schaller, jack - vol (investigation-11/15/13)
TRANSCRIPT
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Transcript of the Testimony of Jack Schaller
Date:November 15, 2013Volume:I
Case: In Re: Joplin Critical Investigation
Printed On: November 30, 2013
Holliday Reporting Service, Inc.Phone: 417-358-4078
Fax: 417-451-1114Email:[email protected]
Internet:
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Jack Schaller In Re: Joplin Critical Investigation
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IN RE: JOPLIN CRITICAL INVESTIGATION
SWORN STATEMENT OF
JACK SCHALLER
Taken on Friday, November 15, 2013, from 2:03 p.m. to 3:38
p.m., at the law offices of Juddson H. McPherson, LLC, 626
S. Byers, in the City of Joplin, County of Jasper, State of
Missouri, before
SHARON K. ROGERS, C.C.R.650,
a Certified Court Reporter and a Notary Public within and
for the County of Jasper, and State of Missouri.
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APPEARANCES
MR. THOMAS E. LORAINE
Loraine & Associates, LLC
4075 Osage Beach Pkwy., Suite 300
Osage Beach, MO 65065
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S T I P U L A T I O N
IT IS HEREBY STIPULATED AND AGREED that this Sworn
Statement may be taken by steno-mask type recording by
SHARON K. ROGERS, a Certified Court Reporter, and
afterwards reduced into typewriting.
It is further stipulated that the signature of the
witness is hereby waived, and that said Sworn Statement of
said witness shall be of the same force and effect as
though said witness had read and signed Sworn Statement.
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I N D E X
Page/Line
DIRECT EXAMINATION BY MR. LORAINE . . . 5-4
E X H I B I T S
Exhibit #28 . . . . . . . 33-11
Interview for jobsExhibit #29 . . . . . . . 45-5
May 2013 memoExhibit #30 . . . . . . . 48-12
5/30/13 letter
Exhibit #31 . . . . . . . 68-12 Letter to Mark Rohr
Exhibit #32 . . . . . . . 68-17
Letter to Jack Schaller
Exhibit #33 . . . . . . . 75-24
Emails
Exhibit #34 . . . . . . . 76-22
Email
Note: Exhibits in separate binder
(sic) - typed as spoken
(ph.) - phonetic
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1 JACK SCHALLER
2 Having been first duly sworn and examined,
3 testified as follows:
4 DIRECT EXAMINATION BY MR. LORAINE:
5 Q. Mr. Schaller, is that two L's?
6 A. Yes.
7 Q. S-C-H-A-L-L-E-R?
8 A. E-R, no T.
9 Q. Thank you. Mr. Schaller, you're under oath.
10 I appreciate you've taken that, I don't think
11 I can make you take that, but that's the way
12 this investigation has gone so it helps if we
13 stay consistent with everything. If you were
14 a City employee I know what I could, but I
15 can't do that to you because you're private.
16 So you're here voluntarily and I appreciate
17 it. We're trying to straighten some things
18 out. My name as I told you is Tom Loraine
19 and I'm a lawyer, I practice mainly out of
20 Osage Beach, but I travel around the state of
21 Missouri for these kinds of things when asked
22 to, and these are called critical
23 investigations and you do them when some city
24 asks you to come down and do them because
25 they can't straighten their own mess out.
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1 And that's what I'm here for. I'm supposed
2 to talk about three primary areas. One is
3 Woolston, Mr. Woolston's dealing with real
4 estate and being on the Council. The second
5 one is Mr. Scearce's alleged background with
6 gambling. And the third is an internal
7 matter about somebody allegedly - how a note
8 got from the City Manager's desk to Bill
9 Scearce, and any collateral matters that
10 arise out of any of those. One of the
11 collateral matters that have arisen is the
12 management style of City Manager Rohr. It's
13 been described as my way or the highway, it's
14 been described as hostile, intense,
15 hollering, doors slamming, that kind of
16 thing, threatening of employees that work for
17 the City, among other things. I think that
18 you might be able to shed some light on this
19 last issue. As I understand it you used to
20 work for the City?
21 A. Yes, I was the Assistant Public Works
22 Director.
23 Q. Who was the Works Director?
24 A. David Hertzberg.
25 Q. Have you talked with him?
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1 A. No.
2 Q. I mean about this.
3 A. No.
4 Q. Well, he just came in and visited me a little
5 bit before so I'm anticipating some things
6 that you may or may not say. I would like
7 you to keep this internal, behind doors. I
8 can't make you do that because like I said
9 you're no longer a City employee, but I would
10 ask your cooperation because it is a very
11 sensitive probe.
12 A. Certainly, and I have stuff at stake, too.
13 My name gets drug into it my company doesn't
14 get work for the City.
15 Q. And I am concerned about that so I was
16 somewhat hesitant to ask you to come over for
17 that reason, but some of the guys suggested I
18 should talk to you anyway so I'm going to do
19 that. And I guess if there's any retaliation
20 or anything that does occur I'm going to give
21 you one of my cards and I would like you to
22 at least let me know that.
23 A. Sure. And I thank you for that.
24 Q. I was concerned about that myself because
25 anticipating what you may or may not say,
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1 only from what other people have told me I
2 think that could be a possibility. Do you
3 agree?
4 A. I do agree. And from my perspective I don't
5 know how much of this is going to wind up
6 being a matter of public record.
7 Q. Yeah, from your perspective some of it could
8 be, some of it could be. I want you to tell
9 the truth obviously. If you don't want to
10 talk about something I would just as soon you
11 say I don't want to talk about that issue and
12 we'll respect you. I can't make you talk is
13 what I'm telling you, I can only make City
14 employees talk. I can't even make Councilmen
15 talk.
16 A. I want to do what's right and that's my goal
17 here and that's what I hope to do. I don't
18 want to sacrifice my company for the - I mean
19 they were nice enough to give me a job.
20 Q. Right, I'm aware of that. First of all
21 identify yourself. How long have you been in
22 private practice?
23 A. I left the City of Joplin the second week of
24 September of this year.
25 Q. 2013?
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1 A. Yes, sir.
2 Q. So how many years did you work under City
3 Manager Rohr?
4 A. I went to work for the City of Joplin
5 February 1st of 2008.
6 Q. And as I understand it you are a Professional
7 Engineer?
8 A. That's correct.
9 Q. And you have a license, a college degree and
10 a license and you've been registered with the
11 State of Missouri as a P.E.?
12 A. That is correct.
13 Q. You're presently doing engineering consulting
14 work for the City?
15 A. Yes, some. We have a couple of contracts
16 with the City.
17 Q. And who gives those contracts out from the
18 City?
19 A. Basically it's Council approval. The City
20 staff writes up the green sheets. You know,
21 we give them the contracts, they write up the
22 green sheets, then they go through legal,
23 Brian head, finance, Leslie Haase, and City
24 Manager, and then they go to Council during
25 the Council presentation.
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1 Q. So those three people that you mentioned that
2 would be Mr. Rohr, Mr. Head, and the
3 Financial Manager, those positions would be
4 somewhat critical to your employment with the
5 City?
6 A. That's correct.
7 Q. I want to ask you about why you're no longer
8 with the City.
9 A. Okay. First of all I'd like to state that I
10 loved my job with the City. I was really
11 good at it. And I felt I kind of had to
12 leave because I had no other choice. I
13 didn't leave because I wanted to leave, I
14 left because I felt I had to leave. The
15 circumstances that led up to that to try to
16 cut out as much of the back story as possible
17 started when we interviewed an employee for
18 the Operations Manager named Cody Cowan.
