q. No. Yes, yes.
7 A. Okay.
8 Q. And also long before that.
9 A. They are being looked for, and they
10 will be copied.
11 MS. CONLIN: I reserve the right
12 to re-call the witness for the purpose of
13 ascertaining what's on the -- what I thought was
14 the missing tape, what I was told did not exist,
15 and --
16 MS. PENICK: I want to make a
17 record if you're referring to what you were told
18 by me.
19 The in-car camera tape is the one
20 that's missing.
21 The dispatch tape -- or
22 recording -- there are no tapes -- may still be
23 in existence.
24 THE WITNESS: Yes.
25 MS. PENICK: This may be -- I
825
1 know that when the documents that were produced
2 regarding the Thompson file that you have in
3 your file have a transcript of that dispatch
4 transmission, and so I'm wondering if we need
5 that recording itself anyway.
6 As you know, Chief Deputy O'Brien
7 has been in this room the entire hearing, trying
8 to coordinate tracking down tapes with the comm
9 center person being on vacation and using other
10 staff to do that, and so I just want to make
11 that record.
12 MS. VALENTINE: And I know I've
13 seen it. Which exhibit is the transcript in?
14 MS. CONLIN: It's in 533, which
15 was not produced by the department, which I
16 found -- Let's see. I'm sorry.
17 MS. VALENTINE: Is that with the
18 court file?
19 MS. CONLIN: It was, yeah.
20 533 is perhaps not in the record
21 yet, and why don't we put it in.
22 MS. PENICK: It is.
23 MS. CONLIN: It is in the record.
24 All right. Then 533 was produced
25 to me, I believe, pursuant to the subpoena duces
826
1 tecum, and not before.
2 I would also cite the commission
3 to 525, which won't -- may not quite do it
4 because it doesn't assist the commission in
5 knowing what I asked for, so I will provide the
6 commission with what I asked for in connection
7 with the audio/videotapes, and you may well
8 recall that in the subpoena duces tecum, which
9 is identical -- I believe it's paragraph 5,
10 among others.
11 MS. VALENTINE: In terms of
12 holding the record open, I guess that would just
13 be something that if time permits us to do that.
14 We're not going to reconvene to reask questions.
15 We do feel we do have
16 sufficient -- I guess I'm not sure how
17 relevant -- not relevant. That's the wrong
18 word, but in light of the issues that we are
19 dealing with, having the actual tape -- Please
20 continue looking for it, and if it's found,
21 produce it. However, I'm not sure that that
22 really is the major issue in play here,
23 whether -- what was on that tape.
24 MS. CONLIN: I understand your
25 position, but the issue is no longer, for me at
827
1 least, what's on the tape. It is, in fact, that
2 the tape was not produced, and apparently not
3 really looked for until quite recently rather
4 than originally when I asked to have those
5 tapes.
6 MS. VALENTINE: And that's a
7 concern of the commission as well.
8 MS. PENICK: Well, let me make
9 the record, then, that my understanding, as
10 explained in the letter of mine, 525, was -- and
11 you know, based on my objections, that the
12 sheriff had no obligation to provide prehearing
13 discovery.
14 And you've mentioned the subpoena
15 duces tecum in reference to the particular
16 request number 5, audio/videotapes, including
17 police tapes. That does not indicate comm
18 center, dispatch recordings. We've learned now
19 that that's what you want, so that's what
20 they're trying to find. That wasn't clear, and
21 so that's what they're trying to do. There's no
22 bad faith involved in this process.
23 MS. VALENTINE: And I think the
24 record is clear on that, so we will proceed.
25 Q. The in-car tape is missing; correct?
828
1 A. It -- I don't -- I don't know that.
2 Q. You didn't look for that either?
3 A. Whatever is being asked to be looked
4 for is being looked for.
5 Q. In Exhibit 525, in the letter of
6 February 29th, paragraph 9 tells me that, "With
7 respect to your request for Ruby's in-car tape
8 of the Thompson incident on December 5, 2005,
9 that tape was discovered to be missing shortly
10 after the event occurred when the Sheriff sought
11 to review it."
12 Is that true, according to what
13 you know?
14 A. No. I believe I am confused with --
15 this tape or a recording from the dispatch?
16 Q. No.
17 A. Okay.
18 Q. No. I am told by way of paragraph 9 in
19 Exhibit 525 that the tape, the in-car tape of
20 the Thompson incident, was discovered to be
21 missing shortly after the event occurred.
22 A. Okay. Yes then.
23 Q. Okay.
24 A. Yes.
25 Q. So we do know that the in-car tape is
829
1 missing?
2 A. Yes. I apologize for the confusion.
3 Q. Pardon me?
4 A. I apologize for the confusion.
5 Q. No problem.
6 With respect to this December 5th
7 incident, did you learn at about the time of the
8 fitness-for-duty examination -- Let me begin
9 again.
10 Is it correct that Andy Suchan
11 was interviewed as to paragraph 1 and that
12 incident not until shortly before the
13 fitness-for-duty examination?
14 A. Interviewed?
15 Q. Yes.
16 A. I'm not sure that --
17 Q. Did you interview Andy Suchan in
18 connection with paragraph 1?
19 A. No.
20 Q. Do you know whether anybody did?
21 A. No.
22 Q. Did you direct anyone to do that?
23 A. No, I do not believe so.
24 Q. I beg your pardon?
25 A. I don't think so.
830
1 Q. All right.
2 So, in fact, the man who
3 accompanied Sergeant Ruby and also fought Tony
4 Thompson has never been talked to about what his
5 observations were there on the scene?
6 A. He's talked to me.
7 Q. Okay.
8 When did he talk to you about it?
9 That's the question.
10 A. After the incident.
11 Q. Immediately after the incident or a
12 year after the incident?
13 A. I would say in close proximity to the
14 incident.
15 Q. All right.
16 Turning to paragraph 2, which is
17 your January -- which it says basically that
18 Sergeant Ruby expressed his dislike for the
19 sheriff and so on, do you have any -- Can you
20 tell us when he -- in January of 2006 he
21 expressed his dislike, and so on?
22 A. No.
23 Q. Can you tell us to whom he expressed
24 that dislike?
25 A. To me.
831
1 Q. Directly?
2 A. Yes.
3 Q. All right.
4 Did you take any notes at the
5 time --
6 A. No.
7 Q. -- that he expressed his dislike?
8 A. No.
9 Q. When he expressed his dislike for the
10 sheriff, did you tell him that he could be fired
11 for doing that?
12 A. No.
13 Q. Do you recall that in -- It was just
14 one conversation, right, that you are referring
15 to in Exhibit -- I'm sorry -- paragraph 2 of
16 Exhibit C?
17 A. Yes.
18 Q. Do you recall that what he said was, "I
19 will stand up for myself if I'm accused
20 unjustly," or that in substance?
21 A. No. No, ma'am.
22 Q. Do you recall that he said when he was
23 talking about -- Do you recall that he said, "I
24 will take this situation the entire distance"?
25 A. No.
832
1 Q. Did he say to you, "If Mickelson wants
2 to make things right, he should apologize to
3 Rhonda for his callus attitude when her mom was
4 dying"?
5 A. No.
6 Q. In your paragraph 2 that references the
7 January 2006 conversation, you do say that he
8 said he would get even with him for what he had
9 done to Mrs. Ruby, even if it meant a fight to
10 the death; correct?
11 A. Correct.
12 Q. And what you are -- As I understand
13 your previous testimony, you did not start your
14 document on Exhibit D until after March 30th of
15 2006. Is that a correct understanding?
16 A. Correct.
17 Q. And so what you're doing in paragraph 2
18 is recollecting what was said some maybe four --
19 three, four, five months later?
20 A. Yes.
21 Q. You also do not list a general order
22 that he violated in connection with this. Do
23 you have in mind any general order to which this
24 applies?
25 A. No.
833
1 MS. PENICK: I'm sorry. Which
2 paragraph are you at?
3 MS. CONLIN: 2, 2.
4 MS. PENICK: I think that
5 mischaracterizes the --
6 MS. CONLIN: Oh, I'm sorry if I
7 did.
8 MS. VALENTINE: I would sustain
9 that if that was the question.
10 MS. CONLIN: Oh, I'm sorry.
11 Q. It does, in fact -- your part of it,
12 Exhibit D doesn't, but Exhibit C does, and it
13 lists the various things, so I apologize.
14 The charge here in paragraph 2 is
15 about what Ruby said to you about the sheriff;
16 right?
17 A. Yes.
18 Q. And he was critical of the way that
19 Sheriff Mickelson was running the department?
20 A. Yes.
21 Q. Did he tell you at some point that he
22 was willing to take a lie detector test on
23 whether or not he had ever, ever said that he
24 was going to fight to the death?
25 A. Yes.
834
1 Q. And you never asked him to take a lie
2 detector test?
3 A. No.
4 Q. And you did not consent to his taking a
5 lie detector test and having the person who you
6 did not identify take a lie detector test? That
7 was not done?
8 MS. PENICK: Could you -- What?
9 I am not following the question. Can you
10 just --
11 MS. CONLIN: Yes, sure.
12 Q. You remember he said, "I'm willing to
13 take a lie detector test. I never said anything
14 like this," and he said the only condition would
15 be, "Whoever said I said it should also take a
16 lie detector test"; right?
17 A. I recall the first part, yes, and --
18 Yes, I recall the first part about the lie
19 detector test.
20 Q. All right.
21 And what he said in the
22 conversation you had with him that's referenced
23 in paragraph 2 is that he didn't -- in
24 substance, he didn't like the sheriff's
25 policies, and he didn't like the way he was
835
1 doing his job. Is that a correct understanding?
2 A. I believe a more --
3 Q. Pardon me?
4 A. I took it as he did not like him
5 personally, period. He just did not like the
6 individual. It wasn't the position held by the
7 individual. It was the individual.
8 Q. So this, now, is a charge of misconduct
9 for his personal feelings about the sheriff?
10 A. No.
11 Q. Well, then, please explain to me what
12 you meant when you said that he just didn't like
13 the sheriff, period.
14 A. He didn't -- He mentioned both. He
15 didn't like -- It was directed at him for doing
16 something, which I didn't know that he had done
17 to him, but he wasn't happy with the department,
18 period.
19 Q. All right.
20 Let's look at 3 -- it's
21 paragraph 3 that doesn't have any general orders
22 on it. Do you have any general orders that
23 paragraph 3, meaning the February 26th -- or I'm
24 sorry -- February 2006 expression by
25 Sergeant Ruby to you about his displeasure with
836
1 the department and his dislike for
2 Sheriff Mickelson?
3 A. No.
4 Q. And, again, you didn't make this close
5 in time to when this happened. It was April --
6 in the April time frame or the May time frame
7 of 2006?
8 A. Yes.
9 Q. Did you tell him in connection with
10 this conversation that you had with him that he
11 could be fired for expressing his displeasure
12 with the department, in particular, his dislike
13 for Sheriff Mickelson?
14 A. No.
15 Q. In your own Exhibit D you say that he
16 made a complaint that Brian Mickelson was trying
17 to find ways to get hid of him, Exhibit D.
18 A. Which number or which paragraph?
19 Q. You didn't number your paragraphs, so
20 let me -- It begins in February of 2007. It's
21 the third paragraph on the page.
22 A. Okay.
23 Q. Do you see where it says that?
24 A. Yes.
25 Q. Okay.
837
1 So he told you at that time that
2 certain deputies were tampering with his
3 mailbox; correct?
4 A. Yes.
5 Q. And did you conduct an investigation of
6 his complaint?
7 A. I may have asked around, but an
8 investigation, no.
9 Q. All right.
10 Do you think it would be a
11 serious matter if someone was tampering with the
12 mailbox and file cabinets of a sergeant in the
13 Webster County Sheriff's Office?
14 A. Yes.
15 Q. You did not commit his complaint to
16 writing or take any notes with respect to it or
17 conduct an investigation; correct?
18 A. Correct.
19 Q. Turn now to paragraph 4. That is the
20 matter of the March 30th difficulty with respect
21 to attendance on the shift; right?
22 A. Still D?
23 MS. VALENTINE: Exhibit C.
24 Q. Exhibit C.
25 In terms of the charge against
838
1 him for this conduct, as I understand, you are
2 saying that it was up to him to have more than
3 one person on a shift; right?
4 A. I believe I said it was his
5 responsibility to ensure that the shift was
6 covered.
7 Q. All right.
8 And that means more than one
9 person?
10 A. More than one, yes.
11 Q. When did you realize that the shift
12 was -- only had one person scheduled?
13 A. That afternoon.
14 Q. The afternoon of March 30th?
15 A. Yes.
16 Q. How did it come to your attention?
17 A. I received a call from a dispatcher.
18 Q. And what did he or she say?
19 A. She wanted to know whether -- She asked
20 if there was only one deputy working.
21 Q. Who was that?
22 A. The dispatcher?
23 Q. Yes.
24 A. I don't recall.
25 Q. Let's look at Exhibit 528, which was
839
1 formerly Defendant's Exhibit E.
2 MS. VALENTINE: We've got it.
3 CRYSTAL BAILEY: They have it.
4 MS. CONLIN: Do you already have
5 it?
6 MR. O'CONNOR: It's been entered
7 in.
8 MS. VALENTINE: It's been
9 admitted.
10 MS. CONLIN: All right.
11 Q. On the 30th, this -- as I understand
12 it, this document right here, Exhibit 528, is
13 the first document made, and then what's
14 Exhibit 528 becomes -- You fill in the blanks as
15 time passes during the month of March; correct?
16 A. I understand this to very possibly be a
17 schedule that's been referred to previously as
18 the one that is kept in the senior lieutenant's
19 file cabinet, and for lack of a better term, I'd
20 call it a scratch sheet, where the deputies on
21 each shift work amongst themselves to see who
22 wants to do what during the month.
23 Q. Okay.
24 This schedule, however, is
25 initially your responsibility; right?
840
1 A. No.
2 Q. You didn't make up these schedules?
3 A. Yes. I print them out.
4 Q. Like -- And what you print out for each
5 month is a version of Exhibit 528?
6 A. No. The sheet -- the working sheet or
7 the working schedule that's kept in the file
8 cabinet prior to our shift rotations was printed
9 one year in advance.
10 Q. Okay.
11 A. So there would be 12 months in this
12 file cabinet accessible for every deputy.
13 Q. Okay.
14 A. And what they would do amongst
15 themselves, what you do is plan your vacation
16 and see who wants what, and what the conflicts
17 are going to be.
18 Now, since we changed shifts,
19 we're on a rotation, there's six months' worth
20 of these in that file cabinet.
21 Q. All right.
22 A. And the reason I say that is because
23 Mike Richardson -- or Deputy Richardson was on
24 leave for quite some time. It was anticipated
25 that he would be on leave through March, but
841
1 he actually came back to work, I believe,
2 February 28th.
3 Q. All right.
4 So this --
5 A. So --
6 Q. Go ahead.
7 A. So this is in that drawer.
8 Q. When they print it out and they have
9 these little zeros, you know, like these
10 (indicating), this indicates days off; right?
11 A. Yes.
12 Q. Scheduled days off?
13 A. Yes.
14 Q. So as it's originally printed, is there
15 some formula that's followed?
16 A. Four on, two off, yes.
17 Q. And this part right here (indicating)
18 is the shift that Sergeant Ruby was in charge
19 of; right?
20 A. Yes.
21 Q. And on this schedule, which is 528,
22 this line (indicating) is Richardson?
23 A. Yes.
24 Q. And so as the schedule was in that
25 drawer, it was expected that Sergeant Ruby would
842
1 be off; right?
2 A. Yes.
3 Q. And who's this next person? That's
4 Bahr?
5 A. Yes.
6 Q. And that's also his regularly scheduled
7 day off?
8 A. Yes.
9 Q. And you didn't expect Richardson to be
10 back from his leave; right?
11 A. He was back.
12 Q. But when this was done, this line
13 through here (indicating) means he's not going
14 to be there; right?
15 A. Correct.
16 Q. And always there's supposed to be two
17 deputies on; right?
18 A. Yes.
19 Q. All right.
20 And according to this document
21 for the -- for Sunday the 12th, do you see that?
22 That's the Sunday.
23 Is there any exception when it's
24 a Sunday to the rule that there are supposed to
25 be two deputies on?
843
1 A. No.
2 Q. All right.
3 You told us, I thought, that you
4 put the "V" that's in Exhibit E now there
5 yourself, your handwriting.
6 A. Yes.
7 Q. And after the fact -- Was it the next
8 day that you discovered -- No, no.
9 It was the next day or some day
10 subsequent to that that you put the "V" onto the
11 schedule?
12 A. Yes.
13 Q. And Richardson just took off without
14 asking anybody; is that right?
15 A. As I mentioned yesterday, I have no
16 idea what happened.
17 Q. Well, you told us yesterday --
18 A. That would have been one of the
19 possibilities, yes, that he just took the day
20 off.
21 Q. My recollection of your testimony
22 yesterday is that you told us that he took off
23 without asking anyone, and that nobody approved
24 that vacation day. Is that -- Am I
25 misrecollecting?
844
1 A. No. I said that would be one of the
2 possibilities. I explained that there were only
3 a few things that could have happened to create
4 this kind of a problem.
5 Q. Yes. And --
6 A. And one of those would be if he didn't
7 talk to Sergeant Ruby and coordinate this, and
8 maybe that's what you're asking.
9 Q. I thought that you had conducted --
10 that you had talked to Richardson and others
11 about this situation. Is that not correct?
12 A. Yes.
13 Q. Bad question.
14 Did you talk to Richardson about
15 this situation?
16 A. I don't believe -- I don't know if I
17 talked to him or not.
18 Q. It was his vacation day that, in fact,
19 made the shift short; right?
20 A. Yes.
21 Q. And yet you did not ever inquire of him
22 as to his taking a vacation day and not even
23 writing it down?
24 A. No. I inquired with Sergeant Ruby.
25 Q. And what did Sergeant Ruby say,
845
1 according to you?
2 A. We never got it resolved.
3 Q. But you didn't talk to Richardson?
4 A. No, not that I recall. I may have.
5 Q. So I take it that whatever happened, no
6 discipline was imposed on Sergeant Richardson?
7 A. On?
8 Q. Sergeant -- I beg your pardon.
9 Deputy Richardson.
10 A. Correct.
11 Q. According to my notes yesterday, you
12 told us with certainty that he did not have it
13 approved by anyone, Richardson did not have this
14 vacation day approved by anyone. Is that true?
15 A. I don't -- I said that there was no
16 slip. There was no vacation slip.
17 Q. All right.
18 A. There was only one for that month.
19 Q. Okay.
20 So that would mean that he didn't
21 have it approved by anyone?
22 A. Correct.
23 Q. When you called Sergeant Ruby at home
24 on his scheduled day off, you told us there was
25 only one call; right?
846
1 A. Yes.
2 Q. And you left him a message -- you left
3 him one message?
4 A. Yes.
5 Q. And you also called Richardson;
6 correct?
7 A. Yes.
8 Q. Didn't leave him any message?
9 A. I don't think so.
10 Q. And you called Deputy Bahr; right?
11 A. Yes.
12 Q. Did you leave him a message?
13 A. I believe so.
14 Q. And he didn't call back either; right?
15 A. I thought that he had called back quite
16 a bit later after the fact.
17 Q. Oh, after -- What do you mean by "after
18 the fact"?
19 A. It was four, five, six hours later. It
20 was that evening, and Deputy Richardson didn't
21 have -- It didn't go to an answering machine.
22 It just rang and rang and rang, so I wasn't able
23 to leave him a message.
24 Q. All right.
25 Turn to general order 23 --
847
1 page 232 of Exhibit A. Are you there?
2 A. Yes.
3 Q. Paragraph 6 talks about unexplained
4 absences. Do you see where I am looking?
5 A. Yes.
6 Q. And what paragraph 6 says is that
7 unexplained absences for one day result in
8 disciplinary action; correct?
9 A. Correct.
10 Q. And Richardson's absence was
11 unexplained; right?
12 A. Yes.
13 Q. And no discipline was imposed?
14 A. Correct.
15 Q. And it also says, as to shift
16 assignment, changing one's hours, days off,
17 after being assigned to a shift shall result in
18 disciplinary action unless approved by you;
19 right?
20 A. Yes.
21 Q. And, again, no disciplinary action was
22 taken against Richardson in terms of his
23 changing his time on the job?
24 A. Correct.
25 Q. So you are in violation of this general
848
1 order in both paragraph 6 and 7; correct?
2 A. Yes.
3 MS. VALENTINE: Ms. Conlin, when
4 you wrap up with paragraph number 4, would that
5 be a good time to --
6 MS. CONLIN: Oh, I've got quite a
7 bit more.
8 MS. VALENTINE: Would this be an
9 appropriate time to break?
10 We will resume at 1:00.
11 (A recess was taken from 12:05 p.m.
12 until 1 p.m.)
13 Q. At the time that you were -- in
14 March -- I'm sorry. Let's look at the policy
15 and procedural -- procedure manual, please, at
16 WC 192 and through 195. Everybody there? Are
17 you there?
18 A. Yes.
19 Q. This is about policy and procedure for
20 vacations; right?
21 A. Yes.
22 Q. Paragraph 1 on 193 indicates that all
23 vacation requests will be in writing and
24 submitted to the chief deputy. Do you see that?
25 A. Yes.
849
1 Q. All right.
2 And this is a -- This request for
3 vacation procedure is still in effect by the
4 general orders; correct?
5 A. Yes.
6 Q. So, in fact, it is you who is supposed
7 to, under the general orders, approve each and
8 every vacation request; right?
9 A. Solely? I get them from the
10 supervisors and --
11 Q. I'm talking about the general orders.
12 A. Okay, yes.
13 Q. The general orders say it's you, chief
14 deputy, who is supposed to approve all vacation
15 requests.
16 A. Yes.
17 Q. And you're in violation of that order
18 too?
19 A. Yes.
20 Q. And, also, on the next page,
21 paragraph 12 of 194, you will see that,
22 "Holidays shall only be taken when cleared
23 through the Chief Deputy."
24 Do you see that?
25 A. Yes.
850
1 Q. And you're in violation of that?
2 A. Yes.
3 Q. Let's look again at Exhibit E, which is
4 in your red book. Are you there?
5 A. Yes.
6 Q. And let's -- Let me see if I can find
7 one that I'm working on. Oh, here, I've got one
8 right here.
9 There's our March 30th of 2006
10 that we were talking about, and I wanted to call
11 your attention to this shift: Wilson, Kruse and
12 O'Brien. Is that -- is that the six-to-two
13 shift?
14 A. Yes.
15 Q. And then on the 30th, right here
16 (indicating), can you see what's happened? On
17 the very same day that you criticize
18 Sergeant Ruby, do you see that there is only one
19 deputy scheduled?
20 A. Yes.
21 Q. That would have been
22 Lieutenant Wilson's shift?
23 A. Yes.
24 Q. Was Lieutenant Wilson disciplined in
25 any way at all, or even talked to, with respect
851
1 to his leaving his shift with only one deputy on
2 the very same day, March 30th, 2006?
3 A. Not that I'm aware of.
4 Q. He wasn't treated in the same way that
5 you have treated Sergeant Ruby?
6 A. No.
7 Q. I also at this time -- We talked
8 yesterday about some -- some issue about reserve
9 deputies. Do you recall that?
10 A. Yes.
11 Q. And I believe that you told us
12 yesterday that after the situation on March 30,
13 not with Lieutenant Richardson, but with Curt
14 Ruby, that some change was made in connection
15 with that.
16 A. Yes.
17 Q. Would that have been made on
18 March 30th, or would it have been after your
19 three meetings with him that occurred, two in
20 April and one in May?
21 A. I don't know when it was changed.
22 Q. Sometime in April or May?
23 A. It was just shortly after I -- Yes,
24 sometime in April or May.
25 Q. And you indicated yesterday that you
852
1 thought that Curt Ruby's action in leaving his
2 shift with only one person had to be intentional
3 because he wanted to see if you would put a
4 reserve into the slot; right?
5 A. Yes.
6 Q. And you did, in fact, put a reserve
7 into the slot on March 30th in Sergeant Ruby's
8 shift; right?
9 A. No.
10 Q. You did not?
11 A. No.
12 MS. CONLIN: All right.
13 We have the exhibits, all the
14 schedules -- Let me offer at this time
15 Plaintiff's Exhibit 33. Exhibit 33, all the
16 schedules that were provided to us by the
17 sheriff's office on the first day of the
18 hearing, were January 2006 until December -- No,
19 I'm sorry.
20 January 2006 to December 2006
21 is 33, and 34 is January of 2007 to December of
22 2007.
23 MS. VALENTINE: Okay.
24 Any objection to Exhibit 33?
25 MS. PENICK: I guess we should
853
1 just clarify that the highlighting was added by
2 Counsel.
3 MS. CONLIN: Yes.
4 MS. PENICK: Other than that, no.
5 MS. VALENTINE: Then Exhibit 33
6 is received.
