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 A
|