19 There was several applicants that had put in
20 for this Operations Manager. The Operations
21 Manager that we had at the time, Tim Nyander,
22 left the City of Joplin partially because of
23 his distaste with the way things were being
24 run.
25 Q. With who?
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1 A. Mark Rohr had asked him to do some things
2 that he didn't feel were right to do.
3 Q. Was it ethical problems or legal problems?
4 A. No, it was basically the City Manager had
5 went to I believe it was Reeves Tire to get a
6 tire fixed during the tornado and because
7 they didn't just move everybody else out of
8 the line and put him first and said, listen,
9 you're going to have to wait, it's going to
10 be a couple of hours before we get to you
11 with all the other flat tires and stuff we've
12 got, he had instructed Tim Nyander, listen,
13 we don't do anymore business with them
14 because, by god, I run the City and I'm the
15 most important thing going right now, they
16 need to move everything else out of the way
17 and take me first. And Tim didn't feel
18 comfortable about telling a company that we
19 do business with that we're not going to do
20 business with them because they did them
21 first come, first serve. So anyway he found
22 him a job in Arkansas and we have a --
23 Q. Tim told you this personally?
24 A. Yes.
25 Q. And you know that to be true?
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1 A. Yes.
2 Q. Was this the department that you were in?
3 Did Tim actually work for you?
4 A. Yes, the Public Works Department hierarchy
5 was Public Works Director David Hertzberg,
6 and then myself was the Assistant Public
7 Works Director, then Tim Nyander was
8 Operations Manager, and Troy Bolander was
9 planning the community development, so I was
10 basically in charge of the Public Works
11 Department whenever David wasn't there and I
12 was over Engineering so the three of us kind
13 of worked together, but in the hierarchy I
14 was their boss even though the three of us,
15 Tim, Troy, and I, basically work on the same
16 level.
17 Q. You were really a supervisor for Tim Nyander?
18 A. Yes.
19 Q. Can you spell his name for the record?
20 A. N-Y-A-N-D-E-R.
21 Q. And as a supervisor this is what Nyander told
22 you he was being requested to do was stop
23 buying the tires because they didn't cow down
24 to Manager Rohr?
25 A. That's correct.
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1 Q. So did you make any kind of record on that?
2 A. I did not. It was just in conversation, one
3 of our meetings.
4 Q. Did you take that up to your director?
5 A. He was at the meeting, also.
6 Q. That was the gentleman --
7 A. David Hertzberg.
8 Q. Now if I understand it Mr. Hertzberg has been
9 severely demoted, he lost some 30 thousand
10 bucks or something a year?
11 A. That is correct.
12 Q. Do you know what the facts were surrounding
13 that?
14 A. Yes.
15 Q. Can you tell me?
16 A. The facts were that David Hertzberg is a
17 super, super nice guy and was basically said
18 that he mismanaged the Building Department to
19 a tune of $150,000.00 of revenue that wasn't
20 billed. And the fact of the matter is that
21 it was because of what we were asked to do
22 for the code enforcement piece of that that I
23 was involved with with Sam Anslem and the
24 City Manager Rohr to try to get code
25 enforcement more technologically advanced
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1 that we actually got training for our
2 Navaline system, which is the system that
3 handles all the finances plus the code
4 enforcement piece, plus the building
5 Department piece. And part of that training
6 they came down, went through all of the way
7 that we did it. They kind of sat next to it
8 and seen how we done things and showed where
9 we could improve things, how we could
10 streamline the process, and in the process of
11 doing that they found out that we didn't
12 input - well, we input all of the building
13 permits and the fees for the prime contractor
14 and subcontractor, and the prime contractors
15 go down basically to the Finance Department
16 to be billed. The subcontractor piece takes
17 another step. Well, nobody ever knew that we
18 had to do that other step so we've learned
19 that we have to do this other step so that
20 stuff can wind up being billed.
21 Q. And that's on the form?
22 A. Yes, on the Navaline deal, yeah, there's
23 another step that had to be done on the
24 computer.
25 Q. And nobody advised you of that?
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1 A. No, we'd never had training. We were never
2 allowed to have training.
3 Q. How many people were ever trained on that
4 Navaline?
5 A. On the Navaline?
6 Q. Yeah.
7 A. None. In the six years that I was there,
8 five and a half, six years, we never had
9 training on that line.
10 Q. Whose idea was it to purchase Navaline?
11 A. I don't know for sure, but I believe it was
12 the Finance Director, Leslie Jones at the
13 time, it's now Leslie Haase.
14 Q. Anyway having purchased that nobody gave you
15 training, your department or division,
16 department would be the right term did not
17 receive training on that?
18 A. That is true.
19 Q. And as a consequence some subcontractor
20 somehow didn't show up on the form and did
21 not come to the billing records?
22 A. It was input, but in order for it to be
23 billed there was an additional step in
24 addition to what was on the prime contractor
25 and that step we never knew to do so it was
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1 never done.
2 Q. So nobody in the department knew how to do
3 it?
4 A. No, and so --
5 Q. Who was head of that division?
6 A. The division would have been Steve Cope.
7 Q. And he got fired? Or was asked to leave?
8 A. Yes.
9 Q. And can you tell me the circumstances
10 surrounding that?
11 A. Basically they had told Steve that there was
12 this $150,000.00 of missing revenue and they
13 gave him, I'm not going to be a hundred
14 percent certain on this, but it was between
15 one to three days to come up and rectify all
16 of it. And he went through it and got it
17 down at the time that he left to about
18 $19,000.00 that wasn't accounted for at the
19 time. Steve was the one that took it to
20 Leslie Haase to say, hey, we're not billing
21 for these subcontractors, we can go ahead and
22 bill for it. Well, that's how the ball got to
23 rolling. She went to the City Manager and
24 then the City Manager, oh, we've got all this
25 money that's out here. I know for a fact
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1 there was $50,000.00 of that that wasn't even
2 - had no relevance at all because it was
3 Steve put in a $50,000.00 bill as a test and
4 called it a test so he could see how the
5 process worked.
6 Q. That was out of that $150,000.00?
7 A. That is correct.
8 Q. Wow. Was that all made known to the City
9 Manager?
10 A. I don't know if it was made known. It was
11 made known to myself while they were doing
12 the investigation.
13 Q. Who did the investigation?
14 A. The Police Department.
15 Q. And what would they know about this
16 particular form or entry?
17 A. Nothing.
18 Q. So that was done because the Police
19 Department is also under the City Manager?
20 A. That is correct. And in the time frame that
21 you look at how it was done was they demoted
22 David, basically fired Steve, and then
23 decided to go and do the investigation.
24 Q. And what did the investigation reveal?
25 A. I don't know the final results of it, but
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1 when I had left I talked to the officer that
2 was working on the investigation and he
3 indicated the only thing he could come up
4 with was that wasn't fully resolved that
5 couldn't be accounted for was around $100.00.
6 Q. And who was that officer?
7 A. I don't remember his name. I'd never seen
8 him before at the Police Department. I'm not
9 saying that was what wasn't billed, but that
10 was just when they ran through all the
11 numbers they weren't able to basically say
12 this is what wasn't accounted for. And that
13 was over the fourteen year period of which
14 Steve was only there for seven years of that.
15 Q. How many of those years were you there?
16 A. Six, five and a half.
17 Q. And Steve worked for you?
18 A. Yes.
19 Q. So you would have been his supervisor, once
20 removed?
21 A. Yes, that's correct.
22 Q. It was your job to know what he endured
23 during this period of time and I take it you
24 did find out?
25 A. Yes.
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1 Q. So as a result you lost - how many years of
2 experience did you lose as a result of this
3 from the Engineering Department?