7 Are you offering Exhibit 34 at
8 this time?
9 MS. CONLIN: Yes, yes, yes.
10 MS. VALENTINE: Any objection to
11 Exhibit 34?
12 MS. PENICK: I don't have that.
13 MS. VALENTINE: I haven't seen it
14 yet.
15 MS. CONLIN: Oh, I'm sorry. Am I
16 handing you the wrong number?
17 Q. What we have done here is, for January
18 of 2006, we have highlighted the shifts where,
19 according to the final schedule, only one deputy
20 was on duty; correct? Do you see where we've
21 highlighted?
22 You might want to take a moment
23 to check and make sure we didn't make any kind
24 of mistakes.
25 And all across the -- every day
854
1 from January 1st until the 31st of January,
2 almost every single day -- every single day
3 there was, according to the schedule, only one
4 person on duty; correct?
5 A. Correct.
6 Q. And that was Lieutenant Wilson's
7 responsibility; right?
8 A. Yes.
9 Q. And Lieutenant Wilson wasn't
10 disciplined in any way or counseled, or nothing
11 bad happened to him?
12 A. No.
13 Q. All right.
14 Turn to February of 2006, and,
15 again, the highlighting points out the various
16 shifts when only one deputy, according to the
17 shift, is on duty, and, again, we have some
18 scattered ones of Lieutenant Wilson's, and there
19 are two of Sergeant Ruby's and two -- three of
20 Lieutenant Stubbs'; correct?
21 A. Correct.
22 Q. In January of 2006, nothing bad
23 happened to Ruby as a result of these two
24 incidents where only one person was on; right?
25 A. Right.
855
1 Q. And nothing bad happened to
2 Lieutenant Stubbs?
3 A. Correct.
4 Q. All right.
5 Let's turn to 2007 --
6 MS. VALENTINE: And before we do
7 so, you offered Plaintiff's Exhibit 34, and I
8 didn't have a chance to ask, did you have any
9 objection to Exhibit 34?
10 MS. PENICK: Just with the same,
11 that the highlighting was done by Counsel.
12 MS. VALENTINE: Exhibit 34 is
13 received.
14 Q. Let's turn to October, and let me point
15 out to you the morning shift -- Now, this is
16 Lieutenant Stubbs in charge; right?
17 CRYSTAL WHITNEY: I think it's
18 August.
19 MS. CONLIN: What did I say?
20 Q. August of 2007. You don't have any
21 highlighting.
22 MR. O'CONNOR: I do.
23 MS. VALENTINE: But not in
24 October.
25 MS. CONLIN: Okay. I think
856
1 you'll find it in August, because that's what
2 I'm holding up here.
3 MS. PENICK: I'm not sure that my
4 pages are matching up here. Maybe -- Oh, I just
5 can't see which is which.
6 Okay. I'm there.
7 MS. CONLIN: Okay.
8 Q. Now, Lieutenant Stubbs is in charge of
9 the morning shift, and there are two days in
10 August where only one person is on duty; right?
11 A. Yes.
12 Q. And then, now, Lieutenant Kruse is
13 responsible for the afternoon shift, two till
14 ten, and you will see that there are only --
15 Lieutenant Kruse's shift, on two occasions in
16 August, only one deputy on duty; right?
17 A. Yes.
18 Q. And then, now, it's Lieutenant Heesch
19 in charge of the ten to six; right?
20 A. Yes.
21 Q. And he has six incidents where there
22 are -- where there's only one deputy on duty;
23 right?
24 A. Yes.
25 Q. Anything bad happen to Stubbs or Kruse
857
1 or Heesch?
2 A. No.
3 Q. And let's turn to November.
4 Okay. Let's look at
5 Lieutenant Stubbs again in November. One, two,
6 three, four, five incidents where only one
7 deputy is on duty; right?
8 A. Right.
9 Q. And for Sergeant Heesch, we have three
10 in November; right?
11 A. Right.
12 Q. And then let's look at December
13 of 2007, and, again, it's Stubbs, and on
14 December 13th you terminated Sergeant Ruby;
15 right?
16 A. Yes.
17 Q. And so on the -- on the 15th -- oh, I'm
18 sorry.
19 On the 14th, on the 15th, 16th,
20 20th, 21st, and over the Christmas holidays
21 we've got only one deputy assigned; right?
22 A. No.
23 Q. All right.
24 Tell me what I'm missing here.
25 A. The -- Sergeant Fleener --
858
1 Q. Yes.
2 A. -- on the very bottom, filled in for
3 those days.
4 Q. Okay.
5 So he is on the 20th and the
6 21st. He's not on the 8th; correct? Oh, you
7 can't see that. I see we missed this, that
8 Sergeant Fleener was working some of the days,
9 but he was not working on the 8th; right?
10 A. No.
11 Q. Okay.
12 He was working on the 20th and
13 the 21st; correct?
14 A. Yes.
15 Q. And I can't tell for sure whether he
16 was working on the 25th, can you?
17 A. Yes.
18 Q. He was?
19 A. Yes.
20 Q. All right.
21 So this is in error so far as you
22 called in Sergeant Fleener to work on the dates
23 that it's indicated he's working, and is he
24 acting then as a patrol sergeant?
25 A. Detective.
859
1 Q. Detective.
2 A. Yes.
3 Q. All right.
4 And when -- The day you fired
5 Sergeant Ruby, the 13th, you fired him in the
6 middle of the day; right?
7 A. Yes.
8 Q. And so that left -- Did that leave just
9 one person on?
10 A. No. One of the detectives would have
11 covered the remainder of the shift.
12 Q. Okay.
13 Let's move to number 5, and that
14 is the first conversation that you had with
15 Sergeant Ruby on April 10th, 2006, regarding the
16 March 30th incident; correct?
17 A. Correct.
18 Q. And that's 11 days after the incident
19 occurred; correct?
20 A. Correct.
21 Q. This meeting, did that occur in your
22 office?
23 A. Yes.
24 Q. You indicated, I believe, that in the
25 initial charges, which is Exhibit -- your
860
1 Exhibit D.
2 Let me put it up. How's that?
3 A. I've got it.
4 Q. Okay.
5 On April 10th when you spoke with
6 him, he immediately became angry and
7 belligerent, and you explained about a fellow
8 officer being alone, and he was evasive, you
9 say. What -- Do you recall his exact words?
10 A. That he had no idea what I was talking
11 about.
12 Q. Pardon me?
13 A. That he had no idea what I was talking
14 about.
15 Q. It was 11 days before that this
16 happened, and you hadn't said a word to him up
17 to that point in time; right?
18 A. Correct.
19 Q. And when you -- when you say that he
20 was evasive, do you remember what it is he said,
21 or was it that statement, that he didn't know
22 what you were talking about?
23 A. He didn't know what I was talking
24 about.
25 Q. Okay.
861
1 That's the evasive part?
2 A. Yes, and we never came up with an
3 explanation.
4 Q. No logical explanation?
5 A. Correct.
6 Q. What illogical explanation did he
7 provide?
8 A. Didn't -- There was no explanation
9 reached.
10 Q. He didn't answer your questions? Is
11 that what you're telling me?
12 A. We never -- It was never determined
13 what happened on that day. To this day, nobody
14 knows.
15 Q. You knew yesterday, didn't you?
16 Yesterday in the transcript, which I have
17 checked --
18 A. Okay.
19 Q. -- you said that it was because
20 Richardson took a vacation day without telling
21 anybody, so you did --
22 A. Yes, yes. Excuse me.
23 Q. Okay, fine.
24 And you didn't like what he said
25 to you, "Because of this nonsense and I don't
862
1 like your accusations." You didn't like that;
2 right?
3 A. Correct.
4 Q. And was it what he said that made you
5 perceive that he was angry and belligerent?
6 A. Yes.
7 Q. How did -- And was it you that he
8 failed to respect? That's what he's charged
9 with in this -- in Exhibit C,is failure to
10 respect, so I'm just confirming that it's you.
11 A. Yes.
12 Q. And how did he fail to respect you?
13 A. As a shift supervisor, we never came to
14 any conclusion as to what happened other than
15 Richardson had a vacation, a holiday, but why it
16 wasn't covered, nobody knew about it because,
17 obviously, he wasn't aware of it, I wasn't aware
18 of it.
19 Q. How is that his fault?
20 A. He's the shift supervisor.
21 Q. You're the person who's supposed to be
22 granting vacations --
23 A. Right.
24 Q. -- by the general order.
25 You were the person in violation
863
1 of the general orders on March 30th of 2006;
2 isn't that true?
3 A. True.
4 Q. Is there someplace where you record
5 that a deputy is on call, officially on call?
6 A. No.
7 Q. Let's turn to 6. That's the April 21st
8 meeting. At this point you have issued no order
9 to Sergeant Ruby in connection with this
10 March 30th incident; is that true?
11 A. Correct.
12 Q. And you've not conducted any kind of an
13 investigation; right?
14 A. Right.
15 Q. And you have no remaining notes from
16 the original conversation that you had with him
17 on April 21st?
18 A. Correct.
19 Q. Did you tell him in your April 21st
20 meeting that he could get fired for that
21 conversation?
22 A. No.
23 Q. Let's look at number 7. That is the
24 May 12th, third conversation that you have had
25 with Sergeant Ruby about the March 30th
864
1 incident; correct?
2 A. Correct.
3 Q. And with respect to that, did you ever
4 tell him he could be disciplined for what he was
5 saying to you?
6 A. No.
7 Q. How, in your opinion, does your
8 conversation with him on April -- the two
9 conversations in April and this May 12th, how
10 does that affect public -- How is that
11 detrimental to the public?
12 A. I don't know that it is.
13 Q. Now, let's look at 8. These are the
14 public endorsements about which you complained.
15 I was unclear how you came into
16 possession of Defendant's Exhibit J, the
17 July 15th. I understand that you saw it
18 someplace. Where did you see it?
19 A. It was at a local business here in
20 town.
21 Q. What local business?
22 A. Tropical Smoothie Cafe.
23 Q. And, in fact, according -- Did you give
24 him -- Starting again.
25 In fact, he had contact with you
865
1 about teaching the self-defense courses?
2 A. Yes.
3 Q. And you gave him your permission to do
4 that?
5 A. Yes.
6 Q. And all you asked of him was that he
7 give a disclaimer at the beginning of the
8 courses; isn't that true?
9 A. No.
10 Q. Well, again, that's not your
11 recollection of your sworn testimony yesterday?
12 A. He -- Sergeant Ruby informed me that he
13 was going to arrange for disclaimer. I never
14 asked him.
15 Q. Okay.
16 But that was fine with you --
17 A. Yes.
18 Q. -- as long as he gave a disclaimer at
19 the beginning of the class that would meet your
20 requirements?
21 A. Yes.
22 Q. All right.
23 And I understand that you never
24 talked to him about this, you never said a word
25 to him about it, but I wonder if you could look
866
1 at 11, Defendant's -- How did that come out of
2 my mouth?
3 MS. PENICK: That's a first.
4 MS. CONLIN: Yes, it really is a
5 first.
6 Q. This is Curt Ruby's women's
7 self-defense course outline for 2006, and do you
8 see what he says there --
9 A. Yes.
10 Q. -- that's highlighted? Disclaimer for
11 the school and sheriff's office. That's page 5
12 of Exhibit 28 , as it happens, and so he did, in
13 fact, do what he said that he would do and that
14 you approved; correct?
15 A. Correct.
16 Q. So in terms of the July 15th, we can
17 agree he did nothing wrong? On July 15th when
18 he taught the self-defense class, he told you
19 about it, he got your approval, he said he'd do
20 the waiver, and there you go. That's what you
21 asked him to do.
22 A. He asked me.
23 Q. But you didn't make any other requests.
24 You approved his method of comporting with your
25 requirements?
867
1 A. Of what was discussed, yes.
2 Q. So he wasn't in violation of any
3 general order on July 15th, 2006, correct?
4 A. Correct.
5 Q. And on -- Let's see. The next one
6 was -- and you never talked to him? Once you
7 found that document that made you upset, you
8 didn't call him in and say, "Gee, what are you
9 doing?" did you?
10 A. No.
11 Q. And do you have any idea who was
12 responsible for that flier?
13 A. No.
14 Q. All right.
15 And so on September 15th,
16 according to Defendant's Exhibit J, there was
17 another self-defense course. Oh, I'm sorry.
18 Let's look at Plaintiff's
19 Exhibit 24.
20 MS. CONLIN: Is that in?
21 MS. VALENTINE: That has not been
22 admitted.
23 MS. CONLIN: We offer 24.
24 MS. VALENTINE: Any objection?
25 MS. PENICK: No.
868
1 MS. VALENTINE: 24 is admitted.
2 Q. And if he used the very same outline
3 that I showed you, which is Exhibit 11, he was
4 also not in violation of any general order on
5 September 15th of 2006; is that correct?
6 A. Correct.
7 MS. CONLIN: And we have and
8 would offer at this time, which we do not expect
9 necessarily for the commission to actually view,
10 the videos from those self-defense courses that
11 are marked as Exhibit 19 and 20, and we have the
12 PowerPoint presentation that he talks off of as
13 Exhibit 28 , and we would offer all of those at
14 this time.
15 MS. VALENTINE: Any objection to
16 those exhibits being admitted?
17 MS. PENICK: Yes. I don't -- I
18 haven't seen them.
19 MS. CONLIN: You've seen 28.
20 MS. PENICK: The PowerPoint?
21 MS. CONLIN: Yes.
22 MS. PENICK: The objection to
23 that would be the relevancy, and I'm assuming
24 your reason is the disclaimer?
25 MS. CONLIN: Sure.
869
1 MS. PENICK: No objection to 28.
2 To the videos, however, just --
3 MS. CONLIN: We had some video
4 problems of our own, and what I would ask is
5 permission to make the one copy we have
6 available to Bridget so that she can review it,
7 and I'd ask that the commission just hold the
8 record open for a little while, or however long
9 necessary, to look at it.
10 MS. PENICK: Tell me again the
11 purpose of the videos.
12 MS. CONLIN: They've got
13 disclaimers on them of exactly the sort he said
14 was necessary, the actual video that came out of
15 his mouth on the days in question.
16 MS. PENICK: Okay.
17 Well, I mean, I have testimony
18 that that's on the video -- or I have Counsel's
19 statement that that's what's on the video. I
20 haven't seen it, so I can't make a comment to
21 that, but if the commission would like to accept
22 them and review them, then I'll withdraw my
23 objection.
24 MS. VALENTINE: All right. 19
25 and 20 will also be admitted.
870
1 Q. Now, let's talk about this incident in
2 March where he talked to children about scuba
3 diving. Tell me -- Now, you knew about this as
4 well; correct?
5 A. Yes.
6 Q. In advance?
7 A. No.
8 Q. Are you testifying under oath --
9 A. Yes.
10 Q. -- that you did not know in advance of
11 the presentation at the church that he was going
12 to do a presentation at the church to children
13 about scuba diving?
14 A. I do not recall that.
15 Q. Okay.
16 That's a little bit different
17 than no, isn't it?
18 A. Yes.
19 Q. All right.
20 Now, how did you learn of this
21 church presentation?
22 A. From a relative.
23 Q. Who?
24 A. My stepdaughter, who attended the
25 presentation.
871
1 Q. How old a person is she?
2 A. She was 13 at the time.
3 Q. Okay.
4 So in your making of the charge
5 against Sergeant Ruby which was a part of your
6 discharge, you relied on your 13-year-old
7 stepdaughter's impression of what he did and
8 said?
9 A. Yes.
10 Q. You didn't ever ask him?
11 A. No.
12 Q. If he gave a disclaimer at this church
13 presentation, then that would meet your
14 requirements; correct?
15 A. If I was aware of it ahead of time,
16 yes.
17 Q. Okay.
18 And you just don't recall?
19 A. No.
20 Q. So assume, if you will, that it will be
21 Sergeant Ruby's testimony that he did, in fact,
22 come to see you about this, and that you did, in
23 fact, approve it.
24 He doesn't recall either whether
25 or not you discussed the waiver again, but he
872
1 did, in fact -- and if he did, in fact, say, do
2 the disclaimer, then he would not be in
3 violation of a general order in connection with
4 the speech to the children; right?
5 A. Correct.
6 Q. And did you ever ask him?
7 A. No.
8 Q. And do you have any documentation that
9 indicates that he did not -- did not do the
10 disclaimer?
11 A. No.
12 Q. And in 29, if you will look at the last
13 page -- Oh, wait a minute.
14 MS. CONLIN: Am I in with that?
15 MS. VALENTINE: Yes.
16 Q. Okay. 29, last page in the book over
17 there.
18 CRYSTAL BAILEY: Black binder.
19 Q. Wrong book. Here, let me just put it
20 up. I've got it right in my hand.
21 A. Thank you.
22 Q. Right down at the bottom is what I'm
23 looking at. I've highlighted the thank-you that
24 was given to him by the church after he did this
25 presentation.
873
1 Do you see that he's not
2 identified in any way with the Webster County
3 Sheriff's Department? Do you see that?
4 A. Yes.
5 Q. We're going to skip 9. How's that?
6 That will be the last time, I'm afraid.
7 Now, let's do 10. That's the
8 search warrant from September 8. I didn't
9 understand your testimony about when you got
10 there and you talked to Quentin Nelson. What
11 was the subject matter of that conversation?
12 A. Securing the residence and finding the
13 available people to do so.
14 Q. And so that would have been --
15 According to the search warrant itself and
16 Deputy Halligan's report, he left about one, and
17 he stayed till the very end; correct?
18 A. Who stayed till the very end?
19 Q. Deputy Halligan.
20 A. Yes.
21 Q. Okay.
22 So this conversation occurred
23 sometime before that with Quentin Nelson?
24 A. Could you rephrase that, ma'am?
25 Q. Sure.
874
1 The conversation with Quentin
2 Nelson happened before Halligan left?
3 A. I believe so, yes.
4 Q. Friday night; right? This is a Friday
5 night, according to the calendar.
6 A. Yes. Friday night into Saturday
7 morning, yes.
8 Q. About what time did you contact -- is
9 it Gargano?
10 A. Gargano.
11 Q. -- Gargano? What time?
12 A. It was sometime before I left, and I'm
13 not sure when I left, but it was -- I contacted
14 him at least -- It was after midnight.
15 Q. Okay.
16 In your document which is D,
17 he -- when you called him to the scene; correct?
18 A. Excuse me?
19 Q. You called Sergeant Ruby to the house?
20 A. Yes.
21 Q. All right.
22 And assigned either he or Walter
23 to sit on the house?
24 A. Yes.
25 Q. And he was concerned about leaving
875
1 Walter -- or about leaving one deputy on the
2 road; right?
3 A. Yes.
4 Q. Okay.
5 And in every instance that we
6 have talked about so far, it would have been as
7 possible for the police department to back up
8 the solo deputy on each of those occasions as it
9 was on the night of September 8th or the morning
10 of September 9th?
11 A. That I don't know.
12 Q. Isn't it the practice when the -- when
13 needed, that your people will back up the police
14 department, and the police department's people
15 will, in fact, back up the sheriff's department?
16 A. Yes.
17 Q. Even outside the city of Fort Dodge?
18 A. Yes.
19 Q. All right.
20 So he asked you if -- Oh, let me
21 ask you this: Is it true that Walter was pretty
22 new on the job in terms of being a deputy
23 sheriff?
24 A. With the Webster County Sheriff's
25 Department, yes.
876
1 Q. Okay.
2 And he asked you if you could get
3 a reserve to do that sitting-on-the-house job;
4 right?
5 A. Walter asked me?
6 Q. No, no. I'm sorry. I'm not being
7 clear. No.
8 Sergeant Ruby asked you, "Why not
9 get a reserve?"
10 A. Yes.
11 Q. All right.
12 And what did you tell him?
13 A. I told him that there wasn't one
14 available, or that reserves weren't available to
15 secure the residence.
16 Q. All right.
17 And the Fort Dodge P.D. was also
18 short that night; correct?
19 A. Yes.
20 Q. And he said that to you, that he was
21 very uncomfortable with this situation; correct?
22 A. I don't recall that.
23 Q. Well, do you remember that you talked a
24 little bit about what if something happened?
25 A. Yes, yes.
877
1 Q. What if there's a fight?
2 A. Yes.
3 Q. What if there's an accident, a big
4 accident? Do you remember that?
5 Not that there was a fight or an
6 accident, but do you remember your discussion
7 with Sergeant Ruby on the evening and the
8 morning of September 8th and 9th that included
9 his concern that there might be a fight or an
10 accident?
11 A. No.
12 Q. You don't recall that now?
13 A. No.
14 Q. All right.
15 Did he -- So he talked to you
16 about other options to use aside from having him
17 or Walter sit on the house?
18 A. Yes.
19 Q. He explored a number of things with
20 you?
21 A. Yes.
22 Q. And you thought that was rude and
23 insolent?
24 A. No.
25 Q. Well, what part of it was rude and
878
1 insolent then?
2 A. When he had -- When he first got there,
3 when he first came to the scene?
4 Q. Yes, uh-huh.
5 What did he do that was rude and
6 insolent?
7 A. He didn't address anyone. He didn't
8 address anyone.
9 He came to the scene. I
10 approached him -- or we got together, and he
11 was -- Again, as I mentioned earlier, he was
12 obviously not interested in being there, was my
13 observation.
14 Q. Well, could that have been because he
15 was pretty concerned about leaving Walter, a
16 pretty new deputy, on the road by himself?
17 A. Yes. Could be.
18 Q. All right. Could be.
19 And then you talked about these
20 various options that he proposed?
21 A. Yes.
22 Q. And then he left briefly?
23 A. Uh-huh, yes.
24 Q. That was perfectly appropriate?
25 A. Yes.
879
1 Q. And look, if you will, compare with me
2 the page 440 of Exhibit D with number 10 in the
3 final charges. What I want to ask you is, at
4 what point did he refuse to obey any order given
5 to him by a superior? That is a part of the
6 final charges, Exhibit C,and that is not
7 mentioned in any way in your original charges.
8 My question, again, is what order
9 did he refuse to obey?
10 A. Which are you on, ma'am?
11 Q. Look at 10, on the numbered
12 paragraph 10 --
13 A. Okay.
14 Q. -- on C, and you will see in the middle
15 of -- about in the middle, "Sergeant Ruby
16 directly questioned and criticized orders given
17 to him by a superior officer and temporarily
18 refused to obey an order given to him by a
19 superior."
20 My question to you is, what
21 order?
22 A. I don't know.
23 Q. Have you looked at these?
24 A. Yes.
25 Q. You based your discharge of
880
1 Sergeant Ruby on Exhibit C?
2 A. Yes.
3 Q. And there is nothing that you know of
4 that he did on the night of September 8th or the
5 morning of September 9th that in any way
6 involved disobeying an order, even temporarily;
7 isn't that true?
8 A. Any order?
9 Q. Any order. I just asked you the
10 question what order, and you said you didn't
11 know of any.
12 A. I'm sorry.
13 Q. Do you want to change that testimony?
14 A. Yes.
15 Q. Okay, tell me.
16 A. I would -- Cooperation between the
17 ranks, loyalty.
18 Q. No, no, no, no.
19 What order did you give him on
20 September 8th that he disobeyed?
21 A. I didn't.
22 Q. Okay.
23 So you fired him on the basis of,
24 in part, refusing to obey an order, and he
25 didn't. Is that correct?
881
1 A. Correct.
2 Q. It was perfectly okay for him to leave
3 temporarily and get some food and stuff; right?
4 A. Yes.
5 Q. Exhibit 26 is a list of the reserve
6 deputies that is -- I don't know whether this
7 is -- is this in?
8 MS. VALENTINE: It is in.
9 MS. CONLIN: I'm uncertain -- May
10 I approach the witness?
11 Q. This is a list of reserve deputies.
12 Can you -- I suppose this changes periodically;
13 right? And you always have a list. Is it
14 always about this many people?
15 A. Yes.
16 Q. Okay.
17 So these would be the people that
18 would have been available on September 9th that
19 Mr. Gargano could have called?
20 A. Could have been available, yes.
21 Q. Did he call them all?
22 A. I do not know.
23 Q. You were aware that Ruby came in the
24 next day to express his concerns to you and to
25 Brian Mickelson; right?
882
1 A. Yes.
2 Q. And he felt that you had lied to him;
3 correct?
4 A. Yes.
5 Q. And why did he feel like that?
6 A. I have no idea.
7 Q. You didn't ask him?
8 A. No.
9 Q. All right.
10 Did you say in that meeting that
11 you couldn't get hold of any reserves?
12 MS. PENICK: I'm sorry. What
13 meeting are we talking about?
14 MS. CONLIN: The meeting after
15 this, the next day when Sergeant Ruby came in to
16 discuss the situation with Chief Deputy O'Brien
17 and the sheriff.