4 A. Well, from the department wise by losing
5 David that had 30 some years of experience,
6 Tim had 30 some years of experience, and
7 Steve had 7 years with the City and 20 years
8 in the building trades before that.
9 Q. How about you?
10 A. Well, engineering wise I had 22 years of
11 experience.
12 Q. So basically the City lost a lot of people --
13 A. A little over 100 years of experience and
14 institutional knowledge.
15 Q. -- and that was a result of the City
16 Manager's whims or how would I put that?
17 A. It was the result of the City Manager wanting
18 to find a scapegoat for this monies that
19 weren't accounted for at the time. And
20 realize you're talking about after the
21 tornado wherein a six month period Steve Cope
22 had to take in well over 4,000 building
23 permits and we weren't allowed to increase
24 any of our staff to be able to do that so
25 you've got a one man show, you know, with his
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1 help with no increase. We went from a couple
2 million dollars in building a year to over
3 100 million dollars a year and no increase in
4 staff. So with the phenomenal increase in
5 workload you're going to have some errors and
6 issues and mistakes that will be made just
7 because of the extreme amount of work that
8 you're having to do in the six and seven days
9 a week working on them.
10 Q. Well, it sounds like a terrible abuse of
11 justice. You would agree with that?
12 A. I would certainly agree with that. The only
13 help that we were allotted was what they
14 called WIB workers, which is the Workforce
15 Investment Board, which are basically people
16 that were displaced from their jobs with the
17 tornado and would come in there. So you
18 might have somebody that was a check-out
19 person at a grocery store that would come in
20 so they're limited in capacity with being to
21 help you with doing building permits and
22 stuff like that. They were able to do some
23 of the secretarial stuff, but they weren't
24 able to actually do any of the building
25 permitting process. We tried to streamline
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1 it to make it as quick as possible because if
2 you have a line of people twenty deep waiting
3 to get building permits it gets irate, then
4 it gets down to the City Manager that he's
5 chewing you out because why do you have a
6 line of people up there. Get them run
7 through.
8 Q. How is the City Manager's style? Was it --
9 A. He's a dictator and he is a tyrant is
10 probably the way that I would say it.
11 Q. A lot of City employees fear him?
12 A. I would say every City employee fears him.
13 Q. Either physically or by certainly loss of
14 their job?
15 A. By the loss of their jobs, and there's
16 probably a few that may fear him physically.
17 Q. An imposing man?
18 A. Yes.
19 Q. Does he use voice inflection to express
20 himself?
21 A. Yes. Yes, he does. I can say safely that I
22 know of at least ten upper level supervisors
23 who have either been witness or been on the
24 receiving end of some of his tirades.
25 Q. Would that be actually verbal abuse in your
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1 opinion?
2 A. Yes.
3 Q. Way beyond what he ought to be doing?
4 A. Yeah, I've had him chew me up one side and
5 down the other and I've seen him do it to
6 Brian Head, I've seen him do it to Chris
7 Cotten, to Leslie Haase, David Hertzberg,
8 Patrick Tuttle. I witnessed him and his wife
9 in an unbelievable argument when we were down
10 in the basement yelling and screaming at each
11 other that I just walked out the side door.
12 And you probably don't know how the city
13 basement is set up, but there was a door on
14 the south side and a door on the north side
15 and he sat over in the southeast corner and I
16 sat in the northwest corner after the
17 tornado. And I was the only one down there
18 at the time when his wife come in and they
19 were yelling and I snuck out the back door
20 and was told by him after that that I needed
21 to next time stay in there so that she
22 wouldn't get as mad. And I said I don't
23 think that I want to be involved with any of
24 that.
25 Q. So actually the argument between them was
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1 quite forceful?
2 A. Yes.
3 Q. And you're talking about screaming and
4 yelling?
5 A. Yes, grabbing, shaking.
6 Q. Who was grabbing and shaking?
7 A. He grabbed her.
8 Q. You actually witnessed that?
9 A. Yes, that's when I walked out.
10 Q. How big of a person is she?
11 A. She's probably 5'6", 130, 125.
12 Q. How would you describe him?
13 A. 6'3", 6'4", 230, 240.
14 Q. And the method that he was hollering at his
15 wife that day that you witnessed, was that
16 the same kind of method of dealing with his
17 subordinates that you witnessed, also?
18 A. Yes.
19 Q. Have you ever told - well, Brian Head
20 received it, you said?
21 A. Yes.
22 Q. So has anybody ever reported him as creating
23 a hostile work environment or anything?
24 A. Not that I'm aware of. I will tell you,
25 though, that after my two days suspension
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1 that I got for this Cody Cowan, which we can
2 go into later which is how this started, I
3 went and visited an attorney to see what my
4 rights were and basically found - because I
5 knew what he was doing was harassing, you
6 know, he was very, you know, vocal and very
7 demanding with what he wanted and it was a
8 very uncomfortable work environment,
9 harassing.
10 Q. Intimidating?
11 A. Yes, and so I went and seen what my rights
12 were and of course then found out I'm an
13 at-will employee so I could be terminated at
14 any time without any cause and so basically
15 suck it up and take it or be willing to go
16 down a long road. And if you've looked into
17 any of Mark's past, which most of us City
18 employees at one time or another have done,
19 you've seen that he was City Manager at Punta
20 Gorda he done pretty well the same thing. He
21 wanted to go in there and shake up the Police
22 Department and the Public Works Department
23 and redo it all, then when he got ready to
24 leave he wrote a nice little article in the
25 paper that mirrors a lot of what happened
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1 here where he basically told the Council they
2 were terrible and that he was doing what
3 needed to be done and it's the same thing
4 he's doing right now in my opinion with the
5 Public Works Department. We were the most
6 successful removal operation in the history
7 of the United States after the tornado and so
8 as a reward basically he shakes up the whole
9 department and decides he wants to reorganize
10 it to make it more efficient. More efficient
11 than the best ever?
12 Q. I understand that Mr. Cope is out of the
13 area. Do you know that?
14 A. Yes, he works for JCDM and I think the job
15 he's on right now is up around Michigan. But
16 there's a lot of times he comes in on Friday.
17 Q. Does he still live in the community?
18 A. Yes, he still lives here.
19 Q. Do you ever talk to him?
20 A. I communicate with him.
21 Q. You've got my card there. I don't want you
22 to talk about what we testify to, but I would
23 like to talk to him, and I would be available
24 either by phone or - I mean I'd just have to
25 have my court reporter. I could take a phone
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1 call from him, but I'd swear him in and
2 everything. But if you wouldn't mind I'm
3 trying to get to the reason why we have this
4 division on the Council. Do you think Mark's
5 style leads to that kind of division?
6 A. Yes, wholeheartedly.
7 Q. And why is that?
8 A. Well, Mark, instead of the way Council/City
9 Manager form of government which is supposed
10 to work which is the Council sets the policy
11 and then the City Manager follows, makes sure
12 that policy gets enacted and the visions and
13 the direction, Mark inherently wants to make
14 it his vision and his policy and so even like
15 with his smart project he went and got a
16 group of all of the movers and shakers and
17 brought them into Council and just sprung it
18 on Council one night at a Council meeting and
19 asked for their approval. Kind of put them
20 in a bind where they had to vote yes because
21 all of the movers and shakers were out there
22 in favor of this proposal. Instead of
23 knowing about the proposal and what was going
24 on ahead of time, informing them, Mark keeps
25 everything close to his chest and then kind
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1 of does what I call the magic trick, just,
2 you know, ta-da, here it is and likes to do
3 that to pat himself on the back and then
4 basically to put the Council in a position
5 where they have to vote for him, or his
6 ideas.
7 Q. Does he favor certain people on the Council?
8 A. Yes.
9 Q. How do you know that?
10 A. It's obvious. I mean I sat down in the
11 basement with him for nine months after the
12 tornado. There was myself, Mark Morris,
13 Leslie Haase, Jones at the time, and Dan
14 Pekarek, which would be the Health
15 Department, Finance Department, I.T., and
16 then the Public Works Department. If you
17 don't know the whole story after the tornado
18 my boss, David Hertzberg, the Public Works
19 Director, his house was totally destroyed and
20 his wife asked him for a divorce and so he
21 kind of mentally and physically checked out
22 there and I was the City's representative for
23 all of the clean-up. When it came to dealing
24 with FEMA, the Corps of Engineers, all of the
25 state agencies I was the one that was the
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1 City's representative. Mark appointed me as
2 that position. After we moved out of the
3 emergency operations center we moved into the
4 emergency operations center from the Public
5 Safety building over down to the basement of
6 City Hall and so it was just a core group of
7 us so there was a lot of times that the rest
8 of those were out doing what they needed to
9 do. Leslie had to go upstairs to do her
10 finance, Dan was out, you know, so there was
11 a lot of time down there where it was just
12 myself and Mark.
13 Q. And you witnessed him dealing with certain
14 members of Council?
15 A. Yes, and I've had conversations with him
16 where he has basically said he had
17 information on Bill that could bury him.
18 Then he's made derogatory --
19 Q. Bill Scearce?
20 A. Yes, Bill Scearce. And he's made derogatory
21 comments about all of the old codgers,
22 speaking of Jack Golden, Benji, Bill, Morris
23 Glaze. The ones of course that he liked were
24 the ones that, you know, Mike Woolston which
25 I understand after the tornado him and Mark
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1 had - there's a kinship that come with that
2 tornado. They were both in the position that
3 they were in at the time that happened. Gary
4 Shaw who is Mark's personal advisor, you
5 know, and feels an ownership to Mark. And
6 Mike Seibert. And I don't know the
7 relationship with why Mike Seibert is such a
8 big Mark Rohr disciple, but he is. But those
9 three are the ones that are for Mark and the
10 two wild cards always at the time were
11 Melodee Colbert-Kean and Trisha Raney.
12 Q. Let me ask you a question. There's been some
13 statements about this alleged $150,000.00,
14 which I think you said you feel comfortable
15 that it really was a $100.00 discrepancy, is
16 that essentially correct?
17 A. That is what I was told by the investigator
18 that's where he was - that he could see that
19 was different.
20 Q. Was there ever a retraction in the newspaper
21 about this $150,000.00?
22 A. No, actually a few weeks ago Mark was asked
23 about it again and said he was just waiting
24 the report back from the Police Department.
25 And realize I was given this information
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1 before I left so that's been the guy was
2 finishing up at least his point on the Public
3 Works end of it up on the fourth floor as I
4 was leaving around the first of September.
5 Q. That would be under the Chief --
6 A. Police Chief, yes.
7 Q. How does the Police Chief fit into this
8 pattern?
9 A. That's a good question. I don't know that I
10 know the whole - Lane is a nice enough
11 fellow, but, you know, he wants to have a job
12 and wants to get to retirement so I'm sure,
13 and I couldn't prove it, but I'm sure there's
14 times that he has done stuff for Mark because
15 he feels that if he doesn't Mark will come
16 after him.
17 Q. That's what apparently other people under
18 Mark feel. I mean there is that kind of
19 pressure on individuals?
20 A. Whenever it went to my deal with Cody Cowan
21 was going to go to a fact finding hearing and
22 I knew that the fact finding hearing, because
23 I'm a fairly intelligent man and I can put
24 two and two together on things, I knew about
25 who was going to be on the fact finding
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1 hearing board and it was going to be Lane and
2 Lamont Radcliff.
3 Q. Say that last name.
4 A. Radcliff.
5 Q. Who is he?
6 A. He's over the courts.
7 Q. And that's who was going to be on the fact
8 finding?
9 A. Yes, for my deal with Cody Cowan.
10 Q. Does Mark control both of those people?
11 A. Yes.
12 Q. Tell me what you found? What's the story
13 with this Cody Cowan?
14 A. What happened with that was --
15 Q. Did I say his name right?
16 A. Cody Cowan, yes. As I said we have job
17 descriptions for each of these jobs and after
18 Tim left we advertised for it and realizing
19 that Mark Rohr has never sat in on any
20 interview ever other than a department head
21 that I'm aware of. In the six years that I
22 was there the only interviews that he would
23 ever sit in on was a department head
24 interview. This guy is third in line so to
25 speak in the Public Works Department, with
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1 David being the Department head, me being the
2 Assistant, and then Tim would have been
3 essentially third in line. Mark took an
4 active role in going through having Sam go
5 through these applications and stuff and they
6 picked people - out of all the applicants
7 that I went and looked at there was two
8 people, maybe three that were qualified for
9 the job by the job description, one of them
10 being Dave Hunt who was my transportation
11 engineer at the time, and a couple of other
12 people that had Public Works experience and
13 some of the education background. They
14 compiled a list, they being Sam, Mark, and
15 Reba Sandley (ph.) which was the H.R.
16 Director at the time, compiled a list of who
17 they thought we ought to interview, and none
18 of them met the qualifications. So David and
19 I, my boss David Hertzberg and I, put
20 together our reasoning for why we think it
21 needs to be that way mostly because that's
22 what the qualifications are asking for, and
23 if you're going to let anybody apply for it
24 you need to make that known to everyone. So
25 anyway they allowed us to interview Dave Hunt
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1 who was my transportation guy who effectively
2 at the time whenever you put all of the other
3 candidates together, and I actually have
4 somewhere, a list of all the candidates that
5 we interviewed.
6 Q. Could I have this marked?
7 BY COURT REPORTER: Is that your only
8 copy?
9 BY THE WITNESS: You can keep that.
10 Q. (By Mr. Loraine) I'm going to mark that as
11 Exhibit #28. It gives a series of names and
12 times. Is this the list of folks that were
13 interviewed?
14 A. That is correct.
15 Q. Tell me about it. Part of the qualification
16 was you had to have so much Public Works
17 experience, they wanted you to have some
18 experience in some of the different facets
19 that the Operation Manager was involved with
20 and that was waste water treatment, code
21 enforcement, building codes and stuff like
22 that. Didn't have to have all of it, but
23 needed to have some background with fleet,
24 garage, and so the only one that really had
25 any of the experience was Dave Hunt. Well,
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1 in the first run through that they selected
2 which was Mark, Sam, and Reba, Dave Hunt
3 wasn't in there, so I think as a concession
4 they let us since we complained about it, let
5 Dave be a part of the interview process. So
6 we interviewed and we had interviews, we
7 ranked them all on the board, and of course
8 David Hertzberg and I went more towards the
9 technical piece of it which we felt was more
10 important because you can always kind of
11 teach somebody management and stuff like that
12 and it's hard to teach somebody engineering.
13 And were 2 of 5. And the other 3
14 miraculously ranked Cody higher so when it
15 was all said and done Cody Cowan was the high
16 point winner for the interview. We all got
17 to make our arguments. Mark and I got rather
18 passionate about our choices. I told him why
19 I thought mine was a better choice and he
20 told me why he thought his was, and it was
21 obvious that's the way the group as a whole
22 felt that it was and I said, you know, having
23 somebody that has no technical skills doesn't
24 help me. I don't have time to do my job, the
25 Public Works Director's job who still hadn't
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1 fully checked back in, and then turn around
2 and train somebody else to come in here and
3 do this work. I need somebody that I can
4 trust that's technically competent and I've
5 got the guy right here, and he can still
6 continue to do his job until we get somebody
7 to fill his position and he can help train
8 them so we don't lose some of the
9 efficiencies that we have. And Mark just
10 very passionately back to me says, you know,
11 this is the way it's going to be. This is
12 the guy that we've got. So I said, fine, if
13 that's what the group wants I'll play ball.