18 A. I was informed by Commander Mark
19 Gargano that reserves weren't going to be an
20 option until 6 a.m. that morning.
21 Q. And you and the sheriff discussed this
22 by yourselves also; right?
23 A. Discussed?
24 Q. The incident, the complaint that
25 Sergeant Ruby made.
883
1 A. No.
2 Q. You do not recall any -- I'm sorry.
3 A. Yes.
4 Q. Okay.
5 And he asked you whether or
6 not -- The sheriff asked you during your meeting
7 with him about this, whether or not deputies
8 were -- reserve deputies were available, and
9 according to the sheriff's recollection, you
10 said that it wouldn't make any difference
11 whether or not reserves were available. Do you
12 remember his testimony?
13 A. Yes.
14 Q. Okay.
15 Is that what you said to him?
16 A. I don't recall.
17 Q. And he said that what you said was it
18 wouldn't make any difference because it was an
19 order; right?
20 A. Right, but I don't recall that.
21 Q. Do you know that on that night Walter
22 did get in a chase?
23 A. Yes.
24 Q. Okay.
25 And when did you learn that?
884
1 A. I believe the following week.
2 Q. All right.
3 I think you told us earlier that
4 one reason for having two deputies on duty is in
5 case there are dangerous calls; right?
6 A. Yes.
7 Q. And there was no second deputy to
8 respond when Walter got in a chase; right?
9 A. It's my understanding that
10 Sergeant Ruby responded to that.
11 Q. Yes, that's correct, but in order to do
12 that, he had to call the -- call in a police
13 officer; right?
14 A. Correct, and that was the arrangement
15 that had been made.
16 Q. All right.
17 And when you perceived
18 Sergeant Ruby as insolent and rude and
19 belligerent, and whatever, that's exactly the
20 situation he was truly concerned about; that
21 something bad would happen. There would need to
22 be somebody to respond, and that might not be
23 possible because the police department was short
24 too; right?
25 A. Right.
885
1 Q. I have gotten Sergeant Walter's
2 activity log for that evening, and I gave it to
3 Bridget.
4 MS. PENICK: And I gave it back.
5 Q. And I'll give you a copy. It's marked
6 Exhibit something -- 539. All I want to do is
7 place the date, the time of this chase, and it
8 was, according to his log, about 5:40 in the
9 morning; right?
10 You haven't seen it yet. I'll
11 show it to you.
12 A. I would agree.
13 Q. All right. Well, that's okay.
14 There is the 5:40, and he talks
15 about the person and what happened, and then
16 there was a foot pursuit; right?
17 A. Yes.
18 Q. Okay.
19 So Deputy Walter is out -- There
20 are four people in the car. Do you know this?
21 A. Yes.
22 Q. He got them stopped, but they all four
23 got out of the car and started running through
24 the woods or something; right?
25 A. Yes.
886
1 Q. And Sergeant Ruby came, and an arrest
2 was ultimately effected?
3 A. Yes.
4 Q. 517 is the -- I don't know if you have
5 it or not. If you don't, it's also in -- I
6 think it's K in there. That's the incident
7 report that you asked Halligan to do about the
8 September 8th situation.
9 A. Yes.
10 MS. CONLIN: I'd offer
11 Exhibit 539 at this time.
12 MS. VALENTINE: 539. Any
13 objection to 539?
14 MS. PENICK: No.
15 MS. VALENTINE: 539 is admitted.
16 Q. Let's look at the last paragraph here.
17 In this book -- In his report to you that you
18 asked him to write, Deputy Halligan says that
19 he's writing the report because he feels that
20 Sergeant Ruby's actions have -- "that I have
21 witnessed are endangering the safety of other
22 officers that he is working with."
23 And in what way was it
24 Sergeant Ruby endangered the safety of other
25 officers in connection with the September 8th
887
1 incident, 9th incident?
2 A. The question?
3 Q. How was it Ruby was endangering the
4 safety of other officers in connection with the
5 September 9th incident?
6 MS. PENICK: Objection. I think
7 this question is asking -- Well, I'm not sure.
8 This is not O'Brien's statement.
9 Are you asking that Halligan --
10 MS. CONLIN: Yes.
11 MS. PENICK: -- perceived as
12 endangering?
13 MS. CONLIN: No.
14 Q. I'm asking you, Chief, if you felt that
15 Sergeant Ruby's actions on September 9th
16 endangered the safety of other officers.
17 A. No.
18 Q. Okay.
19 Did you feel -- Halligan says he
20 feels that he would not back another officer up
21 when needed. Did that ever, ever, ever in
22 the 28 years that Sergeant Ruby has been in law
23 enforcement, to your knowledge, happen?
24 A. I do not know.
25 Q. Do you know of any time in the time
888
1 that the two of you have worked together here in
2 the sheriff's department that he has in any way
3 failed to back up another officer?
4 A. Not that I'm aware of.
5 Q. You'd know, wouldn't you?
6 A. I would hope to.
7 Q. Well, even when you were just -- When
8 you were a patrol deputy, there is nothing more
9 serious to a peace officer than the failure to
10 be backed up; correct?
11 A. Correct.
12 Q. And so if that ever happened with
13 Sergeant Ruby, everybody would know about it; is
14 that correct?
15 A. Correct.
16 Q. Let's move to 11. Oh, let's not. I
17 have another skip.
18 We're going to talk about the
19 September 18th, the first one of the charges you
20 have leveled against Sergeant Ruby, was on -- on
21 September 18th you contacted him; correct?
22 A. Correct.
23 Q. And what you say is that you were
24 calling on September 18th, ten days later, to
25 talk to him about something that happened on
889
1 September 9th; correct?
2 A. Correct.
3 Q. Okay.
4 And that -- that wasn't even
5 true, was it? That's not why you were
6 contacting him at all. You were contacting him
7 to arrange for a fitness-for-duty evaluation.
8 Is that true?
9 A. Correct.
10 Q. And he wanted to know what the meeting
11 was for.
12 Did you find it unusual for him
13 to say to you, "Why?" or "What are we meeting
14 for?"
15 A. Yes.
16 Q. You refused to tell him; right? On the
17 phone, you refused to tell him?
18 A. Yes.
19 Q. He asked you if he needed union
20 representation. He also asked you if it was
21 retaliation; right?
22 A. Yes.
23 Q. And he told you he felt like you were
24 hunting him and out to get him; right?
25 And he said, he goes on to say
890
1 that he knows you have been interviewing people.
2 That was true, wasn't it?
3 A. No.
4 Q. Chief Deputy O'Brien, are you telling
5 us under oath that, in fact, you had not
6 interviewed members of the force in advance of
7 September 18th about Sergeant Ruby's conduct?
8 A. They came to me with their concerns,
9 and I spoke with them about them.
10 Q. You talked to Deputy Powell; right?
11 A. Not that I recall.
12 Q. You don't recall any time when you
13 talked -- right before this meeting when you
14 talked to Deputy Powell asking him specifically
15 if Curt Ruby was dangerous or violent? You
16 don't recall that conversation; is that what
17 you're saying?
18 A. No. I understand. I don't recall it.
19 Q. All right.
20 So he asked you what -- why you
21 couldn't talk now, meaning right then; right?
22 A. Yes.
23 Q. And you began to explain it to him, and
24 you say he hung up.
25 A. Yes.
891
1 Q. Is it correct that Sergeant Ruby's --
2 Did you call him on his cell phone or on his
3 home phone? Do you remember?
4 A. I do not recall.
5 Q. Sometimes the cell phone out in Badger
6 doesn't work very well; right? I mean, haven't
7 you experienced that?
8 A. No.
9 Q. Okay.
10 How many attempts did you make to
11 contact him again?
12 A. More than one.
13 Q. So it could be two. After he allegedly
14 hung up on you, you called him right back;
15 right?
16 A. Yes.
17 Q. He answered the phone?
18 A. Yes.
19 Q. And he came in; correct?
20 A. Yes.
21 Q. And you wrote a charge on which you
22 fired him about this conversation. Was it his
23 tone of voice you didn't like?
24 A. Yes.
25 Q. So this charge is based on tone of
892
1 voice; is that right?
2 A. And the termination of the phone call.
3 Q. Where you say he hung up on you?
4 A. Yes.
5 Q. Then he came as he was requested to do?
6 A. Yes.
7 Q. Oh, I'm sorry. I have a little more to
8 talk with you about this phone call, and that
9 has to do with this conversation with Tim
10 Schott. You went there for the first time on
11 September 18th; is that true?
12 A. I believe it was.
13 Q. All right.
14 MS. PENICK: I'm sorry. You went
15 where?
16 MS. CONLIN: To see Tim Schott.
17 Thank you.
18 Q. Did you understand that? What I was
19 talking about was when you and the sheriff went
20 to see Tim. It was on September 18th?
21 A. I believe it was.
22 Q. Before September 18th you had talked to
23 Eva Christiansen; yes?
24 A. Yes.
25 Q. And she felt from your conversation
893
1 with her, what you and Sheriff Mickelson said to
2 her, that an FFDE was warranted. Is that true?
3 A. If desired, yes.
4 Q. If what?
5 A. If -- if that's what we wanted to do,
6 yes.
7 Q. She sent you initially on
8 September 15th the -- Oh, I guess it was
9 September 18th. I'm sorry. September 18th she
10 sent you the -- On September 15th, actually, she
11 sent you a fitness-for-duty examination article.
12 Do you recall that?
13 A. Yes.
14 Q. And did you give that to Sergeant Ruby?
15 A. Yes.
16 Q. All right.
17 Did you read it yourself?
18 A. Yes.
19 Q. And did you follow the guidelines in
20 it?
21 Let me withdraw that question and
22 ask a different one.
23 I'm looking at Exhibit 514, which
24 I believe I offered.
25 MS. VALENTINE: Yes. 514 is in.
894
1 A. Where?
2 Q. And in 514 there -- Boy, page 451. Do
3 you have it?
4 Oh, you're in the wrong book.
5 MS. VALENTINE: No. That's
6 correct.
7 Q. Okay. 451 is at the top of the page.
8 A. Oh, I see. Yes.
9 Q. This article that she sent you
10 indicates that there are four possible
11 recommendations that a mental health
12 professional makes as a result of a
13 fitness-for-duty examination; correct?
14 A. Correct.
15 Q. One is that the person is unfit for
16 duty, unfit but treatable, no psychological
17 diagnosis, or invalid evaluation; correct?
18 A. Correct.
19 Q. All right.
20 You sent her, on September 18th,
21 Exhibit W. Let's turn to your statement to her.
22 And this is what she relied on in making her
23 recommendations and what you relied on in terms
24 of -- partially at least, in sending him for the
25 fitness-for-duty examination; right?
895
1 A. Yes.
2 Q. Look at the -- on 505, third paragraph,
3 you say, "Curt, after stressful encounters, has
4 made statements such as: I have it with this."
5 I would think that might be "I
6 have had it with this"; right?
7 A. Yes.
8 Q. "I just can't take this any more, or I
9 just need time to cool off awhile."
10 Was that the Thompson incident
11 that you're referring to?
12 A. Yes.
13 Q. All right.
14 Is Exhibit W, page 506, is that
15 Walter?
16 A. Yes.
17 Q. And then we have Halligan?
18 A. Yes.
19 Q. 507?
20 A. Yes, and 508.
21 Q. What was the immediate trigger in your
22 opinion for an FFDE?
23 A. Consultation with Marcia Cohan and
24 Dr. Eva Christiansen.
25 Q. No.
896
1 Why did you on September 18th
2 and 19th, or in the September 15th through 18th
3 time frame -- what triggered at that time a need
4 for an FFDE?
5 A. The ongoing behavior.
6 Q. Nothing about the FFDE, the findings,
7 relates in any way to his discharge; correct?
8 A. Correct.
9 Q. Okay.
10 The issue in the notice of
11 violation 12 is how -- It is the meeting of
12 September 18th?
13 A. Yes.
14 Q. All right.
15 And the sheriff told us that
16 there was some recording material, some
17 recording device hidden in his office for this
18 meeting; correct?
19 A. On the 18th?
20 Q. Yes.
21 A. Yes.
22 Q. Okay.
23 When did that device -- What was
24 it?
25 A. There was -- That was incorrect.
897
1 Q. I beg your pardon.
2 A. That was incorrect.
3 Q. What was?
4 A. Are you on the 18th?
5 Q. Yeah. I'm at the meeting, and what I
6 want to know is what -- what kind of recording
7 device was in place at that time in the
8 sheriff's office?
9 A. I don't recall that there was.
10 Q. Well, when do you think that that
11 recording device was installed?
12 A. I believe it was when we spoke with
13 Sergeant Ruby about going down for the follow-up
14 evaluation.
15 Q. November 15th of 2007?
16 A. Yes, ma'am.
17 Q. Okay.
18 A. And as you mentioned earlier this
19 morning, the 13th of December, 2007.
20 MS. CONLIN: At this time, so I
21 don't forget, I'd like to offer those two tapes.
22 We don't actually have the tapes. We have a
23 link, and we'll figure out a way to get them.
24 MS. PENICK: Yes. I can E-mail
25 the link to the commissioners. The one still
898
1 does not have -- You can hear rumblings of
2 audio, and it's going to take some AV person to
3 try to enhance that. I suppose both of us will
4 work on that.
5 MS. VALENTINE: So I'm admitting
6 an E-mail link to some audiotapes.
7 MS. CONLIN: Two; one on
8 November 15th of 2007 and one on December 13th
9 of 2007.
10 MS. PENICK: And these aren't
11 audiotapes. They're digital recordings.
12 MS. CONLIN: They're pictures.
13 You get pictures.
14 MS. VALENTINE: And we're going
15 to number that what?
16 MS. CONLIN: We numbered it --
17 I'll ask for assistance from people who might
18 actually know the answer to your question, or
19 not.
20 Can we move on, and they'll make
21 a note and we'll figure it out?
22 MS. VALENTINE: Yes. I'm sorry.
23 Before we move on, is there any objection?
24 MS. PENICK: No.
25 MS. VALENTINE: The unnumbered
899
1 link will be admitted.
2 MR. DRISCOLL: I just have a
3 question.
4 You're just going to have the
5 commissioners review it on their own time.
6 You're not going to be reviewing it here during
7 the hearing?
8 MS. CONLIN: Yes, indeed.
9 MR. DRISCOLL: And I think from
10 prior testimony -- Are they about 20 minutes
11 each?
12 MS. CONLIN: I reviewed the first
13 one last night, and it's about 7 minutes long,
14 and I will tell you, right at the first you can
15 see just Chief Deputy O'Brien, but then when he
16 sits down, there is nothing for 2 or 3 minutes
17 until Sergeant Ruby comes in, and then it's
18 about 2 to 3 minutes of conversation at that
19 time.
20 MR. DRISCOLL: And the other
21 recording?
22 MS. PENICK: The other recording
23 is about 25 minutes, thereabouts, and it is
24 video at this point with very faint audio, that
25 if you listen with earphones or listen very
900
1 closely, you can hear a few words, so the audio
2 is there. It's just a matter of pulling it out.
3 MS. CONLIN: Making it louder.
4 MR. DRISCOLL: All right.
5 MS. CONLIN: Okay. It would be
6 Exhibit 35.
7 MS. VALENTINE: 35. 35 is
8 admitted.
9 Q. Would you agree that a fitness-for-duty
10 examination is appropriate only under very
11 special circumstances?
12 A. Yes.
13 Q. And that it is only appropriate when
14 the usual channels of review, coaching,
15 counseling, and discipline have failed to effect
16 substantial change. Is that correct?
17 A. Correct.
18 Q. Do you agree that the fitness-for-duty
19 referral question should be very specific?
20 By that, I mean, what -- what the
21 mental health professional is told that he or
22 she is looking for should be very specific, the
23 referral questions?
24 A. Yes.
25 Q. Let's talk about the meeting itself, in
901
1 case we don't ever get the audio back.
2 MS. PENICK: I'm sorry. Are you
3 still in September?
4 MS. CONLIN: Yes, September 18th.
5 MS. PENICK: There is no
6 recording of this meeting.
7 MS. CONLIN: Oh, I'm sorry. I'm
8 in the wrong year.
9 Q. Do you recall in your discussion that
10 he had been scheduled at 9:30 the next morning,
11 and he -- You expected that he would be very
12 upset; correct?
13 A. I didn't know what to expect.
14 Q. Do you think that you could send
15 somebody to an FFDE and they wouldn't be upset
16 to have their fitness for duty challenged?
17 A. I know that there can be some reaction,
18 but, again, I did not know what to expect.
19 Q. All right.
20 Do you remember that
21 Sergeant Ruby said that two police officers had
22 told him that you were hunting for him?
23 A. In the meeting?
24 Q. Yes.
25 A. No.
902
1 Q. Do you recall interviewing
2 Captain Buske in connection with the
3 fitness-for-duty examination?
4 A. No, I do not recall that.
5 Q. Did you ever ask Captain Buske if Curt
6 was working on his house while he was on duty?
7 A. No. No, I did not.
8 Q. Did you ask Rod Strait any questions in
9 connection -- immediately before the
10 fitness-for-duty examination about the
11 March 30th incident or the Carlson, or any
12 incident?
13 A. Just prior to the evaluation?
14 Q. Exactly.
15 A. Not that I recall.
16 Q. The report was sent to you on
17 October 2nd. Is it correct that Dr. Eva told
18 you to give him a copy of the report?
19 A. Not that I recall.
20 Q. You didn't ever give him -- you, the
21 sheriff's department, never gave him a copy of
22 the report; correct?
23 A. Correct.
24 Q. She told you that when he came down the
25 next year in November that she gave him a copy
903
1 of the report; right?
2 A. She told who?
3 Q. You.
4 A. Yes.
5 Q. Exhibit G -- in Exhibit G on those
6 paragraphs that we have already discussed on
7 page 3 about her recommendations of what he
8 should do --
9 A. Oh.
10 Q. G. Oh, yeah, that. Page 3, first full
11 paragraph.
12 She told him that he could try to
13 give himself an attitude change for four weeks;
14 right?
15 MS. PENICK: May I interpose?
16 This question here is to the contents of the
17 report in the record.
18 MS. VALENTINE: Those two
19 paragraphs are unsealed.
20 MS. CONLIN: G.
21 MS. PENICK: Those two paragraphs
22 alone.
23 MS. VALENTINE: Those two
24 paragraphs alone.
25 Q. Are you there? Exhibit G, page 3,
904
1 theirs --
2 A. The number at the bottom, ma'am, would
3 be --
4 MS. VALENTINE: 310.
5 Q. Oh, I'm sorry.
6 A. I have it.
7 Q. Okay, good.
8 What she says is what she told
9 Curt was he could try to give himself an
10 attitude change for four weeks; correct?
11 A. This is which paragraph?
12 Q. First full paragraph.
13 MS. VALENTINE: Starting with,
14 "In my closing conversation."
15 A. Yes.
16 Q. And then if that didn't work, he could
17 consider using medications; right?
18 A. Yes.
19 Q. And then you were supposed to meet with
20 him, check with him -- not you, but he was
21 supposed to be checked with on October 20th;
22 correct?
23 A. Yes.
24 Q. And that did not happen; right?
25 A. Correct.
905
1 Q. In fact, you did not check with him
2 until sometime in December; is that right?
3 A. No. I attempted to contact him prior
4 to that.
5 Q. I understand that the charge is that
6 you called him on October 20th. What I am
7 asking you is, in fact, it was much later than
8 October 20th?
9 A. Correct.
10 Q. It wasn't October 20th at all. You did
11 not contact him on October 20th about the
12 fitness-for-duty examination, did you?
13 A. No.
14 Q. In fact, you contacted him for the
15 first time about the fitness-for-duty evaluation
16 in December of 2006; is that your recollection?
17 A. I don't recall, but it was after
18 October 20th.
19 Q. Long after; would that be true?
20 A. I don't recall.
21 Q. All right.
22 But we know for sure it wasn't
23 October 20th?
24 A. It was not October 20th.
25 Q. And it wasn't in October at all?
906
1 A. Correct.
2 Q. So it was sometime in November or
3 December; right?
4 A. Of --
5 Q. 2006.
6 A. It could have been, yes.
7 Q. Okay.
8 And in your charge against
9 Sergeant Ruby, you tell -- you say one of the
10 reasons that you fired him was because on
11 October 20th you contacted him, but that's not
12 true, is it?
13 A. No.
14 Q. From the time of the fitness-for-duty
15 examination on September 19th until whatever
16 time in November or December that you finally
17 contacted him about following up, you had no
18 feedback -- you gave him no feedback of any kind
19 about his performance; is that true?
20 A. True.
21 Q. It was also recommended that he remain
22 on the night shift; correct?
23 A. Correct.
24 Q. And there was no time limit for the
25 time that he was to remain on the night shift;
907
1 correct?
2 A. Not -- Correct.
3 Q. Not correct?
4 A. No. I meant -- I was going to say not
5 that I was aware of, but correct.
6 Q. And it was recommended that
7 conversations with respect to the
8 fitness-for-duty examination be directly handled
9 by the sheriff, and that you not be involved;
10 right?
11 A. Correct.
12 Q. And yet it was you who made the calls
13 to him; right?
14 A. Correct.
15 Q. Let's look at number 13. When you --
16 when you called him, you say that you tried to
17 schedule a meeting, and the first thing he said
18 to you is, "I don't know what you're talking
19 about"; right?
20 A. Correct.
21 Q. Okay.
22 And, in fact, at that point he
23 didn't have the report; right?
24 A. Right.
25 Q. And it was a month or more after the
908
1 fitness for duty -- actually, was several months
2 after the fitness-for-duty examination had
3 occurred; correct?
4 A. Correct.
5 Q. And so then you called Dr. Eva and
6 discussed with her what her perceptions were,
7 and you called him back?
8 A. Yes.
9 Q. All right.
10 And I'm -- And when you called
11 him back, you did not order him to do a
12 follow-up; right?
13 A. No.
14 Q. And he said he preferred not to; right?
15 A. Right.
16 Q. You could have ordered him to do that;
17 right?
18 A. Right.
19 Q. And because he didn't have the report,
20 he did not know what Dr. Eva had told you;
21 right?
22 MS. PENICK: Objection. That
23 assumes -- That asks the witness to speculate as
24 to what Mr. Ruby knew.
25 MS. CONLIN: Probably. Let me
909
1 try to rephrase.
2 MS. VALENTINE: I'll sustain the
3 objection.
4 Q. When you first called him several
5 months after the fitness for duty, or however
6 many, one, two, three, did you say to him, "Do
7 you want to see the lady?"
8 A. I do not recall that.
9 Q. Do you have any -- Did you take any
10 notes about this October 20th incident at the
11 time?
12 A. No.
13 Q. When did you first look at the 1997
14 MMPI, which is F?
15 You don't have to look at it.
16 I'm not going to ask you questions. I just want
17 to know when you first went to look for it.
18 A. Shortly after I read Dr. Eva
19 Christiansen's report and she made reference to
20 an MMPI.
21 Q. That would have been October 2nd,
22 right, so shortly after October 2nd of 2006?
23 A. Yes, somewhere in that vicinity. I
24 don't know the exact day.
25 Q. And the MMPI from 1997 was in his
910
1 personnel file, his regular personnel file right
2 here in this office; right?
3 A. Yes.
4 Q. You're aware, I assume, that the rules
5 of Webster County say that such a report is
6 supposed -- anything having to do with medicine
7 is supposed to be kept in a separate file?
8 A. Yes.
9 Q. So you didn't do that?
10 A. No.
11 Q. After you read the report, you put it
12 right back where it had been, in his regular
13 personnel file; correct?
14 A. Yes.
15 Q. Let's look now at the next one, which
16 is 14.
17 MS. PENICK: Off the record.
18 (An off-the-record discussion
19 was held.)
20 (A recess was taken from 2:32 p.m.
21 until 2:42 p.m.)
22 Q. Your paragraph 13 that has to do with
23 what you say happened -- you say on
24 October 20th, but we've established it wasn't
25 then; but did that incident, whenever it
911
1 occurred, have any detrimental effect on the
2 public?
3 A. No.
4 Q. Now, let's turn to 14, which is the
5 Carlson matter. There was a suggestion that
6 Victor Carlson filed a complaint, but that
7 really isn't so; right? He filed nothing.
8 A. Correct.
9 Q. Okay.
10 And it wasn't a complaint about
11 Sergeant Ruby's conduct that he wanted to file.
12 It was a complaint about Mrs. Carlson's conduct
13 that he wanted to file; correct?
14 A. As I understand, yes.
15 Q. The Carlson incident happened on
16 July 25th of 2007, and the last noted behavior
17 by Sergeant Ruby is, per your report,
18 October 20th, but sometime after October 20th
19 of 2006; correct?
20 A. Correct.
21 Q. So his attempts to change his attitude
22 were successful; correct?
23 A. Which dates, or what are you referring
24 to now?
25 Q. Let me just do it this way: From the
912
1 time of the fitness-for-duty examination until
2 the Carlson matter, you filed -- you have no
3 charges against him, except 13, which happened
4 sometime in November perhaps of 2006, so
5 November, December of 2006 until July 25th,
6 nothing -- You have no charges against him;
7 right?
8 A. I don't understand.
9 Q. Okay.
10 Look at Exhibit C. Okay. Why
11 don't we move on. The calendar is a calendar,
12 and the document is a document.
13 I think that what
14 Sheriff Mickelson told us once was that from his
15 standpoint, not all of these matters were
16 chargeable offenses. In other words, not all of
17 these take things to result in discharge, but I
18 believe you have told us that any one of them
19 could have been cause for discharge all alone;
20 right?
21 A. Yes.
22 Q. You also said, I think, that it was the
23 domestic violence incidents that caused you the
24 most concern that you thought endangered the
25 public and women, and the like; correct?
913
1 A. Yes.
2 Q. According to you, what was
3 Sergeant Ruby supposed to do -- He was, in your
4 opinion, mandated by 708A(2) to arrest Victor
5 Carlson that night; correct?
6 A. Yes.
7 Q. And did Virginia Carlson ever complain
8 about Curt Ruby's conduct?
9 A. No.
10 Q. Did you ever talk to her?
11 A. Not about that particular incident, no.
12 Q. Do you accept that a victim's wishes
13 must be taken into account by the officer on the
14 scene?
15 A. Yes.
16 Q. And according to the testimony of Mike
17 Kenyon -- Let me back up.
18 One of the things that you say he
19 did wrong was he did not contact Victor; right?
20 A. Right.
21 Q. Deputy Kenyon told us that he
22 knocked -- or someone knocked on the door;
23 right?
24 A. Not that I recall, no.
25 Q. Were you aware that -- that while they
914
1 were present there, the three officers, and that
2 would be Officers -- or the Deputy Strait,
3 Deputy Kenyon and Deputy Ruby, that one of those
4 individuals knocked on the door?
5 A. I was not aware of that.
6 Q. Okay.
7 He was inside. You were aware of
8 that; right?
9 A. Who was inside?
10 Q. Victor, Victor.
11 A. Yes.
12 Q. And were you aware that they could see
13 him through the window?
14 A. No, I was not aware of that.
15 Q. And if they knocked and he didn't come
16 to the door, then, in order to have contact with
17 Victor, they would have to knock the door down;
18 right?
19 A. Or find some other means of
20 communication with him.
21 Q. Okay.
22 Look at Defendant's O, which
23 is 708.2A. Do you understand that under the
24 provisions of 708.2A(2)(a) that arrest is not
25 mandatory?
915
1 A. Yes.
2 Q. And arrest is mandatory only under
3 Section 708.2A(2)(b); correct?
4 A. Correct.
5 Q. Are you aware of -- I think you said
6 you were aware of Sergeant Ruby's expertise in
7 domestic violence?
8 A. Yes.
9 Q. You're aware that he has taught police
10 officers and advocates all over the state of
11 Iowa how to handle complaints of domestic
12 violence?
13 A. Yes.
14 Q. And he has done a video used widely --
15 or actually used at the Iowa Law Enforcement
16 Academy about how to handle domestic violence?
17 A. Yes.
18 Q. Have you ever taken that course that he
19 gives?
20 A. No.
21 Q. What training have you received on
22 domestic violence?
23 A. I went to the Batterers Education
24 Program.
25 Q. He has taught that also, hasn't he?
916
1 A. Yes.
2 Q. He wasn't teaching at the time you
3 went?
4 A. No.
5 Q. What else?
6 A. And some advocacy training, and that's
7 it.
8 Q. According to your -- Is it correct that
9 you relied on two sections of the Iowa Code in
10 making your termination decision with respect to
11 Victor Carlson? Now, those would be 236.12 and
12 708.2A; is that correct?
13 A. Yes.
14 Q. All right.
15 Would you look at Defendant's
16 Exhibit N, and tell me what of those he was in
17 violation of, in your opinion?
18 A. As far as contacting the other
19 witnesses.
20 Q. Well, what you are supposed to do is
21 use all reasonable means to prevent further
22 abuse; right?
23 A. You are on --
24 Q. I'm right on 236.12.
25 A. Okay.
917
1 Q. Exhibit N.
2 A. Okay.
3 Q. And it starts out with using all
4 reasonable means to prevent further abuse;
5 right?
6 A. Correct.
7 Q. Okay.
8 And where are you looking about
9 contacting people?
10 A. I'm on the next page.
11 Q. Oh.
12 A. Would be 236.12(2)(b). As I understand
13 it, there was a witness to the alleged assault.
14 Q. I'm sorry, I just am not where you are.
15 If you could help me, is it page 462?
16 A. 462.
17 Q. Okay.
18 And it's b?
19 A. Yes. "Except as otherwise provided in
20 subsection 3, a peace officer shall, with or
21 without a warrant, arrest a person under section
22 708.2A, subsection 2, paragraph "b," if, upon
23 investigation, including a reasonable
24 inquiry" --
25 Q. Okay, that's enough. I can see it.
918
1 A. Okay.
2 Q. And that applies only if the conduct
3 meets the requirements of 708.2A, subsection 2,
4 paragraph "b"; right?
5 A. Yes.
6 Q. All right.
7 Defendant's R is the Carlson
8 case. Was Luke Fleener disciplined in any way
9 for his conduct in connection with charge 14?
10 A. No.
11 Q. All right.
12 Let's look at 15. That is the
13 Wardlow matter; correct?
14 A. Correct.
15 Q. Did you have any contact ever with
16 Alicia Wardlow?
17 A. No.
18 Q. Never asked her any questions?
19 A. No.
20 Q. You said that you were shocked when you
21 read this report because nothing was done.
22 Remember that?
23 A. Yes.
24 Q. In fact, he got her and her children
25 out of the situation safely; right?
919
1 A. Correct.
2 Q. And he referred her to D/SAOC; correct?
3 A. Correct.
4 Q. And you said that there was a history
5 of her -- of her being assaulted in the past;
6 correct?
7 A. According to Sergeant Ruby, yes.
8 Q. I thought you talked to Bahr. Did you
9 talk to Deputy Bahr about this situation?
10 A. No.
11 Q. Oh, all right.
12 So Sergeant Ruby is the one who
13 told you that it was apparent she had been
14 assaulted -- that she had a history. Let me
15 start again.
16 Sergeant Ruby told you that there
17 had been a history of domestic violence?
18 A. Are you referring to 349?
19 Q. I'm referring to testimony you gave
20 earlier in this matter.
21 A. Yes.
22 Q. Okay.
23 And you said a narrative was
24 written a day later. That's the incident report
25 narrative?
920
1 A. No.
2 Q. That would be Exhibit S, page 346.
3 A. Okay.
4 Q. Is that what you mean when you said
5 that the narrative was written a day later?
6 A. No.
7 Q. What did you mean?
8 A. I was referring to 349.
9 Q. What causes you to believe it was
10 written a day later?
11 A. Because he -- It appears in this
12 notation that the perpetrator had contact with
13 him Monday evening, or sometime Monday. Monday
14 evening.
15 Q. I see it.
16 A. He called me Monday evening.
17 Q. Oh, I see. I understand what you're
18 saying.
19 So this was written to inform you
20 of what had occurred earlier so that in case he
21 came down and tried to file charges against her,
22 other deputies would know about that. Is that
23 what you're saying?
24 A. No. I'm just establishing when -- why
25 I thought it was Tuesday.
921
1 Q. Okay, all right.
2 But his purpose in writing this
3 was in case the guy came in and tried to file
4 other charges against her?
5 MS. PENICK: I object that that
6 calls for this witness to speculate.
7 MS. CONLIN: I'll withdraw it.
8 MS. VALENTINE: Thank you.
9 Q. And, again, Fleener was not disciplined
10 for his conduct; correct?
11 A. Correct.
12 Q. I want to hand you what I have marked
13 as Plaintiff's Exhibit 534, and give you an
14 opportunity -- We'll probably just go through
15 this together.
16 Alicia Wardlow was the victim on
17 August 6, 2007. You never talked to her, but
18 she's that person; right?
19 A. Correct.
20 Q. All right.
21 And what she -- I need to offer
22 Exhibit 534, the sworn affidavit of Alicia
23 Wardlow.
24 MS. VALENTINE: Any objection?
25 MS. PENICK: I'm still reviewing
922
1 it.
2 No.
3 MS. VALENTINE: Exhibit 534 will
4 be received.
5 Q. In the first paragraph she said she is
6 the woman, and that she has read the description
7 of the incident that Curt prepared, and that is
8 what's attached to her affidavit.
9 Can you see that?
10 A. Yes.
11 Q. Okay.
12 She says that what he says is
13 true and correct, except for the phrase, "She
14 has been working with them," meaning D/SAOC, "as
15 of today."
16 And she said she didn't call them
17 until the next day, and with the exception of
18 Sergeant Ruby said that he felt that Christopher
19 might be under the influence of drugs, but she
20 thinks that he was drinking, those are the two
21 exceptions to her understanding of what Curt
22 Ruby said in his narrative report; right?
23 A. Correct.
24 Q. All right.
25 She says that over the period of
923
1 time that she was with Christopher Long, "deputy
2 sheriffs came to our home very frequently,
3 sometimes twice a week."
4 Were you aware of that?
5 A. Yes.
6 Q. Okay.
7 You reviewed the activity logs
8 every day?
9 A. Yes.
10 Q. And so you saw that they were out there
11 for incidents of domestic violence?
12 A. Yes.
13 Q. Okay.
14 At no time before this in all of
15 those many times that various deputies were out
16 at their home, nobody arrested Christopher Long
17 for domestic violence, did they?
18 A. Not that I'm aware of.
19 Q. In a minute --
20 MS. CONLIN: Do we have that
21 back?
22 NICHOLAS BAILEY: She went to
23 copy it.
24 Q. I have his police report, and I would
25 like to introduce that, but I will wait until I
924
1 have it in my hand.
2 He was abusive, "but I loved
3 him," and "He is the father of my two children."
4 And they were little. I think now they're 3
5 years and 20 months.
6 In paragraph 3 she says on the
7 morning of August 6th when he came to the house,
8 "I did not want Christopher Long to be
9 arrested."
10 Do you see that?
11 A. Yes.
12 Q. "I didn't know what I wanted to do. I
13 didn't know what Christopher would do."
14 What she wanted was to talk to
15 D/SAOC until she made any decisions about her
16 health and safety, and that of her children;
17 correct?
18 A. Correct, or according to this. Is that
19 what you're saying?
20 Q. This is her sworn statement.
21 A. Okay.
22 Q. And she's saying why she told
23 Sergeant Ruby that she did not want this man
24 arrested.
25 A. Okay.
925
1 Q. Do you think it's appropriate for the
2 sergeant on the scene to take into account that
3 before she did anything, first of all, she
4 wanted to get her kids out of there; and second
5 of all, she wanted to talk to the counselors?
6 Do you think it's unreasonable for him to honor
7 that request?
8 A. If there was probable cause that she
9 had been injured, yes, I consider that very
10 unreasonable.
11 Q. Okay.
12 So even though what she wanted to
13 do was go to D/SAOC and talk to people, you
14 would not have permitted that, and the reason
15 that you charged him with something that he
16 could be fired for is because he honored her
17 request?
18 MS. PENICK: I think that's a
19 compound question.
20 MS. CONLIN: Oh, I'm sure it is.
21 Sorry.
22 MS. VALENTINE: Rephrase the
23 question.
24 Q. One of the reasons -- Starting again.
25 The reason why you included these
926
1 events in your statement of charges to fire him
2 was because he honored Alicia Wardlow's request;
3 right?
4 A. Because of his actions in this matter,
5 and if that's honoring Alicia Wardlow's request,
6 yes.
7 Q. That's what she says.
8 A. Okay.
9 Q. Right?
10 "Sgt. Ruby was respectful" --
11 A. -- "of my wishes," yes, I see that.
12 Q. Her goal was to leave with her kids and
13 get everybody to safety; right?
14 A. Right.
15 Q. And he gave her D/SAOC's number, and he
16 also wrote her a note to her employer so she
17 could get time off to handle the situation.
18 A. Uh-huh.
19 Q. Were you aware that he did that?
20 A. No.
21 Q. And he specifically gave her permission
22 to leave with her children even though there was
23 joint custody. Do you know that?
24 A. Yes.
25 Q. How did you find that out?
927
1 A. I believe it's in this memo.
2 Q. The next day she called D/SAOC, and
3 they advised her to file charges, and she came
4 and she brought the witness and she brought a
5 person from DHS with her as a support person;
6 right?
7 A. Yes.
8 Q. She says, "Curt Ruby was real nice to
9 me. He cared about me and my family and our
10 safety. He also recognized that I had a right
11 to decide what was best for my children and
12 myself."
13 You disagree with that; right?
14 A. Yes.
15 Q. And from her standpoint, he didn't do
16 anything wrong, and she's grateful and she's out
17 of that situation; right?
18 The outcome, in other words, was
19 to get her away from the guy who had been
20 abusing her for quite some time; right?
21 A. Yes.
22 Q. That would be the very best outcome
23 that could happen under these circumstances;
24 correct?
25 A. I don't understand.
928
1 Q. What any reasonable police officer,
2 peace officer would want for someone like Alicia
3 Wardlow is that she remove herself and her
4 children from the abusive situation permanently;
5 correct?
6 A. And after touching the situation like
7 this, to be protected in this incident.
8 Q. Well, she wasn't there anymore.
9 A. Okay.
10 Q. She left. Do you know how chaotic this
11 scene was with him driving up with her and her
12 getting out of the car and --
13 A. I can only imagine. I've been involved
14 in several.
15 Q. Here is Exhibit 540. I asked James
16 Mazour to use the database on criminal charges
17 to draw for us all of the criminal charges
18 against Christopher Long, and you will see the
19 charge number 4 on up are the more recent
20 charges, including --
21 MS. CONLIN: Oh, did I offer it?
22 MS. VALENTINE: Not yet.
23 MS. CONLIN: I'd offer
24 Exhibit 540.
25 MS. VALENTINE: Any objection?
929
1 MS. PENICK: No objection.
2 MS. VALENTINE: 540 will be
3 received.
4 Q. One of the charges against him was
5 sexual abuse in the third degree and lascivious
6 conduct with a minor, both felonies; right?
7 A. Number?
8 Q. 1.
9 A. Yes. That happened March 4th of 2008.
10 Q. And it's still pending; correct?
11 A. Correct.
12 Q. Then 4 is our charge here; correct?
13 A. Yes.
14 Q. All right. And then let's look at the
15 other charges against him.
16 He didn't pay a fine. He had a
17 burglary charge, he had another burglary charge,
18 and he had a possession of stolen property
19 charge. Those are all the charges that exist
20 for this man in the database. None of those are
21 domestic violence; correct?
22 A. Correct.
23 Q. Despite the fact that many, many
24 deputies visited the Long-Wardlow home because
25 of domestic violence; right? Right?
930
1 A. Correct.
2 Q. And the next one is 16, which is
3 October 4th of 2007, and that's the Tammie Chase
4 incident; correct?
5 A. Yes.
6 Q. You say that the reason you charged
7 this as a part of the termination is because he
8 didn't file a report, he didn't pass on
9 information that there was domestic violence to
10 Chief Smith, and those are the two reasons;
11 right?
12 A. Correct.
13 Q. And you heard Deputy Robinson's
14 testimony; right?
15 A. Yes.
16 Q. And he recalls that it was Chief Smith
17 that told them about the domestic violence;
18 correct?
19 A. I don't recall that.
20 Q. You were -- you've been here in the
21 courtroom, hearing, whatever, hearing room for
22 the entire testimony, haven't you?
23 A. Yes.
24 Q. For everybody?
25 A. Yes.
931
1 Q. You were here all during the testimony
2 of Robinson?
3 A. Yes.
4 Q. And it is your testimony that you
5 didn't hear him say that he recalled that it was
6 Chief Smith who told he and Sergeant Ruby that
7 there had been domestic violence, that -- you
8 know, I don't remember the exact words that
9 Sergeant Robinson used, but that it was him,
10 Smith, that told them, Ruby and Robinson, that
11 she was in the hospital?
12 A. Yes. Mike Smith from the -- I'm --
13 Q. No, no, no. I'm sorry. Let me start
14 again.
15 Delbert Smith, he's the chief of
16 police; right?
17 A. Right.
18 MS. PENICK: I would, because of
19 the confusion here, unless we could read back --
20 MR. DRISCOLL: Can we start
21 clean? Can we start with just a new question?
22 Would that be easier?
23 MS. CONLIN: Sure, okay.
24 Q. Do you recall that Deputy Robinson said
25 that Delbert Smith told he and Ruby that she
932
1 was -- that she had been injured, and she was
2 being checked out at the hospital?
3 MS. PENICK: I'd object to the
4 characterization of the testimony.
5 MS. VALENTINE: I think the
6 record will speak for itself, so I'm going to
7 overrule the objection and the testimony will
8 stand.
9 MS. PENICK: You can answer the
10 question.
11 A. Yes.
12 Q. Do you remember that?
13 A. Yes, I do recall.
14 Q. If that's what happened, that's not
15 what you understood the case to be at the
16 time -- Well, until -- Apparently, until
17 Deputy Robinson testified; right?
18 A. No. I am still confused.
19 Q. Okay.
20 A. It's my understanding that Chief Smith
21 didn't know about it until after the fact,
22 well after the fact, later that afternoon,
23 around 1500 or so, is my understanding.
24 Q. That's not what Robinson said; right?
25 A. I don't recall.
933
1 Q. You never asked Robinson what his
2 perception was, did you?
3 A. No.
4 Q. And you didn't know until yesterday
5 what he recalled about the welfare check?
6 A. And I don't recall him saying that.
7 Q. Okay.
8 Sergeant Ruby never even met
9 Tammie Chase; right?
10 A. No.
11 Q. And when he was tripped to the 608
12 address, he was there to check on the welfare of
13 Rickey Chase; right?
14 A. Stemming from the 10-16, yes.
15 Q. What's a 10-16?
16 A. Domestic assault.
17 Q. Well, what the report -- what -- I
18 believe everything that we have says that what
19 they were doing there was checking on the
20 welfare of Rickey Chase; right?
21 A. After they were called and informed
22 that there had been a 10-16 and that his welfare
23 may be in jeopardy, he may attempt to commit
24 suicide.
25 MS. CONLIN: Let's move to 17,
934
1 but before we do that, I'd like to offer
2 Exhibit 539, which is the promised activity
3 report for Tony Walter in connection with the
4 search warrant case, 9-8-06.
5 MS. VALENTINE: Any objection to
6 Exhibit 5- -- 539 is already in.
7 MS. PENICK: I don't have it.
8 MS. CONLIN: Oh, all right.
9 MS. PENICK: It just didn't have
10 a sticker on it.
11 Q. October 9, 2007, was the getting his
12 car fixed.
13 A. Yes.
14 Q. And you said that you did not find out
15 until you received the invoice; right?
16 A. Correct.
17 Q. Well, what you did -- I believe that
18 you acknowledge that in the activity report,
19 which is 532, he said, note, have a blue light
20 not functioning. Do you remember that?
21 Oh, let me -- 532 would be
22 Officer Ruby's daily activity report -- oh, I'm
23 sorry. I'm just very confused.
24 MS. CONLIN: I do want to
25 offer 532, and that is the activity report
935
1 for 7-4-06.
2 MS. VALENTINE: Any objection?
3 MS. PENICK: Well, if this is to
4 be with respect to the incident in October
5 of 2007 --
6 MS. CONLIN: It's relative to
7 that, but it's not the activity report for those
8 days.
9 MS. PENICK: I would object to
10 the relevancy, but --
11 MS. VALENTINE: We'll allow it.
12 The objection is overruled.
13 MS. CONLIN: Okay.
14 Q. You have it now?
15 A. Yes.
16 Q. Okay. And I'm kind of straightened out
17 here.
18 In this case, he said he had a
19 blue light not functioning. Do you remember
20 whether or not you told him to go ahead and get
21 it fixed?
22 A. I do not recall.
23 Q. You see these notes periodically when
24 something is wrong with a squad car; right?
25 A. Yes, from time to time.
936
1 Q. Do you have any explanation for us as
2 to why in your statement of the charges you say
3 that the amount in question was $310? Do you
4 see that, 17?
5 A. Yes.
6 Q. But, in fact, the invoice was
7 for $131.67; right?
8 A. Yes.
9 Q. Well, how could you make a mistake like
10 that?
11 A. It had got attached to another voucher.
12 Q. All right.
13 A. And it was totaled up as that, so there
14 was a separate issue or a separate item not even
15 related to this.
16 Q. All right.
17 You didn't pull the invoice,
18 which is Exhibit P, and check it before you made
19 these charges against Sergeant Ruby?
20 A. Yes. That invoice would have been in
21 with the voucher.
22 Q. Well, I've got both the voucher and the
23 invoice that are P, and my question to you is,
24 did you look at this before you wrote these
25 charges?
937
1 A. Yes.
2 MS. PENICK: Just to clarify, I'm
3 not seeing a voucher in P. I guess maybe we
4 should find out --
5 Q. Here is P. I'll show it to you, and
6 this is -- I would think this would be the
7 invoice; right?
8 A. Yes. If there's more than one invoice
9 from -- this is from Electronic Engineering.
10 Q. Yeah.
11 A. -- they'll get put together. They'll
12 be put on a voucher, and when you send them
13 through to be paid, it will total them up, and I
14 wasn't aware.
15 Q. Of what?
16 A. That it was separate.
17 Q. Well, here is the -- I'm not sure I'm
18 understanding what you're saying. The --
19 A. What I'm saying is, I did look at that,
20 but I made a mistake on the amount.
21 Q. Okay.
22 A. I did look at the voucher, and I made a
23 mistake on the amount.
24 Q. If he had asked your permission to fix
25 this blue light, you would have said yes?
938
1 A. Yes.
2 Q. So that's kind of a formality, asking
3 for permission? I mean, if something is broken
4 on the squad car, you're going to let him fix
5 it; right?
6 A. Policy.
7 Q. Pardon me?
8 A. Policy, yes.
9 Q. Are you saying "policy"?
10 A. Yes.
11 Q. 18 is the suicide attempt that is --
12 happened on November 18th, so from -- You saw
13 the diagram that is Exhibit 32; right? I'm
14 going to put it up for our -- Does that comport
15 with your recollection as well?
16 A. Yes.
17 Q. When did you talk with Sergeant Ruby
18 about the plan of attack, the plan of handling
19 this matter?
20 A. When I contacted him by phone.
21 Q. All right.
22 So he's ahead of you. You're
23 driving, and you're calling him on the phone;
24 right?
25 A. No.
939
1 Q. Oh, when?
2 A. No.
3 As I had mentioned previously, as
4 we came around the curve and approached the
5 trailer park, they left. They went ahead and
6 entered the trailer park.
7 He took up that position, I
8 believe, which designates -- is designated by
9 "me," and we're "them."
10 MS. CONLIN: Wait a minute.
11 Could you read back what he just said?
12 (Requested portion of the record
13 was read.)
14 Q. You mean designated by Sergeant Ruby as
15 "me" on Exhibit 32?
16 A. Yes. Is that correct?
17 Q. Yes.
18 A. Okay.
19 Q. Yes, yes.
20 A. Okay.
21 Q. I just didn't think the record was
22 quite clear.
23 A. Okay.
24 And where the car with the word
25 "them" is at, we were -- took cover there, and
940
1 from that spot, I called Sergeant Ruby on his
2 cell phone.
3 Q. All right.
4 And what did you say to him?
5 A. Told him that we had been able to
6 obtain a phone number for the person possibly
7 inside the trailer, and that we were going to
8 attempt to call and see if we could make
9 contact.
10 Q. Did you say to him, "What in the world
11 are you doing behind the trailer?"
12 A. No.
13 Q. Do you know what he was doing behind
14 the trailer?
15 A. No.
16 Q. Well, being behind the trailer was one
17 of the things that was wrong about what he did
18 on November 13th; correct?
19 A. No.
20 Q. So being there was not the problem; it
21 was driving away. Correct?
22 A. Nobody knew what anybody's -- Nobody
23 knew what anybody was going to do.
24 Q. Okay.
25 A. That was the problem. No communication
941
1 whatsoever until I had contact with
2 Sergeant Ruby by phone.
3 Q. Keep your voice up, if you would,
4 please.
5 Was Richardson disciplined in
6 connection with driving away?
7 A. No.
8 Q. Neither was Sergeant Ruby, correct,
9 except he was fired? But he -- As a result of
10 the November 13th incident, no discipline was
11 visited on Sergeant Ruby?
12 A. No.
13 Q. Did you confer with Richardson?
14 A. When?
15 Q. At any time during the course of these
16 events.