14 You asked me to give you my opinion, I gave
15 you my opinion, this is the way we're going
16 to go so this is the way we'll go. So they,
17 and I say they, Mark and Sam had all the
18 communications with Cody. Once again that's
19 never happened in the whole five and a half
20 years that I've been there. Typically the
21 Public Works Director, which would have been
22 David Hertzberg, he and I would have sat down
23 and talked about it and David would have been
24 the one working with the H.R. Director to try
25 to get the person on, you know, get them
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1 employed. And there's a range, a salary
2 range, and typically we don't go past like
3 Level 3.
4 Q. Which is what?
5 A. Well, there's steps. There's like 12 steps
6 and I can't tell you --
7 Q. In step?
8 A. Yeah, when you hire somebody in they hire in
9 usually at Step 1, but every now and then
10 they'll let you go Step 2 or Step 3. So we
11 never had a say in it at all, Mark and Sam
12 handled all of it. And they hired Cody on at
13 the top step, the very top step in the range.
14 Q. Which was what?
15 A. $70,000.00 and some.
16 Q. What would it have been, what level?
17 A. I don't know, Level 12 or something on the
18 steps at the time. But it was at the very
19 top. He had no more room for anything to go.
20 And realize Tim Nyander who had left the
21 City after thirty years of experience wasn't
22 at the top level. And so we're hiring a guy
23 in with no experience at all with doing our
24 --
25 Q. And he wasn't an engineer?
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1 A. And he wasn't an engineer. And neither was
2 Tim, but Tim had come up - he had the
3 technical background through the waste water,
4 he was Class A certified waste water
5 treatment operator, he had a Master's in
6 Public Administration, he had his degree, had
7 the background and come up and had got his
8 education and was qualified for the job.
9 We're paying a guy with no experience more
10 than the guy that left and then we're paying
11 him more than Troy Bolander who is at the
12 same level as Tim Nyander who is our City
13 Planner who had been there for fifteen years
14 so we're going to bring this guy in at the
15 top level. Once again that's not my
16 decision, that's the City Manager's decision.
17 So Cody was supposed to start to work on a
18 Wednesday, I believe it was. And I can't
19 tell you the exact date, but I know the day
20 of the week was like a Wednesday. And he
21 came in to City Hall on Monday to visit with
22 David Hertzberg, my boss. Mark and Sam were
23 both gone, they were both on vacation. David
24 wasn't available at the time. I'm in my
25 office with Dave Hunt, my transportation
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1 engineer, and we're talking about some work
2 related matters and some personnel stuff.
3 Our clerk in the Billing Department comes
4 back and says there's a Cody Cowan here
5 that's supposed to meet David, he's not here,
6 can he come in and see you, and I said, yes,
7 let me finish up here and I'll be glad to see
8 him. She goes in and brings him back and
9 he's standing by the door and I'm trying to
10 finish up what I'm talking about with Dave.
11 Cody comes in and just starts talking to me,
12 interrupts my conversation, so I tell him I
13 don't have a whole lot of time to talk with
14 you because I've got a mandatory prebid that
15 I have to go to in 5 to 10 minutes so I'll do
16 what I can to help you out and talk with you
17 a little bit. So he asked me about the job
18 and he said, you know, what kind of hours,
19 and I said you're going to work harder here
20 than you've ever worked in any job, after the
21 tornado I'm typically putting in six days a
22 week, 12 plus hours a day, and I've got a
23 hundred emails a day at least to get through
24 and 20 phone calls to get through. You're
25 going to work from 7:00 in the morning until
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1 7:00 at night and that's just the nature of
2 the beast right now. And he was like, okay.
3 Then he asked me about what I thought about
4 the job and I said, well, listen, if you're
5 coming here expecting to get patted on the
6 back that's not going to happen. You're
7 going to be probably the most hated person
8 around and I said in the context that you're
9 dealing with code enforcement and building,
10 you're going to be over that. And the people
11 with code enforcement that you went out and
12 you've ticketed for tall grass, you've
13 ticketed for trash in the yard so when they
14 come up to see you they're hating you right
15 off the bat. They don't like you. And the
16 same way with building people, if you don't
17 give them the permits that they want they're
18 going to come up. So don't do this expecting
19 to get patted on the back and told good job
20 because the job you're coming in it's not
21 going to happen. You're doing this because
22 you want to be a good public servant. I kind
23 of give him the same speech that the City
24 Manager gave me whenever I started to come to
25 work, so I thought I was doing what of course
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1 the City Manager would have wanted me to do.
2 Then he asked about the pay and I told him
3 you're not going to get any raises, and he
4 said, well, what do you mean. I said, well,
5 you're at the top end of the range, and he
6 asked me what that meant. I said, well,
7 worst case scenario you're going to work the
8 next 30 years here without a raise. Now that
9 being said every 5 years the H.R. Department
10 goes in and evaluates all the positions and
11 classifies it all and readjusts it so
12 hopefully you'll be able to see increases as
13 it goes along with that and then you've got
14 longevity that comes in, if you've been here
15 for a certain amount of time you get some
16 increases because of longevity, but as far as
17 where you're at you're at the top. There's
18 nowhere else to go. Well, it was then I
19 could tell he was a little perturbed because
20 apparently they hadn't mentioned that to him
21 whenever they made him the offer and done all
22 that. And he was like, oh, that's fine. And
23 then I had to leave, David showed up about
24 that time. For the large majority of the
25 whole entire conversation Dave Hunt, my
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1 Transportation engineer, was sitting in there
2 listening to it. He left and then Cody
3 decided not to take the job and told David
4 the next day that he wasn't going to take the
5 job. I told David, hey, do you want us to go
6 over there and --
7 Q. David who?
8 A. David Hertzberg. Do you want me to go over
9 there and talk to him and see if we can't get
10 him back in the fold and try to get him back
11 in here because, you know, I'm sure I
12 probably scared the heck out of him with some
13 of the stuff that I talked to him about. He
14 said, well, he did say, my god, is this what
15 I signed up for. I said, well, I'm not going
16 to say I was the most pleasant in the world
17 because I was busy and he interrupted me, he
18 was very arrogant, very rude when eh came in,
19 so I responded in kind of. And we got in
20 there and had what I thought was a fairly
21 decent banter back and forth, told him what
22 he wanted to hear, and I'm sure he was not
23 very happy with it so he decided not to take
24 the job. Then it comes at me that I was the
25 reason that, and Mark assumes that I'm the
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1 reason that Cody is not taking the job, that
2 I sabotaged him from getting the job. It was
3 not my intent at all. I said I've got a
4 witness in there that can tell you exactly
5 what happened. I've got nothing to hide.
6 I'll tell you everything that happened. Sam
7 Anslem called up Cody to talk to him. I have
8 no idea what was said. I don't have any idea
9 if he coached him or Cody told him anything,
10 but then Dave Allgood, the H.R. Director, and
11 Sam turned around and called Cody back up
12 again and they wrote up a nice little
13 dissertation of exactly what Cody had said
14 and it painted me in a very unfavorable
15 light. And I talked to my boss David
16 Hertzberg about it because they started doing
17 an investigation on me to see what kind of
18 punishment I should get for sabotaging this
19 relationship, and I told David, I went
20 through that list, and I told him, I said I
21 did exactly, I told him that, that's exactly
22 what I said, this is the context that it was
23 in. Cody had taken things and took them out
24 of order and put some of the stuff out of
25 context so if you put it in context it wasn't
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1 near as bad as Cody made it out to be, it
2 was, yeah, I did tell him, yeah, you will be
3 here the next 30 years without a pay raise,
4 but I said if you had been in there with me
5 he'd asked where he was at, I try to be
6 honest with him, answer his questions
7 honestly because it does not good for me to
8 lie to him and him come to work here and find
9 out three weeks later that he gets no raises
10 so I tried to be honest with him and let him
11 know what our process was. He asked about
12 the work, you know. So we went through point
13 by point on this deal and I let David know
14 exactly what I said and David put together
15 the investigation on his end, turned it in to
16 --
17 Q. David?
18 A. Hertzberg. Took it and turned it in to Mark
19 for I've done my investigation on this, I
20 don't think Jack did anything malicious or
21 wrong. Should he have maybe used a little
22 better tact at times, yes, probably should
23 have, but he didn't do anything except for
24 answer the questions that were asked of him
25 honestly. Then I get a notice to a Fact
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1 Finding Hearing, told I'm going to go to a
2 Fact Finding Hearing. Let me make sure I'm
3 right about that. I'm not going to lie to
4 you and tell you I know the exact order, but
5 at one point after that I got called in to
6 the City Manager's office and sat down there
7 with Brian Head, David Allgood, Sam Anslem,
8 and Mark Rohr in what I call the ambush. I
9 got called up there and basically Mark sat
10 there and said you're going to get a chance
11 to talk, but I'm going to talk first and I
12 want to go over some of the stuff that's
13 happened with this, and I don't want to
14 misquote it. I went and asked for it to be
15 put in my personnel file after a certain
16 amount of time after I left because I know
17 that Mark would have pulled it out of there
18 had he known I'd put it in there. But I put
19 in a memo stating exactly what had happened
20 during part of the ambush and everything like
21 that and what it was.
22 Q. Could I have a copy of this?
23 A. Yeah, you can keep that.
24 Q. Is this your only one?
25 A. No, that's a copy.
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1 Q. Can I mark that, please?
2 A. There should be one provided, if it hasn't
3 been taken out of my personnel file there
4 should be one in my personnel file.
5 Q. This is Exhibit #29, sir, what you just
6 handed me?
7 A. Yes.
8 Q. And what does this basically say? I mean I
9 can read it and I will read it, but what does
10 it basically say?
11 A. That is basically my reason for why I signed
12 the waiver of the Fact Finding Hearing under
13 duress. I had been told I was going to go to
14 a Fact Finding Hearing and when it come to
15 the Fact Finding Hearing process you can
16 either go to the Fact Finding Hearing or
17 waive your right to the Fact Finding Hearing,
18 and this kind of explains why I had decided I
19 should sign the waiver of the Fact Finding
20 Hearing. And the reason for that was, and I
21 say here by signing the waiver, I am by no
22 means admitting that I did anything wrong,
23 but I had no chance to win. Because the way
24 the Fact Finding Hearing board works - and
25 let me diverge just a little bit here. One
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1 of the other reasons that I signed the waiver
2 for the Fact Finding Hearing was to keep
3 other people from getting damaged in it, too.
4 Because if Chief Lane Roberts and Lamont
5 Radcliff had been on that panel and heard my
6 side of the story I'm a hundred percent
7 confident that they would have voted on my
8 side of the matter. They know me, they know
9 how I am, I'm very honest, I don't lie about
10 stuff. Whether it gets me in trouble or not
11 I just tell it like it is. I'm very blunt.
12 I wear my heart on my sleeve at times. I'm
13 very passionate about what I do, but I'm very
14 honest about it, also. And had they voted to
15 there would be no disciplinary action towards
16 me, that I really didn't do anything wrong,
17 then Mark would have been mad at both of
18 them. And then once you do the Fact Finding
19 Hearing they turn in their recommendation to
20 Mark, Mark gets to make his own
21 recommendation out of it. He doesn't have to
22 accept their recommendation so he gets to
23 make his own recommendation, so Mark already
24 had it in his mind that I was going to get
25 punished on this deal. So regardless of what
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1 they would have come up with the only thing
2 that would have happened out of it is they
3 could have got in trouble and got on Mark's
4 bad side. Then had I appealed that it would
5 have went to the Personnel Board, so it goes
6 to the Personnel Board and I'd win at the
7 Personnel Board, then I've gotten the City
8 Manager, my boss' boss, unbelievably mad at
9 me because he thinks I ought to be suspended
10 for what I done. And I don't agree with
11 that, but as I was saying what I called the
12 ambush, those four people and myself were in
13 there, and Mark come up and said you're going
14 to get a chance to talk, but I'm going to
15 talk first. But he said before I talk I
16 should listen to him and if I said anything
17 that was contrary to what he knew was the
18 truth there would be serious consequences.
19 And everyone there heard it.
20 Q. Was he yelling at you at that time?
21 A. No, but he was right below a yell, yeah. He
22 stood up and, you know, kind of come towards
23 me from behind his desk to get the point
24 across. What that basically told me was shut
25 up and don't say anything. Don't tell him
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1 what your side of the story is or don't tell
2 him what the truth is because he's already
3 made up his mind what he thinks the truth is.
4 You might have to make a copy of that one.
5 That is my original.
6 Q. We'll take a break here.
7 (Short break taken, back on record)
8 Q. (By Mr. Loraine) Sir, you've handed me, I
9 made a copy of your document, and it's a copy
10 of a memorandum of discipline from Rohr to
11 yourself dated May 30th, 2013. That's now
12 marked Exhibit #30, is that true?
13 A. That is true.
14 Q. What does Mark say in this document that is
15 significant?
16 A. Well, he said he reviewed the investigation
17 conducted by David Allgood and that after he
18 done the thorough investigation it was
19 recommended to him that he be suspended
20 without pay, that I be suspended without pay
21 for two 8-hour shifts. What I would say on
22 that is the part of the investigation that
23 never happened was Sam Anslem was doing the
24 investigation in conjunction with Dave
25 Allgood. Neither one of them talked to me
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1 about the incident that happened. I will say
2 David Hertzberg, my boss, was the only one
3 that come to me and asked me about it and
4 talked to me about it. He also went and
5 talked to Dave Hunt who verified the content
6 and the frame with what I said and how Cody
7 reacted to it which was, hey, that's fine,
8 I'm used to working long hours, you know,
9 I've been where I'm at and I haven't got a
10 pay raise there in awhile, too, so that's not
11 big deal, I'm used to it. So when Cody came
12 back and gave his side of it - and that's why
13 I want to quantify the fact that Sam had
14 talked to Cody alone and then come back and
15 talked to Cody with Dave Allgood there. So I
16 don't know if he led the witness down the
17 answers that he wanted to hear because he
18 knew Mark wanted me punished. This was
19 Mark's guy that Mark wanted, and so what
20 happened with that --
21 Q. You're talking there was no thorough
22 investigation and, in fact, nobody really
23 talked to you except your boss and ultimately
24 he gets disciplined?
25 A. Yes, ultimately. And there's even more to it
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1 than that. When this was presented to me it
2 was presented to me by Dave Allgood, the H.R.
3 Director at the time. He come up there and
4 he gave this to me and I said, Dave, it says
5 right here that this was your recommendation
6 to Mark. Did you recommend to Mark that I be
7 suspended for two days? I said based on
8 everything that you know. And he says, Jack,
9 I can't - he says I did not. He says I told
10 Mark that you didn't do anything wrong, worst
11 case scenario it ought to be an oral
12 reprimand, you know, just to use better
13 judgment on stuff. But I've got to have a
14 job. And this is where he decided he wanted.