17 A. Yes. He stayed where the word "them"
18 is. Actually, there was two cars there. So we
19 were able to communicate with him.
20 Q. Did he take cover?
21 A. Yes.
22 Q. Was he behind your car?
23 A. He was in that proximity of the
24 vehicles and the other trailer.
25 Q. The call was about a woman in a trailer
942
1 with a gun; right?
2 A. Yes.
3 Q. And it would be reasonable to move as
4 quickly as possible; correct?
5 A. Yes.
6 Q. And one of the things that you need to
7 know immediately is where is the trailer in the
8 trailer park; right?
9 A. Right.
10 Q. Do you know who took her to the
11 hospital?
12 A. I believe Deputy Richardson and
13 Sergeant Ruby did.
14 Q. All right.
15 Let's look at 19. That is the
16 call or the meeting with respect to the second
17 fitness-for-duty examination; right?
18 A. Yes.
19 Q. And when asked why this -- The
20 follow-up didn't happen until 13 months later,
21 you said that it was because of his avoidance
22 the first time, and that's the -- sometime after
23 the October 20th call?
24 A. I said that?
25 Q. No. I'm asking you.
943
1 What you said, according to my
2 notes, is that the reason that you waited 13
3 months to follow up with Sergeant Ruby, which
4 you were supposed to do October 20th of 2006,
5 the reason you didn't do it until November 15th
6 of 2007 was because of his avoidance the first
7 time, and I'm asking you, when you say "his
8 avoidance the first time," you mean the calls
9 you made to him sometime in November or December
10 of 2006. Is that right?
11 MS. PENICK: Objection. It
12 mischaracterizes the testimony of the witness.
13 MS. CONLIN: Well, I certainly
14 hope not.
15 Q. Do you agree that you said --
16 A. I remember --
17 MR. DRISCOLL: We need to rule on
18 an objection here.
19 MS. VALENTINE: I'm going to
20 overrule the objection and note that the record
21 will reflect the testimony that was provided.
22 Q. I'm sorry. I'm hurrying.
23 One of the things that Eva
24 Christiansen said should be done was to keep him
25 on nights; right?
944
1 A. She said that was the best thing --
2 Q. Okay.
3 A. -- at the time.
4 Q. But you didn't do that, did you?
5 A. Yes.
6 Q. On August 9th, 2007, you moved him off
7 of nights; correct?
8 A. Correct.
9 Q. You didn't talk to Dr. Christiansen
10 before that; right?
11 A. Right.
12 Q. Nothing in her report says, "Keep him
13 on nights until August 9th of 2007"; right?
14 A. It doesn't specify any length of time,
15 that I can recall.
16 Q. You're correct.
17 My point is, you didn't talk to
18 her before you switched him from nights to days;
19 right?
20 A. Right.
21 Q. Okay.
22 And she said in her report, "keep
23 him on nights"; right?
24 A. For a period, yes, yes.
25 Q. It doesn't say, "for a period of time."
945
1 It just says, "keep him on nights."
2 A. Actually, I think she said it's the
3 best place for him at the time.
4 Q. Well, we can look again.
5 A. I don't know that she said, "keep him
6 on nights."
7 Q. Look at the last page, of course.
8 MS. VALENTINE: Counsel, I
9 wouldn't put that on the machine.
10 MS. CONLIN: Oh, thank you.
11 Q. "I believe it will be helpful for him
12 to remain on the night shift, where he has less
13 direct contact with people."
14 That's what she says.
15 A. Yes.
16 Q. No limit on time?
17 A. Yes.
18 Q. Keep him on nights; right?
19 A. For him to remain on nights.
20 Q. Well, that means keep him on nights,
21 doesn't it?
22 A. Yes.
23 Q. And you did not do that?
24 A. No.
25 Q. And you didn't check with her before
946
1 you moved him to see whether or not after a
2 period of time it would be all right to put him
3 on the day shift?
4 A. No.
5 Q. You say, "When he got back on days,
6 there was no change in his attitude"; correct?
7 A. Correct.
8 Q. So during the period of time that he
9 was on nights, was there a change in his
10 attitude?
11 A. It didn't sound like it, no.
12 Q. You say also that the new meeting, this
13 November 15th meeting, was because it was
14 required by her, meaning Dr. Eva; correct?
15 A. Correct.
16 Q. Can you point me to the place where she
17 says that he should have another
18 fitness-for-duty examination in Exhibit G?
19 A. She didn't.
20 Q. Oh, all right.
21 A. She --
22 Q. Was that in the course of a
23 conversation you had with her?
24 A. Yes, or in her first report. There was
25 to be follow-up after a period of time.
947
1 Q. October 20th; right?
2 A. Yes.
3 Q. And so 13 months later --
4 A. Yes.
5 Q. But the follow-up does not include
6 another fitness-for-duty examination; right?
7 A. Right.
8 Q. So the fitness-for-duty examination was
9 not required by her in Exhibit G?
10 A. The requirement was not -- My
11 understanding, the requirement was not for
12 another fitness-for-duty evaluation. It was for
13 a follow-up for the prior fitness-for-duty
14 evaluation, a checkup, a follow-up, not another
15 battery of tests or a fitness-for-duty
16 evaluation. Just a follow-up.
17 Q. Do you know that, in fact, he was going
18 to be given another MMPI and other tests when he
19 got there on November 16th?
20 A. I do not know that for a fact, no.
21 Q. You contacted Eva sometime before
22 November 15th. Do you know when?
23 A. Not exactly. I don't know the exact
24 day.
25 Q. All right.
948
1 One contact or more than one?
2 A. I don't recall.
3 Q. You first contacted Schott, I believe
4 you said, in late August of 2007; right? He
5 didn't give you any advice then?
6 A. No.
7 Q. Did you make that contact in August?
8 A. Yes. It was late August.
9 Q. And, again, your contact with him was
10 to avoid -- to get advice so you could do the
11 right thing so nobody would sue you?
12 A. To obtain legal advice, yes.
13 Q. You obtained counsel after -- first you
14 contacted Fitzgerald. He had a conflict, and
15 then you obtained counsel shortly after the
16 conflict was discovered; right?
17 A. Approximately two weeks, if I recall
18 correctly.
19 Q. Did the subject matter of your visit
20 with counsel include a discussion of Curt Ruby's
21 termination?
22 A. Yes.
23 Q. So that would have been September?
24 A. I don't know. I don't recall the exact
25 date.
949
1 Q. Was there a trigger for the requirement
2 that he either have an FFDE or follow-up from
3 the previous one?
4 A. No.
5 Q. It wasn't the November 13th event?
6 A. No. It was because it was our
7 understanding that the follow-up was required
8 previously.
9 Q. Well, you know, if you look at that
10 report, Exhibit G, which I believe I have now
11 memorized, you will see that the follow-up was
12 supposed to be with Mickelson, not with her;
13 right?
14 A. Correct.
15 Q. All right.
16 During that meeting, did you read
17 to him from Exhibit G, the report of a year ago?
18 A. Yes.
19 Q. And you read excerpts?
20 A. Yes.
21 Q. You chose the excerpts?
22 A. Yes.
23 Q. He asked to see a copy?
24 A. Yes.
25 Q. You refused to give it to him?
950
1 A. No. I believe he already had a copy.
2 Q. On November 15th, the day before he
3 went?
4 A. No, excuse me. I don't recall him
5 asking for a copy. He didn't have a copy, and I
6 don't recall that he asked for one.
7 Q. Several times over the course of these
8 proceedings, and, indeed, in your documentation
9 that's Exhibit D, you suggested that Curt is or
10 was paranoid; right?
11 A. No.
12 Q. Thought everybody was out to get him,
13 stuff like that, not based on any facts?
14 A. I didn't call him paranoid, no.
15 Q. Well, I know you didn't call him that.
16 A. Okay.
17 Q. But I'm asking you, paranoid, if a
18 definition of paranoid is like everybody is out
19 to get me, that's what you were saying about
20 him; right?
21 A. No.
22 Q. You weren't?
23 A. No. I was just saying what was
24 conveyed to me.
25 Q. Okay.
951
1 I mean, over -- in your documents
2 that we've looked at, the whole of Exhibit D and
3 in your testimony about Curt's behavior over the
4 whole course of time, you have indicated several
5 times that he felt like people were out to get
6 him; correct?
7 A. That is a portion of it, yes.
8 Q. Okay.
9 And my question to you is this:
10 To your knowledge, has anybody, except for you
11 and Sheriff Mickelson diagnosed Curt with
12 paranoia?
13 MS. PENICK: Objection. That
14 mischaracterizes the testimony.
15 MS. VALENTINE: I'm going to
16 sustain the objection.
17 Q. To your knowledge, has anyone ever
18 diagnosed him with paranoia?
19 MR. DRISCOLL: I mean, are we --
20 We're not talking about medical practitioners;
21 correct? I don't want to talk about the
22 documents that are in evidence.
23 MS. CONLIN: No.
24 MR. DRISCOLL: We're not
25 talking --
952
1 MS. CONLIN: I'm talking
2 generally if he knew if anybody ever
3 diagnosed --
4 MR. DRISCOLL: I just wanted to
5 make sure we weren't going to start touching on
6 medical information.
7 MS. PENICK: And a diagnosis of
8 paranoia would sound like a medical diagnosis to
9 me.
10 MS. CONLIN: All right.
11 I see what you're saying, and
12 I'll withdraw the question.
13 Q. You sent Curt Ruby to a psychologist on
14 two separate occasions; right?
15 A. Yes.
16 Q. And one of the things you wanted to
17 know is, is he able safely to perform his duties
18 as a peace officer?
19 A. Yes.
20 Q. That's the purpose of these visits to
21 Dr. Eva; correct?
22 A. Yes.
23 Q. And did you ever take his weapon
24 before December 13th?
25 A. No.
953
1 Q. Did you ever take his squad car or his
2 badge?
3 A. No.
4 Q. He continued to work as scheduled right
5 up to the appointment on September 19th, came
6 back on September 25th, and worked right through
7 the November month, right, and December,
8 December 13th?
9 A. Yes.
10 Q. Would it be correct that you wouldn't
11 let him out on the street with his gun and his
12 car and his badge if you thought he was a danger
13 to anybody?
14 A. I don't know that we have that answer.
15 Q. I beg your pardon?
16 A. I don't know that we had that answer.
17 Q. So you would let him out on the street
18 if you thought he was a danger?
19 A. No, we wouldn't.
20 Q. Let's look at 20, and that is also the
21 November 15th date. At the end of the meeting,
22 you wanted to take his video -- in-car
23 videotape; right?
24 A. Yes.
25 Q. And what was the purpose of taking his
954
1 in-car videotape?
2 A. To clean out the car.
3 Q. Just standard?
4 A. Well, yes. It wouldn't be standard.
5 I've never done that before, but it was to
6 remove it from the vault of the car.
7 Q. Why did you walk out with him to get
8 the videotape?
9 A. Because he had other equipment in his
10 car that he wanted to put into my vehicle.
11 Q. Why was he going to put --
12 A. I gave him a ride home.
13 Q. No, no. That's December 13th, not
14 November 15th.
15 A. Okay. I'm sorry.
16 Q. The big matter of this is
17 November 15th.
18 A. Okay.
19 Q. So with that, why did you want the
20 videotape?
21 A. For any content that was on the
22 videotape.
23 Q. Why?
24 A. For any content that may be on there.
25 Q. Why?
955
1 A. To see what was on the videotape.
2 Q. Why did you want to see what was on the
3 videotape?
4 A. To see what had occurred prior to that.
5 Q. Why did you want to see what occurred
6 prior to that?
7 A. Because I was curious as to what had
8 occurred prior to that.
9 Q. What made you curious?
10 A. The incident prior to that.
11 Q. Did you play the videotape?
12 A. No.
13 Q. You never even looked to see whether
14 there was anything on it?
15 A. No.
16 Q. Yet you say that he violated a general
17 order because he had a problem with a video
18 equipment or with a videotape; right?
19 A. Correct.
20 Q. And if the -- There was a problem,
21 the -- You would have been -- If the videotaping
22 equipment was not working at all, then it would
23 be -- You would be contacted, it would be taken
24 someplace; right?
25 A. Correct.
956
1 Q. Okay.
2 And you never saw any bill for
3 any repair to this videotaping equipment; right?
4 A. No.
5 Q. Pardon me?
6 A. No.
7 Q. And you never asked Curt about it after
8 November 15th?
9 A. No.
10 Q. Never looked at the videotape to see if
11 there was anything on it?
12 A. No.
13 Q. And it was never repaired, to your
14 knowledge?
15 A. Right.
16 Q. And do you recall Deputy Robinson
17 indicating that when he got the car, there still
18 was a problem of going to a blue screen in cold
19 weather?
20 A. Yes.
21 Q. Let's look at 21. That is -- I'm
22 sorry.
23 Before we get to there, let's
24 talk about when he went to Dr. Eva on
25 November 16th, and she sent you Exhibit H;
957
1 right?
2 A. Which exhibit?
3 Q. On November 16th she wrote you up a
4 letter and explained to you what had happened at
5 that meeting; right?
6 A. Yes.
7 Q. And what she said is Curt and Rhonda
8 came, and they hadn't had a chance to talk to
9 his lawyer, Monty Fisher. It doesn't say Monty
10 Fisher, but with "his attorney," because the
11 attorney was out of town, and they made a
12 tentative appointment for December 10th; right?
13 A. Yes.
14 Q. And you canceled that appointment
15 because you were going to fire him; right?
16 A. Yes.
17 Q. Okay.
18 Now, let's do November 21. The
19 21st. I said November 21st, and I meant notice
20 of violation 21.
21 Does that -- Defendant's
22 Exhibit Q is the document in question that you
23 were upset about; right?
24 A. May have mentioned it.
25 Q. Pardon me?
958
1 A. Yes.
2 Q. Well, you didn't just mention it. You
3 made it a charge that he could have been fired
4 for; correct?
5 A. Yes.
6 Q. So writing on your daily activity logs
7 that "used personal cell phone today multiple
8 times to enhance job performance," that's a
9 dischargeable offense?
10 A. It could be.
11 Q. In your document Exhibit D you said
12 that this is "an obvious continuation of his
13 insubordinate and insolent behavior."
14 What did you see in that comment?
15 A. 18, our deputies that have cell phones,
16 personal cell phones that they use on duty, they
17 pay for with their own money. They didn't make
18 a comment that they used them to enhance their
19 job performance.
20 Q. What do you believe "enhance their job
21 performance" means?
22 A. I believe enhancing your job
23 performance isn't by using a cell phone. It's
24 intrinsic.
25 Q. Well, explain that to me, please,
959
1 because you said that in your Exhibit D.
2 A. I don't believe that -- I don't
3 understand how using a cell phone multiple times
4 enhances your job performance. We have --
5 Q. What do you think the word "enhance"
6 means?
7 A. I have no idea in this context.
8 Q. You could have asked him, couldn't you?
9 A. Yes.
10 Q. You didn't?
11 A. No.
12 Q. What you thought this was is a jab or a
13 pun at the administration of this office; right?
14 A. Yes.
15 Q. How was it that?
16 A. As I just explained, everyone uses cell
17 phones. I had never seen a comment or a
18 descriptor like that on any log in all the time
19 that I've worked with the sheriff's department,
20 particularly from a supervisor.
21 Q. I just -- Please tell me what about
22 that is offensive to you.
23 A. It causes -- It can create and cause
24 dissension and discord.
25 Q. How?
960
1 A. Because of all the other individuals
2 that are doing the exact same thing, and they
3 don't need a cell phone to enhance their
4 performance. They just do their job. They're
5 performing, and they elect to utilize their cell
6 phone.
7 Q. Don't you think that every deputy that
8 uses a cell phone in the performance of his or
9 her duties is doing so to enhance their job
10 performance?
11 A. No. I think they're using it to
12 communicate the way they see fit. We have
13 radios in every car.
14 Q. Well, aren't they using it -- in using
15 it to communicate, that enhances their job
16 performance; correct?
17 A. I don't know what they're using it to
18 communicate for.
19 Q. If a deputy uses a cell phone to
20 communicate, that would enhance the job
21 performance; right?
22 A. No.
23 Q. That's why they'd be doing it?
24 A. No.
25 Q. What does the word "enhance" mean to
961
1 you?
2 MS. PENICK: Objection. This has
3 been asked and answered.
4 MS. VALENTINE: I don't know that
5 it has been answered.
6 MS. PENICK: An answer has been
7 given to that question.
8 MS. VALENTINE: Has it?
9 MS. CONLIN: No.
10 MR. DRISCOLL: I don't think so.
11 MS. VALENTINE: I haven't heard
12 it. Maybe I missed it.
13 A. The question is?
14 Q. What do you think the word "enhance"
15 means?
16 A. To improve.
17 Q. And this is the last thing that's noted
18 by you before his discharge, right,
19 November 27th; right? He's discharged on
20 December 13th?
21 A. Yes.
22 Q. You didn't talk to him about it or ask
23 him to explain, or reprimand him for it;
24 correct?
25 A. Correct.
962
1 Q. The next thing that happens after this
2 is he's fired?
3 A. Correct.
4 Q. When you were talking to Bridget with
5 respect to the 22nd of these, you said that this
6 was just a summary, but let me call your
7 attention to your Exhibit D which has some
8 statements that I thought had to do with 22.
9 22 says, "Sergeant Ruby has also
10 engaged in conduct that isolated himself from
11 other officers and the Department, has made
12 openly derogatory remarks about the Department,"
13 and so on.
14 I'm wondering if 22, in terms of
15 isolating himself, refers to your Exhibit D,
16 which on the last page, I think -- No. I'm
17 sorry. It would be -- Well, I can't point it to
18 you, but I have taken it out of there, and what
19 it says -- Maybe you can find it while I'm
20 reading.
21 Other complaints include behavior
22 such as isolation, October 1st, 2007.
23 Why can't I put my eyes on that?
24 Oh, here we go. It's up at the
25 very top of page 442, and it refers to hazardous
963
1 material training in the basement, right in this
2 very room; right?
3 A. Yes.
4 Q. And it happened on October 1st, and
5 then the next paragraph says the 3rd, the 8th
6 and the 10th; right?
7 A. Yes.
8 Q. Did someone complain about that?
9 A. No.
10 Q. How did you know about what happened on
11 October 1st, 3rd, 8th, and 10th?
12 A. Because I was present.
13 Q. On all of those days?
14 A. Yes.
15 Q. Did you speak to him about it?
16 A. No.
17 Q. Does 22 refer -- When it says
18 "isolation," does it refer at least in part to
19 these two paragraphs?
20 A. In part.
21 Q. Okay.
22 And 23, 24, and 25 are simply
23 summaries; correct?
24 A. Correct.
25 MS. CONLIN: We have completed
964
1 all of these materials, and now I need to find
2 the rest of the examination, which is very
3 brief, I'm hoping, once I find it.
4 MS. VALENTINE: Would this be a
5 good time for a 5-minute break?
6 MS. CONLIN: Sure.
7 (A recess was taken from 3:49 p.m.
8 until 3:58 p.m.)
9 MS. VALENTINE: We'll go back on
10 the record.
11 Q. I ask you to take a look at
12 Defendant's L, which is a notation by
13 Deputy Halligan. Did you ask him to do this?
14 A. Yes. When he voiced a concern, I told
15 him to go ahead and bring -- do this.
16 Q. Okay.
17 He voiced a concern to you about
18 this incident?
19 A. I believe so, yes.
20 Q. It appears to me that you were
21 expressing concerns to him, and the reason I
22 thought that is because that's what it says on
23 the last paragraph.
24 A. He came to me with a concern, and then
25 he was asked to write it up, to write about it.
965
1 Q. And what you said, as I understand it,
2 was that in the future he was supposed to
3 contact the shift supervisor, who would be
4 Sergeant Ruby at least some of the time; right?
5 A. Yes.
6 Q. And he was supposed to do that to get
7 one of Sergeant Ruby's deputies to assist him;
8 correct?
9 A. Correct.
10 Q. And he -- You didn't discipline him for
11 not doing that?
12 A. No.
13 Q. And he says here, "I than expressed my
14 feelings that I normally would."
15 Do you recall this conversation?
16 A. Somewhat.
17 Q. What did he say?
18 A. I don't recall specifically what he
19 said.
20 Q. Did you read this to say that he
21 intended to just go right on doing what he had
22 done in the past?
23 A. No.
24 Q. Did he say he would stop doing it?
25 A. Yes. He was aware to ask next time, or
966
1 to check.
2 Q. Did you hear his testimony?
3 A. Yes.
4 Q. Is it correct that you told Curt Ruby
5 that before he could schedule his own vacation,
6 he would have to check with each of the deputies
7 who worked for him to see if they wanted the
8 same days?
9 A. No, I don't recall.
10 Q. All right.
11 Do you remember a conversation
12 where he came to you and said having him do that
13 was undermining his authority, sent a negative
14 message to the people who were supposed to be
15 working with him?
16 A. I don't recall that.
17 Q. Okay.
18 The time frame here is you send
19 him to his second meeting with Eva, and he goes,
20 and that's November 16th.
21 On December 5th you get a letter
22 from Monty Fisher about these events; right?
23 A. Yes.
24 Q. And he says why do you want to do this;
25 right? Would you postpone it? It's Exhibit I.
967
1 A. Yes.
2 Q. You never responded to this letter?
3 A. No.
4 Q. All right.
5 And then he's terminated on
6 the 13th. Why did you choose the 13th of
7 December to terminate Curt Ruby?
8 A. That was discussed with counsel, our
9 counsel, or attorney.
10 Q. Is there any significance about
11 December 13th?
12 A. No.
13 Q. You could have done it December 10th?
14 A. Again, it was a discussion with our
15 counsel.
16 Q. On the date?
17 A. Yes.
18 Q. Would it have been possible for you
19 to wait until after Christmas to terminate
20 this 28-year law enforcement veteran?
21 A. Yes, it would have been possible.
22 Q. But you chose to do it two weeks before
23 Christmas?
24 A. Yes.
25 Q. The day itself, December 13th, it was
968
1 the middle of his shift, 10:00 in the morning,
2 right, when you called him in?
3 A. Yes.
4 Q. And do you recall that he was told that
5 he was needed by Fleener?
6 A. No, I don't recall that.
7 Q. I've watched the videotape of this,
8 and at the beginning of the videotape on
9 December 13th -- Have you watched it recently?
10 A. Yes.
11 Q. Okay.
12 At the beginning of the tape, you
13 adjust the camera; right?
14 A. Yes.
15 Q. And you adjust the camera so that it
16 points away from the sheriff; right?
17 A. No.
18 Q. Can you see the sheriff in these
19 pictures at all on December 13th?
20 A. Not -- I don't believe so on the 13th.
21 Q. And you were there, you were sitting
22 right next to him when he called his wife and
23 told her to call Monty; right?
24 A. Yes.
25 Q. Monty Fisher; right?
969
1 A. He said "Monty."
2 Q. Did you know there was a Monty Fisher?
3 A. I assumed, yes.
4 Q. And when you got the letter from Monty
5 Fisher -- I'm sorry to be going backwards -- it
6 must have come to you about December 5th or 6th,
7 and it's Exhibit I.
8 As I recall, you told us that you
9 called Dr. Christiansen because Monty's letter
10 said when Curt saw Dr. Christiansen on
11 November 16th she told him that his last MMPI
12 test was excellent, and then you called Dr. Eva;
13 right?
14 A. Yes.
15 Q. And that, she said, is what she meant,
16 or what -- what she said was that he took the
17 test in an open and honest manner, that his
18 taking of the test as opposed to the results
19 were excellent; correct?
20 A. Correct.
21 Q. If you would look at Exhibit B, did
22 you -- I think you said you drafted this; right?
23 A. D?
24 Q. Yes. B. I'm sorry, B.
25 A. B. I don't have B in here.
970
1 Q. It's the notice of discharge from
2 employment.
3 A. Yes.
4 Q. And so you say on the second page, you
5 tell him -- I know it's signed by Brian
6 Mickelson, but you told him, "If you appeal to
7 the Commission, your removal will be stayed and
8 you will be placed on paid leave pending the
9 outcome of the hearing before the Commission";
10 right?
11 A. Yes. And I want to clarify that this
12 was prepared with counsel.
13 Q. All right.
14 And then did you prepare
15 Exhibit 507?
16 MS. CONLIN: Do I have that in?
17 MS. VALENTINE: You do.
18 Q. Do you have a copy of 507?
19 A. No. Is it the --
20 Q. Here, let me just put it up. It's
21 dated January 16th, and the reason I'm folding
22 it over is because I have made some remarks to
23 myself. This is the notice that as of
24 January 25th, that "you will be placed on unpaid
25 leave"; correct?
971
1 A. Correct.
2 Q. And why January 25th?
3 A. Again, that was --
4 Q. I beg your pardon?
5 A. That was through counsel.
6 Q. All right.
7 And then you told Job Service --
8 In order to prevent him from getting
9 unemployment compensation, you told Job Service
10 that he hadn't even been discharged; right?
11 A. I told them that he was technically
12 still employed with Webster County.
13 Q. Okay.
14 A. Because of that stay.
15 Q. And you challenged his unemployment
16 compensation on the basis of that technicality?
17 A. His unemployment has not been
18 challenged.
19 Q. Let me show you Exhibit 511, which is
20 the unemployment compensation file, and if you
21 would turn to a page that happens to be -- Well,
22 it's -- it's the page you filled out, third page
23 in. You will see your own handwriting; right?
24 A. Yes.
25 Q. And what did you understand this
972
1 document to -- Oh, I'm sorry.
2 MS. CONLIN: I would offer 511.
3 MS. VALENTINE: Any objection?
4 MS. PENICK: No.
5 MS. VALENTINE: 511 will be
6 received.
7 Q. What was the purpose of this document?
8 A. Notice of hearing.
9 Q. Okay.
10 You say here, "Curtis W. Ruby is
11 still an employee of Webster County"; right?
12 A. Yes.
13 Q. And if he had still been an employee of
14 Webster County, was it your understanding that
15 he would not be eligible for unemployment
16 compensation?
17 A. Could you repeat that?
18 Q. Yes.
19 If he was still employed, he
20 wouldn't be eligible for unemployment; correct?
21 A. Correct.
22 Q. So what you were telling them is,
23 "Don't pay the guy"; right?
24 A. No. I was telling them the current
25 status because none of the others were
973
1 applicable, and I was telling them what the
2 current status was, and this did not occur and
3 was not appealed.
4 Q. Pardon me?
5 A. This hearing did not occur, and it
6 wasn't appealed.
7 Q. Well, in fact, there was a hearing?
8 A. Yes.
9 Q. You didn't attend it?
10 A. Correct.
11 Q. But you asked for -- I believe you
12 asked for a hearing, didn't you?
13 A. I sent this back.
14 Q. Okay.
15 A. Faxed this back, yes.
16 Q. So you asked for a hearing?
17 A. Yes.
18 MS. PENICK: Objection. That
19 mischaracterizes the testimony.
20 Q. Well, let me ask you.
21 You asked for an unemployment
22 compensation hearing, and then when the time
23 came, Curt and I were there, and you weren't?
24 A. Right, correct.
25 MS. CONLIN: That's all I have.
974
1 MS. VALENTINE: Any redirect?
2 MS. PENICK: Yes.
3 REDIRECT EXAMINATION
4 BY MS. PENICK:
5 Q. You were asked on your
6 cross-examination about various instances in
7 which -- Let me start over.
8 You were asked whether you
9 participated in any progressive discipline with
10 Sergeant Ruby on your cross-examination. Did
11 you engage in any of the verbal or oral
12 counseling steps with Sergeant Ruby?
13 A. Yes.
14 Q. Have you testified as to those already
15 in this hearing?
16 A. Extensively.
17 Q. Did you see any results from those
18 verbal sessions?
19 A. No.
20 Q. There were questions as to whether you
21 investigated any particular -- any single
22 particular charge as set forth in Exhibit C,and
23 I'm not certain that there was an understanding
24 of what the word "investigates" means.
25 Did you look into each of these
975
1 instances before you included them in Exhibit C?
2 A. Yes.
3 Q. Would you consider you to have been
4 engaged in any formal investigation of any of
5 these instances?
6 A. Could you repeat that?
7 Q. Right.
8 I'm trying to see by -- What do
9 you mean by investigate, because you answered
10 several times, "No, I didn't investigate," but
11 you just said, "Well, I looked into these
12 situations."
13 A. Correct.
14 Q. Why did you say that you did not
15 investigate?
16 A. Because it was not a formal
17 investigation as explained in the policy and
18 procedure manual.
19 Q. Do you feel that you gathered all the
20 facts that you could with respect to these
21 incidents?
22 A. Yes, I do.
23 Q. And I want you to turn to Exhibit A in
24 your red book. You were asked questions about
25 page 233 and page 234, paragraph 16 and 21.
976
1 A. Correct.
2 Q. Are you following?
3 A. Yes.
4 Q. And you were asked whether you followed
5 the procedure for investigating acts of alleged
6 misconduct under paragraph 21 on page 234, and
7 you responded, I believe, with a reference to
8 paragraph 16 when you said, "except for oral."
9 Can you explain why -- why you
10 referenced that paragraph? What's your
11 understanding of what you need to do when you
12 were going to have oral reprimands?
13 A. Not -- not a formal investigation or an
14 administrative investigation. Follow up and
15 gather as many facts as possible.
16 Q. Did you do that --
17 A. Yes.
18 Q. -- each time that you spoke with
19 Officer Ruby about your concerns?
20 A. Yes.
21 Q. You were asked some questions about the
22 scheduling situation in March of 2006.
23 A. Yes.
24 Q. And you have in front of you somewhere
25 Plaintiff's Exhibits 33 and 34, and the
977
1 questioning suggested that there were numerous
2 occasions where there was one deputy left alone
3 working a shift; is that right?
4 A. Yes.
5 Q. Well, can you explain that?
6 A. Well, I had never been contacted one
7 time about a shift being left with just one
8 deputy.
9 Q. What do you mean by that?
10 A. Not one supervisor, not one deputy, not
11 one dispatcher, nobody. I had never been
12 contacted by anybody in the department that the
13 shift was being left with just one individual.
14 Q. I understand that, but let me ask, on
15 Plaintiff's 33, would this be your handwriting
16 in some of these boxes?
17 A. No. This is -- Each supervisor during
18 this time period or deputy on the shift, if it
19 was a senior deputy -- I used to keep these -- I
20 used to keep these in a desk, what was called a
21 supervisor's desk.
22 It was their responsibility to
23 do -- to fill in where somebody worked at a
24 holiday, vacation, comp time, and there became a
25 period of time where that didn't get done.
978
1 And if you were to search for
2 these logs, you will most likely find that these
3 shifts were not left unattended with the
4 exception of 33 where Mike Richardson is off.
5 Q. And what happens when Mike Richardson
6 is off?
7 A. Either Kruse or myself or someone
8 would help cover that day's shift. That
9 day's shift -- Like it's being done with
10 Sergeant Fleener, sometimes a detective may be
11 in uniform. At this time they weren't, but they
12 were there to field calls or back up the deputy
13 that was on duty, the other deputy, the patrol
14 deputy that was on duty.
15 Q. So I just want to be clear.
16 Are you saying that where there's
17 a highlighted spot on this calendar does not
18 necessarily indicate that there was just one
19 deputy working?
20 A. Correct.
21 Q. I don't think I'm going to belabor the
22 commissioners' time to go through each of these.
23 I'll ask you the same question with respect
24 to 34. This is the schedule for 2007, and is
25 this -- Are you the one who completed the
979
1 schedules of 2007 -- or you mentioned the
2 process used to be different. Tell me when that
3 changed.
4 A. I completed the schedule, but this is
5 not my handwriting.
6 Q. Okay. Thanks for clarifying.
7 A. These are not mine, and as you can see,
8 some of the months were not filled in properly.
9 Q. And are you looking at 34?
10 A. Yes.
11 And I talked with supervisors
12 about that, and it varied from time to time, but
13 it was still a problem.
14 Q. Accurately reflecting who worked when
15 was a problem?
16 A. As far as keeping this up-to-date
17 accurately, it just wasn't getting done.
18 What I would see happen at times
19 was if a supervisor was off or if a lieutenant
20 was off, a sergeant may not fill those in
21 according to the logs, the activity logs that
22 are, I think, in the boxes down here in the
23 basement.
24 And if it was brought to my
25 attention, it certainly would have been
980
1 rectified immediately because that's what we're
2 currently doing now.
3 Q. And I'm sorry, if what was brought to
4 your attention?
5 A. That there was only one deputy out on
6 the road.
7 Q. And on how many occasions?
8 A. Or working a long period.
9 Q. How many occasions since you've been
10 chief deputy has it been brought to your
11 attention that there was one deputy on the road
12 alone?
13 A. It hasn't. It's been brought to my
14 attention that it could happen, but we make
15 provisions to have it covered.
16 Q. Well, it happened one time, didn't it?
17 A. With a detective.
18 Q. Did it happen one time?
19 A. Well, yes, it did happen, yes.
20 Q. That was March 30th of 2006?
21 A. Yes.
22 Q. I want to touch base again on the
23 advertisements in the self-defense classes, and
24 you were asked extensively about whether
25 disclaimers would be sufficient in your opinion
981
1 for making it acceptable for Sergeant Ruby and
2 others to teach.
3 With respect to the -- Let's pick
4 the July 15th, 2006 incident. Was the issue
5 that resulted in the violation the actual
6 teaching of the class?
7 A. No.
8 Q. What was the -- what was the violation?
9 A. The advertisement.
10 Q. And why was that a violation?
11 A. Because for any public speaking
12 engagements or -- Well, advertising is just not
13 an option, or endorsements, and for a speaking
14 engagement, you need the permission of the
15 sheriff or the chief deputy, or at least the
16 acknowledgment.
17 Q. So I guess, can you turn to Exhibit J
18 again, and I just want to make clear, the
19 problem with this piece of paper is what?
20 A. Is that it is -- This is advertised
21 publicly, and it appears like this is endorsed
22 by the Webster County Sheriff's Department.
23 Q. Because?
24 A. It says, "This class will be lead by
25 Sergeant Curt Ruby of the Webster County
982
1 Sheriff's Department."
2 Now, I also assumed that if
3 Sergeant Ruby went to the extent of the waiver,
4 I don't understand why the advertisement would
5 be out.
6 Q. I want to clarify the cross-examination
7 with respect to the search warrant incident
8 September 8th, 2006.
9 A. Yes.
10 Q. And this may be my misunderstanding,
11 but I thought that you were asked questions
12 about a meeting that occurred between you and
13 Sergeant Ruby and Brian Mickelson the day after
14 the search warrant. Was there a meeting with
15 the three of you?
16 A. I don't recall that.
17 Q. I have --
18 A. No, I don't recall that at all. It's
19 my understanding that Sergeant Ruby met with
20 Sheriff Mickelson after that search warrant. I
21 didn't meet with them.
22 Q. Do you know whether Sergeant Ruby
23 submitted a written complaint about you?
24 A. No, I'm not aware of any written
25 complaint.
983
1 Q. You were asked about a chase that
2 Deputy Walter got into that evening the night of
3 the search warrant; correct?
4 A. Yes.
5 Q. And what do you know about that chase?
6 A. That Curt went to assist him,
7 Sergeant Ruby went to assist Tony Walter.
8 Q. Do you know what Sergeant Ruby did?
9 A. He went to the scene and went to the
10 area, as I understand it, and --
11 Q. I'm sorry. Can you speak up?
12 A. He went to where Tony Walter, or
13 Deputy Walter was at, and it was decided or
14 determined that they would utilize the infrared
15 camera.
16 So Sergeant Ruby, it's my
17 understanding, went back, got the infrared
18 camera, and took it to that location.
19 Q. And who, then, looked for the people at
20 large, the suspects?
21 A. According to Tony Walter, it was just
22 him; that Curt, Sergeant Ruby said, "I will just
23 stay in the area."
24 And then he got in his car, and
25 he drove off.
984
1 Q. And did Deputy Walter, this new deputy,
2 find the assailant out in the woods in the dark?
3 A. Yes, he did.
4 Q. By himself?
5 A. By himself.
6 Q. You were asked whether you gave a copy
7 of Exhibit G, Dr. Christiansen's report
8 following the fitness-for-duty evaluation, to
9 Sergeant Ruby, and you said no; is that right?
10 A. Correct.
11 Q. Did Sergeant Ruby ask you for a copy of
12 that report?
13 A. No, he did not.
14 Q. If he had asked you for a copy of the
15 report, would you have given it to him?
16 A. I would have contacted Dr. Christiansen
17 and consulted with her.
18 Q. Why were you concerned about giving the
19 report to him?
20 A. Because of confidentiality and
21 record-keeping of psychologists and
22 psychiatrists, I didn't quite know. I know that
23 we were the client, but I didn't quite
24 understand the records portion.
25 Q. Now, Exhibit C,paragraph 11,
985
1 references -- oh, I'm sorry -- paragraph 13
2 references your attempts to call Sergeant Ruby
3 in for that follow-up meeting that was supposed
4 to happen on October 20th?
5 A. Yes.
6 Q. And I just want to make sure I'm clear,
7 if you call him near the date of October 20th?
8 I mean, there are references to months later,
9 weeks later. Do you know when it was?
10 A. No, I don't know exactly when it was.
11 Q. When it says that you called him on
12 three occasions, do you know, was it three times
13 in one day or three -- you know, once a week for
14 three weeks? Do you have any recollection of
15 that?
16 A. It was the same day. It was the same
17 day, because I had called Dr. Christiansen as
18 well --
19 Q. Okay.
20 A. -- to make a confirmation.
21 Q. To make a confirmation of what?
22 A. Of the follow-up. Sergeant Ruby said
23 he did not recall anything about meeting with us
24 or any type of a follow-up. He said just -- He
25 just absolutely did not recall that.
986
1 And that was probably one of my
2 three phone calls, calling him back and telling
3 him I had talked to Dr. Christiansen, and she,
4 in fact, did confirm that we were supposed to
5 meet and follow up.
6 Q. Do you recall a communication with
7 Dr. Christiansen on October 24th of 2006?
8 A. Yes.
9 Q. What do you recall that day?
10 A. October 24th of 2006?
11 Q. Yes.
12 A. In regard to this or --
13 Q. Let me put it this way: If
14 Dr. Christiansen's notes reflect a communication
15 with you on October 24th of 2006, would that
16 be --
17 A. That could very well be this.
18 Q. -- accurate to you?
19 A. That could very well be the time that
20 I'm not recalling.
21 Q. You were asked with regard to charge
22 number 14, relating to the Virginia and Victor
23 Carlson situation, whether victims' wishes must
24 be taken into consideration in deciding how to
25 handle a domestic violence call.
987
1 A. Yes.
2 Q. And are there times when an officer has
3 to not follow the wishes of the victim?
4 A. Yes.
5 Q. Can you explain that?
6 A. When there's reason to believe that an
7 injury has occurred or there is an injury.
8 Q. What's the basis for your statement or
9 your belief?
10 A. The Code.
11 Q. Are you talking about 236.12(2)(b)?
12 A. Yes.
13 Q. If you want to look at Exhibit N,
14 page 462, it's 236.12, and "b" is right at the
15 beginning. Is this top section, paragraph "b,"
16 the basis of your understanding that sometimes
17 you have to do what the victim doesn't really
18 want you to do?
19 A. Absolutely.
20 And in this case, this particular
21 case I think is a prime example of what can
22 occur in a domestic assault situation and why
23 the victim should always be taken into account.
24 Q. I'm sorry. Maybe because I'm standing
25 right here, I can't hear you.
988
1 A. I'm sorry.
2 MS. PENICK: Are you having
3 trouble too?
4 MS. CONLIN: Yes.
5 A. I'm sorry.
6 The Virginia Carlson case is a
7 prime example that an assault had, in fact,
8 occurred. An officer went there trying to
9 determine, the best of his knowledge, whether an
10 assault had occurred or not. Determined that it
11 hadn't, and yet it really had occurred.
12 Q. Well, if you look at tab S -- I'm
13 sorry, tab R on the incident report,
14 Sergeant Ruby did list a charge. He listed
15 domestic abuse simple.
16 A. Yes, yes.
17 Q. And is it your understanding of the law
18 that in this situation, he should have
19 identified it as a serious misdemeanor?
20 A. It very well could have been. There
21 are numerous occasions where -- It's a
22 well-known fact in domestic abuse that there are
23 abusers that will strike victims in areas where
24 they will not exhibit an injury, or an immediate
25 injury, either in the back, shoulders, front,
989
1 the head. It happens numerous times where maybe
2 an injury isn't exhibited right away, even
3 though the victim doesn't want to do anything.
4 Q. Now, I want to make sure I understand
5 what you understand under 236.12(2)(b). I don't
6 know that I need to put it back up there, but
7 does there have to be a visible injury for an
8 arrest to be mandatory?
9 A. Yes, or involve injury.
10 Q. The phrase used at the bottom of
11 paragraph "b" is if "a domestic abuse assault
12 has been committed which resulted in the alleged
13 victim's suffering a bodily injury"; is that
14 right?
15 A. Yes.
16 Q. Now, is a bodily injury necessarily a
17 visible injury?
18 A. It may not be, no, or apparent at that
19 time.
20 Q. You saw the affidavit from Alicia
21 Wardlow.
22 A. Yes.
23 Q. She's saying that Sergeant Ruby honored
24 her wishes; right?
25 A. Yes.
990
1 Q. Is this a case where you believe that
2 that victim's wishes should not have been
3 honored?
4 A. Yes.
5 Q. Why?
6 A. I think it's a typical case of when a
7 victim's wishes are honored like this, that
8 something tragic can and does happen in many
9 cases. This is not -- That's not a rare
10 occurrence for something very bad or tragic to
11 happen in a situation just like this.
12 Q. Mr. Long has offended since this
13 incident, hasn't he?
14 A. Yes, he has.
15 Q. You were questioned about seeing
16 reports of other deputies visiting the home
17 prior to this incident in August of 2007;
18 correct?
19 A. Yes.
20 Q. Had any deputy ever left you a
21 narrative like the one Sergeant Ruby left you
22 that's page 349?
23 A. No.
24 Q. Had you ever seen any details of what's
25 identified as an assault resulting from any of
991
1 those visits to the house?
2 A. No, not that I recall.
3 Q. You were asked with respect to
4 paragraph -- I guess it wasn't really with
5 respect to a paragraph.
6 You were asked with respect to
7 the fitness-for-duty evaluation report, the
8 recommendation from Dr. Christiansen, that you
9 keep him on nights; right?
10 A. Yes.
11 Q. Why did you switch Sergeant Ruby's
12 shift?
13 A. Everyone changed. We implemented a
14 rotation, a regular rotation for the entire
15 department, and that was --
16 Q. Did Sergeant Ruby request to stay on
17 nights at that time?
18 A. No, he did not.
19 Q. Did he request any kind of reasonable
20 accommodation to the effect of the shift
21 schedule?
22 A. No. No, he did not.
23 Q. You were asked regarding your
24 communications with Dr. Christiansen in
25 preparation for the revisit in November
992
1 of 2007 --
2 A. Yes.
3 Q. -- and I believe you were uncertain of
4 the dates on which you had conversations with
5 Dr. Christiansen; is that right?
6 A. Correct.
7 Q. Do you recall a conversation with
8 Dr. Christiansen on October 17th of 2007?
9 A. It could be. It sounds --
10 Q. If your notes reflect that there was a
11 phone conversation on October 17th of 2007,
12 would that be accurate in your opinion?
13 A. Yes. Close to the time, yes.
14 Q. And do you recall telling
15 Dr. Christiansen that the situation had
16 deteriorated, he hadn't done his job, there had
17 been four domestics?
18 A. Yes.
19 Q. And Dr. Christiansen agreed with you
20 that it would be appropriate for Sergeant Ruby
21 to come back down and see her, didn't she?
22 A. Yes, she did.
23 Q. You were asked why you didn't
24 wait until after Christmas to terminate
25 Sergeant Ruby's employment. Is there any
993
1 specific reason that you -- Did you consider
2 waiting, or did you not?
3 A. We considered many options, and we --
4 It was discussed there's never a good time,
5 never.
6 Q. But you felt it was the right time?
7 A. Yes. Yes, particularly with what was
8 beginning to transpire with these recent volley
9 of calls that seemed to come in rather quick
10 succession. We felt that it was time.
11 Q. You mean the domestic calls?
12 A. Yes.
13 MS. PENICK: I'm finished with
14 redirect.
15 MS. VALENTINE: Recross?
16 MS. CONLIN: Very briefly.
17 RECROSS-EXAMINATION
18 BY MS. CONLIN:
19 Q. Is it correct that verbal -- Oh, I'm
20 sorry.
21 MS. CONLIN: Before I do
22 redirect, I would respectfully ask the
23 commission to permit me to reopen very briefly
24 the direct examination for the purpose of
25 introducing an exhibit and questioning him about
994
1 a different matter, please.
2 MS. VALENTINE: Any objection
3 to -- It's really not reopening direct. It's
4 really reopening your cross.
5 MS. CONLIN: Oh, yes. I'm sorry.
6 I would be doing that. Thank you.
7 MS. PENICK: What are we talking
8 about here?
9 MS. CONLIN: It's not a new
10 exhibit. It's Exhibit 23 that I want to ask him
11 a few new questions about.
12 MS. PENICK: Not a new subject?
13 MS. CONLIN: Yes.
14 MS. PENICK: It is a new subject.
15 That's up to the commission.
16 MS. VALENTINE: For purposes of
17 time, we'll let you question him. Obviously,
18 you could re-call him on your case too, so you
19 can just ask him the questions now.
20 MS. CONLIN: Thank you.
21 CROSS-EXAMINATION (CONT'D.)
22 BY MS. CONLIN:
23 Q. Would you look at Plaintiff's
24 Exhibit 23 that's in the black volume? Turn to
25 page 467.
995
1 A. 23?
2 Q. 23, yes.
3 A. It's not --
4 Q. Give him one, would you please? Are
5 you there?
6 A. Yes. Yes, 23, yes, I have it.
7 Q. Down at like the second one from the
8 bottom, that's you; right?
9 MS. PENICK: Which page is this
10 again? I'm sorry.
11 MS. CONLIN: 467.
12 Q. And up at the top, this is a June 3rd,
13 1999 letter from the sheriff to the county board
14 of supervisors setting out the salary schedule
15 for the Webster County Sheriff's Department and
16 the jail, 1999-2000; right?
17 A. 1999. Oh, yes.
18 Q. Got it?
19 A. I don't -- I'm not finding it in here,
20 but I see it.
21 Q. Well, let's just do it from here.
22 When did you join the sheriff's
23 department?
24 A. September 14, 1998.
25 Q. 1998?
996
1 A. Yes.
2 Q. This is the earliest one that I have
3 available, and it is -- it has you down here. I
4 can't read the numbers, but is it correct
5 that -- that you have received, since at
6 least 1999, a bump in pay as a result of your
7 two-year associate's degree?
8 A. No. I -- I started at that rate.
9 Q. Yes, because you had a two-year degree?
10 A. Yes.
11 Q. Okay.
12 And, in fact, in order to be
13 eligible for that bump in pay, it has to be a
14 two-year degree in criminal justice or law
15 enforcement-related matters; right?
16 A. I wasn't aware of that.
17 Q. You don't know the rule?
18 A. When I was hired, I brought my
19 certificate with me.
20 Q. Right.
21 A. And I was paid according to what I
22 submitted.
23 Q. All right.
24 And you don't know whether or not
25 you need to have a two-year degree in law
997
1 enforcement-related matters in order to be
2 eligible to receive that pay?
3 A. According to how I was treated, no, I
4 don't.
5 MS. CONLIN: Now I've completed
6 that.
7 MS. VALENTINE: Thank you.
8 MS. CONLIN: And I want to
9 recross.
10 RECROSS-EXAMINATION
11 BY MS. CONLIN:
12 Q. Is it correct that verbal counseling is
13 usually documented?
14 A. Yes, usually.
15 Q. Okay.
16 As I understood your redirect
17 examination, you were actually aware of the
18 requirement of paragraph 21 of the general order
19 requiring that every act of misconduct be
20 investigated; is that correct?
21 A. Yes.
22 Q. You had actual knowledge of
23 paragraph 21?
24 A. Yes.
25 Q. All right.
998
1 And you told me that every act of
2 misconduct requires following all the steps
3 in 21 and 22; correct?
4 A. 21 and 22, or just 21?
5 Q. 21 and 22.
6 A. Okay.
7 Q. Isn't that right?
8 A. I recall 21, but --
9 Q. All right.
10 Well, take a look at 21 and 22,
11 if you want to. Well, never mind. We'll just
12 look at them ourselves.
13 21 requires that every act of
14 misconduct be investigated, and the
15 investigation is -- the requirements are set
16 out; right?
17 A. Uh-huh.
18 Q. Your answer is yes?
19 A. Yes.
20 Q. And, in fact, you told me that
21 paragraphs 1 through 22 were all acts of
22 misconduct; correct?
23 A. Correct.
24 Q. Okay.
25 That has nothing to do with
999
1 whether you have to write things down or not; it
2 has to do with whether or not the act is an act
3 of misconduct.
4 A. Right.
5 Q. You said that you did conduct an
6 investigation in the sense that you gathered the
7 facts, as many as possible; right?
8 A. I did not do a formal investigation.
9 Q. But you gathered the facts, as many as
10 possible, on each of these 22 paragraphs?