15 And I told him I said, hey, I'm fine with
16 that, Dave. I wanted to know - and he said
17 and I can't - he said I can't - he said some
18 day I'll make it right with you, I'll get it
19 right in your file and I'll make it right,
20 which to me meant after Mark is gone he'll
21 make it right. But he couldn't do anything
22 at the time because Mark had basically said
23 this is what's going to happen.
24 Q. Who told you that?
25 A. He told me - we sat there face to face and he
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1 told me that, and if he's a man of his word
2 he would sit right there in front of you and
3 tell you that he told me that.
4 Q. Let me ask you this.
5 A. It wasn't his recommendation that I be
6 suspended for two days without pay.
7 Q. Let me ask you this question. Did Allgood
8 ever really talk to you about your side of
9 the story before this happened?
10 A. No.
11 Q. So neither of those guys talked to you?
12 A. No.
13 Q. So that's false, also?
14 A. Yes, after it was all wrapped up and I
15 already knew what was going to happen then
16 Dave Allgood come up and talked to me and we
17 went through the whole deal and he says, you
18 know, Jack, that's exactly what I thought
19 would happen, and then he gave me this and
20 then I asked him, I said, did you make that
21 recommendation and he said, no, that's not
22 the recommendation I made, but I've got to
23 have a job. So basically how the system
24 works, which I will tell you I think is a
25 flawed system, is that my accuser, Mark Rohr,
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1 was also the judge, jury, and executioner on
2 the whole thing, so I had no right to a fair
3 process. And conversely what happened after
4 that is my boss gets demoted because he stood
5 up for me, not saying that there was
6 management style and stuff like that that
7 David was really great at what he done, but
8 what they demoted him over was not - you
9 know, if you wanted to get him on his
10 performance or on his supervisory skills
11 that's fine, but the way they went at it was
12 wrong.
13 Q. What did they get him on?
14 A. They tried to tell him he was - basically
15 wrote him up in the paper like he was a
16 criminal. He was responsible for that
17 $150,000.00.
18 Q. Which we've already discussed on the
19 software?
20 A. Yeah. And I know I'm taking some tangents
21 here, but I want you to know that I get very
22 agitated about the fact that they start
23 talking about the uncollected revenue of that
24 $150,000.00, and if you go and look into it
25 very close at all you will see that Leslie
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1 Haase writes off about $50,000.00 a year in
2 mowing bills. We have told her from the day
3 that I got there, within the first two months
4 we sat down and talked to her about these mow
5 bills, you need to go and put them on the
6 people's personal property tax, then they
7 have to pay it. You can't just pay part of
8 your personal property tax, you have to pay
9 it all. She didn't want to upset the apple
10 cart so she would just write off. So you
11 start talking about somebody that refuses to
12 use the legal system to collect money. We
13 basically fire Steve Cope, we demote my boss,
14 she gets nothing out of it and she's got more
15 outstanding debt over a ten year period than
16 we had over a fifteen year period even if you
17 used the $150,000.00. Four years at
18 $50,000.00 a year is $200,000.00.
19 Q. That's what is missing out of her --
20 A. Well, what it is we send out mow bills when
21 we have to go and mow the lots for somebody
22 that's got tall grass. They don't mow it
23 themselves, we mow it and they get a bill.
24 She sends the bill out to them. If they
25 don't pay she writes it off. Well, we've
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1 told her and told her and told her that you
2 need to get to collecting on that and the
3 best way to do it by the legal system is to
4 go have it put on the personal property tax.
5 Yeah, I know the County Collector over there
6 is going to raise hell about it, but he can't
7 do anything about it. Legally he has to put
8 it on there and that forces them to pay. If
9 you put a lien against their property most
10 all of those properties that you're dealing
11 with you're going to be third of fourth lien
12 holder on there so you're never going to see
13 a dollar out of it anyway, but you can take
14 those small ones and put them on the personal
15 property taxes and they have to pay them.
16 Q. Do you know if that's a legal method?
17 A. Yes.
18 Q. How do you know that?
19 A. We researched it, Steve Cope, myself, and
20 Dave Hertzberg researched it, brought it down
21 to her, showed her the legality of it and how
22 it worked, and I believe we even checked with
23 Brian Head, you know, to make sure everybody
24 understood that was a way to do it. That's
25 what Steve Cope did. He talked to all his
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1 other code enforcement counterparts and found
2 out how they all done it and that was the way
3 the majority of them were able to get good
4 collections done. It's a little more
5 tedious, a little more work to do it, but if
6 you're going to go and start hammering people
7 for not collecting revenue I give you a way
8 to collect revenue and you choose not to use
9 it that's to me almost as egregious as not
10 collecting revenue to start with.
11 Q. Now let's move to another topic. I want to
12 talk about the rebuilding of Fire Station 2.
13 I was told that there was an issue with a
14 culvert and I was told two different stories,
15 but I want to hear your version of it.
16 Explain to me what the standard engineering
17 opinion was and should have been.
18 A. A little background. Station 2 over on
19 Schifferdecker, the property that we acquired
20 was kind of in a lower area and had a
21 drainage ditch that run through it. Part of
22 that drainage ditch whenever you put the new
23 fire station on it needed to be relocated.
24 And our original intention, and I say our
25 which would have been myself and Dan Johnson,
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1 who was my storm water engineer at the time,
2 was to just do an open channel, basically
3 leave it as a ditch, make an open channel,
4 slope the side slopes back so that they were
5 easily mowable, plant some grasses in the
6 bottom that weren't going to grow up real
7 tall because it always seemed to run water
8 through there so you wanted to make it - or
9 we were going to put a concrete channel in
10 the bottom of it just so it would look decent
11 because we know the City Manager is all about
12 how things look. So we sat down with the
13 Fire Chief, Mitch Randles, and said here's
14 what we've got. He said, well, can we put a
15 box culvert in there and I said, well, yes,
16 we can, but the most economical way to save
17 money because he was really tight on his
18 budget --
19 Q. Who was tight, Mitch?
20 A. Mitch was. Leslie had only budgeted so much
21 for the rebuild of Fire Station 2. So we can
22 do it with our own City forces, we use Public
23 Works crews and we'll do this. And he said,
24 well, what about a box culvert and I said,
25 yeah, we can put a box culvert in there, but
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1 who is going to pay for that box culvert.
2 He's like I don't know, I just know that the
3 City Manager is not going to want the ditch
4 in there, and I said, okay, that's the most
5 economical way to do it. He said I'll talk
6 to the City Manager and see what he wants,
7 but the City Manager is going to want a box
8 culvert in there. And so I thought that he
9 and I would probably go approach the City
10 Manager about it, but Mitch talked to him
11 aside from when I had come, said, yeah, the
12 City Manager wants the box culvert in there.
13 I said, well, how are we going to pay for it
14 and so Mark Rohr, Mitch Randles, Leslie
15 Haase, and myself sat down to discuss how it
16 was going to do it. I said, well, we can put
17 it in with City forces so all you'd be paying
18 is the materials, but it's going to be, you
19 know, close to $100,000.00 of box culvert,
20 just materials alone to go in there. But on
21 the bid for the contractor it was $600,000.00
22 so it was a net savings based on what their
23 estimates was of about half a million
24 dollars.
25 Q. That was using City guys?
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1 A. Yes, using our City funds.
2 Q. No, I mean City builders?
3 A. Yes, City forces.
4 Q. So you do it within, okay. Otherwise you'd
5 be out $600,000.00?