11 A. Yes.
12 Q. And I think that we have covered all of
13 them.
14 A. Yes.
15 Q. And in every case you did not -- You
16 gathered all the necessary -- all the facts, as
17 many as possible, without ever talking to
18 Sergeant Ruby; correct?
19 A. Correct.
20 Q. Let's move to the issue of the
21 schedules.
22 The schedules themselves, which I
23 now need back are -- were not getting completed;
24 right?
25 A. Correct.
1000
1 Q. How did you know that?
2 A. Because I would look at them, check
3 them.
4 Q. So, in fact, what you told us that you
5 had never seen them, that's false.
6 A. Never seen those?
7 Q. Yes.
8 Perhaps I'm mistaken. Let me say
9 it another way.
10 What you said is you had never
11 been contacted that a shift was being operated
12 with one individual; right?
13 A. Right.
14 Q. Okay.
15 Is that some kind of wordplay
16 here because, in fact, you very well knew that
17 in every instance that we show here that a shift
18 was at least scheduled to be operated with only
19 one individual; right?
20 A. No.
21 What I was explaining, that was
22 the first time that that had been brought to my
23 attention that it is alleged that every one of
24 those spots on there was not covered. I do not
25 believe that to be the case.
1001
1 Q. Well, I understand what you're saying,
2 but what I'm getting at is, when you looked at
3 the schedule, you could see what it looked like;
4 right?
5 A. Yes.
6 Q. And so what you did in each of these
7 cases -- and there are dozens, maybe hundreds of
8 these cases. I've only shown you a few of them.
9 What you did is cover the shift;
10 right? You got somebody else to cover, you
11 would do it yourself?
12 A. Or somebody was actually working and a
13 "W" never got penciled in.
14 Q. Okay.
15 A. It just never got completed by somebody
16 on that shift.
17 Q. Okay.
18 A. Because for that period of time, that
19 responsibility was turned over to the shift and
20 the shift supervisors to pencil in when somebody
21 worked or took a holiday, if it wasn't already
22 scheduled prior and printed on the schedule.
23 Q. So what we would see on Exhibits 33
24 and 34, if, in fact, somebody had worked and it
25 had not been recorded, we'd see an empty space;
1002
1 right?
2 We wouldn't see an "H" or a "V."
3 We would see an empty space.
4 A. Right.
5 Q. Okay.
6 So only where there's an empty
7 space is it possible that somebody was working
8 and just not recording?
9 A. Is it possible somebody was working and
10 not recording?
11 Q. No, no, no, no.
12 The only of these various
13 incidents -- Okay. We're talking about
14 incidents where the records do not -- where
15 somebody was working, and the records don't show
16 it, okay?
17 What we would see on many of
18 these documents is an empty space. Nothing
19 would be filled in?
20 A. Correct, because somebody neglected to
21 fill it in.
22 Q. Okay.
23 I'm just getting at what this
24 would look like in the situation that you told
25 us about, and what it would look like is an
1003
1 empty space?
2 A. Yes.
3 Q. So, in fact, where we have the spaces
4 filled in, as we do in virtually all these
5 cases --
6 MS. PENICK: I would object to
7 that characterization.
8 MS. CONLIN: All right. I agree.
9 Q. What we would see -- I'm sorry. Now I
10 lost my train of thought.
11 Let me -- where you found that
12 there was -- where we have something filled in,
13 then what you would do is, when you -- when
14 somebody -- when there's only going to be one
15 person on the shift, you would take steps to
16 make sure that the shift was covered?
17 A. The shift supervisor would.
18 Q. All right.
19 And if it was -- if the shift
20 supervisor wasn't there, then you'd do it?
21 A. The next in command would do it.
22 Q. All right.
23 A. Either a sergeant, lieutenant or senior
24 deputy on the shift, and in a lot of cases
25 arrangements are made ahead of time. If a
1004
1 sergeant or lieutenant knows there's going to be
2 a shortfall, then they're going to arrange that
3 with their people ahead of time so that doesn't
4 happen.
5 Q. Well, sometimes you said you covered
6 the shift; right?
7 A. I did on that particular day, yes.
8 Q. I'm not talking about a particular day.
9 A. Oh.
10 Q. I'm talking about in general.
11 A. Yes.
12 Q. When this would happen, you would be
13 sometimes the one to cover?
14 A. If it had ever occurred, yes.
15 Q. Okay.
16 I thought it had occurred other
17 than March 30th.
18 A. It had. This 33 is a good example of
19 when Deputy Richardson was off for that period
20 of time, so yes.
21 Q. What date are you referring to?
22 A. Any of them.
23 Q. Okay.
24 So during the time he was
25 injured, then that would be a time you would
1005
1 cover the shift?
2 A. Somebody would cover the shift. The
3 shift would be covered.
4 Q. My question to you is, aside from
5 March 30th, 2006, were there times before or
6 after that you were the one to cover the shift?
7 A. Yes, I have on occasion.
8 Q. All right.
9 So either you would do it,
10 somebody else would do it, and that is, in fact,
11 exactly what happened on March 30th, right, you
12 got somebody to cover the shift? It was you;
13 correct?
14 A. With no -- no preplanning, no nothing.
15 I'm talking about preplanning to cover these
16 shifts ahead of time.
17 Q. All right.
18 And nobody complained about these
19 various times when -- nobody contacted you;
20 right?
21 A. No, because I don't believe that these
22 were all uncovered shifts. I just don't believe
23 that to be the case whatsoever. Somebody
24 certainly would have said something.
25 Q. You'd think.
1006
1 The deal that you talked
2 about when -- on the search warrant, when
3 Sergeant Ruby is alleged to have, like, driven
4 off into the night, you didn't make that part of
5 any charged conduct; right?
6 A. No.
7 Q. Okay.
8 And --
9 A. It was the overall attitude and
10 demeanor that evening.
11 Q. You said it was not always
12 appropriate -- or it was not appropriate in the
13 two cases that we know about, that being the
14 Carlson matter and the Wardlow matter, for
15 Sergeant Ruby to respect the wishes of the
16 victim; right?
17 A. Sometimes you just can't.
18 Q. And you think both of those cases are
19 times when he should not have done that?
20 A. The Carlson case, obviously, yes,
21 there's no doubt about it. She had been
22 assaulted. He admitted it, he confessed to
23 that.
24 And in the Wardlow case --
25 Q. What do you think assault means?
1007
1 A. She had her hair pulled, and he also
2 confessed to slamming her leg in a door.
3 Q. All right.
4 A. And had threatened to bash her in the
5 head with a flashlight, according to a witness.
6 Q. Do you know whether or not
7 Sergeant Ruby was told that at the time?
8 A. I do not know.
9 Q. You said you had had training in
10 domestic violence. Tell me, if you would, all
11 the training that you've had on domestic
12 violence.
13 A. I work very close with D/SAOC and
14 Advocates, and I have been through the BEO
15 portion of it, and not -- not the advocacy
16 training or the advocacy part of it.
17 Q. Not the advocacy? You've never had
18 that training?
19 A. I may have had the Level I, Level I
20 advocacy, but I don't recall.
21 I work very closely with D/SAOC
22 and, of course, Sergeant Ruby has too in the
23 past.
24 Q. All right.
25 You stated that you understand
1008
1 that simple assault, simple domestic assault
2 does not require a mandatory arrest; correct?
3 A. Correct, I do understand that very
4 well.
5 Q. When you changed his shift, you said it
6 was part of the normal rotation, but you have
7 made exceptions in the past to the normal
8 rotation; correct?
9 A. There was never a normal rotation in
10 the past.
11 Q. Okay.
12 Well, I thought you just said
13 that there was -- This was just part of normal
14 rotation that he got switched from nights to
15 days. Might be I misunderstood.
16 A. Right.
17 It was implemented here -- I
18 don't know the exact date, but within the last
19 year or so.
20 Q. Have you ever made an exception to that
21 policy?
22 A. Yes.
23 For instance, when Sergeant Ruby
24 was to go to days in July, due to some
25 scheduling problems, I believe it was on or
1009
1 about August 9th.
2 Q. I mean with somebody other than
3 Sergeant Ruby. Have you ever made an exception?
4 A. Not that I can recall. I believe there
5 will be some in the future.
6 Q. Okay.
7 A. But --
8 Q. You could make an exception; right?
9 A. If somebody asked, absolutely, or if
10 there was a reason to make an exception.
11 Q. Well, Sergeant Ruby had no idea that
12 Eva Christiansen had recommended to you that he
13 would remain on nights; right?
14 A. He had no idea?
15 Q. Absolutely none. He didn't know
16 that --
17 A. When I called her about the follow-up,
18 she told me that he was well aware of what was
19 discussed and what the plan of that report was.
20 She said there was no way that he wouldn't know,
21 and I would assume that that would include
22 nights.
23 Q. Well, I don't want to belabor the
24 point. In fact, you don't know what he knew,
25 and he did not have the report.
1010
1 A. I do not know what he knew.
2 Q. And he didn't have the report?
3 A. No, nor had he asked for one.
4 MS. CONLIN: I'm done.
5 MS. VALENTINE: Re-redirect?
6 MS. PENICK: I have one item that
7 I need to do.
8 I have marked a new exhibit, DDD.
9 MS. VALENTINE: Just DD or three
10 D's?
11 MS. PENICK: I'm sorry. Two D's.
12 I don't want to give you a panic attack. Two
13 D's. Goodness.
14 FURTHER REDIRECT EXAMINATION
15 BY MS. PENICK:
16 Q. You were asked about the incident on
17 the night of the search warrant, September 8th,
18 2006, and Tony Walter, where you were questioned
19 as to whether Officer Ruby left the scene, and
20 so I want to confirm what Tony Walter said about
21 that situation and see if that's consistent with
22 your understanding.
23 MS. PENICK: For that purpose,
24 I'm offering Exhibit DD.
25 MS. VALENTINE: Any objection?
1011
1 MS. CONLIN: No.
2 MS. VALENTINE: Exhibit DD will
3 be received.
4 Q. Tony says that he's aware of the
5 situation on the night of September 8th
6 regarding the search warrant in paragraph 3;
7 that there was so much evidence to seize, there
8 was not enough equipment to transport it.
9 And he became involved in the
10 pursuit of a vehicle in which the driver fled
11 the scene, and he stayed with the vehicle until
12 it could be towed.
13 Is that what he told you?
14 A. Yes.
15 Q. That he radioed to Sergeant Ruby asking
16 him to bring the thermal imager so he could
17 search for the driver in the woods.
18 A. Yes.
19 Q. And did you know that Ruby complained
20 to him about Michael Halligan and the search
21 warrant tying up the deputies so they couldn't
22 patrol?
23 A. Somewhat, yes. I didn't know to what
24 extent.
25 Q. Tony writes, "Ruby left the thermal
1012
1 imagers with me but did not assist me with the
2 search for the fleeing suspect: Instead, he got
3 in his car and drove away."
4 Is that what Tony told you?
5 A. Yes.
6 Q. While we're here, Tony also wrote,
7 "When Ruby was assigned to the night shift, he
8 told me that he was glad to be back on nights so
9 he could practice his Tae Kwon Do and catch up
10 on his reading."
11 A. He also talked to me about that.
12 Q. Tony talked to you about that?
13 A. Yes, he did.
14 Q. And the next paragraph, 10, he said he
15 heard Ruby tell the dispatcher, "If you get a
16 call about someone doing a strange dance in the
17 cemetery at night, it's just me practicing my
18 tae kwon do."
19 A. Yes.
20 Q. Had Tony talked to you about that?
21 A. Yes.
22 Q. Now, paragraph 11, Tony recalls an
23 incident involving a car on a gravel road by the
24 river, and he radioed Ruby regarding the call;
25 that Ruby arrived at the scene, didn't get out
1013
1 of his squad car, and he discovered Ruby was
2 reading a book in his squad car.
3 Do you recall Tony telling you
4 about that, or is that something new?
5 A. I don't recall that particular
6 incident.
7 Q. How about paragraph 2, "When I first
8 started with the Sheriff's Department, I had to
9 ride along with Curt Ruby. Ruby told me, 'you
10 can drive; I'm a grumpy old man who doesn't care
11 anymore'"?
12 A. He mentioned -- He told me about that.
13 MS. PENICK: Nothing further.
14 MS. VALENTINE: Further cross?
15 MS. CONLIN: No.
16 MS. VALENTINE: Questions from
17 the commissioners?
18 MR. DRISCOLL: I may have one.
19 Do you have any?
20 MR. O'CONNOR: One very simple
21 question.
22 MR. DRISCOLL: Thank you.
23 EXAMINATION
24 BY MR. DRISCOLL:
25 Q. Over your testimony -- I know it
1014
1 spanned quite a bit of time.
2 On the issue of the note that was
3 written on the top of, I think, the daily
4 reports about "I used my cell phone to enhance
5 my job performance," I thought I understood you
6 when you were on direct examination to explain
7 that the reason you felt that was a violation of
8 Sergeant Ruby's duties was because it was
9 disrespectful to you as a superior officer; is
10 that correct?
11 A. Yes.
12 Q. And disrespectful because you felt it
13 was -- would it be fair to say a sarcastic
14 comment directed towards you?
15 A. Yes.
16 Q. Is that the reason it's a violation,
17 because on cross-examination there was some talk
18 about, "Well, everybody uses cell phones," and I
19 kind of lost what you were trying to say.
20 A. There -- there are, again, 18 other
21 people in the department. I assume all of them
22 would have -- which have cell phones now, and
23 there are only a few supervisors in the
24 department. People look to those supervisors
25 for leadership.
1015
1 MS. CONLIN: I can't hear him.
2 A. For leadership, for guidance, and
3 when -- for instance, this situation where Tony
4 Walter, they look at management and
5 administration, sheriff, chief deputy or a
6 lieutenant, to see, or they're wondering if
7 something -- You know, do things get addressed
8 or do things not get addressed?
9 The long and short of it is, with
10 everything that's going on and you see a comment
11 on a log like that, people take that wrong.
12 People don't appreciate it. It's devastating to
13 morale because you don't see 17 other people
14 doing that, or 12 other people.
15 That was the first I had ever
16 seen that, and I have been asked about comments
17 on Sergeant Ruby's logs in the past, so that's
18 why I included that. That's why I mentioned it.
19 Q. So that subordinate officers have
20 access to those reports?
21 A. Everybody sees them and -- Yes.
22 Everybody -- Usually at shift change the
23 deputies will come in, and they will go through
24 the previous shift's logs, and people in the
25 office see them, all the clerks see them, I
1016
1 see them.
2 When I'm done with them,
3 Sheriff Mickelson reviews them.
4 MR. DRISCOLL: Okay. I don't
5 have any other questions.
6 MR. O'CONNOR: I just have one.
7 EXAMINATION
8 BY MR. O'CONNOR:
9 Q. We spent quite a bit of time on the
10 schedules, talking about his schedule with the
11 mark for the work and vacation and off. Some of
12 the ones that we saw in here didn't have anything
13 marked in those.
14 Just so I understand, these
15 monthly schedules, are they used to process
16 payroll at all, or why do you keep them?
17 A. Accountability, and to know, you know,
18 who's worked, when they've worked, and also to
19 keep track of vacations.
20 Q. So it doesn't relate to payroll at all?
21 A. No. There is a separate time sheet that
22 is completed by every deputy which will indicate
23 that they have worked two days off, four days on,
24 or if they've taken a holiday or if they've used
25 comp time or if they've earned comp time. That
1017
1 will be on that time sheet, which is separate
2 from this whole scheduling.
3 Q. So if we would have seen those, then we
4 would have seen those filled in those time areas
5 that were not filled in on that time schedule?
6 A. Very possibly, yes.
7 Q. Okay.
8 A. Absolutely.
9 MS. VALENTINE: I have narrowed
10 down my list of questions.
11 EXAMINATION
12 BY MS. VALENTINE:
13 Q. What's a 10-78?
14 A. It was pointed out earlier, 10-78 is an
15 officer calling out for assistance, and it
16 usually means help, and it usually means "I need
17 help now," and when you hear 10-78, everybody
18 goes, regardless of what you're doing.
19 Q. All right.
20 And if somebody called in --
21 Domestics are referred to as a 10-16?
22 A. 10-16, yes.
23 Q. So if somebody was aware, if an officer
24 was aware of a call being a domestic, they would
25 put down a 10-16, or should?
1018
1 A. Yes.
2 Q. This shift coverage issue came up in
3 four of the charges, 4, 5, 6 and 7, and resulted
4 in like three discussions with Sergeant Ruby?
5 A. Yes.
6 Q. And I guess I'm just kind of confused.
7 After three discussions with him,
8 you just still didn't write him up for it?
9 A. No, I didn't.
10 Q. Okay.
11 A. And I didn't do it because it just
12 seemed to agitate the situation anytime I talked
13 to him about it.
14 Q. Okay.
15 And then the other concern I have
16 is, I think in your testimony you mentioned
17 that -- at least from your testimony, the first
18 discussion, or at least a discussion happened
19 regarding the possibility of terminating
20 Sergeant Ruby in September of '07. Did I get
21 that correct?
22 A. I -- I don't understand.
23 Q. Did you meet with counsel to discuss the
24 possibility of termination in September of '07?
25 A. We were seeking counsel in that time
1019
1 period.
2 Q. Okay.
3 A. We were -- I'm not sure of that exact
4 date.
5 Q. And that was just following when he had
6 been moved to day shift. Would that be --
7 because he moved in August of 2007.
8 A. Roughly, the 8th or the 9th of August,
9 yes.
10 MS. VALENTINE: Thank you.
11 Any further redirect or whatever
12 re-re we're on?
13 MS. PENICK: No.
14 MS. VALENTINE: Cross-examine?
15 MS. CONLIN: No.
16 MS. VALENTINE: Anything further
17 from the commissioners?
18 MR. DRISCOLL: No.
19 MR. O'CONNOR: No.
20 MS. VALENTINE: The witness is
21 excused. Thank you for your testimony.
22 MR. DRISCOLL: How are we going to
23 proceed?
24 MS. VALENTINE: Well, I was going
25 to ask, any further witnesses?
1020
1 MS. PENICK: The sheriff has no
2 further witnesses, except for the possibility of
3 rebuttal, which I assume would be by affidavit,
4 assuming time constraints.
5 MS. VALENTINE: Can we go off the
6 record?
7 (An off-the-record discussion
8 was held.)
9 MS. VALENTINE: Ms. Conlin, are
10 you ready to present your case?
11 MS. CONLIN: I am.
12 The first thing I would like to
13 do is present as the appellant's case in chief a
14 number of affidavits, signed and sworn, and I
15 think you have them up there.
16 And in addition to the affidavits
17 themselves, I have provided to the commission,
18 not to rely on, but for handiness, a summary --
19 the summary of affidavits, as an organizing
20 tool, and at the front of each of the
21 sections -- the first of which is "Law
22 Enforcement," and there are several law
23 enforcement people who have provided affidavits;
24 there are a number of domestic violence
25 advocates, who include Marti Anderson, who is
1021
1 the head of the -- you know who Marti Anderson
2 is. She is with the attorney general's office
3 and has been the head of the Crime Victims
4 Assistance Division since -- for a very long
5 time.
6 And they also include Bonnie
7 Campbell, who was attorney general of the state
8 of Iowa; and Joyce DeHaan, who is the head of
9 D/SAOC; and Teresa Larson, who is with
10 Children & Family Services up here; and Laurie
11 Schipper, who has been the head of the Iowa
12 Coalition Against Domestic Violence for decades.
13 There are three domestic violence
14 survivors.
15 In Section III there are a couple
16 of attorneys, a couple of emergency medical
17 technicians; Jennifer Bonzer, who is an
18 assistant county attorney; Tom Hemann, who is
19 associated with Curt through tae kwon do; and
20 Tom Henderson, who was for some period of time
21 the head of the search and rescue operation up
22 here; a pastor; and a friend.
23 And at the front of each you
24 will -- at the front of each section you will
25 see my summary, as I said, not to rely on, but
1022
1 just so -- to remind you of who these folks are.
2 MS. VALENTINE: Any objection?
3 MS. PENICK: No.
4 MS. VALENTINE: The affidavits,
5 they aren't really marked, but we'll just make
6 it clear for the record the affidavits will be
7 received and considered as testimony in the case
8 in chief.
9 And with that, you can call your
10 first live witness.
11 MS. CONLIN: Okay. I have live
12 witnesses, and they've been waiting, as I said,
13 since about two.
14 MS. VALENTINE: I understand.
15 CHANCE WALKER,
16 called as a witness, having been first duly
17 sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MS. CONLIN:
20 Q. Tell us your name, please.
21 A. My name is Chance Walker.
22 Q. Mr. Walker, what do you do?
23 A. I teach tae kwon do at Hemann Martial
24 Arts and Fitness.
25 Q. How long have you been doing that?
1023
1 A. I've been doing that -- I've been
2 running the business for almost two years now.
3 Q. Sergeant Ruby has taught tae kwon do at
4 Hemann?
5 A. Yes.
6 Q. Defendants Exhibit J, which I'm just
7 going to put up for you --
8 A. Okay.
9 Q. -- is an advertisement for a
10 July 15th -- we know it's 2006 -- women's
11 self-defense class that you are the sponsor of;
12 correct?
13 A. Yes.
14 Q. And who prepared Defendant's Exhibit J?
15 A. I did.
16 Q. Did you have any consultation in any
17 way with Sergeant Ruby?
18 A. No, I did not.
19 Q. Did it occur to you that you couldn't
20 identify him as a sergeant?
21 A. I didn't think much of it, no.
22 Q. All right.
23 And you did not in any way
24 understand that by calling him a sergeant you'd
25 get him in any trouble?
1024
1 A. I didn't think it, no.
2 Q. Okay.
3 Defendant's Exhibit D is an
4 advertisement that came out in the paper about a
5 woman's self-defense class that's in September,
6 on September 30th of, also, we know 2006.
7 A. Yes.
8 Q. Did you prepare this?
9 A. I did.
10 Q. Did you consult in any way with Curt?
11 A. No, I did not.
12 Q. Were you aware -- Did you go to these
13 self-defense classes?
14 A. Yes, yes.
15 Q. Was he a volunteer?
16 A. Yes, he was a volunteer completely.
17 Q. And the purpose?
18 A. The purpose, of course, was just to
19 educate women about self-defense. That's the
20 sole purpose.
21 Q. The cost of attending was $5 per
22 person?
23 A. Yes.
24 Q. And sometimes you even waived that?
25 A. Yes.
1025
1 Q. Did you think that the provision of
2 self-defense classes here in Webster County for
3 women would be beneficial to the community?
4 A. I did.
5 Q. Exhibit 24, which I'm not sure has been
6 offered, is the advertisement, the flier, if you
7 will, for the September 30th class; correct?
8 A. Yes.
9 Q. All right.
10 And, again, who prepared this?
11 A. I prepared this.
12 Q. And was Sergeant Ruby in any way aware
13 of what you had put on there?
14 A. No, he was not.
15 Q. And you did not consult with him --
16 A. No.
17 Q. -- about it?
18 A. No, I did not.
19 MS. CONLIN: We would offer
20 Exhibit 24.
21 MS. VALENTINE: It's been
22 admitted.
23 MS. CONLIN: Okay.
24 Q. Can you tell us, please, if you have in
25 your association with Sergeant Ruby ever seen
1026
1 him rude or insolent or obnoxious or out of
2 control?
3 A. I can honestly say I've never seen that
4 side of him.
5 Q. All right.
6 How long have you known him?
7 A. I've known him about three to four
8 years, I would say.
9 Q. Would it be laughable to suggest, from
10 your observations, that he would be rude,
11 obnoxious, or out of control?
12 A. Extremely.
13 Q. The principles of tae kwon do, which
14 Curt Ruby has been doing for decades, require
15 the practitioner to not -- to exercise respect
16 and discipline; correct?
17 A. Correct.
18 Q. Never start a fight?
19 A. Correct.
20 Q. Never exercise undue power over other
21 people?
22 A. Correct.
23 Q. And were you surprised when I told
24 you -- or were you already aware that a part of
25 the reason that was given for firing him was
1027
1 what you had done?
2 A. I had a -- I was partially aware. Not
3 totally, though. I was aware it might be a
4 possibility.
5 MS. CONLIN: All right. Nothing
6 further.
7 MS. VALENTINE: Cross?
8 CROSS-EXAMINATION
9 BY MS. PENICK:
10 Q. Mr. Walker, you've never worked for the
11 police department in Fort Dodge, have you?
12 A. No, I have not.
13 Q. And you've never worked for the Webster
14 County Sheriff's Office, have you?
15 A. No, I have not.
16 Q. You've never ridden on patrol with
17 Sergeant Ruby, have you?
18 A. No, I have not.
19 Q. You've never observed him interacting
20 with Chief Deputy Jim O'Brien in the workplace,
21 have you?