6 A. Yes, and that was their estimate. They
7 hadn't bid it at the time, but that was what
8 the architect had estimated. And so Mark
9 said, well, let's go ahead and put in the box
10 culvert and do that and then we'll have a
11 flat area for that and then whenever we sell
12 that property, the property out in front of
13 the fire station because that would leave a
14 piece of property out in front of the fire
15 station, if it sold then we would take that
16 money and we'd put it back in the storm water
17 fund because we were going to use storm water
18 sales tax money to pay for that box culvert
19 to go in.
20 Q. Whose idea was that, to use the storm money?
21 A. Whose idea was it?
22 Q. Yes.
23 A. I believe it was Leslie and I think we all
24 sat down there collectively and said, well,
25 how do we pay for that, and I was like, you
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1 know, I'd say you put it to the fire station,
2 just add it to the fire station, and I
3 believe Leslie said, no, we can put it in the
4 storm water. It is a storm water deal and I
5 was like, well, it is a storm water project
6 so if that's where you want to do it that's
7 fine, but as I always did with her whenever
8 something like that came up I said, but I
9 want you to realize if I come back to you at
10 the end of these projects, and not
11 necessarily this specific but the whole group
12 of projects, and we're short I want you to
13 remember this, you know, if I need another
14 $50,000.00 over here on another project to
15 finish up because there's no money it's
16 because we took it out of this project here.
17 Q. Let me ask you this. There's no accounting
18 for that box culvert cost the way you've
19 described it, it would not be audited towards
20 that firehouse?
21 A. That is correct, it would go towards the
22 storm water.
23 Q. Who authorized that change?
24 A. Who authorized it? The authorization came
25 through Mark.
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1 Q. Mark. And did Mark bring that to City
2 Council?
3 A. No, he did not.
4 Q. So really he adjusted the budget for the fire
5 station by himself really?
6 A. Yes.
7 Q. The budget was set by Leslie with the
8 knowledge of the Council?
9 A. Yes.
10 Q. So as we're sitting here today do you have
11 any knowledge as to whether or not the City
12 Council was ever advised that budgeted item
13 was not taken from the Firehouse Number 2
14 budget, rebuild budget, but at least about
15 $100,000.00 --
16 A. Roughly when you looked at all the different
17 stuff we had to do we wound up getting into
18 some terrible subgrade out there that the
19 geotechnical engineer said we weren't going
20 to run into and we spent a bunch of money in
21 rock stabilizing the site and then the box
22 culvert alone, so yeah, it was $100,000.00
23 plus.
24 Q. Was your design engineer on that?
25 A. Dan Johnson, yes.
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1 Q. Dan told me in testimony that it would
2 probably have been about $125,000.00.
3 A. I would trust his judgment on that. He is
4 the one that estimated all the quantities out
5 and got the cost estimates for us so his
6 $125,000.00 would probably be close to right.
7 Because there was a box culvert, then there
8 was associated piping that went with that,
9 backfill material.
10 Q. So if I'm understanding this right your
11 authorization to alter the budget for the
12 firehouse construction was done by Mark
13 without knowledge of the City Council?
14 A. That is correct.
15 Q. And if went back to account for that now, if
16 an auditor came in to account for that
17 $125,000.00 it would not show up on the
18 reconstruction of Firehouse No. 2?
19 A. That is correct, it would show up underneath
20 the storm water.
21 Q. Well, something would --
22 A. As a storm water project.
23 Q. Yeah, and so it would not be associated with
24 the budget that was originally set up?
25 A. That is correct. That being said there is
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1 discretionary funds in the storm water
2 account to be able to do storm water projects
3 for projects that come up throughout each
4 budget year, and that's where that wound up
5 landing.
6 Q. Well, let me put it this way. There should
7 be an extra $125,000.00 in the storm budget
8 account for some other ditch somewhere else,
9 shouldn't there?
10 A. There should be $125,000.00 for a project
11 that was necessary somewhere else in the
12 City.
13 Q. That didn't get done because of that?
14 A. That is correct.
15 Q. If I asked Leslie how that was budgeted I
16 mean would that be - is there something
17 called general?
18 A. The general fund?
19 Q. Yeah, just general.
20 A. I don't believe she would have put it in the
21 general fund. Typically the general fund
22 takes care of salaries and stuff along that
23 line. And the fact that Mark's statement was
24 when that sold, that property sold, the
25 revenue from that would go back into the
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1 storm water account leads me to believe, and
2 I honestly didn't go and follow everything
3 where she took it out of it, but it would
4 have come out of the storm water sales tax or
5 storm water maintenance account.
6 Q. Once again that's --
7 A. It was a fire station project that got
8 charged to the storm water account.
9 Q. And Mark made the decision ultimately to do
10 that without advising the Council on that?
11 A. That is correct. All of that happened before
12 the project bid out based upon estimated
13 costs, and once they got the estimated costs
14 of construction it was over budget, and in an
15 effort to try to bring it back closer to
16 within budget the Public Works Department had
17 to once again take up the slack. The same
18 thing happened out at the athletic complex.
19 Q. So doing it internally normally that stuff
20 would be bid out, wouldn't it, to a
21 contractor?
22 A. Yes, it was originally set up to be part of
23 the contractor that did the fire station
24 construction part of their work.
25 Q. But because the budget was over Chief Randles
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1 is looking for a way to cut his budget, your
2 design engineer basically tells him here's a
3 great way to do it. Let me ask you this
4 question. Did you as an engineer and as a
5 supervisor of Dan - what's his last name?
6 A. Johnson.
7 Q. Was his opinion that excluded the box
8 culvert, was that within certainty of your
9 profession as meets the standards necessary?
10 A. Certainly, yes.
11 Q. So in other words he didn't say, hey, let's
12 do it this way. What he decided was, hey,
13 this meets our engineering standards and it's
14 within the budget.
15 A. It's the most economical way for us to
16 complete the project.
17 Q. Was there anything wrong with his opinion in
18 your opinion?
19 A. No, there was nothing wrong with the opinion.
20 Q. It's good to save money, isn't it?
21 A. Yeah, that is correct. An open channel, open
22 ditch is always cheaper than putting in storm
23 sewer. Now if we have by our standards like
24 on a roadway where it's our standard and it's
25 our policy and it's our practice that you've
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1 got to put in curb and gutter and storm water
2 then you have to put that in. But when it
3 comes to the drainage channels across the
4 City, an open channel is way more cost
5 effective than doing a box culvert. You only
6 put box culverts in normally for reasons
7 where you're going - when you have an open
8 channel and you go to a box culvert would be
9 because you're crossing it with a roadway,
10 maybe you have a severe erosion problem or
11 something like that so you're putting
12 something in there to help arm that. But
13 every other project that we've done, and if I
14 had the list in front of me I could name half
15 a dozen of them, when we did channel
16 modifications like that we went back in, we
17 put down an erosion control mat, geotechnical
18 type fabric, and seeded it and let the grass
19 grow up and leave it as a channel there. You
20 reinforce it using geosynthetic material at
21 $2.50 a square yard instead of $450.00 to
22 $600.00 a lineal foot.
23 Q. Which would be the result of a culvert?
24 A. Which would be a box culvert.
25 Q. If this had bid out and an outside consulting
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1 firm came to talk to Dan what would he have
2 told them to do? Would he have told them to
3 put in a culvert or would he have told them
4 to do what you guys did?
5 A. If this was done with nobody else's
6 involvement in it it would have been designed
7 as an open channel.
8 Q. Just like he did design it?
9 A. Uh-huh. It was an open channel there --
10 Q. Before.
11 A. Before. It was just moving that open channel
12 a little bit to make sure that you'd get a
13 parking lot and everything else in there. We
14 were shifting the ope