22 A. No.
23 Q. You've never observed him interacting
24 with Sheriff Mickelson, have you?
25 A. No, I have not.
1028
1 MS. PENICK: That's all.
2 MS. VALENTINE: Redirect?
3 MS. CONLIN: Nothing further.
4 MS. VALENTINE: Any questions
5 from the commissioners?
6 MR. DRISCOLL: I have one.
7 EXAMINATION
8 BY MR. DRISCOLL:
9 Q. How was it that you came to make these
10 advertisements regarding the class? Did you
11 have an agreement that he would be performing
12 these --
13 A. Yes. He volunteered to teach them, and
14 the reason I put that in there is I thought it
15 would help for his qualifications.
16 His main qualification was that
17 he was a black belt with the school, but I
18 thought this might be a supplemental
19 qualification, is why I put that in.
20 Q. And where you had those discussions
21 where he agreed to teach a class for you, did he
22 ever tell you that you couldn't use that
23 information regarding his rank, title, or
24 reference the Webster County Sheriff's Office?
25 A. No.
1029
1 MR. DRISCOLL: All right.
2 MR. O'CONNOR: No.
3 MS. VALENTINE: Further direct?
4 REDIRECT EXAMINATION
5 BY MS. CONLIN:
6 Q. You did have a discussion -- When he
7 learned of these fliers that you had done, you
8 did have a discussion with him about not ever
9 doing it again?
10 A. Yes. That was after the fact.
11 MS. CONLIN: All right. That's
12 all.
13 MS. VALENTINE: Recross?
14 RECROSS-EXAMINATION
15 BY MS. PENICK:
16 Q. I'm sorry. It was after which
17 advertisement?
18 A. I have to remember which one.
19 It was the first or second one, I
20 believe.
21 Q. You're not sure which one?
22 A. I cannot remember, no.
23 MS. PENICK: I don't have any
24 further questions.
25
1030
1 FURTHER REDIRECT EXAMINATION
2 BY MS. CONLIN:
3 Q. If you had learned it after the first
4 one, you would have not done the second one;
5 right?
6 A. Yes.
7 MS. CONLIN: Okay. That's all.
8 MS. VALENTINE: Further cross?
9 MS. PENICK: No.
10 MS. VALENTINE: Further
11 questions?
12 MR. DRISCOLL: No.
13 MR. O'CONNOR: No.
14 MS. VALENTINE: Witness is
15 excused. Thank you for your patience today.
16 MS. VALENTINE: Next witness?
17 MS. CONLIN: Yes. We would call
18 Virginia Carlson.
19
20
21
22
23
24
25
1031
1 VIRGINIA CARLSON,
2 called as a witness, having been first duly
3 sworn, testified as follows:
4 MS. VALENTINE: Your witness.
5 MS. CONLIN: Thank you.
6 DIRECT EXAMINATION
7 BY MS. CONLIN:
8 Q. Tell the commissioners your name,
9 please.
10 A. Virginia -- Where is the commissioners?
11 Q. These folks up here (indicating).
12 A. Okay.
13 Q. I'm sorry.
14 A. Virginia Pauline Carlson.
15 Q. And you are the person involved in a
16 domestic violence incident on July 25th of 2007?
17 A. Yes.
18 Q. And you and I have talked a couple of
19 times --
20 A. Yes.
21 Q. -- about that incident; correct?
22 A. Yes.
23 Q. And I told you that this situation with
24 you was offered by the Webster County Sheriff's
25 Department as a reason to fire him; correct?
1032
1 A. Yes.
2 Q. Did you know that?
3 A. No.
4 Q. What was your reaction to that?
5 A. I was surprised.
6 Q. Why?
7 A. Because of the benefit that I have
8 gotten out of Officer Ruby, of him taking so
9 much loving and caring time for me, and
10 explaining things to me.
11 Q. All right.
12 A. And there was no end for him stopping.
13 He was just wonderful.
14 Q. Did anyone from the Webster County
15 Sheriff's Office ever talk to you about this
16 incident?
17 A. No, not really. I did call Brian
18 Mickelson the next morning.
19 Q. Okay. No, I'm sorry. I'm going to
20 have to do it a different way.
21 A. Okay.
22 Q. At any time after the immediate
23 incident, did -- besides Curt, did you have any
24 contact with anybody else with the Webster
25 County Sheriff's Department?
1033
1 A. No.
2 Q. Tell the commission, please, what
3 you -- what your life was like before you met
4 Curt Ruby.
5 A. Okay.
6 I was married for 57 years. I
7 was in a horrible --
8 Q. Keep your voice up, would you,
9 Virginia?
10 A. Yes.
11 I was in a verbal and physical
12 abusive situation for all of my life, and it
13 didn't take me long to understand that I did not
14 fight back.
15 I used to try to protect myself.
16 Huh-uh, you don't do that, because you get it
17 worse.
18 And I've been kicked out of bed,
19 I've been called every name in the book, and
20 with Curt visiting with me -- I've never had
21 anyone mention counseling to me, and this has
22 done wonders for me.
23 Q. Virginia, you were not afraid of your
24 husband particularly; right?
25 A. No.
1034
1 Q. And he had no weapons?
2 A. No, we had no weapons in the house.
3 Q. Let's go to that evening when -- Was it
4 your daughter who called the police?
5 A. Yes.
6 Q. That would be Virleen?
7 A. Yes.
8 Q. All right.
9 And when Sergeant Ruby arrived at
10 your home, you and he had a lot of conversation;
11 right?
12 A. Yes.
13 Q. Tell me what you remember about that
14 conversation that you had that night with Curt
15 Ruby.
16 A. Well, I would not sign on Vic.
17 Q. Okay.
18 A. Which has happened many times. I would
19 not sign on him, but --
20 Q. At other times, Virginia, the -- a
21 member -- not Curt Ruby, but somebody else from
22 the sheriff's department would come; right?
23 A. Yes.
24 Q. And someone else from the sheriff's
25 department would know that he had hit you;
1035
1 correct?
2 A. Yes.
3 Q. Or kicked you or done something?
4 A. And choked me.
5 Q. And never, never did anyone arrest your
6 husband under those circumstances; right?
7 A. No, they did not.
8 Q. And when they would come, you would
9 tell them, the sheriff's deputies, what he had
10 done to you; right?
11 A. Yes, they knew what he had done to me.
12 Q. Okay.
13 A. And I had -- In '93 when he choked me,
14 the middle daughter, Vonda, that's deceased now,
15 she got him away from me, and then the deputy
16 come. I would not sign on him then either.
17 But -- and then I left the home
18 for about a week or so, and Vic met me on the
19 street, asked me to come back, and I came and I
20 went back.
21 And it was nice for a few days,
22 really nice. And then, you know, it wasn't
23 long, and he had nerve enough to say to me --
24 because I would not fight back, he said, "Do you
25 know you would have let me choke you to death,
1036
1 and I would have went to prison?"
2 And I didn't answer him then
3 either because I knew what I'd get if I would
4 rebuttal.
5 Q. All right.
6 As a part of the conversation, do
7 you remember what he said that lifted you up
8 that made you feel better?
9 A. Yes.
10 Q. Please tell us.
11 A. Uh-huh.
12 Q. Tell the commission.
13 A. Regardless of what -- I'm sure he
14 noticed I was an elderly person, but he did not
15 back off. He continued to console me, very
16 loving and caring and passionately talking to
17 me, and understanding how far I had been beat
18 down. And he just talked constantly,
19 constantly, constantly, and then I had to
20 promise to him the next morning I would go to
21 counseling.
22 And I will owe Officer Ruby for
23 the rest of my life because I went to
24 counseling, and Vic Carlson has never been back
25 in the house.
1037
1 And not only that, I will also
2 have to thank him for my grandchildren, because
3 when they entered the home, they were cussed and
4 they were told how worthless they were, and I'm
5 sure when I say "worthless," that there's many
6 people in this room that really knows -- because
7 he's talked to other people how worthless the
8 grandchildren were, and I'm sure there is people
9 here that have heard that.
10 Q. You're raising those two children;
11 right?
12 A. Yes, I'm raising two children.
13 Q. All right.
14 The counseling that he urged you
15 to do was through D/SAOC; correct?
16 A. Yes.
17 Q. And you promised him that you would go?
18 A. Yes.
19 Q. And did you also make a safety plan
20 with him?
21 Do you know what I'm talking
22 about, what you would do next if something more
23 happened?
24 A. Yes. Yes, I did.
25 Q. Your daughter wanted him arrested;
1038
1 right?
2 A. Yes, she did.
3 Q. But you would not permit it?
4 A. I would not.
5 You know, Vic and I, we have
6 worked very hard, both of us. We have been very
7 faithful to each other, and I think a person at
8 my age, you know, that's -- I thought that's
9 what a divorce was for, unfaithful, but we were
10 always faithful to each other.
11 Q. You learned through the counseling that
12 you could divorce him for being emotionally and
13 physically abusive for 57 years?
14 A. Yes.
15 Q. Okay.
16 A. And I realized that I am not a crazy
17 person, and I'm not a liar.
18 Q. And you're not worthless?
19 A. No, and I'm not worthless.
20 Q. All right.
21 There was a -- You did come the
22 next day to the sheriff's office and file
23 charges against him; right?
24 A. No.
25 Q. When was it -- Oh, you called. I'm
1039
1 sorry.
2 A. Yeah. I talked to Brian Mickelson.
3 Q. Okay, all right.
4 And did you talk -- Did you come
5 at any time to the department yourself that you
6 remember?
7 A. No, I don't believe so, huh-uh.
8 Q. There was -- After the charges were
9 filed, there was a hearing, right, a trial, a
10 little trial?
11 A. Oh, yes, uh-huh.
12 Q. Did Curt come and stay with you during
13 the entire trial?
14 A. Yes, he did.
15 Q. And did you speak to any other deputy
16 after, on the next day?
17 A. No, no, I don't believe so.
18 Q. You told us a little bit about what
19 your life has been like since you met Curt Ruby,
20 and did it make any difference in terms of your
21 enjoyment with your family of the holidays?
22 A. Yes.
23 Q. Tell us about that.
24 A. We had the best holidays that we've
25 ever had for a long time.
1040
1 Q. All right.
2 Have you ever mentioned to others
3 the importance that Curt Ruby has had in your
4 life?
5 A. Yes, I have.
6 Q. Frequently?
7 A. Pardon me?
8 Q. Frequently? Do you have occasion to
9 talk about it frequently?
10 A. Yes, uh-huh.
11 Q. When we talked, I believe that you told
12 me that you thought that if you had not met Curt
13 Ruby, you would be dead?
14 A. Yes.
15 Q. All right.
16 And you said also that you would
17 still be bleeding, and I didn't quite understand
18 that. Why don't you explain to the
19 commissioners what you meant -- Well, let me
20 start, you did say that; right?
21 A. Yeah. That -- Yeah. Had I not went to
22 counseling, he would have been back in the house
23 because of my belief, you know, that whether --
24 I don't know, but I've had such a relief without
25 him there, and you have to believe that I am
1041
1 much sterner in my home.
2 I will not allow the
3 grandchildren to come and make any remarks to
4 each other. If they do, they have to go
5 outside. I don't ask them to leave, but I do
6 ask them to go outside until you can come back
7 in and talk sensibly.
8 We aren't having any remarks made
9 in our home. We all have our faults, and as old
10 as I am, I have my faults, so we're just going
11 to be strong and have a wonderful life.
12 MS. CONLIN: That's all I have.
13 THE WITNESS: And I want to thank
14 Curt Ruby, Officer Ruby, for what years I have
15 left. I want you to know I will have happier
16 years, happy, happy years.
17 And not only that, the
18 grandchildren will be much better, and,
19 hopefully, I can teach them something more
20 precious than what I've ever taught them.
21 MS. CONLIN: Thank you very much.
22 I know this was not all that easy for you, and I
23 appreciate your coming.
24 THE WITNESS: No.
25 MS. CONLIN: And so does Curt.
1042
1 That's all I have.
2 MS. VALENTINE: Cross-examination?
3 CROSS-EXAMINATION
4 BY MS. PENICK:
5 Q. Mrs. Carlson, I have a few questions
6 for you too.
7 Have you met Jim O'Brien?
8 A. Yes, I have.
9 Q. And Jim O'Brien has helped you out with
10 some situations with your husband as well,
11 hasn't he?
12 A. Definitely.
13 Q. After -- Let me ask you, you said that
14 back in 1993 your husband choked you?
15 A. Yes.
16 Q. And you didn't want him arrested at
17 that point?
18 A. No.
19 Q. Was July of 2007 the first time that he
20 was arrested --
21 A. Yes.
22 Q. -- for hurting you?
23 A. Yes.
24 Q. And did he hurt you that night?
25 A. Yes, he did.
1043
1 Q. And you called Sheriff Mickelson the
2 next morning; right?
3 A. Yes, I did.
4 Q. And Sheriff Mickelson helped you get
5 the charges filed?
6 A. Maybe he did. I -- You know, I didn't
7 mention any charges, but Brian Mickelson, yes, I
8 think a lot of Brian Mickelson.
9 Q. But your husband was arrested that day,
10 right, on July 26th?
11 A. Yes, because then our daughter called
12 Brian and told him that Vic was on his way up,
13 and -- up there to see him, and I suppose he was
14 up there to give Brian a chewing-out, or
15 whatever, you know.
16 Vic was great on -- Well, what?
17 A good many times I've called Brian Mickelson, I
18 want you to know, and apologized to Brian what
19 Vic has called him and acted towards him. I
20 said, "Brian, I'm sorry. I love and respect you
21 as an officer, and I'm sorry that he does this,"
22 you know.
23 Q. And your husband was arrested when he
24 came to the law enforcement center?
25 A. Yes, uh-huh.
1044
1 Q. Are you aware of that?
2 A. Uh-huh.
3 Q. And he hasn't hurt you since he was
4 arrested, has he?
5 A. Oh, no.
6 Q. Physically?
7 A. No, not physically.
8 He tries to do what he can do.
9 Even recently, I seen him over by Hy-Vee. I was
10 heading home. Lo and behold, he circles around.
11 You know what Virginia does when
12 I met him on 15th Avenue South?
13 Q. What?
14 A. I turned and hit 22nd Street, and he
15 went that way, I just went the other way, and
16 went through the flats.
17 Q. Good.
18 A. That's the strength I have now.
19 Q. Because of the counseling that you got?
20 A. Because of the counseling that I have.
21 Q. That's great.
22 A. Yes.
23 Q. You had -- I think as part of the
24 process when your husband was arrested, a
25 no-contact order was put into place; is that
1045
1 right?
2 A. Yes.
3 Q. And did you have occasion to talk with
4 Chief Deputy Jim O'Brien when Vic violated that
5 no-contact order one time?
6 A. Yes.
7 Q. And did you tell Jim that Vic told you
8 that he would shoot you with a gun?
9 A. He sure did, but when he'd shoot me, he
10 would make sure I was dead, and that's why I was
11 so afraid when I hit the gravel road, because it
12 was going to happen on a gravel road, and --
13 Q. Were you in the car with him at that
14 time?
15 A. No.
16 Q. Oh, no. He just said that?
17 A. I drive a dump truck, and I was
18 delivering material, and he followed me.
19 Q. So the no-contact order that was put in
20 place when he was arrested helped to protect
21 you, didn't it?
22 A. Yes.
23 Q. And Chief Deputy O'Brien helped to
24 protect you as well, didn't he?
25 A. Uh-huh, yes.
1046
1 MS. PENICK: Thank you.
2 THE WITNESS: Uh-huh. Thank you.
3 MS. VALENTINE: Further direct?
4 MS. CONLIN: Yes.
5 REDIRECT EXAMINATION
6 BY MS. CONLIN:
7 Q. Virginia, was Chief Deputy O'Brien ever
8 the deputy when he was a deputy who came out to
9 your house after Vic had hurt you?
10 A. No. No, I don't believe so.
11 Q. Did you tell him, did you tell
12 Chief Deputy O'Brien what Vic was doing when he
13 would talk to him about his conduct, about Vic's
14 conduct?
15 Let me -- That's such a bad
16 question. I'm so sorry.
17 You said you talked to
18 Chief Deputy O'Brien?
19 A. Uh-huh.
20 Q. Did you talk to him when he was just a
21 deputy as well?
22 A. No.
23 Q. Just since he's been chief deputy,
24 you've talked to him about Vic?
25 A. Oh, I probably have, yeah.
1047
1 Q. Okay.
2 You're just not sure?
3 A. Well, you know, I talk to Jim O'Brien,
4 you know, if I see him anywhere, you know.
5 Q. All right.
6 When you said he had helped you
7 out, is it something other than domestic
8 violence, or do you remember?
9 A. Don't really remember.
10 Q. Okay.
11 A. I used to do a lot of work for Jim
12 O'Brien's father, and I was around Jim O'Brien a
13 lot as a youngster.
14 Q. All right.
15 On the night of the arrest -- or
16 I beg your pardon. On the night that Curt came
17 to your home, did you ever say to him, "I'm
18 hurt" or "I was hurt" or "This hurt," or any of
19 those words? Do you remember?
20 A. Oh, I think Curt knew, you know, that
21 he had probably pulled my hair or something, but
22 to me, it means more to me that Curt took the
23 time and loving care and talked with me and got
24 me to understand, you know, I was a person and
25 he cared about me, and he wanted me to get where
1048
1 I needed to get help, and that's what Curt Ruby
2 has done for me.
3 Q. All right.
4 A. He has protected me. He's gone now.
5 He'll never be back.
6 Q. Vic, you mean?
7 A. Vic will never be back.
8 Q. The no-contact order was issued in
9 connection with the arrest; right?
10 A. Right.
11 Q. All right.
12 A. Well, the judge does it, or whoever.
13 Q. Pardon me?
14 A. Or the judge does it. I don't know
15 who.
16 Q. Okay.
17 Right after the arrest you had a
18 no-contact order in place?
19 A. Yes.
20 Q. Did he violate that, Vic?
21 A. Yes.
22 Q. When he violated it, what would you do?
23 Did you call a deputy?
24 A. Yeah. I called 911 and asked for Curt
25 Ruby.
1049
1 Q. And did you get him?
2 A. No, he was off duty.
3 Q. So what happened next?
4 A. Well, then they kept sending someone
5 else. They said they would send someone else,
6 and I think they sent -- if I'm not mistaken,
7 that Officer Richardson was in Coalville, or
8 something like that, and, see, I was going east
9 of Fort Dodge, and then south, and then back
10 west.
11 Q. Was he arrested for violating the
12 no-contact order?
13 A. Yes, uh-huh.
14 MS. CONLIN: That's all I have.
15 Thank you.
16 MS. VALENTINE: Any recross?
17 MS. PENICK: No.
18 MS. VALENTINE: Any questions
19 from the commissioners?
20 MR. DRISCOLL: No.
21 MR. O'CONNOR: No.
22 MS. VALENTINE: You're excused.
23 Thank you very much for your testimony and your
24 patience in waiting. We appreciate it.
25 THE WITNESS: Thank you.
1050
1 ROD STRAIT,
2 called as a witness, having been first duly
3 sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MS. CONLIN:
6 Q. Tell us your name, please.
7 A. Rod Strait.
8 Q. What is your occupation?
9 A. Deputy for Webster County.
10 Q. How long have you been a deputy for
11 Webster County?
12 A. Ten years.
13 Q. Do you know Curt Ruby?
14 A. Yes.
15 Q. I want to just ask you about a couple
16 of incidents. Your name has been brought up,
17 and I want to talk to you about the March 30,
18 2006 events when you were on duty, originally
19 scheduled to be on duty by yourself; correct?
20 A. Yes.
21 Q. Were you on duty by yourself or were
22 you covered by Chief Deputy O'Brien, and then I
23 think Tony Walter and a reserve officer?
24 A. I don't remember, you know, who came
25 in. I know Jim came in, and I believe Tony came
1051
1 in.
2 Q. Okay.
3 So somebody else was there. You
4 weren't on the street alone?
5 A. Yes.
6 Q. And was there also a reserve deputy on
7 that night, or do you know?
8 A. I believe so, yes.
9 Q. Do you remember who it was?
10 A. No.
11 Q. You heard radio traffic?
12 A. Yes.
13 Q. Did you ever hear that the problem, the
14 reason that you did not have someone assigned to
15 that schedule was because Deputy Richardson --
16 Let me start again.
17 Before I told you, did you ever
18 hear around March 30th that Deputy Richardson
19 had not gotten approval from anybody for his day
20 off?
21 A. No.
22 Q. All right.
23 I want to show you Exhibit 528.
24 This is March of -- March of 2006, and this is
25 the -- the 30th is right here (indicating).
1052
1 Do you see this schedule in blank
2 form like Exhibit 528? I mean, is that around
3 the office? Do you have anything to do with it?
4 A. It is posted on the bulletin board,
5 yes.
6 Q. And the bulletin board where?
7 A. In the deputies' room.
8 Q. And does Chief Deputy O'Brien come into
9 that room?
10 A. Yes.
11 Q. Regularly?
12 A. Yes.
13 Q. Is it like the break room?
14 A. It's our -- The function is of our main
15 functioning room. It's our office.
16 Q. Okay.
17 As this schedule was drafted,
18 apparently, there's a line through Richardson,
19 which means that he was -- They thought he was
20 still going to be sick; right? Or not --
21 injured, I think.
22 A. Yes, I believe so.
23 Q. Okay.
24 The line that goes across here
25 (indicating), that means that person is out;
1053
1 correct?
2 A. Yes.
3 Q. And so as this schedule was originally
4 drafted, this was Officer Ruby's regular day
5 off. This was also the regular day off of
6 Deputy Bahr; correct?
7 A. Well, I can't see his name, but it
8 should be.
9 Q. Take my word for it.
10 A. All right.
11 Q. And then Deputy Richardson was expected
12 to be injured; right? Or off on injury?
13 A. Yes.
14 Q. That's him right here (indicating).
15 So then as time passes during the
16 month, does this get filled in?
17 A. Yes.
18 Q. And it's still posted there on the
19 bulletin board?
20 A. Yes.
21 Q. Who puts in the -- the markings? I'm
22 talking about like here (indicating). This is
23 the same document, but it's all filled in, and
24 it is Exhibit E. You can't see it very clearly,
25 but it has the W's and some H's and V's, and the
1054
1 like. How does this get filled in?
2 A. Well, this -- this schedule here is
3 not -- I don't have access to it, but -- That is
4 not the one that is up on the wall. That is the
5 one that is filled in by the supervisors on a
6 daily basis as who showed up that day.
7 Q. Okay.
8 And the schedule as posted is the
9 one we looked at, 528; right?
10 A. Yes.
11 Q. And nobody writes on that one?
12 A. That's posted on a bulletin board, and
13 that's originally posted by the chief deputy, or
14 whoever is assigned to fill that out.
15 Q. Okay.
16 As to the March 30th incident,
17 with what -- Do you know at what point in time
18 Sergeant Ruby became aware that, based on what
19 was posted, the shift only had you on it?
20 A. I really wouldn't know when he became
21 aware of it. I became aware of it when I came
22 to work.
23 Q. All right.
24 Had you ever worked alone before
25 March 30th of 2006?
1055
1 A. Not on that shift. That was the
2 two-to-ten shift, I believe.
3 Q. On other shifts?
4 A. On the previous shifts, we had before.
5 We worked the morning shift, and there was three
6 officers, and that only allowed two officers to
7 be on duty all the time. If anybody had
8 vacation days off or any other kind of leave,
9 that left you with one person.
10 Q. All right.
11 Would you sometimes -- Would
12 somebody be called in under those circumstances,
13 or would you actually work alone?
14 A. We worked alone sometimes. If -- Other
15 times, if somebody could come in and fill in,
16 then they would.
17 Q. Was it expected that the police
18 department would back you up if you needed
19 backup?
20 A. They will assist us. It's usually when
21 we're close to the city of Fort Dodge.
22 Q. All right.
23 That's just a matter of time and
24 space; right?
25 A. Yes.
1056
1 Q. With respect to Deputy Bahr, do you
2 know how he got his -- Let me look at this
3 again.
4 Deputy Bahr was regularly
5 scheduled to be off on the 30th of March; right?
6 A. I believe that's what the schedule
7 indicated, yes.
8 Q. Do you know whether or not
9 Deputy Richardson did, in fact, get a vacation
10 slip signed?
11 A. I don't know.
12 Q. Do you remember a conversation with
13 Sergeant Ruby in which the two of you discussed
14 the fact that the shift wasn't -- you know,
15 nobody was assigned, and he told you, in
16 substance, you know, "They'll probably call some
17 reserves. Don't worry about it," that kind of
18 thing?
19 A. There was a time when him and I were
20 working in a friend's house, Mike Buske's place.
21 Q. Okay.
22 A. And we were talking about this
23 incident, and now that it's two years ago, I
24 couldn't tell you today if that -- when I worked
25 out there at Buske's place was before or after
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